Scott v. Sandford, 60 U.S. 393 (1856)

60 U.S. 393

Syllabus

I



1. Upon a writ of error to a Circuit Court of the United States, the

transcript of the record of all the proceedings in the case is brought

before the court, and is open to inspection and revision.



2. When a plea to the jurisdiction, in abatement, is overruled by the

court upon demurrer, and the defendant pleads in bar, and upon these

pleas the final judgment of the court is in his favor -- if the

plaintiff brings a writ of error, the judgment of the court upon the

plea in abatement is before this court, although it was in favor of the

plaintiff -- and if the court erred in overruling it, the judgment must

be reversed, and a mandate issued to the Circuit Court to dismiss the

case for want of jurisdiction.



3. In the Circuit Courts of the United States, the record must show that

the case is one in which, by the Constitution and laws of the United

States, the court had jurisdiction -- and if this does not appear, and

the judgment must be reversed by this court -- and the parties cannot be

consent waive the objection to the jurisdiction of the Circuit Court.



4. A free negro of the African race, whose ancestors were brought to

this country and sold as slaves, is not a "citizen" within the meaning

of the Constitution of the United States.



5. When the Constitution was adopted, they were not regarded in any of

the States as members of the community which constituted the State, and

were not numbered among its "people or citizens."  Consequently, the

special rights and immunities guarantied to citizens do not apply to

them.  And not being "citizens" within the meaning of the Constitution,

they are not entitled to sue in that character in a court of the United

States, and the Circuit Court has not jurisdiction in such a suit.



6. The only two clauses in the Constitution which point to this race

treat them as persons whom it was morally lawfully to deal in as

articles of property and to hold as slaves.



7. Since the adoption of the Constitution of the United States, no State

can by any subsequent law make a foreigner or any other description of

persons citizens of [60 U.S. 394] the United States, nor entitle them to

the rights and privileges secured to citizens by that instrument.



8. A State, by its laws passed since the adoption of the Constitution,

may put a foreigner or any other description of persons upon a footing

with its own citizens as to all the rights and privileges enjoyed by

them within its dominion and by its laws.  But that will not make him a

citizen of the United States, nor entitle him to sue in its courts, nor

to any of the privileges and immunities of a citizen in another State.



9. The change in public opinion and feeling in relation to the African

race which has taken place since the adoption of the Constitution cannot

change its construction and meaning, and it must be construed and

administered now according to its true meaning and intention when it was

formed and adopted.



10. The plaintiff having admitted, by his demurrer to the plea in

abatement, that his ancestors were imported from Africa and sold as

slaves, he is not a citizen of the State of Missouri according to the

Constitution of the United States, and was not entitled to sue in that

character in the Circuit Court.



11. This being the case, the judgment of the court below in favor of the

plaintiff on the plea in abatement was erroneous. II



1. But if the plea in abatement is not brought up by this writ of error,

the objection to the citizenship of the plaintiff is still apparent on

the record, as he himself, in making out his case, states that he is of

African descent, was born a slave, and claims that he and his family

became entitled to freedom by being taken by their owner to reside in a

Territory where slavery is prohibited by act of Congress, and  that, in

addition to this claim, he himself became entitled to freedom by being

taken to Rock Island, in the State of Illinois, and being free when he

was brought back to Missouri, he was, by the laws of that State, a

citizen.



2. If, therefore, the facts he states do not give him or his family a

right to freedom, the plaintiff is still a slave, and not entitled to

sue as a "citizen," and the judgment of the Circuit Court was erroneous

on that ground also, without any reference to the plea in abatement.



3. The Circuit Court can give no judgment for plaintiff or defendant in

a case where it has not jurisdiction, no matter whether there be a plea

in abatement or not.  And unless it appears upon the face of the record,

when brought here by writ of error, that the Circuit Court had

jurisdiction, the judgment must be reversed.



The case of Capron v. Van Noorden, 2 Cranch 126, examined, and the

principles thereby decided reaffirmed.



4. When the record, as brought here by writ of error, does not show that

the Circuit Court had jurisdiction, this court has jurisdiction to

review and correct the error like any other error in the court below. 

It does not and cannot dismiss the case for want of jurisdiction here,

for that would leave the erroneous judgment of the court below in full

force, and the party injured without remedy.  But it must reverse the

judgment and, as in any other case of reversal, send a mandate to the

Circuit Court to conform its judgment to the opinion of this court.



5. The difference of the jurisdiction in this court in the cases of

writs of error to State courts and to Circuit Courts of the United

States pointed out, and the mistakes made as to the jurisdiction of this

court in the latter case by confounding it with its limited jurisdiction

in the former.



6. If the court reverses a judgment upon the ground that it appears by a

particular part of the record that the Circuit Court had not

jurisdiction, it does not take away the jurisdiction of this court to

examine into and correct, by a reversal of the judgment, any other

errors, either as to the jurisdiction or any other matter, where it

appears from other parts of the record that the Circuit Court had fallen

into error.  On the contrary, it is the daily and familiar practice of

this court to reverse on several grounds where more than one error

appears to have been committed.  And the error of a Circuit Court in its

jurisdiction [60 U.S. 395] stands on the same ground, and is to be

treated in the same manner as any other error upon whish its judgment is

founded.



7. The decision, therefore, that the judgment of the Circuit Court upon

the plea in abatement is erroneous is no reason why the alleged error

apparent in the exception should not also be examined, and the judgment

reversed on that ground also, if it discloses a want of jurisdiction in

the Circuit Court.



8. It is often the duty of this court, after having decided that a

particular decision of the Circuit Court was erroneous, to examine into

other alleged errors and to correct them if they are found to exist. 

And this has been uniformly done by this court when the questions are in

any degree connected with the controversy and the silence of the court

might create doubts which would lead to further useless litigation. III



1. The facts upon which the plaintiff relies did not give him his

freedom and make him a citizen of Missouri.



2. The clause in the Constitution authorizing Congress to make all

needful rules and regulations for the government of the territory and

other property of the United States applies only to territory within the

chartered limits of some one of the States when they were colonies of

Great Britain, and which was surrendered by the British Government to

the old Confederation of the States in the treaty of peace.  It does not

apply to territory acquired by the present Federal Government by treaty

or conquest from a foreign nation.



3. The United States, under the present Constitution, cannot acquire

territory to be held as a colony, to be governed at its will and

pleasure.  But it may acquire territory which, at the time, has not a

population that fits it to become a State, and may govern it as a

Territory until it has a population which, in the judgment of Congress,

entitled it to be admitted as a State of the Union.



4. During the time it remains a Territory, Congress may legislate over

it within the scope of its constitutional powers in relation to citizens

of the United States, and may establish a Territorial Government, and

the form of the local Government must be regulated by the discretion of

Congress, but with powers not exceeding those which Congress itself, by

the Constitution, is authorized to exercise over citizens of the United

States in respect to the rights of persons or rights of property. IV



1. The territory thus acquired is acquired by the people of the United

States for their common and equal benefit through their agent and

trustee, the Federal Government.  Congress can exercise no power over

the rights of persons or property of a citizen in the Territory which is

prohibited by the Constitution.  The Government and the citizen,

whenever the Territory is open to settlement, both enter it with their

respective rights defined and limited by the Constitution.



2. Congress have no right to prohibit the citizens of any particular

State or States from taking up their home there while it permits

citizens of other States to do so.  Nor has it a right to give

privileges to one class of citizens which it refuses to another.  The

territory is acquired for their equal and common benefit, and if open to

any, it must be open to all upon equal and the same terms.



3. Every citizen has a right to take with him into the Territory any

article of property which the Constitution of the United States

recognises as property.



4. The Constitution of the United States recognises slaves as property,

and pledges the Federal Government to protect it.  And Congress cannot

exercise any more authority over property of that description than it

may constitutionally exercise over property of any other kind.



5. The act of Congress, therefore, prohibiting a citizen of the United

States from [60 U.S. 396] taking with him his slaves when he removes to

the Territory in question to reside is an exercise of authority over

private property which is not warranted by the Constitution, and the

removal of the plaintiff by his owner to that Territory gave him no

title to freedom. V



1. The plaintiff himself acquired no title to freedom by being taken by

his owner to Rock Island, in Illinois, and brought back to Missouri. 

This court has heretofore decided that the status or condition of a

person of African descent depended on the laws of the State in which he

resided.



2. It has been settled by the decisions of the highest court in Missouri

that, by the laws of that State, a slave does not become entitled to his

freedom where the owner takes him to reside in a State where slavery is

not permitted and afterwards brings him back to Missouri.



Conclusion.  It follows that it is apparent upon the record that the

court below erred in its judgment on the plea in abatement, and also

erred in giving judgment for the defendant, when the exception shows

that the plaintiff was not a citizen of the United States.  And the

Circuit Court had no jurisdiction, either in the cases stated in the

plea in abatement or in the one stated in the exception, its judgment in

favor of the defendant is erroneous, and must be reversed.



This case was brought up, by writ of error, from the Circuit Court of

the United States for the district of Missouri.



It was an action of trespass vi et armis instituted in the Circuit Court

by Scott against Sandford.



Prior to the institution of the present suit, an action was brought by

Scott for his freedom in the Circuit Court of St. Louis county (State

court), where there was a verdict and judgment in his favor.  On a writ

of error to the Supreme Court of the State, the judgment below was

reversed and the case remanded to the Circuit Court, where it was

continued to await the decision of the case now in question.



The declaration of Scott contained three counts:  one, that Sandford had

assaulted the plaintiff; one, that he had assaulted Harriet Scott, his

wife; and one, that he had assaulted Eliza Scott and Lizzie Scott, his

children.



Sandford appeared, and filed the following plea: DRED SCOTT          )



v.          ) Plea to the Jurisdiction of the Court. JOHN F. A. SANDFORD

) APRIL TERM, 1854.



And the said John F. A. Sandford, in his own proper person, comes and

says that this court ought not to have or take further cognizance of the

action aforesaid, because he says that said cause of action and each and

every of them (if any such have accrued to the said Dred Scott) accrued

to the said Dred Scott out of the jurisdiction of this court, and

exclusively within the jurisdiction of the courts of the State of

Missouri, for that, to-wit:  the said plaintiff, Dred Scott, is not a

citizen of the State of Missouri, as alleged in his declaration, because

[60 U.S. 397] he is a negro of African descent; his ancestors were of

pure African blood, and were brought into this country and sold as negro

slaves, and this the said Sandford is ready to verify.  Wherefore, he

prays judgment whether this court can or will take further cognizance of

the action aforesaid.



JOHN F. A. SANDFORD



To this plea there was a demurrer in the usual form, which was argued in

April, 1854, when the court gave judgment that the demurrer should be

sustained.



In May, 1854, the defendant, in pursuance of an agreement between

counsel, and with the leave of the court, pleaded in bar of the action:



1. Not guilty.



2. That the plaintiff was a negro slave, the lawful property of the

defendant, and, as such, the defendant gently laid his hands upon him,

and thereby had only restrained him, as the defendant had a right to do.



3. That with respect to the wife and daughters of the plaintiff, in the

second and third counts of the declaration mentioned, the defendant had,

as to them, only acted in the same manner and in virtue of the same

legal right.



In the first of these pleas, the plaintiff joined issue, and to the

second and third filed replications alleging that the defendant, of his

own wrong and without the cause in his second and third pleas alleged,

committed the trespasses, &c.



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



In the year 1834, the plaintiff was a negro slave belonging to Dr.

Emerson, who was a surgeon in the army of the United States. I n that

year, 1834, said Dr. Emerson took the plaintiff from the State of

Missouri to the military post at Rock Island, in the State of Illinois,

and held him there as a slave until the month of April or May, 1836.  At

the time last mentioned, said Dr. Emerson removed the plaintiff from

said military post at Rock Island to the military post at Fort Snelling,

situate on the west bank of the Mississippi river, in the Territory

known as Upper Louisiana, acquired by the United States of France, and

situate north of the latitude of thirty-six degrees thirty minutes

north, and north of the State of Missouri.  Said Dr. Emerson held the

plaintiff in slavery at said Fort Snelling, from said last-mentioned

date until the year 1838.



In the year 1835, Harriet, who is named in the second count of the

plaintiff's declaration, was the negro slave of Major Taliaferro, who

belonged to the army of the United States.  [60 U.S. 398] In that year,

1835, said Major Taliaferro took said Harriet to said Fort Snelling, a

military post, situated as hereinbefore stated, and kept her there as a

slave until the year 1836, and then sold and delivered her as a slave at

said Fort Snelling unto the said Dr. Emerson hereinbefore named.  Said

Dr. Emerson held said Harriet in slavery at said Fort Snelling until the

year 1838.



In the year 1836, the plaintiff and said Harriet at said Fort Snelling,

with the consent of said Dr. Emerson, who then claimed to be their

master and owner, intermarried, and took each other for husband and

wife.  Eliza and Lizzie, named in the third count of the plaintiff's

declaration, are the fruit of that marriage.  Eliza is about fourteen

years old, and was born on board the steamboat Gipsey, north of the

north line of the State of Missouri, and upon the river Mississippi. 

Lizzie is about seven years old, and was born in the State of Missouri,

at the military post called Jefferson Barracks.



In the year 1838, said Dr. Emerson removed the plaintiff and said

Harriet and their said daughter Eliza from said Fort Snelling to the

State of Missouri, where they have ever since resided.



Before the commencement of this suit, said Dr. Emerson sold and conveyed

the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as

slaves, and the defendant has ever since claimed to hold them and each

of them as slaves.



At the times mentioned in the plaintiff's declaration, the defendant,

claiming to be owner as aforesaid, laid his hands upon said plaintiff,

Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect,

however, no more than what he might lawfully do if they were of right

his slaves at such times.



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



It is agreed that Dred Scott brought suit for his freedom in the Circuit

Court of St. Louis county; that there was a verdict and judgment in his

favor; that, on a writ of error to the Supreme Court, the judgment below

was reversed, and the same remanded to the Circuit Court, where it has

been continued to await the decision of this case.



In May, 1854, the cause went before a jury, who found the following

verdict, viz:



As to the first issue joined in this case, we of the jury find the

defendant not guilty; and as to the issue secondly above joined, we of

the jury find that before and at the time when, &c., in the first count

mentioned, the said Dred Scott was a negro slave, the lawful property of

the defendant; and as to the issue thirdly above joined, we, the jury,

find that before and at the time when, &c., in the second and third

counts mentioned, the said Harriet, wife of [60 U.S. 399] said Dred

Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were

negro slaves, the lawful property of the defendant.



Whereupon, the court gave judgment for the defendant.



After an ineffectual motion for a new trial, the plaintiff filed the

following bill of exceptions.



On the trial of this cause by the jury, the plaintiff, to maintain the

issues on his part, read to the jury the following agreed statement of

facts, (see agreement above.)  No further testimony was given to the

jury by either party.  Thereupon the plaintiff moved the court to give

to the jury the following instruction, viz:



"That, upon the facts agreed to by the parties, they ought to find for

the plaintiff. The court refused to give such instruction to the jury,

and the plaintiff, to such refusal, then and there duly excepted."



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

the defendant:



The jury are instructed, that upon the facts in this case, the law is

with the defendant. The plaintiff excepted to this instruction.



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

opinion



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



This case has been twice argued.  After the argument at the last term,

differences of opinion were found to exist among the members of the

court, and as the questions in controversy are of the highest

importance, and the court was at that time much pressed by the ordinary

business of the term, it was deemed advisable to continue the case and

direct a re-argument on some of the points in order that we might have

an opportunity of giving to the whole subject a more deliberate [60 U.S.

400] consideration.  It has accordingly been again argued by counsel,

and considered by the court; and I now proceed to deliver its opinion.



There are two leading questions presented by the record:



1. Had the Circuit Court of the United States jurisdiction to hear and

determine the case between these parties?  And



2. If it had jurisdiction, is the judgment it has given erroneous or

not?



The plaintiff in error, who was also the plaintiff in the court below,

was, with his wife and children, held as slaves by the defendant in the

State of Missouri, and he brought this action in the Circuit Court of

the United States for that district to assert the title of himself and

his family to freedom.



The declaration is in the form usually adopted in that State to try

questions of this description, and contains the averment necessary to

give the court jurisdiction; that he and the defendant are citizens of

different States; that is, that he is a citizen of Missouri, and the

defendant a citizen of New York.



The defendant pleaded in abatement to the jurisdiction of the court,

that the plaintiff was not a citizen of the State of Missouri, as

alleged in his declaration, being a negro of African descent, whose

ancestors were of pure African blood and who were brought into this

country and sold as slaves.



To this plea the plaintiff demurred, and the defendant joined in

demurrer.  The court overruled the plea, and gave judgment that the

defendant should answer over.  And he thereupon put in sundry pleas in

bar, upon which issues were joined, and at the trial the verdict and

judgment were in his favor.  Whereupon the plaintiff brought this writ

of error.



Before we speak of the pleas in bar, it will be proper to dispose of the

questions which have arisen on the plea in abatement.



That plea denies the right of the plaintiff to sue in a court of the

United States, for the reasons therein stated.



If the question raised by it is legally before us, and the court should

be of opinion that the facts stated in it disqualify the plaintiff from

becoming a citizen, in the sense in which that word is used in the

Constitution of the United States, then the judgment of the Circuit

Court is erroneous, and must be reversed.



It is suggested, however, that this plea is not before us, and that, as

the judgment in the court below on this plea was in favor of the

plaintiff, he does not seek to reverse it, or bring it before the court

for revision by his writ of error, and also that the defendant waived

this defence by pleading over, and thereby admitted the jurisdiction of

the court. [60 U.S. 401]



But, in making this objection, we think the peculiar and limited

jurisdiction of courts of the United States has not been adverted to. 

This peculiar and limited jurisdiction has made it necessary, in these

courts, to adopt different rules and principles of pleading, so far as

jurisdiction is concerned, from those which regulate courts of common

law in England and in the different States of the Union which have

adopted the common law rules.



In these last-mentioned courts, where their character and rank are

analogous to that of a Circuit Court of the United States -- in other

words, where they are what the law terms courts of general jurisdiction

-- they are presumed to have jurisdiction unless the contrary appears. 

No averment in the pleadings of the plaintiff is necessary, in order to

give jurisdiction.  If the defendant objects to it, he must plead it

specially, and unless the fact on which he relies is found to be true by

a jury, or admitted to be true by the plaintiff, the jurisdiction cannot

be disputed in an appellate court.



Now it is not necessary to inquire whether, in courts of that

description, a party who pleads over in bar when a plea to the

jurisdiction has been ruled against him does or does not waive his plea,

nor whether, upon a judgment in his favor on the pleas in bar and a writ

of error brought by the plaintiff, the question upon the plea in

abatement would be open for revision in the appellate court.  Cases that

may have been decided in such courts, or rules that may have been laid

down by common law pleaders, can have no influence in the decision in

this court.  Because, under the Constitution and laws of the United

States, the rules which govern the pleadings in its courts in questions

of jurisdiction stand on different principles, and are regulated by

different laws.



This difference arises, as we have said, from the peculiar character of

the Government of the United States.  For although it is sovereign and

supreme in its appropriate sphere of action, yet it does not possess all

the powers which usually belong to the sovereignty of a nation.  Certain

specified powers, enumerated in the Constitution, have been conferred

upon it, and neither the legislative, executive, nor judicial

departments of the Government can lawfully exercise any authority beyond

the limits marked out by the Constitution.  And in regulating the

judicial department, the cases in which the courts of the United States

shall have jurisdiction are particularly and specifically enumerated and

defined, and they are not authorized to take cognizance of any case

which does not come within the description therein specified.  Hence,

when a plaintiff sues in a court of the United States, it is necessary

that he should [60 U.S. 402] show, in his pleading, that the suit he

brings is within the jurisdiction of the court, and that he is entitled

to sue there.  And if he omits to do this, and should, by any oversight

of the Circuit Court, obtain a judgment in his favor, the judgment would

be reversed in the appellate court for want of jurisdiction in the court

below.  The jurisdiction would not be presumed, as in the case of a

common law English or State court, unless the contrary appeared.  But

the record, when it comes before the appellate court, must show

affirmatively that the inferior court had authority under the

Constitution to hear and determine the case.  And if the plaintiff

claims a right to sue in a Circuit Court of the United States under that

provision of the Constitution which gives jurisdiction in controversies

between citizens of different States, he must distinctly aver in his

pleading that they are citizens of different States, and he cannot

maintain his suit without showing that fact in the pleadings.



This point was decided in the case of Bingham v. Cabot, in 3 Dall. 382,

and ever since adhered to by the court.  And in Jackson v. Ashton, 8

Pet. 148, it was held that the objection to which it was open could not

be waived by the opposite party, because consent of parties could not

give jurisdiction.



It is needless to accumulate cases on this subject.  Those already

referred to, and the cases of Capron v. Van Noorden, in 2 Cr. 126, and

Montalet v. Murray, 4 Cr. 46, are sufficient to show the rule of which

we have spoken.  The case of Capron v. Van Noorden strikingly

illustrates the difference between a common law court and a court of the

United States.



If, however, the fact of citizenship is averred in the declaration, and

the defendant does not deny it and put it in issue by plea in abatement,

he cannot offer evidence at the trial to disprove it, and consequently

cannot avail himself of the objection in the appellate court unless the

defect should be apparent in some other part of the record.  For if

there is no plea in abatement, and the want of jurisdiction does not

appear in any other part of the transcript brought up by the writ of

error, the undisputed averment of citizenship in the declaration must be

taken in this court to be true.  In this case, the citizenship is

averred, but it is denied by the defendant in the manner required by the

rules of pleading, and the fact upon which the denial is based is

admitted by the demurrer.  And, if the plea and demurrer, and judgment

of the court below upon it, are before us upon this record, the question

to be decided is whether the facts stated in the plea are sufficient to

show that the plaintiff is not entitled to sue as a citizen in a court

of the United States. [60 U.S. 403]



We think they are before us.  The plea in abatement and the judgment of

the court upon it are a part of the judicial proceedings in the Circuit

Court and are there recorded as such, and a writ of error always brings

up to the superior court the whole record of the proceedings in the

court below.  And in the case of the United States v. Smith, 11 Wheat.

172, this court said, that the case being brought up by writ of error,

the whole record was under the consideration of this court.  And this

being the case in the present instance, the plea in abatement is

necessarily under consideration, and it becomes, therefore, our duty to

decide whether the facts stated in the plea are or are not sufficient to

show that the plaintiff is not entitled to sue as a citizen in a court

of the United States.



This is certainly a very serious question, and one that now for the

first time has been brought for decision before this court.  But it is

brought here by those who have a right to bring it, and it is our duty

to meet it and decide it.



The question is simply this:  can a negro whose ancestors were imported

into this country and sold as slaves become a member of the political

community formed and brought into existence by the Constitution of the

United States, and as such become entitled to all the rights, and

privileges, and immunities, guarantied by that instrument to the

citizen, one of which rights is the privilege of suing in a court of the

United States in the cases specified in the Constitution?



It will be observed that the plea applies to that class of persons only

whose ancestors were negroes of the African race, and imported into this

country and sold and held as slaves.  The only matter in issue before

the court, therefore, is, whether the descendants of such slaves, when

they shall be emancipated, or who are born of parents who had become

free before their birth, are citizens of a State in the sense in which

the word "citizen" is used in the Constitution of the United States. 

And this being the only matter in dispute on the pleadings, the court

must be understood as speaking in this opinion of that class only, that

is, of those persons who are the descendants of Africans who were

imported into this country and sold as slaves.



The situation of this population was altogether unlike that of the

Indian race.  The latter, it is true, formed no part of the colonial

communities, and never amalgamated with them in social connections or in

government.  But although they were uncivilized, they were yet a free

and independent people, associated together in nations or tribes and

governed by their own laws.  Many of these political communities were

situated in territories to which the white race claimed the ultimate [60

U.S. 404] right of dominion.  But that claim was acknowledged to be

subject to the right of the Indians to occupy it as long as they thought

proper, and neither the English nor colonial Governments claimed or

exercised any dominion over the tribe or nation by whom it was occupied,

nor claimed the right to the possession of the territory, until the

tribe or nation consented to cede it.  These Indian Governments were

regarded and treated as foreign Governments as much so as if an ocean

had separated the red man from the white, and their freedom has

constantly been acknowledged, from the time of the first emigration to

the English colonies to the present day, by the different Governments

which succeeded each other.  Treaties have been negotiated with them,

and their alliance sought for in war, and the people who compose these

Indian political communities have always been treated as foreigners not

living under our Government.  It is true that the course of events has

brought the Indian tribes within the limits of the United States under

subjection to the white race, and it has been found necessary, for their

sake as well as our own, to regard them as in a state of pupilage, and

to legislate to a certain extent over them and the territory they

occupy.  But they may, without doubt, like the subjects of any other

foreign Government, be naturalized by the authority of Congress, and

become citizens of a State, and of the United States, and if an

individual should leave his nation or tribe and take up his abode among

the white population, he would be entitled to all the rights and

privileges which would belong to an emigrant from any other foreign

people.



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



The words "people of the United States" and "citizens" are synonymous

terms, and mean the same thing.  They both describe the political body

who, according to our republican institutions, form the sovereignty and

who hold the power and conduct the Government through their

representatives.  They are what we familiarly call the "sovereign

people," and every citizen is one of this people, and a constituent

member of this sovereignty.  The question before us is whether the class

of persons described in the plea in abatement compose a portion of this

people, and are constituent members of this sovereignty?  We think they

are not, and that they are not included, and were not intended to be

included, under the word "citizens" in the Constitution, and can

therefore claim none of the rights and privileges which that instrument

provides for and secures to citizens of the United States.  On the

contrary, they were at that time considered as a subordinate [60 U.S.

405] and inferior class of beings who had been subjugated by the

dominant race, and, whether emancipated or not, yet remained subject to

their authority, and had no rights or privileges but such as those who

held the power and the Government might choose to grant them.



It is not the province of the court to decide upon the justice or

injustice, the policy or impolicy, of these laws.  The decision of that

question belonged to the political or lawmaking power, to those who

formed the sovereignty and framed the Constitution.  The duty of the

court is to interpret the instrument they have framed with the best

lights we can obtain on the subject, and to administer it as we find it,

according to its true intent and meaning when it was adopted.



In discussing this question, we must not confound the rights of

citizenship which a State may confer within its own limits and the

rights of citizenship as a member of the Union.  It does not by any

means follow, because he has all the rights and privileges of a citizen

of a State, that he must be a citizen of the United States.  He may have

all of the rights and privileges of the citizen of a State and yet not

be entitled to the rights and privileges of a citizen in any other

State.  For, previous to the adoption of the Constitution of the United

States, every State had the undoubted right to confer on whomsoever it

pleased the character of citizen, and to endow him with all its rights. 

But this character, of course, was confined to the boundaries of the

State, and gave him no rights or privileges in other States beyond those

secured to him by the laws of nations and the comity of States.  Nor

have the several States surrendered the power of conferring these rights

and privileges by adopting the Constitution of the United States.  Each

State may still confer them upon an alien, or anyone it thinks proper,

or upon any class or description of persons, yet he would not be a

citizen in the sense in which that word is used in the Constitution of

the United States, nor entitled to sue as such in one of its courts, nor

to the privileges and immunities of a citizen in the other States.  The

rights which he would acquire would be restricted to the State which

gave them.  The Constitution has conferred on Congress the right to

establish an uniform rule of naturalization, and this right is evidently

exclusive, and has always been held by this court to be so. 

Consequently, no State, since the adoption of the Constitution, can, by

naturalizing an alien, invest him with the rights and privileges secured

to a citizen of a State under the Federal Government, although, so far

as the State alone was concerned, he would undoubtedly be entitled to

the rights of a citizen and clothed with all the [60 U.S. 406] rights

and immunities which the Constitution and laws of the State attached to

that character.



It is very clear, therefore, that no State can, by any act or law of its

own, passed since the adoption of the Constitution, introduce a new

member into the political community created by the Constitution of the

United States.  It cannot make him a member of this community by making

him a member of its own.  And, for the same reason, it cannot introduce

any person or description of persons who were not intended to be

embraced in this new political family which the Constitution brought

into existence, but were intended to be excluded from it.



The question then arises, whether the provisions of the Constitution, in

relation to the personal rights and privileges to which the citizen of a

State should be entitled, embraced the negro African race, at that time

in this country or who might afterwards be imported, who had then or

should afterwards be made free in any State, and to put it in the power

of a single State to make him a citizen of the United States and endue

him with the full rights of citizenship in every other State without

their consent?  Does the Constitution of the United States act upon him

whenever he shall be made free under the laws of a State, and raised

there to the rank of a citizen, and immediately clothe him with all the

privileges of a citizen in every other State, and in its own courts?



The court think the affirmative of these propositions cannot be

maintained.  And if it cannot, the plaintiff in error could not be a

citizen of the State of Missouri within the meaning of the Constitution

of the United States, and, consequently, was not entitled to sue in its

courts.



It is true, every person, and every class and description of persons who

were, at the time of the adoption of the Constitution, recognised as

citizens in the several States became also citizens of this new

political body, but none other; it was formed by them, and for them and

their posterity, but for no one else.  And the personal rights and

privileges guarantied to citizens of this new sovereignty were intended

to embrace those only who were then members of the several State

communities, or who should afterwards by birthright or otherwise become

members according to the provisions of the Constitution and the

principles on which it was founded.  It was the union of those who were

at that time members of distinct and separate political communities into

one political family, whose power, for certain specified purposes, was

to extend over the whole territory of the United States.  And it gave to

each citizen rights and privileges outside of his State [60 U.S. 407]

which he did not before possess, and placed him in every other State

upon a perfect equality with its own citizens as to rights of person and

rights of property; it made him a citizen of the United States.



It becomes necessary, therefore, to determine who were citizens of the

several States when the Constitution was adopted.  And in order to do

this, we must recur to the Governments and institutions of the thirteen

colonies when they separated from Great Britain and formed new

sovereignties, and took their places in the family of independent

nations.  We must inquire who, at that time, were recognised as the

people or citizens of a State whose rights and liberties had been

outraged by the English Government, and who declared their independence

and assumed the powers of Government to defend their rights by force of

arms.



In the opinion of the court, the legislation and histories of the times,

and the language used in the Declaration of Independence, show that

neither the class of persons who had been imported as slaves nor their

descendants, whether they had become free or not, were then acknowledged

as a part of the people, nor intended to be included in the general

words used in that memorable instrument.



It is difficult at this day to realize the state of public opinion in

relation to that unfortunate race which prevailed in the civilized and

enlightened portions of the world at the time of the Declaration of

Independence and when the Constitution of the United States was framed

and adopted.  But the public history of every European nation displays

it in a manner too plain to be mistaken.



They had for more than a century before been regarded as beings of an

inferior order, and altogether unfit to associate with the white race

either in social or political relations, and so far inferior that they

had no rights which the white man was bound to respect, and that the

negro might justly and lawfully be reduced to slavery for his benefit. 

He was bought and sold, and treated as an ordinary article of

merchandise and traffic whenever a profit could be made by it.  This

opinion was at that time fixed and universal in the civilized portion of

the white race.  It was regarded as an axiom in morals as well as in

politics which no one thought of disputing or supposed to be open to

dispute, and men in every grade and position in society daily and

habitually acted upon it in their private pursuits, as well as in

matters of public concern, without doubting for a moment the correctness

of this opinion.



And in no nation was this opinion more firmly fixed or more [60 U.S.

408] uniformly acted upon than by the English Government and English

people.  They not only seized them on the coast of Africa and sold them

or held them in slavery for their own use, but they took them as

ordinary articles of merchandise to every country where they could make

a profit on them, and were far more extensively engaged in this commerce

than any other nation in the world.



The opinion thus entertained and acted upon in England was naturally

impressed upon the colonies they founded on this side of the Atlantic. 

And, accordingly, a negro of the African race was regarded by them as an

article of property, and held, and bought and sold as such, in every one

of the thirteen colonies which united in the Declaration of Independence

and afterwards formed the Constitution of the United States.  The slaves

were more or less numerous in the different colonies as slave labor was

found more or less profitable.  But no one seems to have doubted the

correctness of the prevailing opinion of the time.



The legislation of the different colonies furnishes positive and

indisputable proof of this fact.



It would be tedious, in this opinion, to enumerate the various laws they

passed upon this subject.  It will be sufficient, as a sample of the

legislation which then generally prevailed throughout the British

colonies, to give the laws of two of them, one being still a large

slaveholding State and the other the first State in which slavery ceased

to exist.



The province of Maryland, in 1717, ch. 13, s. 5, passed a law declaring

that if any free negro or mulatto intermarry with any white woman, or if

any white man shall intermarry with any negro or mulatto woman, such

negro or mulatto shall become a slave during life, excepting mulattoes

born of white women, who, for such intermarriage, shall only become

servants for seven years, to be disposed of as the justices of the

county court where such marriage so happens shall think fit, to be

applied by them towards the support of a public school within the said

county.  And any white man or white woman who shall intermarry as

aforesaid with any negro or mulatto, such white man or white woman shall

become servants during the term of seven years, and shall be disposed of

by the justices as aforesaid, and be applied to the uses aforesaid.



The other colonial law to which we refer was passed by Massachusetts in

1705 (chap. 6).  It is entitled "An act for the better preventing of a

spurious and mixed issue," &c., and it provides, that if any negro or

mulatto shall presume to smite or strike any person of the English or

other Christian nation, such negro or mulatto shall be severely whipped,

at [60 U.S. 409] the discretion of the justices before whom the offender

shall be convicted.



And that none of her Majesty's English or Scottish subjects, nor of any

other Christian nation, within this province, shall contract matrimony

with any negro or mulatto; nor shall any person, duly authorized to

solemnize marriage, presume to join any such in marriage, on pain of

forfeiting the sum of fifty pounds; one moiety thereof to her Majesty,

for and towards the support of the Government within this province, and

the other moiety to him or them that shall inform and sue for the same,

in any of her Majesty's courts of record within the province, by bill,

plaint, or information.



We give both of these laws in the words used by the respective

legislative bodies because the language in which they are framed, as

well as the provisions contained in them, show, too plainly to be

misunderstood the degraded condition of this unhappy race.  They were

still in force when the Revolution began, and are a faithful index to

the state of feeling towards the class of persons of whom they speak,

and of the position they occupied throughout the thirteen colonies, in

the eyes and thoughts of the men who framed the Declaration of

Independence and established the State Constitutions and Governments. 

They show that a perpetual and impassable barrier was intended to be

erected between the white race and the one which they had reduced to

slavery, and governed as subjects with absolute and despotic power, and

which they then looked upon as so far below them in the scale of created

beings, that intermarriages between white persons and negroes or

mulattoes were regarded as unnatural and immoral, and punished as

crimes, not only in the parties, but in the person who joined them in

marriage.  And no distinction in this respect was made between the free

negro or mulatto and the slave, but this stigma of the deepest

degradation was fixed upon the whole race.



We refer to these historical facts for the purpose of showing the fixed

opinions concerning that race upon which the statesmen of that day spoke

and acted.  It is necessary to do this in order to determine whether the

general terms used in the Constitution of the United States as to the

rights of man and the rights of the people was intended to include them,

or to give to them or their posterity the benefit of any of its

provisions.



The language of the Declaration of Independence is equally conclusive:



It begins by declaring that,



[w]hen in the course of human events it becomes necessary for one people

to dissolve the political bands which have connected them with another,

and to [60 U.S. 410] assume among the powers of the earth the separate

and equal station to which the laws of nature and nature's God entitle

them, a decent respect for the opinions of mankind requires that they

should declare the causes which impel them to the separation.



It then proceeds to say:



We hold these truths to be self-evident:  that all men are created

equal; that they are endowed by their Creator with certain unalienable

rights; that among them is life, liberty, and the pursuit of happiness;

that to secure these rights, Governments are instituted, deriving their

just powers from the consent of the governed.



The general words above quoted would seem to embrace the whole human

family, and if they were used in a similar instrument at this day would

be so understood.  But it is too clear for dispute that the enslaved

African race were not intended to be included, and formed no part of the

people who framed and adopted this declaration, for if the language, as

understood in that day, would embrace them, the conduct of the

distinguished men who framed the Declaration of Independence would have

been utterly and flagrantly inconsistent with the principles they

asserted, and instead of the sympathy of mankind to which they so

confidently appealed, they would have deserved and received universal

rebuke and reprobation.



Yet the men who framed this declaration were great men -- high in

literary acquirements, high in their sense of honor, and incapable of

asserting principles inconsistent with those on which they were acting. 

They perfectly understood the meaning of the language they used, and how

it would be understood by others, and they knew that it would not in any

part of the civilized world be supposed to embrace the negro race,

which, by common consent, had been excluded from civilized Governments

and the family of nations, and doomed to slavery.  They spoke and acted

according to the then established doctrines and principles, and in the

ordinary language of the day, and no one misunderstood them.  The

unhappy black race were separated from the white by indelible marks, and

laws long before established, and were never thought of or spoken of

except as property, and when the claims of the owner or the profit of

the trader were supposed to need protection.



This state of public opinion had undergone no change when the

Constitution was adopted, as is equally evident from its provisions and

language.



The brief preamble sets forth by whom it was formed, for what purposes,

and for whose benefit and protection.  It declares [60 U.S. 411] that it

is formed by the people of the United States -- that is to say, by those

who were members of the different political communities in the several

States -- and its great object is declared to be to secure the blessings

of liberty to themselves and their posterity.  It speaks in general

terms of the people of the United States, and of citizens of the several

States, when it is providing for the exercise of the powers granted or

the privileges secured to the citizen.  It does not define what

description of persons are intended to be included under these terms, or

who shall be regarded as a citizen and one of the people.  It uses them

as terms so well understood that no further description or definition

was necessary.



But there are two clauses in the Constitution which point directly and

specifically to the negro race as a separate class of persons, and show

clearly that they were not regarded as a portion of the people or

citizens of the Government then formed.



One of these clauses reserves to each of the thirteen States the right

to import slaves until the year 1808 if it thinks proper.  And the

importation which it thus sanctions was unquestionably of persons of the

race of which we are speaking, as the traffic in slaves in the United

States had always been confined to them.  And by the other provision the

States pledge themselves to each other to maintain the right of property

of the master by delivering up to him any slave who may have escaped

from his service, and be found within their respective territories.  By

the first above-mentioned clause, therefore, the right to purchase and

hold this property is directly sanctioned and authorized for twenty

years by the people who framed the Constitution.  And by the second,

they pledge themselves to maintain and uphold the right of the master in

the manner specified, as long as the Government they then formed should

endure.  And these two provisions show conclusively that neither the

description of persons therein referred to nor their descendants were

embraced in any of the other provisions of the Constitution, for

certainly these two clauses were not intended to confer on them or their

posterity the blessings of liberty, or any of the personal rights so

carefully provided for the citizen.



No one of that race had ever migrated to the United States voluntarily;

all of them had been brought here as articles of merchandise.  The

number that had been emancipated at that time were but few in comparison

with those held in slavery, and they were identified in the public mind

with the race to which they belonged, and regarded as a part of the

slave population rather than the free.  It is obvious that they were not

[60 U.S. 412] even in the minds of the framers of the Constitution when

they were conferring special rights and privileges upon the citizens of

a State in every other part of the Union.



Indeed, when we look to the condition of this race in the several States

at the time, it is impossible to believe that these rights and

privileges were intended to be extended to them.



It is very true that, in that portion of the Union where the labor of

the negro race was found to be unsuited to the climate and unprofitable

to the master, but few slaves were held at the time of the Declaration

of Independence, and when the Constitution was adopted, it had entirely

worn out in one of them, and measures had been taken for its gradual

abolition in several others.  But this change had not been produced by

any change of opinion in relation to this race, but because it was

discovered from experience that slave labor was unsuited to the climate

and productions of these States, for some of the States where it had

ceased or nearly ceased to exist were actively engaged in the slave

trade, procuring cargoes on the coast of Africa and transporting them

for sale to those parts of the Union where their labor was found to be

profitable and suited to the climate and productions.  And this traffic

was openly carried on, and fortunes accumulated by it, without reproach

from the people of the States where they resided.  And it can hardly be

supposed that, in the States where it was then countenanced in its worst

form -- that is, in the seizure and transportation -- the people could

have regarded those who were emancipated as entitled to equal rights

with themselves.



And we may here again refer in support of this proposition to the plain

and unequivocal language of the laws of the several States, some passed

after the Declaration of Independence and before the Constitution was

adopted and some since the Government went into operation.



We need not refer on this point particularly to the laws of the present

slaveholding States.  Their statute books are full of provisions in

relation to this class in the same spirit with the Maryland law which we

have before quoted.  They have continued to treat them as an inferior

class, and to subject them to strict police regulations, drawing a broad

line of distinction between the citizen and the slave races, and

legislating in relation to them upon the same principle which prevailed

at the time of the Declaration of Independence.  As relates to these

States, it is too plain for argument that they have never been regarded

as a part of the people or citizens of the State, nor supposed to

possess any political rights which the dominant race might not withhold

or grant at their pleasure.  [60 U.S. 413] And as long ago as 1822, the

Court of Appeals of Kentucky decided that free negroes and mulattoes

were not citizens within the meaning of the Constitution of the United

States, and the correctness of this decision is recognized, and the same

doctrine affirmed, in 1 Meigs's Tenn.Reports, 331.



And if we turn to the legislation of the States where slavery had worn

out, or measures taken for its speedy abolition, we shall find the same

opinions and principles equally fixed and equally acted upon.



Thus, Massachusetts, in 1786, passed a law similar to the colonial one

of which we have spoken. The law of 1786, like the law of 1705, forbids

the marriage of any white person with any negro, Indian, or mulatto, and

inflicts a penalty of fifty pounds upon anyone who shall join them in

marriage, and declares all such marriage absolutely null and void, and

degrades thus the unhappy issue of the marriage by fixing upon it the

stain of bastardy.  And this mark of degradation was renewed, and again

impressed upon the race, in the careful and deliberate preparation of

their revised code published in 1836.  This code forbids any person from

joining in marriage any white person with any Indian, negro, or mulatto,

and subjects the party who shall offend in this respect to imprisonment

not exceeding six months in the common jail or to hard labor, and to a

fine of not less than fifty nor more than two hundred dollars, and, like

the law of 1786, it declares the marriage to be absolutely null and

void.  It will be seen that the punishment is increased by the code upon

the person who shall marry them, by adding imprisonment to a pecuniary

penalty.



So, too, in Connecticut.  We refer more particularly to the legislation

of this State, because it was not only among the first to put an end to

slavery within its own territory, but was the first to fix a mark of

reprobation upon the African slave trade.  The law last mentioned was

passed in October, 1788, about nine months after the State had ratified

and adopted the present Constitution of the United States, and, by that

law, it prohibited its own citizens, under severe penalties, from

engaging in the trade, and declared all policies of insurance on the

vessel or cargo made in the State to be null and void.  But up to the

time of the adoption of the Constitution, there is nothing in the

legislation of the State indicating any change of opinion as to the

relative rights and position of the white and black races in this

country, or indicating that it meant to place the latter, when free,

upon a level with its citizens.  And certainly nothing which would have

led the slaveholding States to suppose that Connecticut designed to

claim for them, under [60 U.S. 414] the new Constitution, the equal

rights and privileges and rank of citizens in every other State.



The first step taken by Connecticut upon this subject was as early as

1774, wen it passed an act forbidding the further importation of slaves

into the State.  But the section containing the prohibition is

introduced by the following preamble:



And whereas the increase of slaves in this State is injurious to the

poor, and inconvenient.



This recital would appear to have been carefully introduced in order to

prevent any misunderstanding of the motive which induced the Legislature

to pass the law, and places it distinctly upon the interest and

convenience of the white population -- excluding the inference that it

might have been intended in any degree for the benefit of the other.



And in the act of 1784, by which the issue of slaves born after the time

therein mentioned were to be free at a certain age, the section is again

introduced by a preamble assigning a similar motive for the act.  It is

in these words:



Whereas sound policy requires that the abolition of slavery should be

effected as soon as may be consistent with the rights of individuals,

and the public safety and welfare -- showing that the right of property

in the master was to be protected, and that the measure was one of

policy, and to prevent the injury and inconvenience to the whites of a

slave population in the State.



And still further pursuing its legislation, we find that, in the same

statute passed in 1774, which prohibited the further importation of

slaves into the State, there is also a provision by which any negro,

Indian, or mulatto servant who was found wandering out of the town or

place to which he belonged without a written pass such as is therein

described was made liable to be seized by anyone, and taken before the

next authority to be examined and delivered up to his master -- who was

required to pay the charge which had accrued thereby.  And a subsequent

section of the same law provides that if any free negro shall travel

without such pass, and shall be stopped, seized, or taken up, he shall

pay all charges arising thereby.  And this law was in full operation

when the Constitution of the United States was adopted, and was not

repealed till 1797.  So that, up to that time, free negroes and

mulattoes were associated with servants and slaves in the police

regulations established by the laws of the State.



And again, in 1833, Connecticut passed another law which made it penal

to set up or establish any school in that State for the instruction of

persons of the African race not inhabitants of the State, or to instruct

or teach in any such school or [60 U.S. 415] institution, or board or

harbor for that purpose, any such person without the previous consent in

writing of the civil authority of the town in which such school or

institution might be.



And it appears by the case of Crandall v. The State, reported in 10

Conn. Rep. 340, that upon an information filed against Prudence Crandall

for a violation of this law, one of the points raised in the defence was

that the law was a violation of the Constitution of the United States,

and that the persons instructed, although of the African race, were

citizens of other States, and therefore entitled to the rights and

privileges of citizens in the State of Connecticut.  But Chief Justice

Dagget, before whom the case was tried, held that persons of that

description were not citizens of a State, within the meaning of the word

citizen in the Constitution of the United States, and were not therefore

entitled to the privileges and immunities of citizens in other States.



The case was carried up to the Supreme Court of Errors of the State, and

the question fully argued there.  But the case went off upon another

point, and no opinion was expressed on this question.



We have made this particular examination into the legislative and

judicial action of Connecticut because, from the early hostility it

displayed to the slave trade on the coast of Africa, we may expect to

find the laws of that State as lenient and favorable to the subject race

as those of any other State in the Union, and if we find that, at the

time the Constitution was adopted, they were not even there raised to

the rank of citizens, but were still held and treated as property, and

the laws relating to them passed with reference altogether to the

interest and convenience of the white race, we shall hardly find them

elevated to a higher rank anywhere else.



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

other considerations.



By the laws of New Hampshire, collected and finally passed in 1815, no

one was permitted to be enrolled in the militia of the State but free

white citizens, and the same provision is found in a subsequent

collection of the laws made in 1855.  Nothing could more strongly mark

the entire repudiation of the African race.  The alien is excluded

because, being born in a foreign country, he cannot be a member of the

community until he is naturalized.  But why are the African race, born

in the State, not permitted to share in one of the highest duties of the

citizen?  The answer is obvious; he is not, by the institutions and laws

of the State, numbered among its people.  He forms no part of the

sovereignty of the State, and is not therefore called on to uphold and

defend it. [60 U.S. 416]



Again, in 1822, Rhode Island, in its revised code, passed a law

forbidding persons who were authorized to join persons in marriage from

joining in marriage any white person with any negro, Indian, or mulatto,

under the penalty of two hundred dollars, and declaring all such

marriages absolutely null and void, and the same law was again reenacted

in its revised code of 1844.  So that, down to the last-mentioned

period, the strongest mark of inferiority and degradation was fastened

upon the African race in that State.



It would be impossible to enumerate and compress in the space usually

allotted to an opinion of a court the various laws, marking the

condition of this race which were passed from time to time after the

Revolution and before and since the adoption of the Constitution of the

United States.  In addition to those already referred to, it is

sufficient to say that Chancellor Kent, whose accuracy and research no

one will question, states in the sixth edition of his Commentaries

(published in 1848, 2 vol., 258, note b) that in no part of the country

except Maine did the African race, in point of fact, participate equally

with the whites in the exercise of civil and political rights.



The legislation of the States therefore shows in a manner not to be

mistaken the inferior and subject condition of that race at the time the

Constitution was adopted and long afterwards, throughout the thirteen

States by which that instrument was framed, and it is hardly consistent

with the respect due to these States to suppose that they regarded at

that time as fellow citizens and members of the sovereignty, a class of

beings whom they had thus stigmatized, whom, as we are bound out of

respect to the State sovereignties to assume they had deemed it just and

necessary thus to stigmatize, and upon whom they had impressed such deep

and enduring marks of inferiority and degradation, or, that, when they

met in convention to form the Constitution, they looked upon them as a

portion of their constituents or designed to include them in the

provisions so carefully inserted for the security and protection of the

liberties and rights of their citizens.  It cannot be supposed that they

intended to secure to them rights and privileges and rank, in the new

political body throughout the Union which every one of them denied

within the limits of its own dominion.  More especially, it cannot be

believed that the large slaveholding States regarded them as included in

the word citizens, or would have consented to a Constitution which might

compel them to receive them in that character from another State.  For

if they were so received, and entitled to the privileges and immunities

of citizens, it would exempt them from the operation of the special laws

and from the police [60 U.S. 417] regulations which they considered to

be necessary for their own safety.  It would give to persons of the

negro race, who were recognised as citizens in any one State of the

Union, the right to enter every other State whenever they pleased,

singly or in companies, without pass or passport, and without

obstruction, to sojourn there as long as they pleased, to go where they

pleased at every hour of the day or night without molestation, unless

they committed some violation of law for which a white man would be

punished; and it would give them the full liberty of speech in public

and in private upon all subjects upon which its own citizens might

speak; to hold public meetings upon political affairs, and to keep and

carry arms wherever they went.  And all of this would be done in the

face of the subject race of the same color, both free and slaves, and

inevitably producing discontent and insubordination among them, and

endangering the peace and safety of the State.



It is impossible, it would seem, to believe that the great men of the

slaveholding States, who took so large a share in framing the

Constitution of the United States and exercised so much influence in

procuring its adoption, could have been so forgetful or regardless of

their own safety and the safety of those who trusted and confided in

them.



Besides, this want of foresight and care would have been utterly

inconsistent with the caution displayed in providing for the admission

of new members into this political family.  For, when they gave to the

citizens of each State the privileges and immunities of citizens in the

several States, they at the same time took from the several States the

power of naturalization, and confined that power exclusively to the

Federal Government.  No State was willing to permit another State to

determine who should or should not be admitted as one of its citizens,

and entitled to demand equal rights and privileges with their own

people, within their own territories.  The right of naturalization was

therefore, with one accord, surrendered by the States, and confided to

the Federal Government.  And this power granted to Congress to establish

an uniform rule of naturalization is, by the well understood meaning of

the word, confined to persons born in a foreign country, under a foreign

Government.  It is not a power to raise to the rank of a citizen anyone

born in the United States who, from birth or parentage, by the laws of

the country, belongs to an inferior and subordinate class.  And when we

find the States guarding themselves from the indiscreet or improper

admission by other States of emigrants from other countries by giving

the power exclusively to Congress, we cannot fail to see that they could

never have left with the States a much [60 U.S. 418] more important

power -- that is, the power of transforming into citizens a numerous

class of persons who, in that character, would be much more dangerous to

the peace and safety of a large portion of the Union than the few

foreigners one of the States might improperly naturalize.  The

Constitution upon its adoption obviously took from the States all power

by any subsequent legislation to introduce as a citizen into the

political family of the United States anyone, no matter where he was

born or what might be his character or condition, and it gave to

Congress the power to confer this character upon those only who were

born outside of the dominions of the United States.  And no law of a

State, therefore, passed since the Constitution was adopted, can give

any right of citizenship outside of its own territory.



A clause similar to the one in the Constitution in relation to the

rights and immunities of citizens of one State in the other States was

contained in the Articles of Confederation.  But there is a difference

of language which is worthy of note.  The provision in the Articles of

Confederation was that the free inhabitants of each of the States,

paupers, vagabonds, and fugitives from justice, excepted, should be

entitled to all the privileges and immunities of free citizens in the

several States.



It will be observed that, under this Confederation, each State had the

right to decide for itself, and in its own tribunals, whom it would

acknowledge as a free inhabitant of another State.  The term free

inhabitant, in the generality of its terms, would certainly include one

of the African race who had been manumitted.  But no example, we think,

can be found of his admission to all the privileges of citizenship in

any State of the Union after these Articles were formed, and while they

continued in force.  And, notwithstanding the generality of the words

"free inhabitants," it is very clear that, according to their accepted

meaning in that day, they did not include the African race, whether free

or not, for the fifth section of the ninth article provides that

Congress should have the power to agree upon the number of land forces

to be raised, and to make requisitions from each State for its quota in

proportion to the number of white inhabitants in such State, which

requisition should be binding.



Words could hardly have been used which more strongly mark the line of

distinction between the citizen and the subject -- the free and the

subjugated races.  The latter were not even counted when the inhabitants

of a State were to be embodied in proportion to its numbers for the

general defence.  And it cannot for a moment be supposed that a class of

[60 U.S. 419] persons thus separated and rejected from those who formed

the sovereignty of the States, were yet intended to be included under

the words "free inhabitants," in the preceding article, to whom

privileges and immunities were so carefully secured in every State.



But although this clause of the Articles of Confederation is the same in

principle with that inserted in the Constitution, yet the comprehensive

word inhabitant, which might be construed to include an emancipated

slave, is omitted, and the privilege is confined to citizens of the

State.  And this alteration in words would hardly have been made unless

a different meaning was intended to be conveyed or a possible doubt

removed.  The just and fair inference is that as this privilege was

about to be placed under the protection of the General Government, and

the words expounded by its tribunals, and all power in relation to it

taken from the State and its courts, it was deemed prudent to describe

with precision and caution the persons to whom this high privilege was

given -- and the word citizen was on that account substituted for the

words free inhabitant.  The word citizen excluded, and no doubt intended

to exclude, foreigners who had not become citizens of some one of the

States when the Constitution was adopted, and also every description of

persons who were not fully recognised as citizens in the several States.

 This, upon any fair construction of the instruments to which we have

referred, was evidently the object and purpose of this change of words.



To all this mass of proof we have still to add, that Congress has

repeatedly legislated upon the same construction of the Constitution

that we have given. Three laws, two of which were passed almost

immediately after the Government went into operation, will be abundantly

sufficient to show this. The two first are particularly worthy of

notice, because many of the men who assisted in framing the

Constitution, and took an active part in procuring its adoption, were

then in the halls of legislation, and certainly understood what they

meant when they used the words "people of the United States" and

"citizen" in that well-considered instrument.



The first of these acts is the naturalization law, which was passed at

the second session of the first Congress, March 26, 1790, and confines

the right of becoming citizens "to aliens being free white persons."



Now the Constitution does not limit the power of Congress in this

respect to white persons.  And they may, if they think proper, authorize

the naturalization of anyone, of any color, who was born under

allegiance to another Government.  But the language of the law above

quoted shows that citizenship [60 U.S. 420] at that time was perfectly

understood to be confined to the white race; and that they alone

constituted the sovereignty in the Government.



Congress might, as we before said, have authorized the naturalization of

Indians because they were aliens and foreigners.  But, in their then

untutored and savage state, no one would have thought of admitting them

as citizens in a civilized community.  And, moreover, the atrocities

they had but recently committed, when they were the allies of Great

Britain in the Revolutionary war, were yet fresh in the recollection of

the people of the United States, and they were even then guarding

themselves against the threatened renewal of Indian hostilities.  No one

supposed then that any Indian would ask for, or was capable of enjoying,

the privileges of an American citizen, and the word white was not used

with any particular reference to them.



Neither was it used with any reference to the African race imported into

or born in this country; because Congress had no power to naturalize

them, and therefore there was no necessity for using particular words to

exclude them.



It would seem to have been used merely because it followed out the line

of division which the Constitution has drawn between the citizen race,

who formed and held the Government, and the African race, which they

held in subjection and slavery and governed at their own pleasure.



Another of the early laws of which we have spoken is the first militia

law, which was passed in 1792 at the first session of the second

Congress.  The language of this law is equally plain and significant

with the one just mentioned.  It directs that every "free able-bodied

white male citizen" shall be enrolled in the militia.  The word white is

evidently used to exclude the African race, and the word "citizen" to

exclude unnaturalized foreigners, the latter forming no part of the

sovereignty, owing it no allegiance, and therefore under no obligation

to defend it.  The African race, however, born in the country, did owe

allegiance to the Government, whether they were slave or free, but it is

repudiated, and rejected from the duties and obligations of citizenship

in marked language.



The third act to which we have alluded is even still more decisive; it

was passed as late as 1813, 2 Stat. 809, and it provides:



That from and after the termination of the war in which the United

States are now engaged with Great Britain, it shall not be lawful to

employ, on board of any public or private vessels of the United States,

any person or persons except citizens of the United States, or persons

of color, natives of the United States. [60 U.S. 421]



Here the line of distinction is drawn in express words.  Persons of

color, in the judgment of Congress, were not included in the word

citizens, and they are described as another and different class of

persons, and authorized to be employed, if born in the United States.



And even as late as 1820, chap. 104, sec. 8, in the charter to the city

of Washington, the corporation is authorized "to restrain and prohibit

the nightly and other disorderly meetings of slaves, free negroes, and

mulattoes," thus associating them together in its legislation, and,

after prescribing the punishment that may be inflicted on the slaves,

proceeds in the following words: And to punish such free negroes and

mulattoes by penalties not exceeding twenty dollars for any one offence;

and in case of the inability of any such free negro or mulatto, to pay

any such penalty and cost thereon, to cause him or her to be confined to

labor for any time not exceeding six calendar months. And in a

subsequent part of the same section, the act authorizes the corporation

"to prescribe the terms and conditions upon which free negroes and

mulattoes may reside in the city."



This law, like the laws of the States, shows that this class of persons

were governed by special legislation directed expressly to them, and

always connected with provisions for the government of slaves, and not

with those for the government of free white citizens.  And after such an

uniform course of legislation as we have stated, by the colonies, by the

States, and by Congress, running through a period of more than a

century, it would seem that to call persons thus marked and stigmatized

"citizens" of the United States, "fellow citizens," a constituent part

of the sovereignty, would be an abuse of terms, and not calculated to

exalt the character of an American citizen in the eyes of other nations.



The conduct of the Executive Department of the Government has been in

perfect harmony upon this subject with this course of legislation.  The

question was brought officially before the late William Wirt, when he

was the Attorney General of the United States, in 1821, and he decided

that the words "citizens of the United States" were used in the acts of

Congress in the same sense as in the Constitution, and that free persons

of color were not citizens within the meaning of the Constitution and

laws; and this opinion has been confirmed by that of the late Attorney

General, Caleb Cushing, in a recent case, and acted upon by the

Secretary of State, who refused to grant passports to them as "citizens

of the United States."



But it is said that a person may be a citizen, and entitled to [60 U.S.

422] that character, although he does not possess all the rights which

may belong to other citizens -- as, for example, the right to vote, or

to hold particular offices -- and that yet, when he goes into another

State, he is entitled to be recognised there as a citizen, although the

State may measure his rights by the rights which it allows to persons of

a like character or class resident in the State, and refuse to him the

full rights of citizenship.



This argument overlooks the language of the provision in the

Constitution of which we are speaking.



Undoubtedly a person may be a citizen, that is, a member of the

community who form the sovereignty, although he exercises no share of

the political power and is incapacitated from holding particular

offices.  Women and minors, who form a part of the political family,

cannot vote, and when a property qualification is required to vote or

hold a particular office, those who have not the necessary qualification

cannot vote or hold the office, yet they are citizens.



So, too, a person may be entitled to vote by the law of the State, who

is not a citizen even of the State itself.  And in some of the States of

the Union, foreigners not naturalized are allowed to vote.  And the

State may give the right to free negroes and mulattoes, but that does

not make them citizens of the State, and still less of the United

States.  And the provision in the Constitution giving privileges and

immunities in other States does not apply to them.



Neither does it apply to a person who, being the citizen of a State,

migrates to another State.  For then he becomes subject to the laws of

the State in which he lives, and he is no longer a citizen of the State

from which he removed.  And the State in which he resides may then,

unquestionably, determine his status or condition, and place him among

the class of persons who are not recognised as citizens, but belong to

an inferior and subject race, and may deny him the privileges and

immunities enjoyed by its citizens.



But so far as mere rights of person are concerned, the provision in

question is confined to citizens of a State who are temporarily in

another State without taking up their residence there.  It gives them no

political rights in the State as to voting or holding office, or in any

other respect.  For a citizen of one State has no right to participate

in the government of another.  But if he ranks as a citizen in the State

to which he belongs, within the meaning of the Constitution of the

United States, then, whenever he goes into another State, the

Constitution clothes him, as to the rights of person, will all the

privileges and immunities which belong to citizens of the [60 U.S. 423]

State.  And if persons of the African race are citizens of a State, and

of the United States, they would be entitled to all of these privileges

and immunities in every State, and the State could not restrict them,

for they would hold these privileges and immunities under the paramount

authority of the Federal Government, and its courts would be bound to

maintain and enforce them, the Constitution and laws of the State to the

contrary notwithstanding.  And if the States could limit or restrict

them, or place the party in an inferior grade, this clause of the

Constitution would be unmeaning, and could have no operation, and would

give no rights to the citizen when in another State.  He would have none

but what the State itself chose to allow him.  This is evidently not the

construction or meaning of the clause in question.  It guaranties rights

to the citizen, and the State cannot withhold them.  And these rights

are of a character and would lead to consequences which make it

absolutely certain that the African race were not included under the

name of citizens of a State, and were not in the contemplation of the

framers of the Constitution when these privileges and immunities were

provided for the protection of the citizen in other States.



The case of Legrand v. Darnall, 2 Peters 664, has been referred to for

the purpose of showing that this court has decided that the descendant

of a slave may sue as a citizen in a court of the United States, but the

case itself shows that the question did not arise and could not have

arisen in the case.



It appears from the report that Darnall was born in Maryland, and was

the son of a white man by one of his slaves, and his father executed

certain instruments to manumit him, and devised to him some landed

property in the State.  This property Darnall afterwards sold to

Legrand, the appellant, who gave his notes for the purchase money.  But

becoming afterwards apprehensive that the appellee had not been

emancipated according to the laws of Maryland, he refused to pay the

notes until he could be better satisfied as to Darnall's right to

convey.  Darnall, in the meantime, had taken up his residence in

Pennsylvania, and brought suit on the notes, and recovered judgment in

the Circuit Court for the district of Maryland.



The whole proceeding, as appears by the report, was an amicable one,

Legrand being perfectly willing to pay the money, if he could obtain a

title, and Darnall not wishing him to pay unless he could make him a

good one.  In point of fact, the whole proceeding was under the

direction of the counsel who argued the case for the appellee, who was

the mutual friend of the parties and confided in by both of them, and

whose only [60 U.S. 424] object was to have the rights of both parties

established by judicial decision in the most speedy and least expensive

manner.



Legrand, therefore, raised no objection to the jurisdiction of the court

in the suit at law, because he was himself anxious to obtain the

judgment of the court upon his title.  Consequently, there was nothing

in the record before the court to show that Darnall was of African

descent, and the usual judgment and award of execution was entered.  And

Legrand thereupon filed his bill on the equity side of the Circuit

Court, stating that Darnall was born a slave, and had not been legally

emancipated, and could not therefore take the land devised to him, nor

make Legrand a good title, and praying an injunction to restrain Darnall

from proceeding to execution on the judgment, which was granted. 

Darnall answered, averring in his answer that he was a free man, and

capable of conveying a good title.  Testimony was taken on this point,

and at the hearing, the Circuit Court was of opinion that Darnall was a

free man and his title good, and dissolved the injunction and dismissed

the bill; and that decree was affirmed here, upon the appeal of Legrand.



Now it is difficult to imagine how any question about the citizenship of

Darnall, or his right to sue in that character, can be supposed to have

arisen or been decided in that case.  The fact that he was of African

descent was first brought before the court upon the bill in equity.  The

suit at law had then passed into judgment and award of execution, and

the Circuit Court, as a court of law, had no longer any authority over

it.  It was a valid and legal judgment, which the court that rendered it

had not the power to reverse or set aside.  And unless it had

jurisdiction as a court of equity to restrain him from using its process

as a court of law, Darnall, if he thought proper, would have been at

liberty to proceed on his judgment, and compel the payment of the money,

although the allegations in the bill were true and he was incapable of

making a title.  No other court could have enjoined him, for certainly

no State equity court could interfere in that way with the judgment of a

Circuit Court of the United States.



But the Circuit Court as a court of equity certainly had equity

jurisdiction over its own judgment as a court of law, without regard to

the character of the parties, and had not only the right, but it was its

duty -- no matter who were the parties in the judgment -- to prevent

them from proceeding to enforce it by execution if the court was

satisfied that the money was not justly and equitably due.  The ability

of Darnall to convey did not depend upon his citizenship, but upon his

title to freedom.  And if he was free, he could hold and [60 U.S. 425]

convey property, by the laws of Maryland, although he was not a citizen.

 But if he was by law still a slave, he could not.  It was therefore the

duty of the court, sitting as a court of equity in the latter case, to

prevent him from using its process as a court of common law to compel

the payment of the purchase money when it was evident that the purchaser

must lose the land.  But if he was free, and could make a title, it was

equally the duty of the court not to suffer Legrand to keep the land and

refuse the payment of the money upon the ground that Darnall was

incapable of suing or being sued as a citizen in a court of the United

States.  The character or citizenship of the parties had no connection

with the question of jurisdiction, and the matter in dispute had no

relation to the citizenship of Darnall.  Nor is such a question alluded

to in the opinion of the court.



Besides, we are by no means prepared to say that there are not many

cases, civil as well as criminal, in which a Circuit Court of the United

States may exercise jurisdiction although one of the African race is a

party; that broad question is not before the court.  The question with

which we are now dealing is whether a person of the African race can be

a citizen of the United States, and become thereby entitled to a special

privilege by virtue of his title to that character, and which, under the

Constitution, no one but a citizen can claim.  It is manifest that the

case of Legrand and Darnall has no bearing on that question, and can

have no application to the case now before the court.



This case, however, strikingly illustrates the consequences that would

follow the construction of the Constitution which would give the power

contended for to a State.  It would. in effect. give it also to an

individual.  For if the father of young Darnall had manumitted him in

his lifetime, and sent him to reside in a State which recognised him as

a citizen, he might have visited and sojourned in Maryland when he

pleased, and as long as he pleased, as a citizen of the United States,

and the State officers and tribunals would be compelled by the paramount

authority of the Constitution to receive him and treat him as one of its

citizens, exempt from the laws and police of the State in relation to a

person of that description, and allow him to enjoy all the rights and

privileges of citizenship without respect to the laws of Maryland,

although such laws were deemed by it absolutely essential to its own

safety.



The only two provisions which point to them and include them treat them

as property and make it the duty of the Government to protect it; no

other power, in relation to this race, is to be found in the

Constitution; and as it is a Government [60 U.S. 426] of special,

delegated, powers, no authority beyond these two provisions can be

constitutionally exercised.  The Government of the United States had no

right to interfere for any other purpose but that of protecting the

rights of the owner, leaving it altogether with the several States to

deal with this race, whether emancipated or not, as each State may think

justice, humanity, and the interests and safety of society, require. 

The States evidently intended to reserve this power exclusively to

themselves.



No one, we presume, supposes that any change in public opinion or

feeling, in relation to this unfortunate race, in the civilized nations

of Europe or in this country, should induce the court to give to the

words of the Constitution a more liberal construction in their favor

than they were intended to bear when the instrument was framed and

adopted.  Such an argument would be altogether inadmissible in any

tribunal called on to interpret it.  If any of its provisions are deemed

unjust, there is a mode prescribed in the instrument itself by which it

may be amended; but while it remains unaltered, it must be construed now

as it was understood at the time of its adoption.  It is not only the

same in words, but the same in meaning, and delegates the same powers to

the Government, and reserves and secures the same rights and privileges

to the citizen; and as long as it continues to exist in its present

form, it speaks not only in the same words, but with the same meaning

and intent with which it spoke when it came from the hands of its

framers and was voted on and adopted by the people of the United States.

 Any other rule of construction would abrogate the judicial character of

this court, and make it the mere reflex of the popular opinion or

passion of the day.  This court was not created by the Constitution for

such purposes.  Higher and graver trusts have been confided to it, and

it must not falter in the path of duty.



What the construction was at that time we think can hardly admit of

doubt.  We have the language of the Declaration of Independence and of

the Articles of Confederation, in addition to the plain words of the

Constitution itself; we have the legislation of the different States,

before, about the time, and since the Constitution was adopted; we have

the legislation of Congress, from the time of its adoption to a recent

period; and we have the constant and uniform action of the Executive

Department, all concurring together, and leading to the same result. 

And if anything in relation to the construction of the Constitution can

be regarded as settled, it is that which we now give to the word

"citizen" and the word "people."



And, upon a full and careful consideration of the subject, [60 U.S. 427]

the court is of opinion, that, upon the facts stated in the plea in

abatement, Dred Scott was not a citizen of Missouri within the meaning

of the Constitution of the United States, and not entitled as such to

sue in its courts, and consequently that the Circuit Court had no

jurisdiction of the case, and that the judgment on the plea in abatement

is erroneous.



We are aware that doubts are entertained by some of the members of the

court, whether the plea in abatement is legally before the court upon

this writ of error; but if that plea is regarded as waived, or out of

the case upon any other ground, yet the question as to the jurisdiction

of the Circuit Court is presented on the face of the bill of exception

itself, taken by the plaintiff at the trial, for he admits that he and

his wife were born slaves, but endeavors to make out his title to

freedom and citizenship by showing that they were taken by their owner

to certain places, hereinafter mentioned, where slavery could not by law

exist, and that they thereby became free, and, upon their return to

Missouri, became citizens of that State.



Now if the removal of which he speaks did not give them their freedom,

then, by his own admission, he is still a slave, and whatever opinions

may be entertained in favor of the citizenship of a free person of the

African race, no one supposes that a slave is a citizen of the State or

of the United States.  If, therefore, the acts done by his owner did not

make them free persons, he is still a slave, and certainly incapable of

suing in the character of a citizen.



The principle of law is too well settled to be disputed that a court can

give no judgment for either party where it has no jurisdiction; and if,

upon the showing of Scott himself, it appeared that he was still a

slave, the case ought to have been dismissed, and the judgment against

him and in favor of the defendant for costs is, like that on the plea in

abatement, erroneous, and the suit ought to have been dismissed by the

Circuit Court for want of jurisdiction in that court.



But, before we proceed to examine this part of the case, it may be

proper to notice an objection taken to the judicial authority of this

court to decide it, and it has been said that, as this court has decided

against the jurisdiction of the Circuit Court on the plea in abatement,

it has no right to examine any question presented by the exception, and

that anything it may say upon that part of the case will be

extrajudicial, and mere obiter dicta.



This is a manifest mistake; there can be no doubt as to the jurisdiction

of this court to revise the judgment of a Circuit Court, and to reverse

it for any error apparent on the record, [60 U.S. 428] whether it be the

error of giving judgment in a case over which it had no jurisdiction or

any other material error, and this too whether there is a plea in

abatement or not.



The objection appears to have arisen from confounding writs of error to

a State court with writs of error to a Circuit Court of the United

States.  Undoubtedly, upon a writ of error to a State court, unless the

record shows a case that gives jurisdiction, the case must be dismissed

for want of jurisdiction in this court.  And if it is dismissed on that

ground, we have no right to examine and decide upon any question

presented by the bill of exceptions, or any other part of the record. 

But writs of error to a State court and to a Circuit Court of the United

States are regulated by different laws, and stand upon entirely

different principles.  And in a writ of error to a Circuit Court of the

United States, the whole record is before this court for examination and

decision, and if the sum in controversy is large enough to give

jurisdiction, it is not only the right, but it is the judicial duty of

the court to examine the whole case as presented by the record; and if

it appears upon its face that any material error or errors have been

committed by the court below, it is the duty of this court to reverse

the judgment and remand the case.  And certainly an error in passing a

judgment upon the merits in favor of either party, in a case which it

was not authorized to try, and over which it had no jurisdiction, is as

grave an error as a court can commit.



The plea in abatement is not a plea to the jurisdiction of this court,

but to the jurisdiction of the Circuit Court.  And it appears by the

record before us that the Circuit Court committed an error in deciding

that it had jurisdiction upon the facts in the case admitted by the

pleadings. I t is the duty of the appellate tribunal to correct this

error, but that could not be done by dismissing the case for want of

jurisdiction here -- for that would leave the erroneous judgment in full

force, and the injured party without remedy.  And the appellate court

therefore exercises the power for which alone appellate courts are

constituted, by reversing the judgment of the court below for this

error.  It exercises its proper and appropriate jurisdiction over the

judgment and proceedings of the Circuit Court, as they appear upon the

record brought up by the writ of error.



The correction of one error in the court below does not deprive the

appellate court of the power of examining further into the record, and

correcting any other material errors which may have been committed by

the inferior court.  There is certainly no rule of law nor any practice

nor any decision of a [60 U.S. 429] court which even questions this

power in the appellate tribunal.  On the contrary, it is the daily

practice of this court, and of all appellate courts where they reverse

the judgment of an inferior court for error, to correct by its opinions

whatever errors may appear on the record material to the case, and they

have always held it to be their duty to do so where the silence of the

court might lead to misconstruction or future controversy and the point

has been relied on by either side and argued before the court.



In the case before us, we have already decided that the Circuit Court

erred in deciding that it had jurisdiction upon the facts admitted by

the pleadings.  And it appears that, in the further progress of the

case, it acted upon the erroneous principle it had decided on the

pleadings, and gave judgment for the defendant where, upon the facts

admitted in the exception, it had no jurisdiction.



We are at a loss to understand upon what principle of law, applicable to

appellate jurisdiction, it can be supposed that this court has not

judicial authority to correct the last-mentioned error because they had

before corrected the former, or by what process of reasoning it can be

made out that the error of an inferior court in actually pronouncing

judgment for one of the parties in a case in which it had no

jurisdiction cannot be looked into or corrected by this court because we

have decided a similar question presented in the pleadings.  The last

point is distinctly presented by the facts contained in the plaintiff's

own bill of exceptions, which he himself brings here by this writ of

error.  It was the point which chiefly occupied the attention of the

counsel on both sides in the argument -- and the judgment which this

court must render upon both errors is precisely the same.  It must, in

each of them, exercise jurisdiction over the judgment, and reverse it

for the errors committed by the court below; and issue a mandate to the

Circuit Court to conform its judgment to the opinion pronounced by this

court, by dismissing the case for want of jurisdiction in the Circuit

Court.  This is the constant and invariable practice of this court where

it reverses a judgment for want of jurisdiction in the Circuit Court.



It can scarcely be necessary to pursue such a question further.  The

want of jurisdiction in the court below may appear on the record without

any plea in abatement.  This is familiarly the case where a court of

chancery has exercised jurisdiction in a case where the plaintiff had a

plain and adequate remedy at law, and it so appears by the transcript

when brought here by appeal.  So also where it appears that a court of

admiralty has exercised jurisdiction in a case belonging exclusively [60

U.S. 430] to a court of common law.  In these cases, there is no plea in

abatement.  And for the same reason, and upon the same principles, where

the defect of jurisdiction is patent on the record, this court is bound

to reverse the judgment although the defendant has not pleaded in

abatement to the jurisdiction of the inferior court.



The cases of Jackson v. Ashton and of Capron v. Van Noorden, to which we

have referred in a previous part of this opinion, are directly in point.

 In the last-mentioned case, Capron brought an action against Van

Noorden in a Circuit Court of the United States without showing, by the

usual averments of citizenship, that the court had jurisdiction.  There

was no plea in abatement put in, and the parties went to trial upon the

merits.  The court gave judgment in favor of the defendant with costs. 

The plaintiff thereupon brought his writ of error, and this court

reversed the judgment given in favor of the defendant and remanded the

case with directions to dismiss it because it did not appear by the

transcript that the Circuit Court had jurisdiction.



The case before us still more strongly imposes upon this court the duty

of examining whether the court below has not committed an error in

taking jurisdiction and giving a judgment for costs in favor of the

defendant, for in Capron v. Van Noorden, the judgment was reversed,

because it did not appear that the parties were citizens of different

States.  They might or might not be . But in this case it does appear

that the plaintiff was born a slave, and if the facts upon which he

relies have not made him free, then it appears affirmatively on the

record that he is not a citizen, and consequently his suit against

Sandford was not a suit between citizens of different States, and the

court had no authority to pass any judgment between the parties.  The

suit ought, in this view of it, to have been dismissed by the Circuit

Court, and its judgment in favor of Sandford is erroneous, and must be

reversed.



It is true that the result either way, by dismissal or by a judgment for

the defendant, makes very little, if any, difference in a pecuniary or

personal point of view to either party.  But the fact that the result

would be very nearly the same to the parties in either form of judgment

would not justify this court in sanctioning an error in the judgment

which is patent on the record, and which, if sanctioned, might be drawn

into precedent, and lead to serious mischief and injustice in some

future suit.



We proceed, therefore, to inquire whether the facts relied on by the

plaintiff entitled him to his freedom. [60 U.S. 431]



The case, as he himself states it, on the record brought here by his

writ of error, is this:



The plaintiff was a negro slave, belonging to Dr. Emerson, who was a

surgeon in the army of the United States.  In the year 1834, he took the

plaintiff from the State of Missouri to the military post at Rock

Island, in the State of Illinois, and held him there as a slave until

the month of April or May, 1836.  At the time last mentioned, said Dr.

Emerson removed the plaintiff from said military post at Rock Island to

the military post at Fort Snelling, situate on the west bank of the

Mississippi river, in the Territory known as Upper Louisiana, acquired

by the United States of France, and situate north of the latitude of

thirty-six degrees thirty minutes north, and north of the State of

Missouri.  Said Dr. Emerson held the plaintiff in slavery at said Fort

Snelling from said last-mentioned date until the year 1838.



In the year 1835, Harriet, who is named in the second count of the

plaintiff's declaration, was the negro slave of Major Taliaferro, who

belonged to the army of the United States.  In that year, 1835, said

Major Taliaferro took said Harriet to said Fort Snelling, a military

post, situated as hereinbefore stated, and kept her there as a slave

until the year 1836, and then sold and delivered her as a slave, at said

Fort Snelling, unto the said Dr. Emerson hereinbefore named.  Said Dr.

Emerson held said Harriet in slavery at said Fort Snelling until the

year 1838.



In the year 1836, the plaintiff and Harriet intermarried, at Fort

Snelling, with the consent of Dr. Emerson, who then claimed to be their

master and owner.  Eliza and Lizzie, named in the third count of the

plaintiff's declaration, are the fruit of that marriage.  Eliza is about

fourteen years old, and was born on board the steamboat Gipsey, north of

the north line of the State of Missouri, and upon the river Mississippi.

 Lizzie is about seven years old, and was born in the State of Missouri,

at the military post called Jefferson Barracks.



In the year 1838, said Dr. Emerson removed the plaintiff and said

Harriet and their said daughter Eliza from said Fort Snelling to the

State of Missouri, where they have ever since resided.



Before the commencement of this suit, said Dr. Emerson sold and conveyed

the plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as

slaves, and the defendant has ever since claimed to hold them, and each

of them, as slaves.



In considering this part of the controversy, two questions arise:  1. 

Was he, together with his family, free in Missouri by reason of the stay

in the territory of the United States hereinbefore [60 U.S. 432]

mentioned?  And 2.  If they were not, is Scott himself free by reason of

his removal to Rock Island, in the State of Illinois, as stated in the

above admissions?



We proceed to examine the first question.



The act of Congress upon which the plaintiff relies declares that

slavery and involuntary servitude, except as a punishment for crime,

shall be forever prohibited in all that part of the territory ceded by

France, under the name of Louisiana, which lies north of thirty-six

degrees thirty minutes north latitude, and not included within the

limits of Missouri.  And the difficulty which meets us at the threshold

of this part of the inquiry is whether Congress was authorized to pass

this law under any of the powers granted to it by the Constitution; for

if the authority is not given by that instrument, it is the duty of this

court to declare it void and inoperative, and incapable of conferring

freedom upon anyone who is held as a slave under the have of anyone of

the States.



The counsel for the plaintiff has laid much stress upon that article in

the Constitution which confers on Congress the power "to dispose of and

make all needful rules and regulations respecting the territory or other

property belonging to the United States," but, in the judgment of the

court, that provision has no bearing on the present controversy, and the

power there given, whatever it may be, is confined, and was intended to

be confined, to the territory which at that time belonged to, or was

claimed by, the United States, and was within their boundaries as

settled by the treaty with Great Britain, and can have no influence upon

a territory afterwards acquired from a foreign Government.  It was a

special provision for a known and particular territory, and to meet a

present emergency, and nothing more.



A brief summary of the history of the times, as well as the careful and

measured terms in which the article is framed will show the correctness

of this proposition.



It will be remembered that, from the commencement of the Revolutionary

war, serious difficulties existed between the States in relation to the

disposition of large and unsettled territories which were included in

the chartered limits of some of the States.  And some of the other

States, and more especially Maryland, which had no unsettled lands,

insisted that as the unoccupied lands, if wrested from Great Britain,

would owe their preservation to the common purse and the common sword,

the money arising from them ought to be applied in just proportion among

the several States to pay the expenses of the war, and ought not to be

appropriated to the use of the State in whose chartered limits they

might happen [60 U.S. 433] to lie, to the exclusion of the other States,

by whose combined efforts and common expense the territory was defended

and preserved against the claim of the British Government.



These difficulties caused much uneasiness during the war, while the

issue was in some degree doubtful, and the future boundaries of the

United States yet to be defined by treaty, if we achieved our

independence.



The majority of the Congress of the Confederation obviously concurred in

opinion with the State of Maryland, and desired to obtain from the

States which claimed it a cession of this territory, in order that

Congress might raise money on this security to carry on the war.  This

appears by the resolution passed on the 6th of September, 1780, strongly

urging the States to cede these lands to the United States, both for the

sake of peace and union among themselves, and to maintain the public

credit; and this was followed by the resolution of October 10th, 1780,

by which Congress pledged itself that if the lands were ceded, as

recommended by the resolution above mentioned, they should be disposed

of for the common benefit of the United States, and be settled and

formed into distinct republican States, which should become members of

the Federal Union, and have the same rights of sovereignty and freedom

and independence as other States.



But these difficulties became much more serious after peace took place,

and the boundaries of the United States were established.  Every State,

at that time, felt severely the pressure of its war debt; but in

Virginia and some other States, there were large territories of

unsettled lands, the sale of which would enable them to discharge their

obligations without much inconvenience, while other States which had no

such resource saw before them many years of heavy and burdensome

taxation, and the latter insisted, for the reasons before stated, that

these unsettled lands should be treated as the common property of the

States, and the proceeds applied to their common benefit.



The letters from the statesmen of that day will show how much this

controversy occupied their thoughts, and the dangers that were

apprehended from it.  It was the disturbing element of the time, and

fears were entertained that it might dissolve the Confederation by which

the States were then united.



These fears and dangers were, however, at once removed, when the State

of Virginia, in 1784, voluntarily ceded to the United States the immense

tract of country lying northwest of the river Ohio, and which was within

the acknowledged limits of the State.  The only object of the State in

making  [60 U.S. 434] this cession was to put an end to the threatening

and exciting controversy, and to enable the Congress of that time to

dispose of the lands and appropriate the proceeds as a common fund for

the common benefit of the States.  It was not ceded because it was

inconvenient to the State to hold and govern it, nor from any

expectation that it could be better or more conveniently governed by the

United States.



The example of Virginia was soon afterwards followed by other States,

and, at the time of the adoption of the Constitution, all of the States,

similarly situated had ceded their unappropriated lands, except North

Carolina and Georgia.  The main object for which these cessions were

desired and made was on account of their money value, and to put an end

to a dangerous controversy as to who was justly entitled to the proceeds

when the lands should be sold.  It is necessary to bring this part of

the history of these cessions thus distinctly into view because it will

enable us the better to comprehend the phraseology of the article in the

Constitution so often referred to in the argument.



Undoubtedly the powers of sovereignty and the eminent domain were ceded

with the land.  This was essential in order to make it effectual and to

accomplish its objects.  But it must be remembered that, at that time,

there was no Government of the United States in existence with

enumerated and limited powers; what was then called the United States

were thirteen separate, sovereign, independent States which had entered

into a league or confederation for their mutual protection and

advantage, and the Congress of the United States was composed of the

representatives of these separate sovereignties, meeting together, as

equals, to discuss and decide on certain measures which the States, by

the Articles of Confederation, had agreed to submit to their decision. 

But this Confederation had none of the attributes of sovereignty in

legislative, executive, or judicial power.  It was little more than a

congress of ambassadors, authorized to represent separate nations in

matters in which they had a common concern.



It was this Congress that accepted the cession from Virginia.  They had

no power to accept it under the Articles of Confederation.  But they had

an undoubted right, as independent sovereignties, to accept any cession

of territory for their common benefit, which all of them assented to;

and it is equally clear that as their common property, and having no

superior to control them, they had the right to exercise absolute

dominion over it, subject only to the restrictions which Virginia had

imposed in her act of cession.  There was, as we have said, no

Government of the United States then in existence [60 U.S. 435] with

special enumerated and limited powers.  The territory belonged to

sovereignties who, subject to the limitations above mentioned, had a

right to establish any form of government they pleased by compact or

treaty among themselves, and to regulate rights of person and rights of

property in the territory as they might deem proper.  It was by a

Congress, representing the authority of these several and separate

sovereignties and acting under their authority and command (but not from

any authority derived from the Articles of Confederation), that the

instrument usually called the Ordinance of 1787 was adopted, regulating

in much detail the principles and the laws by which this territory

should be governed; and, among other provisions, slavery is prohibited

in it.  We do not question the power of the States, by agreement among

themselves, to pass this ordinance, nor its obligatory force in the

territory while the confederation or league of the States in their

separate sovereign character continued to exist.



This was the state of things when the Constitution of the United States

was formed.  The territory ceded by Virginia belonged to the several

confederated States as common property, and they had united in

establishing in it a system of government and jurisprudence in order to

prepare it for admission as States according to the terms of the

cession.  They were about to dissolve this federative Union, and to

surrender a portion of their independent sovereignty to a new

Government, which, for certain purposes, would make the people of the

several States one people, and which was to be supreme and controlling

within its sphere of action throughout the United States; but this

Government was to be carefully limited in its powers, and to exercise no

authority beyond those expressly granted by the Constitution or

necessarily to be implied from the language of the instrument and the

objects it was intended to accomplish; and as this league of States

would, upon the adoption of the new Government, cease to have any power

over the territory, and the ordinance they had agreed upon be incapable

of execution, and a mere nullity, it was obvious that some provision was

necessary to give the new Government sufficient power to enable it to

carry into effect the objects for which it was ceded, and the compacts

and agreements which the States had made with each other in the exercise

of their powers of sovereignty.  It was necessary that the lands should

be sold to pay the war debt; that a Government and system of

jurisprudence should be maintained in it to protect the citizens of the

United States who should migrate to the territory, in their rights of

person and of property.  It was also necessary that the new Government,

about to be [60 U.S. 436] adopted should be authorized to maintain the

claim of the United States to the unappropriated lands in North Carolina

and Georgia, which had not then been ceded but the cession of which was

confidently anticipated upon some terms that would be arranged between

the General Government and these two States.  And, moreover, there were

many articles of value besides this property in land, such as arms,

military stores, munitions, and ships of war, which were the common

property of the States, when acting in their independent characters as

confederates, which neither the new Government nor anyone else would

have a right to take possession of, or control, without authority from

them; and it was to place these things under the guardianship and

protection of the new Government, and to clothe it with the necessary

powers, that the clause was inserted in the Constitution which give

Congress the power "to dispose of and make all needful rules and

regulations respecting the territory or other property belonging to the

United States."  It was intended for a specific purpose, to provide for

the things we have mentioned.  It was to transfer to the new Government

the property then held in common by the States, and to give to that

Government power to apply it to the objects for which it had been

destined by mutual agreement among the States before their league was

dissolved.  It applied only to the property which the States held in

common at that time, and has no reference whatever to any territory or

other property which the new sovereignty might afterwards itself

acquire.



The language used in the clause, the arrangement and combination of the

powers, and the somewhat unusual phraseology it uses when it speaks of

the political power to be exercised in the government of the territory,

all indicate the design and meaning of the clause to be such as we have

mentioned.  It does not speak of any territory, nor of Territories, but

uses language which, according to its legitimate meaning, points to a

particular thing. The power is given in relation only to the territory

of the United States -- that is, to a territory then in existence, and

then known or claimed as the territory of the United States.  It begins

its enumeration of powers by that of disposing, in other words, making

sale of the lands, or raising money from them, which, as we have already

said, was the main object of the cession, and which is accordingly the

first thing provided for in the article.  It then gives the power which

was necessarily associated with the disposition and sale of the lands --

that is, the power of making needful rules and regulations respecting

the territory.  And whatever construction may now be given to these

words, everyone, we think, [60 U.S. 437] must admit that they are not

the words usually employed by statesmen in giving supreme power of

legislation.  They are certainly very unlike the words used in the power

granted to legislate over territory which the new Government might

afterwards itself obtain by cession from a State, either for its seat of

Government or for forts, magazines, arsenals, dockyards, and other

needful buildings.



And the same power of making needful rules respecting the territory is,

in precisely the same language, applied to the other property belonging

to the United States -- associating the power over the territory in this

respect with the power over movable or personal property -- that is, the

ships, arms, and munitions of war, which then belonged in common to the

State sovereignties.  And it will hardly be said that this power, in

relation to the last-mentioned objects, was deemed necessary to be thus

specially given to the new Government in order to authorize it to make

needful rules and regulations respecting the ships it might itself

build, or arms and munitions of war it might itself manufacture or

provide for the public service.



No one, it is believed, would think a moment of deriving the power of

Congress to make needful rules and regulations in relation to property

of this kind from this clause of the Constitution.  Nor can it, upon any

fair construction, be applied to any property but that which the new

Government was about the receive from the confederated States.  And if

this be true as to this property, it must be equally true and limited as

to the territory, which is so carefully and precisely coupled with it --

and like it referred to as property in the power granted.  The

concluding words of the clause appear to render this construction

irresistible, for, after the provisions we have mentioned, it proceeds

to say, "that nothing in the Constitution shall be so construed as to

prejudice any claims of the United States, or of any particular State."



Now, as we have before said, all of the States except North Carolina and

Georgia had made the cession before the Constitution was adopted,

according to the resolution of Congress of October 10, 1780.  The claims

of other States that the unappropriated lands in these two States should

be applied to the common benefit in like manner was still insisted on,

but refused by the States.  And this member of the clause in question

evidently applies to them, and can apply to nothing else.  It was to

exclude the conclusion that either party, by adopting the Constitution,

would surrender what they deemed their rights.  And when the latter

provision relates so obviously to the unappropriated lands not yet ceded

by the States, and the first clause makes provision for those then

actually ceded, it is [60 U.S. 438] impossible, by any just rule of

construction, to make the first provision general, and extend to all

territories, which the Federal Government might in any way afterwards

acquire, when the latter is plainly and unequivocally confined to a

particular territory; which was a part of the same controversy, and

involved in the same dispute, and depended upon the same principles. 

The union of the two provisions in the same clause shows that they were

kindred subjects, and that the whole clause is local, and relates only

to lands within the limits of the United States which had been or then

were claimed by a State, and that no other territory was in the mind of

the framers of the Constitution or intended to be embraced in it.  Upon

any other construction, it would be impossible to account for the

insertion of the last provision in the place where it is found, or to

comprehend why or for what object it was associated with the previous

provision.



This view of the subject is confirmed by the manner in which the present

Government of the United States dealt with the subject as soon as it

came into existence.  It must be borne in mind that the same States that

formed the Confederation also formed and adopted the new Government, to

which so large a portion of their former sovereign powers were

surrendered.  It must also be borne in mind that all of these same

States which had then ratified the new Constitution were represented in

the Congress which passed the first law for the government of this

territory, and many of the members of that legislative body had been

deputies from the States under the Confederation -- had united in

adopting the Ordinance of 1787 and assisted in forming the new

Government under which they were then acting, and whose powers they were

then exercising.  And it is obvious from the law they passed to carry

into effect the principles and provisions of the ordinance that they

regarded it as the act of the States done in the exercise of their

legitimate powers at the time.  The new Government took the territory as

it found it, and in the condition in which it was transferred, and did

not attempt to undo anything that had been done.  And among the earliest

laws passed under the new Government is one reviving the Ordinance of

1787, which had become inoperative and a nullity upon the adoption of

the Constitution.  This law introduces no new form or principles for its

government, but recites, in the preamble, that it is passed in order

that this ordinance may continue to have full effect, and proceeds to

make only those rules and regulations which were needful to adapt it to

the new Government, into whose hands the power had fallen.  It appears,

therefore, that this Congress regarded the purposes [60 U.S. 439] to

which the land in this Territory was to be applied and the form of

government and principles of jurisprudence which were to prevail there,

while it remained in the Territorial state, as already determined on by

the States when they had full power and right to make the decision, and

that the new Government, having received it in this condition, ought to

carry substantially into effect the plans and principles which had been

previously adopted by the States, and which no doubt the States

anticipated when they surrendered their power to the new Government. 

And if we regard this clause of the Constitution as pointing to this

Territory, with a Territorial Government already established in it,

which had been ceded to the States for the purposes hereinbefore

mentioned -- every word in it is perfectly appropriate and easily

understood, and the provisions it contains are in perfect harmony with

the objects for which it was ceded, and with the condition of its

government as a Territory at the time.  We can, then, easily account for

the manner in which the first Congress legislated on the subject -- and

can also understand why this power over the territory was associated in

the same clause with the other property of the United States, and

subjected to the like power of making needful rules and regulations. 

But if the clause is construed in the expanded sense contended for, so

as to embrace any territory acquired from a foreign nation by the

present Government and to give it in such territory a despotic and

unlimited power over persons and property such as the confederated

States might exercise in their common property, it would be difficult to

account for the phraseology used when compared with other grants of

power -- and also for its association with the other provisions in the

same clause.



The Constitution has always been remarkable for the felicity of its

arrangement of different subjects and the perspicuity and

appropriateness of the language it uses.  But if this clause is

construed to extend to territory acquired by the present Government from

a foreign nation, outside of the limits of any charter from the British

Government to a colony, it would be difficult to say why it was deemed

necessary to give the Government the power to sell any vacant lands

belonging to the sovereignty which might be found within it, and, if

this was necessary, why the grant of this power should precede the power

to legislate over it and establish a Government there, and still more

difficult to say why it was deemed necessary so specially and

particularly to grant the power to make needful rules and regulations in

relation to any personal or movable property it might acquire there. 

For the words other property necessarily, by every known rule of

interpretation, must mean [60 U.S. 440] property of a different

description from territory or land.  And the difficulty would perhaps be

insurmountable in endeavoring to account for the last member of the

sentence, which provides that "nothing in this Constitution shall be so

construed as to prejudice any claims of the United States or any

particular State," or to say how any particular State could have claims

in or to a territory ceded by a foreign Government, or to account for

associating this provision with the preceding provisions of the clause,

with which it would appear to have no connection.



The words "needful rules and regulations" would seem also to have been

cautiously used for some definite object.  They are not the words

usually employed by statesmen when they mean to give the powers of

sovereignty, or to establish a Government, or to authorize its

establishment.  Thus, in the law to renew and keep alive the Ordinance

of 1787 and to reestablish the Government, the title of the law is:  "An

act to provide for the government of the territory northwest of the

river Ohio."  And in the Constitution, when granting the power to

legislate over the territory that may be selected for the seat of

Government independently of a State, it does not say Congress shall have

power "to make all needful rules and regulations respecting the

territory," but it declares that Congress shall have power to exercise

exclusive legislation in all cases whatsoever over such District (not

exceeding ten miles square) as may, by cession of particular States and

the acceptance of Congress, become the seat of the Government of the

United States.



The words "rules and regulations" are usually employed in the

Constitution in speaking of some particular specified power which it

means to confer on the Government, and not, as we have seen, when

granting general powers of legislation.  As, for example, in the

particular power to Congress "to make rules for the government and

regulation of the land and naval forces, or the particular and specific

power to regulate commerce;" "to establish an uniform rule of

naturalization;" "to coin money and regulate the value thereof."  And to

construe the words of which we are speaking as a general and unlimited

grant of sovereignty over territories which the Government might

afterwards acquire is to use them in a sense and for a purpose for which

they were not used in any other part of the instrument.  But if confined

to a particular Territory, in which a Government and laws had already

been established but which would require some alterations to adapt it to

the new Government, the words are peculiarly applicable and appropriate

for that purpose. [60 U.S. 441]



The necessity of this special provision in relation to property and the

rights or property held in common by the confederated States is

illustrated by the first clause of the sixth article.  This clause

provides that all debts, contracts, and engagements entered into before

the adoption of this Constitution shall be as valid against the United

States under this Government as under the Confederation. This provision,

like the one under consideration, was indispensable if the new

Constitution was adopted.  The new Government was not a mere change in a

dynasty, or in a form of government, leaving the nation or sovereignty

the same, and clothed with all the rights, and bound by all the

obligations of the preceding one.  But, when the present United States

came into existence under the new Government, it was a new political

body, a new nation, then for the first time taking its place in the

family of nations.  It took nothing by succession from the

Confederation.  It had no right, as its successor, to any property or

rights of property which it had acquired, and was not liable for any of

its obligations.  It was evidently viewed in this light by the framers

of the Constitution.  And as the several States would cease to exist in

their former confederated character upon the adoption of the

Constitution, and could not, in that character, again assemble together,

special provisions were indispensable to transfer to the new Government

the property and rights which at that time they held in common, and at

the same time to authorize it to lay taxes and appropriate money to pay

the common debt which they had contracted; and this power could only be

given to it by special provisions in the Constitution.  The clause in

relation to the territory and other property of the United States

provided for the first, and the clause last quoted provided for the

other.  They have no connection with the general powers and rights of

sovereignty delegated to the new Government, and can neither enlarge nor

diminish them.  They were inserted to meet a present emergency, and not

to regulate its powers as a Government.



Indeed, a similar provision was deemed necessary in relation to treaties

made by the Confederation; and when, in the clause next succeeding the

one of which we have last spoken, it is declared that treaties shall be

the supreme law of the land, care is taken to include, by express words,

the treaties made by the confederated States.  The language is: "and all

treaties made, or which shall be made, under the authority of the United

States, shall be the supreme law of the land."



Whether, therefore, we take the particular clause in question, by

itself, or in connection with the other provisions of the Constitution,

we think it clear that it applies only to the particular [60 U.S. 442]

territory of which we have spoken, and cannot, by any just rule of

interpretation, be extended to territory which the new Government might

afterwards obtain from a foreign nation.  Consequently, the power which

Congress may have lawfully exercised in this Territory, while it

remained under a Territorial Government, and which may have been

sanctioned by judicial decision, can furnish no justification and no

argument to support a similar exercise of power over territory

afterwards acquired by the Federal Government.  We put aside, therefore,

any argument, drawn from precedents, showing the extent of the power

which the General Government exercised over slavery in this Territory,

as altogether inapplicable to the case before us.



But the case of the American and Ocean Insurance Companies v. Canter, 1

Pet. 511, has been quoted as establishing a different construction of

this clause of the Constitution.  There is, however, not the slightest

conflict between the opinion now given and the one referred to, and it

is only by taking a single sentence out of the latter and separating it

from the context that even an appearance of conflict can be shown.  We

need not comment on such a mode of expounding an opinion of the court. 

Indeed, it most commonly misrepresents instead of expounding it.  And

this is fully exemplified in the case referred to, where, if one

sentence is taken by itself, the opinion would appear to be in direct

conflict with that now given, but the words which immediately follow

that sentence show that the court did not mean to decide the point, but

merely affirmed the power of Congress to establish a Government in the

Territory, leaving it an open question whether that power was derived

from this clause in the Constitution, or was to be necessarily inferred

from a power to acquire territory by cession from a foreign Government. 

The opinion on this part of the case is short, and we give the whole of

it to show how well the selection of a single sentence is calculated to

mislead.



The passage referred to is in page 542, in which the court, in speaking

of the power of Congress to establish a Territorial Government in

Florida until it should become a State, uses the following language:



In the meantime, Florida continues to be a Territory of the United

States, governed by that clause of the Constitution which empowers

Congress to make all needful rules and regulations respecting the

territory or other property of the United States.  Perhaps the power of

governing a Territory belonging to the United States which has not, by

becoming a State, acquired the means of self-government may result

necessarily from the facts that it is not within the jurisdiction of any

particular [60 U.S. 443] State, and is within the power and jurisdiction

of the United States.  The right to govern may be the inevitable

consequence of the right to acquire territory.  Whichever may be the

source from which the power is derived, the possession of it is

unquestionable.



It is thus clear from the whole opinion on this point that the court did

not mean to decide whether the power was derived from the clause in the

Constitution or was the necessary consequence of the right to acquire. 

They do decide that the power in Congress is unquestionable, and in this

we entirely concur, and nothing will be found in this opinion to the

contrary.  The power stands firmly on the latter alternative put by the

court -- that is, as "the inevitable consequence of the right to acquire

territory."



And what still more clearly demonstrates that the court did not mean to

decide the question, but leave it open for future consideration, is the

fact that the case was decided in the Circuit Court by Mr. Justice

Johnson, and his decision was affirmed by the Supreme Court.  His

opinion at the circuit is given in full in a note to the case, and in

that opinion he states, in explicit terms, that the clause of the

Constitution applies only to the territory then within the limits of the

United States, and not to Florida, which had been acquired by cession

from Spain.  This part of his opinion will be found in the note in page

517 of the report.  But he does not dissent from the opinion of the

Supreme Court, thereby showing that, in his judgment as well as that of

the court, the case before them did not call for a decision on that

particular point, and the court abstained from deciding it.  And in a

part of its opinion subsequent to the passage we have quoted, where the

court speak of the legislative power of Congress in Florida, they still

speak with the same reserve.  And in page 546, speaking of the power of

Congress to authorize the Territorial Legislature to establish courts

there, the court say: They are legislative courts, created in virtue of

the general right of sovereignty which exists in the Government, or in

virtue of that clause which enables Congress to make all needful rules

and regulations respecting the territory belonging to the United States.



It has been said that the construction given to this clause is new, and

now for the first time brought forward.  The case of which we are

speaking, and which has been so much discussed, shows that the fact is

otherwise.  It shows that precisely the same question came before Mr.

Justice Johnson, at his circuit, thirty years ago -- was fully

considered by him, and the same construction given to the clause in the

Constitution which is now given by this court.  And that upon an appeal

[60 U.S. 444] from his decision the same question was brought before

this court, but was not decided because a decision upon it was not

required by the case before the court.



There is another sentence in the opinion which has been commented on,

which even in a still more striking manner shows how one may mislead or

be misled by taking out a single sentence from the opinion of a court,

and leaving out of view what precedes and follows.  It is in page 546,

near the close of the opinion, in which the court say:  "In legislating

for them," (the territories of the United States) "Congress exercises

the combined powers of the General and of a State Government."  And it

is said that, as a State may unquestionably prohibit slavery within its

territory, this sentence decides in effect that Congress may do the same

in a Territory of the United States, exercising there the powers of a

State as well as the power of the General Government.



The examination of this passage in the case referred to would be more

appropriate when we come to consider in another part of this opinion

what power Congress can constitutionally exercise in a Territory, over

the rights of person or rights of property of a citizen.  But, as it is

in the same case with the passage we have before commented on, we

dispose of it now, as it will save the court from the necessity of

referring again to the case.  And it will be seen upon reading the page

in which this sentence is found that it has no reference whatever to the

power of Congress over rights of person or rights of property, but

relates altogether to the power of establishing judicial tribunals to

administer the laws constitutionally passed, and defining the

jurisdiction they may exercise.



The law of Congress establishing a Territorial Government in Florida

provided that the Legislature of the Territory should have legislative

powers over "all rightful objects of legislation, but no law should be

valid which was inconsistent with the laws and Constitution of the

United States."



Under the power thus conferred, the Legislature of Florida passed an act

erecting a tribunal at Key West to decide cases of salvage.  And in the

case of which we are speaking, the question arose whether the

Territorial Legislature could be authorized by Congress to establish

such a tribunal, with such powers, and one of the parties, among other

objections, insisted that Congress could not under the Constitution

authorize the Legislature of the Territory to establish such a tribunal

with such powers, but that it must be established by Congress itself,

and that a sale of cargo made under its order to pay salvors was void as

made without legal authority, and passed no property to the purchaser.

[60 U.S. 445]



It is in disposing of this objection that the sentence relied on occurs,

and the court begin that part of the opinion by stating with great

precision the point which they are about to decide.



They say:



It has been contended that by the Constitution of the United States, the

judicial power of the United States extends to all cases of admiralty

and maritime jurisdiction, and that the whole of the judicial power must

be vested "in one Supreme Court, and in such inferior courts as Congress

shall from time to time ordain and establish."  Hence it has been argued

that Congress cannot vest admiralty jurisdiction in courts created by

the Territorial Legislature.



And after thus clearly stating the point before them and which they were

about to decide, they proceed to show that these Territorial tribunals

were not constitutional courts, but merely legislative, and that

Congress might therefore delegate the power to the Territorial

Government to establish the court in question, and they conclude that

part of the opinion in the following words: Although admiralty

jurisdiction can be exercised in the States in those courts only which

are established in pursuance of the third article of the Constitution,

the same limitation does not extend to the Territories.  In legislating

for them, Congress exercises the combined powers of the General and

State Governments.



Thus it will be seen by these quotations from the opinion that the

court, after stating the question it was about to decide in a manner too

plain to be misunderstood, proceeded to decide it, and announced, as the

opinion of the tribunal, that in organizing the judicial department of

the Government in a Territory of the United States, Congress does not

act under, and is not restricted by, the third article in the

Constitution, and is not bound, in a Territory, to ordain and establish

courts in which the judges hold their offices during good behaviour, but

may exercise the discretionary power which a State exercises in

establishing its judicial department and regulating the jurisdiction of

its courts, and may authorize the Territorial Government to establish,

or may itself establish, courts in which the judges hold their offices

for a term of years only, and may vest in them judicial power upon

subjects confided to the judiciary of the United States.  And in doing

this, Congress undoubtedly exercises the combined power of the General

and a State Government.  It exercises the discretionary power of a State

Government in authorizing the establishment of a court in which the

judges hold their appointments for a term of years only, and not during

good behaviour, and it exercises the power of the General Government in

investing that [60 U.S. 446] court with admiralty jurisdiction, over

which the General Government had exclusive jurisdiction in the

Territory.



No one, we presume, will question the correctness of that opinion; nor

is there anything in conflict with it in the opinion now given.  The

point decided in the case cited has no relation to the question now

before the court.  That depended on the construction of the third

article of the Constitution, in relation to the judiciary of the United

States, and the power which Congress might exercise in a Territory in

organizing the judicial department of the Government.  The case before

us depends upon other and different provisions of the Constitution

altogether separate and apart from the one above mentioned.  The

question as to what courts Congress may ordain or establish in a

Territory to administer laws which the Constitution authorizes it to

pass, and what laws it is or is not authorized by the Constitution to

pass, are widely different -- are regulated by different and separate

articles of the Constitution, and stand upon different principles.  And

we are satisfied that no one who reads attentively the page in Peters'

Reports to which we have referred can suppose that the attention of the

court was drawn for a moment to the question now before this court, or

that it meant in that case to say that Congress had a right to prohibit

a citizen of the United States from taking any property which he

lawfully held into a Territory of the United States.



This brings us to examine by what provision of the Constitution the

present Federal Government, under its delegated and restricted powers,

is authorized to acquire territory outside of the original limits of the

United States, and what powers it may exercise therein over the person

or property of a citizen of the United States while it remains a

Territory and until it shall be admitted as one of the States of the

Union.



There is certainly no power given by the Constitution to the Federal

Government to establish or maintain colonies bordering on the United

States or at a distance to be ruled and governed at its own pleasure,

nor to enlarge its territorial limits in any way except by the admission

of new States.  That power is plainly given, and if a new State is

admitted, it needs no further legislation by Congress, because the

Constitution itself defines the relative rights and powers and duties of

the State, and the citizens of the State, and the Federal Government. 

But no power is given to acquire a Territory to be held and governed

permanently in that character.



And indeed the power exercised by Congress to acquire territory and

establish a Government there, according to its own unlimited discretion,

was viewed with great jealousy by the [60 U.S. 447] leading statesmen of

the day.  And in the Federalist No. 38, written by Mr. Madison, he

speaks of the acquisition of the Northwestern Territory by the

confederated States, by the cession from Virginia, and the establishment

of a Government there, as an exercise of power not warranted by the

Articles of Confederation, and dangerous to the liberties of the people.

 And he urges the adoption of the Constitution as a security and

safeguard against such an exercise of power.



We do not mean, however, to question the power of Congress in this

respect.  The power to expand the territory of the United States by the

admission of new States is plainly given, and, in the construction of

this power by all the departments of the Government, it has been held to

authorize the acquisition of territory not fit for admission at the

time, but to be admitted as soon as its population and situation would

entitle it to admission. It is acquired to become a State, and not to be

held as a colony and governed by Congress with absolute authority, and,

as the propriety of admitting a new State is committed to the sound

discretion of Congress, the power to acquire territory for that purpose,

to be held by the United States until it is in a suitable condition to

become a State upon an equal footing with the other States, must rest

upon the same discretion.  It is a question for the political department

of the Government, and not the judicial, and whatever the political

department of the Government shall recognise as within the limits of the

United States, the judicial department is also bound to recognise and to

administer in it the laws of the United States so far as they apply, and

to maintain in the Territory the authority and rights of the Government

and also the personal rights and rights of property of individual

citizens as secured by the Constitution.  All we mean to say on this

point is that, as there is no express regulation in the Constitution

defining the power which the General Government may exercise over the

person or property of a citizen in a Territory thus acquired, the court

must necessarily look to the provisions and principles of the

Constitution and its distribution of powers for the rules and principles

by which its decision must be governed.



Taking this rule to guide us, it may be safely assumed that citizens of

the United States who migrate to a Territory belonging to the people of

the United States cannot be ruled as mere colonists, dependent upon the

will of the General Government and to be governed by any laws it may

think proper to impose.  The principle upon which our Governments rest

and upon which alone they continue to exist, is the union of States,

sovereign and independent within their own limits in [60 U.S. 448] their

internal and domestic concerns, and bound together as one people by a

General Government, possessing certain enumerated and restricted powers

delegated to it by the people of the several States, and exercising

supreme authority within the scope of the powers granted to it

throughout the dominion of the United States.  A power, therefore, in

the General Government to obtain and hold colonies and dependent

territories over which they might legislate without restriction would be

inconsistent with its own existence in its present form.  Whatever it

acquires, it acquires for the benefit of the people of the several

States who created it.  It is their trustee acting for them, and charged

with the duty of promoting the interests of the whole people of the

Union in the exercise of the powers specifically granted.



At the time when the Territory in question was obtained by cession from

France, it contained no population fit to be associated together and

admitted as a State, and it therefore was absolutely necessary to hold

possession of it, as a Territory belonging to the United States, until

it was settled and inhabited by a civilized community capable of

self-government, and in a condition to be admitted on equal terms with

the other States as a member of the Union.  But, as we have before said,

it was acquired by the General Government as the representative and

trustee of the people of the United States, and it must therefore be

held in that character for their common and equal benefit, for it was

the people of the several States, acting through their agent and

representative, the Federal Government, who in fact acquired the

Territory in question, and the Government holds it for their common use

until it shall be associated with the other States as a member of the

Union.



But, until that time arrives, it is undoubtedly necessary that some

Government should be established in order to organize society and to

protect the inhabitants in their persons and property, and as the people

of the United States could act in this matter only through the

Government which represented them and the through which they spoke and

acted when the Territory was obtained, it was not only within the scope

of its powers, but it was its duty, to pass such laws and establish such

a Government as would enable those by whose authority they acted to reap

the advantages anticipated from its acquisition and to gather there a

population which would enable it to assume the position to which it was

destined among the States of the Union.  The power to acquire

necessarily carries with it the power to preserve and apply to the

purposes for which it was acquired.  The form of government to be

established  [60 U.S. 449] necessarily rested in the discretion of

Congress.  It was their duty to establish the one that would be best

suited for the protection and security of the citizens of the United

States and other inhabitants who might be authorized to take up their

abode there, and that must always depend upon the existing condition of

the Territory as to the number and character of its inhabitants and

their situation in the Territory.  In some cases, a Government

consisting of persons appointed by the Federal Government would best

subserve the interests of the Territory when the inhabitants were few

and scattered, and new to one another.  In other instances, it would be

more advisable to commit the powers of self-government to the people who

had settled in the Territory, as being the most competent to determine

what was best for their own interests.  But some form of civil authority

would be absolutely necessary to organize and preserve civilized society

and prepare it to become a State, and what is the best form must always

depend on the condition of the Territory at the time, and the choice of

the mode must depend upon the exercise of a discretionary power by

Congress, acting within the scope of its constitutional authority, and

not infringing upon the rights of person or rights of property of the

citizen who might go there to reside, or for any other lawful purpose. 

It was acquired by the exercise of this discretion, and it must be held

and governed in like manner until it is fitted to be a State.



But the power of Congress over the person or property of a citizen can

never be a mere discretionary power under our Constitution and form of

Government.  The powers of the Government and the rights and privileges

of the citizen are regulated and plainly defined by the Constitution

itself.  And when the Territory becomes a part of the United States, the

Federal Government enters into possession in the character impressed

upon it by those who created it.  It enters upon it with its powers over

the citizen strictly defined, and limited by the Constitution, from

which it derives its own existence and by virtue of which alone it

continues to exist and act as a Government and sovereignty.  It has no

power of any kind beyond it, and it cannot, when it enters a Territory

of the United States, put off its character and assume discretionary or

despotic powers which the Constitution has denied to it.  It cannot

create for itself a new character separated from the citizens of the

United States and the duties it owes them under the provisions of the

Constitution.  The Territory being a part of the United States, the

Government and the citizen both enter it under the authority of the

Constitution, with their respective rights defined and marked out, and

the Federal Government  [60 U.S. 450] can exercise no power over his

person or property beyond what that instrument confers, nor lawfully

deny any right which it has reserved.



A reference to a few of the provisions of the Constitution will

illustrate this proposition.



For example, no one, we presume, will contend that Congress can make any

law in a Territory respecting the establishment of religion, or the free

exercise thereof, or abridging the freedom of speech or of the press, or

the right of the people of the Territory peaceably to assemble and to

petition the Government for the redress of grievances.



Nor can Congress deny to the people the right to keep and bear arms, nor

the right to trial by jury, nor compel anyone to be a witness against

himself in a criminal proceeding.



These powers, and others in relation to rights of person which it is not

necessary here to enumerate, are, in express and positive terms, denied

to the General Government, and the rights of private property have been

guarded with equal care.  Thus, the rights of property are united with

the rights of person, and placed on the same ground by the fifth

amendment to the Constitution, which provides that no person shall be

deprived of life, liberty, and property, without due process of law. 

And an act of Congress which deprives a citizen of the United States of

his liberty or property merely because he came himself or brought his

property into a particular Territory of the United States, and who had

committed no offence against the laws, could hardly be dignified with

the name of due process of law.



So, too, it will hardly be contended that Congress could by law quarter

a soldier in a house in a Territory without the consent of the owner, in

time of peace nor in time of war, but in a manner prescribed by law. 

Nor could they by law forfeit the property of a citizen in a Territory

who was convicted of treason, for a longer period than the life of the

person convicted, nor take private property for public use without just

compensation.



The powers over person and property of which we speak are not only not

granted to Congress, but are in express terms denied, and they are

forbidden to exercise them.  And this prohibition is not confined to the

States, but the words are general, and extend to the whole territory

over which the Constitution gives it power to legislate, including those

portions of it remaining under Territorial Government, as well as that

covered by States.  It is a total absence of power everywhere within the

dominion of the United States, and places the citizens of a Territory,

so far as these rights are [60 U.S. 451] concerned, on the same footing

with citizens of the States, and guards them as firmly and plainly

against any inroads which the General Government might attempt under the

plea of implied or incidental powers.  And if Congress itself cannot do

this -- if it is beyond the powers conferred on the Federal Government

-- it will be admitted, we presume, that it could not authorize a

Territorial Government to exercise them.  It could confer no power on

any local Government established by its authority to violate the

provisions of the Constitution.



It seems, however, to be supposed that there is a difference between

property in a slave and other property and that different rules may be

applied to it in expounding the Constitution of the United States.  And

the laws and usages of nations, and the writings of eminent jurists upon

the relation of master and slave and their mutual rights and duties, and

the powers which Governments may exercise over it have been dwelt upon

in the argument.



But, in considering the question before us, it must be borne in mind

that there is no law of nations standing between the people of the

United States and their Government and interfering with their relation

to each other.  The powers of the Government and the rights of the

citizen under it are positive and practical regulations plainly written

down.  The people of the United States have delegated to it certain

enumerated powers and forbidden it to exercise others.  It has no power

over the person or property of a citizen but what the citizens of the

United States have granted.  And no laws or usages of other nations, or

reasoning of statesmen or jurists upon the relations of master and

slave, can enlarge the powers of the Government or take from the

citizens the rights they have reserved.  And if the Constitution

recognises the right of property of the master in a slave, and makes no

distinction between that description of property and other property

owned by a citizen, no tribunal, acting under the authority of the

United States, whether it be legislative, executive, or judicial, has a

right to draw such a distinction or deny to it the benefit of the

provisions and guarantees which have been provided for the protection of

private property against the encroachments of the Government.



Now, as we have already said in an earlier part of this opinion upon a

different point, the right of property in a slave is distinctly and

expressly affirmed in the Constitution.  The right to traffic in it,

like an ordinary article of merchandise and property, was guarantied to

the citizens of the United States in every State that might desire it

for twenty years.  And the Government in express terms is pledged to

protect [60 U.S. 452] it in all future time if the slave escapes from

his owner.  This is done in plain words -- too plain to be

misunderstood.  And no word can be found in the Constitution which gives

Congress a greater power over slave property or which entitles property

of that kind to less protection that property of any other description. 

The only power conferred is the power coupled with the duty of guarding

and protecting the owner in his rights.



Upon these considerations, it is the opinion of the court that the act

of Congress which prohibited a citizen from holding and owning property

of this kind in the territory of the United States north of the line

therein mentioned is not warranted by the Constitution, and is therefore

void, and that neither Dred Scott himself nor any of his family were

made free by being carried into this territory, even if they had been

carried there by the owner with the intention of becoming a permanent

resident.



We have so far examined the case, as it stands under the Constitution of

the United States, and the powers thereby delegated to the Federal

Government.



But there is another point in the case which depends on State power and

State law.  And it is contended, on the part of the plaintiff, that he

is made free by being taken to Rock Island, in the State of Illinois,

independently of his residence in the territory of the United States,

and being so made free, he was not again reduced to a state of slavery

by being brought back to Missouri.



Our notice of this part of the case will be very brief, for the

principle on which it depends was decided in this court, upon much

consideration, in the case of Strader et al. v. Graham, reported in 10th

Howard 82.  In that case, the slaves had been taken from Kentucky to

Ohio, with the consent of the owner, and afterwards brought back to

Kentucky.  And this court held that their status or condition as free or

slave depended upon the laws of Kentucky when they were brought back

into that State, and not of Ohio, and that this court had no

jurisdiction to revise the judgment of a State court upon its own laws. 

This was the point directly before the court, and the decision that this

court had not jurisdiction turned upon it, as will be seen by the report

of the case.



So in this case.  As Scott was a slave when taken into the State of

Illinois by his owner, and was there held as such, and brought back in

that character, his status as free or slave depended on the laws of

Missouri, and not of Illinois.



It has, however, been urged in the argument that, by the laws of

Missouri, he was free on his return, and that this case [60 U.S. 453]

therefore cannot be governed by the case of Strader et al. v. Graham,

where it appeared, by the laws of Kentucky, that the plaintiffs

continued to be slaves on their return from Ohio.  But whatever doubts

or opinions may at one time have been entertained upon this subject, we

are satisfied, upon a careful examination of all the cases decided in

the State courts of Missouri referred to, that it is now firmly settled

by the decisions of the highest court in the State that Scott and his

family upon their return were not free, but were, by the laws of

Missouri, the property of the defendant, and that the Circuit Court of

the United States had no jurisdiction when, by the laws of the State,

the plaintiff was a slave and not a citizen.



Moreover, the plaintiff, it appears, brought a similar action against

the defendant in the State court of Missouri, claiming the freedom of

himself and his family upon the same grounds and the same evidence upon

which he relies in the case before the court.  The case was carried

before the Supreme Court of the State, was fully argued there, and that

court decided that neither the plaintiff nor his family were entitled to

freedom, and were still the slaves of the defendant, and reversed the

judgment of the inferior State court, which had given a different

decision.  If the plaintiff supposed that this judgment of the Supreme

Court of the State was erroneous, and that this court had jurisdiction

to revise and reverse it, the only mode by which he could legally bring

it before this court was by writ of error directed to the Supreme Court

of the State, requiring it to transmit the record to this court.  If

this had been done, it is too plain for argument that the writ must have

been dismissed for want of jurisdiction in this court.  The case of

Strader and others v. Graham is directly in point, and, indeed,

independent of any decision, the language of the 25th section of the act

of 1789 is too clear and precise to admit of controversy.



But the plaintiff did not pursue the mode prescribed by law for bringing

the judgment of a State court before this court for revision, but

suffered the case to be remanded to the inferior State court, where it

is still continued, and is, by agreement of parties, to await the

judgment of this court on the point.  All of this appears on the record

before us, and by the printed report of the case.



And while the case is yet open and pending in the inferior State court,

the plaintiff goes into the Circuit Court of the United States, upon the

same case and the same evidence and against the same party, and proceeds

to judgment, and then brings here the same case from the Circuit Court,

which the law would not have permitted him to bring directly from the

[60 U.S. 454] State court.  And if this court takes jurisdiction in this

form, the result, so far as the rights of the respective parties are

concerned, is in every respect substantially the same as if it had, in

open violation of law, entertained jurisdiction over the judgment of the

State court upon a writ of error, and revised and reversed its judgment

upon the ground that its opinion upon the question of law was erroneous.

 It would ill become this court to sanction such an attempt to evade the

law, or to exercise an appellate power in this circuitous way which it

is forbidden to exercise in the direct and regular and invariable forms

of judicial proceedings.



Upon the whole, therefore, it is the judgment of this court that it

appears by the record before us that the plaintiff in error is not a

citizen of Missouri in the sense in which that word is used in the

Constitution, and that the Circuit Court of the United States, for that

reason, had no jurisdiction in the case, and could give no judgment in

it.  Its judgment for the defendant must, consequently, be reversed, and

a mandate issued directing the suit to be dismissed for want of

jurisdiction. WAYNE, J., concurring



Mr. Justice WAYNE.



Concurring as I do entirely in the opinion of the court as it has been

written and read by the Chief Justice -- without any qualification of

its reasoning or its conclusions -- I shall neither read nor file an

opinion of my own in this case, which I prepared when I supposed it

might be necessary and proper for me to do so.



The opinion of the court meets fully and decides every point which was

made in the argument of the case by the counsel on either side of it. 

Nothing belonging to the case has been left undecided, nor has any point

been discussed and decided which was not called for by the record or

which was not necessary for the judicial disposition of it in the way

that it has been done, by more than a majority of the court.



In doing this, the court neither sought nor made the case. It was

brought to us in the course of that administration of the laws which

Congress has enacted, for the review of cases from the Circuit Courts by

the Supreme Court.



In our action upon it, we have only discharged our duty as a distinct

and efficient department of the Government, as the framers of the

Constitution meant the judiciary to be and as the States of the Union

and the people of those States intended it should be when they ratified

the Constitution of the United States.



The case involves private rights of value, and constitutional principles

of the highest importance about which there had [60 U.S. 455] become

such a difference of opinion, that the peace and harmony of the country

required the settlement of them by judicial decision.



It would certainly be a subject of regret that the conclusions of the

court have not been assented to by all of its members if I did not know

from its history and my own experience how rarely it has happened that

the judges have been unanimous upon constitutional questions of moment

and if our decision in this case had not been made by as large a

majority of them as has been usually had on constitutional questions of

importance.



Two of the judges, Mr. Justices McLean and Curtis, dissent from the

opinion of the court. A third, Mr. Justice Nelson, gives a separate

opinion upon a single point in the case with which I concur, assuming

that the Circuit Court had jurisdiction, but he abstains altogether from

expressing any opinion upon the eighth section of the act of 1820, known

commonly as the Missouri Compromise law, and six of us declare that it

was unconstitutional.



But it has been assumed that this court has acted extrajudicially in

giving an opinion upon the eighth section of the act of 1820 because, as

it has decided that the Circuit Court had no jurisdiction of the case,

this court had no jurisdiction to examine the case upon its merits.



But the error of such an assertion has arisen in part from a

misapprehension of what has been heretofore decided by the Supreme Court

in cases of a like kind with that before us, in part from a

misapplication to the Circuit Courts of the United States of the rules

of pleading concerning pleas to the jurisdiction which prevail in common

law courts, and from its having been forgotten that this case was not

brought to this court by appeal or writ of error from a State court, but

by a writ of error to the Circuit Court of the United States.



The cases cited by the Chief Justice to show that this court has now

only done what it has repeatedly done before in other cases, without any

question of its correctness, speak for themselves.  The differences

between the rules concerning pleas to the jurisdiction in the courts of

the United States and common law courts have been stated and sustained

by reasoning and adjudged cases, and it has been shown that writs of

error to a State court and to the Circuit Courts of the United States

are to be determined by different laws and principles.  In the first, it

is our duty to ascertain if this court has jurisdiction, under the

twenty-fifth section of the Judiciary Act, to review the case from the

State court, and if it shall be found that it has not, the case is at

end so far as this court is concerned, for our power [60 U.S. 456] to

review the case upon its merits has been made, by the twenty-fifth

section, to depend upon its having jurisdiction, when it has not, this

court cannot criticise, controvert, or give any opinion upon the merits

of a case from a State court.



But in a case brought to this court, by appeal or by writ of error from

a Circuit Court of the United States, we begin a review of it not by

inquiring if this court has jurisdiction, but if that court has it.  If

the case has been decided by that court upon its merits, but the record

shows it to be deficient in those averments which by the law of the

United States must be made by the plaintiff in the action to give the

court jurisdiction of his case, we send it back to the court from which

it was brought with directions to be dismissed though it has been

decided there upon its merits.



So, in a case containing the averments by the plaintiff which are

necessary to give the Circuit Court jurisdiction, if the defendant shall

file his plea in abatement denying the truth of them, and the plaintiff

shall demur to it, and the court should erroneously sustain the

plaintiff's demurrer, or declare the plea to be insufficient, and by

doing so require the defendant to answer over by a plea to the merits,

and shall decide the case upon such pleading, this court has the same

authority to inquire into the jurisdiction of that court to do so, and

to correct its error in that regard, that it had in the other case to

correct its error, in trying a case in which the plaintiff had not made

those averments which were necessary to give the court jurisdiction.  In

both cases, the record is resorted to to determine the point of

jurisdiction, but, as the power of review of cases from a Federal court

by this court is not limited by the law to a part of the case, this

court may correct an error upon the merits, and there is the same reason

for correcting an erroneous judgment of the Circuit Court where the want

of jurisdiction appears from any part of the record  that there is for

declaring a want of jurisdiction for a want of necessary averments.  Any

attempt to control the court from doing so by the technical common law

rules of pleading in cases of jurisdiction, when a defendant has been

denied his plea to it, would tend to enlarge the jurisdiction of the

Circuit Court by limiting this court's review of its judgments in that

particular.  But I will not argue a point already so fully discussed.  I

have every confidence in the opinion of the court upon the point of

jurisdiction, and do not allow myself to doubt that the error of a

contrary conclusion will be fully understood by all who shall read the

argument of the Chief Justice.



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

assent. [60 U.S. 457] NELSON, J., separate opinion



Mr. Justice NELSON.



I shall proceed to state the grounds upon which I have arrived at the

conclusion that the judgment of the court below should be affirmed.  The

suit was brought in the court below by the plaintiff for the purpose of

asserting his freedom and that of Harriet, his wife, and two children.



The defendant plead in abatement to the suit that the cause of action,

if any, accrued to the plaintiff out of the jurisdiction of the court,

and exclusively within the jurisdiction of the courts of the State of

Missouri, for that the said plaintiff is not a citizen of the State of

Missouri, as alleged in the declaration, because he is a negro of

African descent, his ancestors were of pure African blood, and were

brought into this country and sold as negro slaves.



To this plea the plaintiff demurred, and the defendant joined in

demurrer.  The court below sustained the demurrer, holding that the plea

was insufficient in law to abate the suit.



The defendant then plead over in bar of the action:



1. The general issue.  2. That the plaintiff was a negro slave, the

lawful property of the defendant.  And 3. That Harriet, the wife of said

plaintiff, and the two children, were the lawful slaves of the said

defendant.  Issue was taken upon these pleas, and the cause went down to

trial before the court and jury, and an agreed state of facts was

presented upon which the trial proceeded and resulted in a verdict for

the defendant, under the instructions of the court.



The facts agreed upon were substantially as follows:



That, in the year 1834, the plaintiff, Scott, was a negro slave of Dr.

Emerson, who was a surgeon in the army of the United States, and in that

year he took the plaintiff from the State of Missouri to the military

post at Rock Island, in the State of Illinois, and held him there as a

slave until the month of April or May, 1836.  At this date, Dr. Emerson

removed, with the plaintiff, from the Rock Island post to the military

post at Fort Snelling, situate on the west bank of the Mississippi

river, in the Territory of Upper Louisiana, and north of the latitude

thirty-six degrees thirty minutes, and north of the State of Missouri. 

That he held the plaintiff in slavery at Fort Snelling from the

last-mentioned date until the year 1838.



That, in the year 1835, Harriet, mentioned in the declaration, was a

negro slave of Major Taliaferro, who belonged to the army of the United

States, and in that year he took her to Fort Snelling, already

mentioned, and kept her there as a slave until the year 1836, and then

sold and delivered her to Dr. Emerson, who held her in slavery at Fort

Snelling until the year 1838.  That, in the year 1836, the plaintiff and

Harriet [60 U.S. 458] were married at Fort Snelling with the consent of

their master.  The two children, Eliza and Lizzie, are the fruit of this

marriage.  The first is about fourteen years of age, and was born on

board the steamboat Gipsey, north of the State of Missouri, and upon the

Mississippi river, the other, about seven years of age, was born in the

State of Missouri at the military post called Jefferson Barracks.



In 1838, Dr. Emerson removed the plaintiff Harriet and their daughter

Eliza from Fort Snelling to the State of Missouri, where they have ever

since resided.  And that, before the commencement of this suit, they

were sold by the Doctor to Sandford, the defendant, who has claimed and

held them as slaves ever since.



The agreed case also states that the plaintiff brought a suit for his

freedom, in the Circuit Court of the State of Missouri, on which a

judgment was rendered in his favor, but that, on a writ of error from

the Supreme Court of the State, the judgment of the court below was

reversed, and the cause remanded to the circuit for a new trial.



On closing the testimony in the court below, the counsel for the

plaintiff prayed the court to instruct the jury, upon the agreed state

of facts, that they ought to find for the plaintiff, when the court

refused, and instructed them that, upon the facts, the law was with the

defendant.



With respect to the plea in abatement, which went to the citizenship of

the plaintiff and his competency to bring a suit in the Federal courts,

the common law rule of pleading is that, upon a judgment against the

plea on demurrer, and that the defendant answer over, and the defendant

submits to the judgment and pleads over to the merits, the plea in

abatement is deemed to be waived, and is not afterwards to be regarded

as a part of the record in deciding upon the rights regarded as a part

of the record in deciding upon the rights of the parties.  There is some

question, however, whether this rule of pleading applies to the peculiar

system and jurisdiction of the Federal courts.  As, in these courts, if

the facts appearing on the record show that the Circuit Court had no

jurisdiction, its judgment will be reversed in the appellate court for

that cause, and the case remanded with directions to be dismissed.



In the view we have taken of the case, it will not be necessary to pass

upon this question, and we shall therefore proceed at once to an

examination of the case upon its merits.  The question upon the merits,

in general terms, is whether or not the removal of the plaintiff, who

was a slave, with his master from the State of Missouri to the State of

Illinois, with a view to a temporary residence, and after such residence

and [60 U.S. 459] return to the slave State, such residence in the free

State works an emancipation.



As appears from an agreed statement of facts, this question has been

before the highest court of the State of Missouri, and a judgment

rendered that this residence in the free State has no such effect, but,

on the contrary, that his original condition continued unchanged.



The court below, the Circuit Court of the United States for Missouri, in

which this suit was afterwards brought, followed the decision of the

State court, and rendered a like judgment against the plaintiff.



The argument against these decisions is that the laws of Illinois

forbidding slavery within her territory had the effect to set the slave

free while residing in that State, and to impress upon him the condition

and status of a freeman, and that, by force of these laws, this status

and condition accompanied him on his return to the slave State, and, of

consequence, he could not be there held as a slave.



This question has been examined in the courts of several of the

slaveholding States, and different opinions expressed and conclusions

arrived at.  We shall hereafter refer to some of them, and to the

principles upon which they are founded.  Our opinion is that the

question is one which belongs to each State to decide for itself, either

by its Legislature or courts of justice, and hence, in respect to the

case before us, to the State of Missouri -- a question exclusively of

Missouri law, and which, when determined by that State, it is the duty

of the Federal courts to follow it.  In other words, except in cases

where the power is restrained by the Constitution of the United States,

the law of the State is supreme over the subject of slavery within its

jurisdiction.



As a practical illustration of the principle, we may refer to the

legislation of the free States in abolishing slavery and prohibiting its

introduction into their territories.  Confessedly, except as restrained

by the Federal Constitution, they exercised, and rightfully, complete

and absolute power over the subject.  Upon what principle, then, can it

be denied to the State of Missouri?  The power flows from the sovereign

character of the States of the Union, sovereign not merely as respects

the Federal Government -- except as they have consented to its

limitation -- but sovereign as respects each other.  Whether, therefore,

the State of Missouri will recognise or give effect to the laws of

Illinois within her territories on the subject of slavery is a question

for her to determine.  Nor is there any constitutional power in this

Government that can rightfully control her. [60 U.S. 460]



Every State or nation possesses an exclusive sovereignty and

jurisdiction within her own territory, and her laws affect and bind all

property and persons residing within it.  It may regulate the manner and

circumstances under which property is held, and the condition, capacity,

and state of all persons therein, and also the remedy and modes of

administering justice.  And it is equally true that no State or nation

can affect or bind property out of its territory, or persons not

residing within it.  No State therefore can enact laws to operate beyond

its own dominions, and if it attempts to do so, it may be lawfully

refused obedience.  Such laws can have no inherent authority

extraterritorially.  This is the necessary result of the independence of

distinct and separate sovereignties.



Now it follows from these principles that whatever force or effect the

laws of one State or nation may have in the territories of another must

depend solely upon the laws and municipal regulations of the latter,

upon its own jurisprudence and polity, and upon its own express or tacit

consent.



Judge Story observes in his Conflict of Laws, p. 24, that a State may

prohibit the operation of all foreign laws, and the rights growing out

of them, within its territories. . . .  And that, when its code speaks

positively on the subject, it must be obeyed by all persons who are

within reach of its sovereignty; when its customary unwritten or common

law speaks directly on the subject, it is equally to be obeyed.



Nations, from convenience and comity and from mutual interest and a sort

of moral necessity to do justice, recognise and administer the laws of

other countries.  But of the nature, extent, and utility of them

respecting property or the state and condition of persons within her

territories, each nation judges for itself, and is never bound, even

upon the ground of comity, to recognise them if prejudicial to her own

interests.  The recognition is purely from comity, and not from any

absolute or paramount obligation.



Judge Story again observes, p. 398, that the true foundation and extent

of the obligation of the laws of one nation within another is the

voluntary consent of the latter, and is inadmissible when they are

contrary to its known interests. And he adds, in the silence of any

positive rule affirming or denying or restraining the operation of the

foreign laws, courts of justice presume the tacit adoption of them by

their own Government unless they are repugnant to its policy or

prejudicial to its interests. See also 2 Kent Com., p. 457, 13 Peters

519, 589.



These principles fully establish that it belongs to the sovereign  [60

U.S. 461] State of Missouri to determine by her laws the question of

slavery within her jurisdiction, subject only to such limitations as may

be found in the Federal Constitution, and further that the laws of other

States of the Confederacy, whether enacted by their Legislatures or

expounded by their courts, can have no operation within her territory or

affect rights growing out of her own laws on the subject.  This is the

necessary result of the independent and sovereign character of the

State.  The principle is not peculiar to the State of Missouri, but is

equally applicable to each State belonging to the Confederacy.  The laws

of each have no extraterritorial operation within the jurisdiction of

another except such as may be voluntarily conceded by her laws or courts

of justice.  To the extent of such concession upon the rule of comity of

nations, the foreign law may operate, as it then becomes a part of the

municipal law of the State.  When determined that the foreign law shall

have effect, the municipal law of the State retires and gives place to

the foreign law.



In view of these principles, let us examine a little more closely the

doctrine of those who maintain that the law of Missouri is not to govern

the status and condition of the plaintiff.  They insist that the removal

and temporary residence with his master in Illinois, where slavery is

inhibited, had the effect to set him free, and that the same effect is

to be given to the law of Illinois, within the State of Missouri, after

his return.  Why was he set free in Illinois?  Because the law of

Missouri, under which he was held as a slave, had no operation by its

own force extraterritorially, and the State of Illinois refused to

recognise its effect within her limits, upon principles of comity, as a

state of slavery was inconsistent with her laws and contrary to her

policy.  But how is the case different on the return of the plaintiff to

the State of Missouri?  Is she bound to recognise and enforce the law of

Illinois?  For unless she is the status and condition of the slave upon

his return remains the same as originally existed.  Has the law of

Illinois any greater force within the jurisdiction of Missouri than the

laws of the latter within that of the former?  Certainly not.  They

stand upon an equal footing.  Neither has any force extraterritorially

except what may be voluntarily conceded to them.



It has been supposed by the counsel for the plaintiff that a rule laid

down by Huberus had some bearing upon this question.  Huberus observes

that personal qualities, impressed by the laws of any place, surround

and accompany the person wherever he goes, with this effect:  that in

every place he enjoys and is subject to the same law which other persons

of his [60 U.S. 462] class elsewhere enjoy or are subject to. De

Confl.Leg., lib. 1, tit. 3, sec. 12, 4 Dallas, 375 n., 1 Story Con.Laws,

pp. 59, 60.



The application sought to be given to the rule was this:  that as Dred

Scott was free while residing in the State of Illinois, by the laws of

that State, on his return to the State of Missouri, he carried with him

the personal qualities of freedom, and that the same effect must be

given to his status there as in the former State.  But the difficulty in

the case is in the total misapplication of the rule.



These personal qualities to which Huberus refers are those impressed

upon the individual by the law of the domicil; it is this that the

author claims should be permitted to accompany the person into whatever

country he might go, and should supersede the law of the place where he

had taken up a temporary residence.



Now as the domicil of Scott was in the State of Missouri, where he was a

slave, and from whence he was taken by his master into Illinois for a

temporary residence, according to the doctrine of Huberus, the law of

his domicil would have accompanied him, and, during his residence there,

he would remain in the same condition as in the State of Missouri.  In

order to have given effect to the rule, as claimed in the argument, it

should have been first shown that a domicil had been acquired in the

free State, which cannot be pretended upon the agreed facts in the case.

 But the true answer to the doctrine of Huberus is that the rule, in any

aspect in which it may be viewed, has no bearing upon either side of the

question before us, even if conceded to the extent laid down by the

author, for he admits that foreign Governments give effect to these laws

of the domicil no further than they are consistent with their own laws

and not prejudicial to their own subjects; in other words, their force

and effect depend upon the law of comity of the foreign Government.  We

should add also that this general rule of Huberus, referred to, has not

been admitted in the practice of nations, nor is it sanctioned by the

most approved jurists of international law.  Story Con., sec. 91, 96,

103, 104; 2 Kent. Com., p. 457, 458; 1 Burge Con.Laws, pp. 12, 127.



We come now to the decision of this court in the case of Strader et al.

v. Graham, 10 How. 2.  The case came up from the Court of Appeals, in

the State of Kentucky.  The question in the case was whether certain

slaves of Graham, a resident of Kentucky, who had been employed

temporarily at several places in the State of Ohio with their master's

consent and had returned to Kentucky into his service, had thereby [60

U.S. 463] become entitled to their freedom.  The Court of Appeals held

that they had not.  The case was brought to this court under the

twenty-fifth section of the Judiciary Act.  This court held that it had

no jurisdiction, for the reason the question was one that belonged

exclusively to the State of Kentucky.  The Chief Justice, in delivering

the opinion of the court, observed that every State has an undoubted

right to determine the status or domestic and social condition of the

persons domiciled within its territory, except insofar as the powers of

the States in this respect are restrained, or duties and obligations

imposed upon them, by the Constitution of the United States.  There is

nothing in the Constitution of the United States, he observes that can

in any degree control the law of Kentucky upon this subject.  And the

condition of the negroes, therefore, as to freedom or slavery after

their return depended altogether upon the laws of that State, and could

not be influenced by the laws of Ohio.  It was exclusively in the power

of Kentucky to determine for herself whether their employment in another

State should or should not make them free on their return.



It has been supposed, in the argument on the part of the plaintiff that

the eighth section of the act of Congress passed March 6, 1820, 3 St. at

Large, p. 544, which prohibited slavery north of thirty-six degrees

thirty minutes, within which the plaintiff and his wife temporarily

resided at Fort Snelling, possessed some superior virtue and effect,

extraterritorially and within the State of Missouri, beyond that of the

laws of Illinois or those of Ohio in the case of Strader et al. v.

Graham.  A similar ground was taken and urged upon the court in the case

just mentioned, under the Ordinance of 1787, which was enacted during

the time of the Confederation and reenacted by Congress after the

adoption of the Constitution with some amendments adapting it to the new

Government.  1 St. at Large p. 50.



In answer to this ground, the Chief Justice, in delivering the opinion

of the court, observed: The argument assumes that the six articles which

that ordinance declares to be perpetual are still in force in the States

since formed within the territory and admitted into the Union.  If this

proposition could be maintained, it would not alter the question, for

the regulations of Congress, under the old Confederation or the present

Constitution, for the government of a particular Territory could have no

force beyond its limits.  It certainly could not restrict the power of

the States within their respective territories, nor in any manner

interfere with their laws and institutions, nor give this court control

over them. [60 U.S. 464]



The ordinance in question, he observes, if still in force, could have no

more operation than the laws of Ohio in the State of Kentucky, and could

not influence the decision upon the rights of the master or the slaves

in that State.



This view, thus authoritatively declared, furnishes a conclusive answer

to the distinction attempted to be set up between the extraterritorial

effect of a State law and the act of Congress in question.



It must be admitted that Congress possesses no power to regulate or

abolish slavery within the States, and that, if this act had attempted

any such legislation, it would have been a nullity.  And yet the

argument here, if there be any force in it, leads to the result that

effect may be given to such legislation, for it is only by giving the

act of Congress operation within the State of Missouri that it can have

any effect upon the question between the parties.  Having no such effect

directly, it will be difficult to maintain upon any consistent reasoning

that it can be made to operate indirectly upon the subject.



The argument, we think, in any aspect in which it may be viewed, is

utterly destitute of support upon any principles of constitutional law,

as, according to that, Congress has no power whatever over the subject

of slavery within the State, and is also subversive of the established

doctrine of international jurisprudence, as, according to that, it is an

axiom that the laws of one Government have no force within the limits of

another or extraterritorially except from the consent of the latter.



It is perhaps not unfit to notice in this connection that many of the

most eminent statesmen and jurists of the country entertain the opinion

that this provision of the act of Congress, even within the territory to

which it relates, was not authorized by any power under the

Constitution.  The doctrine here contended for not only upholds its

validity in the territory, but claims for it effect beyond and within

the limits of a sovereign State -- an effect, as insisted, that

displaces the laws of the State and substitutes its own provisions in

their place.



The consequences of any such construction are apparent.  If Congress

possesses the power under the Constitution to abolish slavery in a

Territory, it must necessarily possess the like power to establish it. 

It cannot be a one-sided power, as may suit the convenience or

particular views of the advocates.  It is a power, if it exists at all,

over the whole subject, and then, upon the process of reasoning which

seeks to extend its influence beyond the Territory and within the limits

of a State, if Congress should establish, instead of abolish, slavery,

we do [60 U.S. 465] not see but that, if a slave should be removed from

the Territory into a free State, his status would accompany him, and

continue notwithstanding its laws against slavery.  The laws of the free

State, according to the argument, would be displaced, and the act of

Congress, in its effect, be substituted in their place.  We do not see

how this conclusion could be avoided if the construction against which

we are contending should prevail.  We are satisfied, however, it is

unsound, and that the true answer to it is that even conceding, for the

purposes of the argument that this provision of the act of Congress is

valid within the Territory for which it was enacted, it can have no

operation or effect beyond its limits or within the jurisdiction of a

State.  It can neither displace its laws nor change the status or

condition of its inhabitants.



Our conclusion therefore is, upon this branch of the case, that the

question involved is one depending solely upon the law of Missouri, and

that the Federal court sitting in the State and trying the case before

us was bound to follow it.



The remaining question for consideration is what is the law of the State

of Missouri on this subject?  And it would be a sufficient answer to

refer to the judgment of the highest court of the State in the very case

were it not due to that tribunal to state somewhat at large the course

of decision and the principles involved on account of some diversity of

opinion in the cases.  As we have already stated, this case was

originally brought in the Circuit Court of the State, which resulted in

a judgment for the plaintiff.  The case was carried up to the Supreme

Court for revision.  That court reversed the judgment below and remanded

the cause to the circuit for a new trial.  In that state of the

proceeding, a new suit was brought by the plaintiff in the Circuit Court

of the United States, and tried upon the issues and agreed case before

us, and a verdict and judgment for the defendant that court following

the decision of the Supreme Court of the State.  The judgment of the

Supreme Court is reported in the 15 Misso.R. p. 576.  The court placed

the decision upon the temporary residence of the master with the slaves

in the State and Territory to which they removed, and their return to

the slave State, and upon the principles of international law that

foreign laws have no extraterritorial force except such as the State

within which they are sought to be enforced may see fit to extend to

them, upon the doctrine of comity of nations.



This is the substance of the grounds of the decision.



The same question has been twice before that court since, and the same

judgment given, 15 Misso.R. 595, 17 Ib. 434.  It must be admitted,

therefore, as the settled law of the State, [60 U.S. 466] and, according

to the decision in the case of Strader et al. v. Graham, is conclusive

of the case in this court.



It is said, however that the previous cases and course of decision in

the State of Missouri on this subject were different, and that the

courts had held the slave to be free on his return from a temporary

residence in the free State.  We do not see, were this to be admitted,

that the circumstance would show that the settled course of decision, at

the time this case was tried in the court below, was not to be

considered the law of the State.  Certainly it must be unless the first

decision of a principle of law by a State court is to be permanent and

irrevocable.  The idea seems to be that the courts of a State are not to

change their opinions, or, if they do, the first decision is to be

regarded by this court as the law of the State.  It is certain, if this

be so in the case before us, it is an exception to the rule governing

this court in all other cases.  But what court has not changed its

opinions?  What judge has not changed his?



Waiving, however, this view, and turning to the decisions of the courts

of Missouri, it will be found that there is no discrepancy between the

earlier and the present cases upon this subject.  There are some eight

of them reported previous to the decision in the case before us, which

was decided in 1852.  The last of the earlier cases was decided in 1836.

 In each one of these, with two exceptions, the master or mistress

removed into the free State with the slave, with a view to a permanent

residence -- in other words, to make that his or her domicil.  And in

several of the cases, this removal and permanent residence were relied

on as the ground of the decision in favor of the plaintiff.  All these

cases, therefore, are not necessarily in conflict with the decision in

the case before us, but consistent with it.  In one of the two excepted

cases, the master had hired the slave in the State of Illinois from 1817

to 1825.  In the other, the master was an officer in the army, and

removed with his slave to the military post of Fort Snelling, and at

Prairie du Chien, in Michigan, temporarily, while acting under the

orders of his Government.  It is conceded the decision in this case was

departed from in the case before us, and in those that have followed it.

 But it is to be observed that these subsequent cases are in conformity

with those in all the slave States bordering on the free -- in Kentucky,

2 Marsh. 476, 5 B. Munroe 176, 9 ib. 565 -- in Virginia, 1 Rand. 15, 1

Leigh 172, 10 Grattan 495 -- in Maryland, 4 Harris and McHenry 295, 322,

325.  In conformity also with the law of England on this subject, Ex

parte Grace, 2 Hagg.Adm.R. 94, and with the opinions of the [60 U.S.

467] most eminent jurists of the country.  Story's Confl. 396a, 2 Kent

Com. 258 n., 18 Pick. 193, Chief Justice Shaw.  See Corresp. between

Lord Stowell and Judge Story, 1 vol. Life of Story, p. 552, 558.



Lord Stowell, in communicating his opinion in the case of the slave

Grace to Judge Story, states, in his letter, what the question was

before him, namely: Whether the emancipation of a slave brought to

England insured a complete emancipation to him on his return to his own

country, or whether it only operated as a suspension of slavery in

England, and his original character devolved on him again upon his

return. He observed, "the question had never been examined since an end

was put to slavery fifty years ago," having reference to the decision of

Lord Mansfield in the Case of Somersett, but the practice, he observed,

"has regularly been that on his return to his own country, the slave

resumed his original character of slave."  And so Lord Stowell held in

the case.



Judge Story, in his letter in reply, observes: I have read with great

attention your judgment in the slave case, &c.  Upon the fullest

consideration which I have been able to give the subject, I entirely

concur in your views.  If I had been called upon to pronounce a judgment

in a like case, I should have certainly arrived at the same result.

Again he observes: In my native State (Massachusetts), the state of

slavery is not recognised as legal, and yet, if a slave should come

hither and afterwards return to his own home, we should certainly think

that the local law attached upon him, and that his servile character

would be redintegrated.



We may remark in this connection that the case before the Maryland

court, already referred to, and which was decided in 1799, presented the

same question as that before Lord Stowell, and received a similar

decision.  This was nearly thirty years before the decision in that

case, which was in 1828.  The Court of Appeals observed, in deciding the

Maryland case, that however the laws of Great Britain in such instances,

operating upon such persons there, might interfere so as to prevent the

exercise of certain acts by the masters, not permitted, as in the case

of Somersett, yet, upon the bringing Ann Joice into this State (then the

province of Maryland), the relation of master and slave continued in its

extent, as authorized by the laws of this State. And Luther Martin, one

of the counsel in that case, stated, on the argument that the question

had been previously decided the same way in the case of slaves returning

from a residence in Pennsylvania, where they had become free under her

laws.



The State of Louisiana, whose courts had gone further in [60 U.S. 468]

holding the slave free on his return from a residence in a free State

than the courts of her sister States, has settled the law by an act of

her Legislature in conformity with the law of the court of Missouri in

the case before us.  Sess. Law, 1846.



The case before Lord Stowell presented much stronger features for giving

effect to the law of England in the case of the slave Grace than exists

in the cases that have arisen in this country, for in that case the

slave returned to a colony of England over which the Imperial Government

exercised supreme authority.  Yet, on the return of the slave to the

colony, from a temporary residence in England, he held that the original

condition of the slave attached.  The question presented in cases

arising here is as to the effect and operation to be given to the laws

of a foreign State on the return of the slave within an independent

sovereignty.



Upon the whole, it must be admitted that the current of authority both

in England and in this country is in accordance with the law as declared

by the courts of Missouri in the case before us, and we think the court

below was not only right, but bound to follow it.



Some question has been made as to the character of the residence in this

case in the free State.  But we regard the facts as set forth in the

agreed case as decisive.  The removal of Dr. Emerson from Missouri to

the military posts was in the discharge of his duties as surgeon in the

army, and under the orders of his Government. He was liable at any

moment to be recalled, as he was in 1838, and ordered to another post. 

The same is also true as it respects Major Taliaferro.  In such a case,

the officer goes to his post for a temporary purpose, to remain there

for an uncertain time, and not for the purpose of fixing his permanent

abode.  The question we think too plain to require argument.  The case

of the Attorney General v. Napier, 6 Welsh, Hurtst. and Gordon Exch.

Rep. 217, illustrates and applies the principle in the case of an

officer of the English army.



A question has been alluded to, on the argument, namely, the right of

the master with his slave of transit into or through a free State, on

business or commercial pursuits, or in the exercise of a Federal right,

or the discharge of a Federal duty, being a citizen of the United

States, which is not before us.  This question depends upon different

considerations and principles from the one in hand, and turns upon the

rights and privileges secured to a common citizen of the republic under

the Constitution of the United States.  When that question arises, we

shall be prepared to decide it. [60 U.S. 469]



Our conclusion is that the judgment of the court below should be

affirmed. GRIER, J., separate opinion



Mr. Justice GRIER.



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

discussed by him.



I also concur with the opinion of the court as delivered by the Chief

Justice that the act of Congress of 6th March, 1820, is unconstitutional

and void and that, assuming the facts as stated in the opinion, the

plaintiff cannot sue as a citizen of Missouri in the courts of the

United States.  But that the record shows a prima facie case of

jurisdiction, requiring the court to decide all the questions properly

arising in it, and as the decision of the pleas in bar shows that the

plaintiff is a slave, and therefore not entitled to sue in a court of

the United States, the form of the judgment is of little importance,

for, whether the judgment be affirmed or dismissed for want of

jurisdiction, it is justified by the decision of the court, and is the

same in effect between the parties to the suit. DANIEL, J., separate

opinion



Mr. Justice DANIEL.



It may with truth be affirmed that since the establishment of the

several communities now constituting the States of this Confederacy,

there never has been submitted to any tribunal within its limits

questions surpassing in importance those now claiming the consideration

of this court.  Indeed it is difficult to imagine, in connection with

the systems of polity peculiar to the United States, a conjuncture of

graver import than that must be, within which it is aimed to comprise

and to control not only the faculties and practical operation

appropriate to the American Confederacy as such, but also the rights and

powers of its separate and independent members, with reference alike to

their internal and domestic authority and interests and the relations

they sustain to their confederates.



To my mind it is evident that nothing less than the ambitious and

far-reaching pretension to compass these objects of vital concern is

either directly essayed or necessarily implied in the positions

attempted in the argument for the plaintiff in error.



How far these positions have any foundation in the nature of the rights

and relations of separate, equal, and independent Governments, or in the

provisions of our own Federal compact, or the laws enacted under and in

pursuance of the authority of that compact will be presently

investigated.



In order correctly to comprehend the tendency and force of those

positions, it is proper here succinctly to advert to the [60 U.S. 470]

facts upon which the questions of law propounded in the argument have

arisen.



This was an action of trespass vi et armis instituted in the Circuit

Court of the United States for the district of Missouri, in the name of

the plaintiff in error, a negro held as a slave, for the recovery of

freedom for himself, his wife, and two children, also negroes.



To the declaration in this case the defendant below, who is also the

defendant in error, pleaded in abatement that the court could not take

cognizance of the cause because the plaintiff was not a citizen of the

State of Missouri, as averred in the declaration, but was a negro of

African descent, and that his ancestors were of pure African blood, and

were brought into this country and sold as negro slaves, and hence it

followed, from the second section of the third article of the

Constitution, which creates the judicial power of the United States with

respect to controversies between citizens of different States that the

Circuit Court could not take cognizance of the action.



To this plea in abatement, a demurrer having been interposed on behalf

of the plaintiff, it was sustained by the court.  After the decision

sustaining the demurrer, the defendant, in pursuance of a previous

agreement between counsel, and with the leave of the court, pleaded in

bar of the action:  1st, not guilty, 2dly that the plaintiff was a negro

slave, the lawful property of the defendant, and as such the defendant

gently laid his hands upon him, and thereby had only restrained him, as

the defendant had a right to do, 3dly that with respect to the wife and

daughters of the plaintiff, in the second and third counts of the

declaration mentioned, the defendant had, as to them, only acted in the

same manner, and in virtue of the same legal right.



Issues having been joined upon the above pleas in bar, the following

statement, comprising all the evidence in the cause, was agreed upon and

signed by the counsel of the respective parties, viz:



In the year 1834, the plaintiff was a negro slave belonging to Doctor

Emerson, who was a surgeon in the army of the United States.  In that

year, 1834, said Dr. Emerson took the plaintiff from the State of

Missouri to the military post at Rock Island, in the State of Illinois,

and held him there as a slave until the month of April or May, 1836.  At

the time last mentioned, said Dr. Emerson removed the plaintiff from

said military post at Rock Island to the military post at Fort Snelling,

situate on the west bank of the Mississippi river in the Territory known

as Upper Louisiana, acquired by the United States of France, and situate

north of the latitude of thirty-six [60 U.S. 471] degrees thirty minutes

north, and north of the State of Missouri.  Said Dr. Emerson held the

plaintiff in slavery at said Fort Snelling from said last-mentioned date

until the year 1838.



In the year 1835, Harriet, who is named in the second count of the

plaintiff's declaration, was the negro slave of Major Taliaferro, who

belonged to the army of the United States.  In that year, 1835, said

Major Taliaferro took said Harriet to said Fort Snelling, a military

post situated as hereinbefore stated, and kept her there as a slave

until the year 1836, and then sold and delivered her as a slave at said

Fort Snelling unto the said Dr. Emerson, hereinbefore named.  Said Dr.

Emerson held said Harriet in slavery at said Fort Snelling until the

year 1838.



In the year 1836, the plaintiff and said Harriet, at said Fort Snelling,

with the consent of said Dr. Emerson, who then claimed to be their

master and owner, intermarried and took each other for husband and wife.

 Eliza and Lizzie, named in the third count of the plaintiff's

declaration, are the fruit of that marriage.  Eliza is about fourteen

years old, and was born on board the steamboat Gipsey, north of the

north line of the State of Missouri, and upon the river Mississippi. 

Lizzie is about seven years old, and was born in the State of Missouri,

at a military post called Jefferson barracks.



In the year 1838, said Dr. Emerson removed the plaintiff and said

Harriet, and their said daughter Eliza, from said Fort Snelling to the

State of Missouri, where they have ever since resided.



Before the commencement of this suit, said Dr. Emerson sold and conveyed

the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as

slaves, and the defendant has ever since claimed to hold them and each

of them as slaves.



At the times mentioned in the plaintiff's declaration, the defendant,

claiming to be owner as aforesaid, laid his hands upon said plaintiff,

Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect,

however, no more than what he might lawfully do if they were of right

his slaves at such times.



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



R. M. FIELD, for Plaintiff



H. A. GARLAND, for Defendant.



It is agreed that Dred Scott brought suit for his freedom in the Circuit

Court of St. Louis county that there was a verdict and judgment in his

favor that on a writ of error to the Supreme Court, the judgment below

was reversed, and the [60 U.S. 472] cause remanded to the Circuit Court,

where it has been continued to await the decision of this case. FIELD,

for Plaintiff GARLAND, for Defendant



Upon the aforegoing agreed facts, the plaintiff prayed the court to

instruct the jury that they ought to find for the plaintiff, and upon

the refusal of the instruction thus prayed for, the plaintiff excepted

to the court's opinion.  The court then, upon the prayer of the

defendant, instructed the jury that upon the facts of this case agreed

as above, the law was with the defendant.  To this opinion also the

plaintiff's counsel excepted, as he did to the opinion of the court

denying to the plaintiff a new trial after the verdict of the jury in

favor of the defendant.



The question first in order presented by the record in this cause is

that which arises upon the plea in abatement, and the demurrer to that

plea, and upon this question, it is my opinion that the demurrer should

have been overruled, and the plea sustained.



On behalf of the plaintiff, it has been urged that by the pleas

interposed in bar of a recovery in the court below (which pleas both in

fact and in law are essentially the same with the objections averred in

abatement), the defence in abatement has been displaced or waived that

it could therefore no longer be relied on in the Circuit Court, and

cannot claim the consideration of this court in reviewing this cause. 

This position is regarded as wholly untenable.  On the contrary, it

would seem to follow conclusively from the peculiar character of the

courts of the United States, as organized under the Constitution and the

statutes, and as defined by numerous and unvarying adjudications from

this bench, that there is not one of those courts whose jurisdiction and

powers can be deduced from mere custom or tradition, not one whose

jurisdiction and powers must not be traced palpably to, and invested

exclusively by, the Constitution and statutes of the United States, not

one that is not bound, therefore, at all times, and at all stages of its

proceedings, to look to and to regard the special and declared extent

and bounds of its commission and authority.  There is no such tribunal

of the United States as a court of general jurisdiction, in the sense in

which that phrase is applied to the superior courts under the common

law, and even with respect to the courts existing under that system, it

is a well settled principle that consent can never give jurisdiction.



The principles above stated, and the consequences regularly deducible

from them, have, as already remarked, been repeatedly [60 U.S. 473] and

unvaryingly propounded from this bench.  Beginning with the earliest

decisions of this court, we have the cases of Bingham v. Cabot et al., 3

Dallas 382, Turner v. Eurille, 4 Dallas 7, Abercrombie v. Dupuis et al.,

1 Cranch 343, Wood v. Wagnon, 2 Cranch 9, The United States v. The brig

Union et al., 4 Cranch 216, Sullivan v. The Fulton Steamboat Company, 6

Wheaton 450, Mollan et al. v. Torrence, 9 Wheaton 537, Brown v. Keene, 8

Peters 112, and Jackson v. Ashton, 8 Peters 148, ruling, in uniform and

unbroken current, the doctrine that it is essential to the jurisdiction

of the courts of the United States that the facts upon which it is

founded should appear upon the record.  Nay, to such an extent and so

inflexibly has this requisite to the jurisdiction been enforced that in

the case of Capron v. Van Noorden, 2 Cranch 126, it is declared that the

plaintiff in this court may assign for error his own omission in the

pleadings in the court below where they go to the jurisdiction.  This

doctrine has been, if possible, more strikingly illustrated in a later

decision, the case of The State of Rhode Island v. The State of

Massachusetts, in the 12th of Peters.



In this case, on page 718 of the volume, this court, with reference to a

motion to dismiss the cause for want of jurisdiction, have said: However

late this objection has been made, or may be made, in any cause in an

inferior or appellate court of the United States, it must be considered

and decided before any court can move one farther step in the cause, as

any movement is necessarily to exercise the jurisdiction.  Jurisdiction

is the power to hear and determine the subject matter in controversy

between the parties to a suit, to adjudicate or exercise any judicial

power over them.  The question is whether on the case before the court

their action is judicial or extrajudicial, with or without the authority

of law to render a judgment or decree upon the rights of the litigant

parties.  A motion to dismiss a cause pending in the courts of the

United States is not analogous to a plea to the jurisdiction of a court

of common law or equity in England; there, the superior courts have a

general jurisdiction over all persons within the realm and all causes of

action between them.  It depends on the subject matter, whether the

jurisdiction shall be exercised by a court of law or equity, but that

court to which it appropriately belongs can act judicially upon the

party and the subject of the suit unless it shall be made apparent to

the court that the judicial determination of the case has been withdrawn

from the court of general jurisdiction to an inferior and limited one. 

It is a necessary presumption that the court of general jurisdiction can

act upon the given case when nothing to the [60 U.S. 474] contrary

appears; hence has arisen the rule that the party claiming an exemption

from its process must set out the reason by a special plea in abatement,

and show that some inferior court of law or equity has the exclusive

cognizance of the case; otherwise the superior court must proceed in

virtue of its general jurisdiction.  A motion to dismiss therefore

cannot be entertained, as it does not disclose a case of exception, and,

if a plea in abatement is put in, it must not only make out the

exception, but point to the particular court to which the case belongs. 

There are other classes of cases where the objection to the jurisdiction

is of a different nature, as on a bill in chancery that the subject

matter is cognizable only by the King in Council, or that the parties

defendant cannot be brought before any municipal court on account of

their sovereign character or the nature of the controversy, or to the

very common cases which present the question, whether the cause belong

to a court of law or equity.  To such cases, a plea in abatement would

not be applicable, because the plaintiff could not sue in an inferior

court.  The objection goes to a denial of any jurisdiction of a

municipal court in the one class of cases, and to the jurisdiction of

any court of equity or of law in the other, on which last the court

decides according to its discretion.



An objection to jurisdiction on the ground of exemption from the process

of the court in which the suit is brought, or the manner in which a

defendant is brought into it, is waived by appearance and pleading to

issue, but when the objection goes to the power of the court over the

parties or the subject matter, the defendant need not, for he cannot,

give the plaintiff a better writ.  Where an inferior court can have no

jurisdiction of a case of law or equity, the ground of objection is not

taken by plea in abatement, as an exception of the given case from the

otherwise general jurisdiction of the court; appearance does not cure

the defect of judicial power, and it may be relied on by plea, answer,

demurrer, or at the trial or hearing.  As a denial of jurisdiction over

the subject matter of a suit between parties within the realm, over

which and whom the court has power to act, cannot be successful in an

English court of general jurisdiction, a motion like the present could

not be sustained consistently with the principles of its constitution. 

But as this court is one of limited and special original jurisdiction,

its action must be confined to the particular cases, controversies, and

parties over which the Constitution and laws have authorized it to act,

any proceeding without the limits prescribed is coram non judice, and

its action a nullity.  And whether the want or excess of power is

objected by a party or is apparent [60 U.S. 475] to the court, it must

surcease its action or proceed extrajudicially.



In the constructing of pleadings either in abatement or in bar, every

fact or position constituting a portion of the public law, or of known

or general history, is necessarily implied.  Such fact or position need

not be specially averred and set forth; it is what the world at large

and every individual are presumed to know -- nay, are bound to know and

to be governed by.



If, on the other hand, there exist facts or circumstances by which a

particular case would be withdrawn or exempted from the influence of

public law or necessary historical knowledge, such facts and

circumstances form an exception to the general principle, and these must

be specially set forth and established by those who would avail

themselves of such exception.



Now the following are truths which a knowledge of the history of the

world, and particularly of that of our own country, compels us to know

-- that the African negro race never have been acknowledged as belonging

to the family of nations; that, as amongst them, there never has been

known or recognised by the inhabitants of other countries anything

partaking of the character of nationality, or civil or political polity;

that this race has been by all the nations of Europe regarded as

subjects of capture or purchase, as subjects of commerce or traffic; and

that the introduction of that race into every section of this country

was not as members of civil or political society, but as slaves, as

property in the strictest sense of the term.



In the plea in abatement, the character or capacity of citizen on the

part of the plaintiff is denied, and the causes which show the absence

of that character or capacity are set forth by averment.  The verity of

those causes, according to the settled rules of pleading, being admitted

by the demurrer, it only remained for the Circuit Court to decide upon

their legal sufficiency to abate the plaintiff's action.  And it now

becomes the province of this court to determine whether the plaintiff

below (and in error here), admitted to be a negro of African descent,

whose ancestors were of pure African blood and were brought into this

country and sold as negro slaves -- such being his status, and such the

circumstances surrounding his position -- whether he can, by correct

legal induction from that status and those circumstances, be clothed

with the character and capacities of a citizen of the State of Missouri?



It may be assumed as a postulate that to a slave, as such, there

appertains and can appertain no relation, civil or political, with the

State or the Government.  He is himself strictly property, to be used in

subserviency to the interests, the convenience, [60 U.S. 476] or the

will, of his owner, and to suppose, with respect to the former, the

existence of any privilege or discretion, or of any obligation to others

incompatible with the magisterial rights just defined, would be by

implication, if not directly, to deny the relation of master and slave,

since none can possess and enjoy as his own that which another has a

paramount right and power to withhold.  Hence it follows necessarily

that a slave, the peculium or property of a master, and possessing

within himself no civil nor political rights or capacities, cannot be a

CITIZEN.  For who, it may be asked, is a citizen?  What do the character

and status of citizen import?  Without fear of contradiction, it does

not import the condition of being private property, the subject of

individual power and ownership.  Upon a principle of etymology alone,

the term citizen, as derived from civitas, conveys the ideas of

connection or identification with the State or Government, and a

participation of its functions.  But beyond this, there is not, it is

believed, to be found in the theories of writers on Government or in any

actual experiment heretofore tried, an exposition of the term citizen

which has not been understood as conferring the actual possession and

enjoyment, or the perfect right of acquisition and enjoyment, of an

entire equality of privileges, civil and political.



Thus Vattel, in the preliminary chapter to his Treatise on the Law of

Nations, says: Nations or States are bodies politic, societies of men

united together for the purpose of promoting their mutual safety and

advantage by the joint efforts of their mutual strength.  Such a society

has her affairs and her interests, she deliberates and takes resolutions

in common, thus becoming a moral person who possesses an understanding

and a will peculiar to herself. Again, in the first chapter of the first

book of the Treatise just quoted, the same writer, after repeating his

definition of a State, proceeds to remark that, from the very design

that induces a number of men to form a society which has its common

interests and which is to act in concert, it is necessary that there

should be established a public authority to order and direct what is to

be done by each in relation to the end of the association.  This

political authority is the sovereignty. Again, this writer remarks: 

"The authority of all over each member essentially belongs to the body

politic, or the State."



By this same writer it is also said: The citizens are the members of the

civil society, bound to this society by certain duties, and subject to

its authority; they equally participate in its advantages.  The natives

or natural-born citizens are those born in the country of parents who

are citizens.  As society [60 U.S. 477] cannot perpetuate itself

otherwise than by the children of the citizens, those children naturally

follow the condition of their parents, and succeed to all their rights.

Again: I say, to be of the country, it is necessary to be born of a

person who is a citizen, for if he be born there of a foreigner, it will

be only the place of his birth, and not his country.  The inhabitants,

as distinguished from citizens, are foreigners who are permitted to

settle and stay in the country. Vattel, Book 1, cap. 19, p. 101.



From the views here expressed, and they seem to be unexceptionable, it

must follow that, with the slave, with one devoid of rights or

capacities, civil or political, there could be no pact that one thus

situated could be no party to or actor in, the association of those

possessing free will, power, discretion.  He could form no part of the

design, no constituent ingredient or portion of a society based upon

common, that is, upon equal interests and powers.  He could not at the

same time be the sovereign and the slave.



But it has been insisted in argument that the emancipation of a slave,

effected either by the direct act and assent of the master or by causes

operating in contravention of his will, produces a change in the status

or capacities of the slave such as will transform him from a mere

subject of property into a being possessing a social, civil, and

political equality with a citizen.  In other words, will make him a

citizen of the State within which he was, previously to his

emancipation, a slave.



It is difficult to conceive by what magic the mere surcease or

renunciation of an interest in a subject of property, by an individual

possessing that interest, can alter the essential character of that

property with respect to persons or communities unconnected with such

renunciation.  Can it be pretended that an individual in any State, by

his single act, though voluntarily or designedly performed, yet without

the co-operation or warrant of the Government, perhaps in opposition to

its policy or its guaranties, can create a citizen of that State?  Much

more emphatically may it be asked how such a result could be

accomplished by means wholly extraneous and entirely foreign to the

Government of the State?  The argument thus urged must lead to these

extraordinary conclusions.  It is regarded at once as wholly untenable,

and as unsustained by the direct authority or by the analogies of

history.



The institution of slavery, as it exists and has existed from the period

of its introduction into the United States, though more humane and

mitigated in character than was the same institution either under the

republic or the empire of Rome, bears, both in its tenure and in the

simplicity incident to the [60 U.S. 478] mode of its exercise, a closer

resemblance to Roman slavery than it does to the condition of villanage,

as it formerly existed in England.  Connected with the latter, there

were peculiarities, from custom or positive regulation, which varied it

materially from the slavery of the Romans or from slavery at any period

within the United States.



But with regard to slavery amoungst the Romans, it is by no means true

that emancipation, either during the republic or the empire, conferred,

by the act itself, or implied, the status or the rights of citizenship.



The proud title of Roman citizen, with the immunities and rights

incident thereto, and as contradistinguished alike from the condition of

conquered subjects or of the lower grades of native domestic residents,

was maintained throughout the duration of the republic, and until a late

period of the eastern empire, and at last was in effect destroyed less

by an elevation of the inferior classes than by the degradation of the

free, and the previous possessors of rights and immunities civil and

political, to the indiscriminate abasement incident to absolute and

simple despotism.



By the learned and elegant historian of the Decline and Fall of the

Roman Empire, we are told that, In the decline of the Roman empire, the

proud distinctions of the republic were gradually abolished, and the

reason or instinct of Justinian completed the simple form of an absolute

monarchy.  The emperor could not eradicate the popular reverence which

always waits on the possession of hereditary wealth or the memory of

famous ancestors.  He delighted to honor with titles and emoluments his

generals, magistrates, and senators, and his precarious indulgence

communicated some rays of their glory to their wives and children.  But,

in the eye of the law, all Roman citizens were equal, and all subjects

of the empire were citizens of Rome.  That inestimable character was

degraded to an obsolete and empty name. T he voice of a Roman could no

longer enact his laws, or create the annual ministers of his powers; his

constitutional rights might have checked the arbitrary will of a master,

and the bold adventurer from Germany or Arabia was admitted with equal

favor to the civil and military command which the citizen alone had been

once entitled to assume over the conquests of his fathers.  The first

Caesars had scrupulously guarded the distinction of ingenuous and

servile birth, which was decided by the condition of the mother.  The

slaves who were liberated by a generous master immediately entered into

the middle class of libertini, or freedmen, but they could never be

enfranchised from the duties of obedience and gratitude, whatever were

the fruits of [60 U.S. 479] their industry, their patron and his family

inherited the third part, or even the whole, of their fortune, if they

died without children and without a testament.  Justinian respected the

rights of patrons, but his indulgence removed the badge of disgrace from

the two inferior orders of freedmen; whoever ceased to be a slave

obtained without reserve or delay the station of a citizen, and at

length the dignity of an ingenuous birth was created or supposed by the

omnipotence of the emperor.



The above account of slavery and its modifications will be found in

strictest conformity with the Institutes of Justinian.  Thus, in book

1st, title 3d, it is said:  "The first general division of persons in

respect to their rights is into freemen and slaves."  The same title,

sec. 4th:  "Slaves are born such, or become so.  They are born such of

bondwomen; they become so either by the law of nations, as by capture,

or by the civil law."  Section 5th:  "In the condition of slaves there

is no diversity, but among free persons there are many.  Thus some are

ingenui or freemen, others libertini or freedmen."



Tit. 4th.  DE INGENUIS.  "A freeman is one who is born free by being

born in matrimony, of parents who both are free, or both freed, or of

parents one free and the other freed.  But one born of a free mother,

although the father be a slave or unknown, is free."



Tit. 5th.  DE LIBERTINIS.  "Freedmen are those who have been manumitted

from just servitude."



Section third of the same title states that "freedmen were formerly

distinguished by a threefold division."  But the emperor proceeds to

say: Our piety leading us to reduce all things into a better state, we

have amended our laws, and reestablished the ancient usage, for

anciently liberty was simple and undivided -- that is, was conferred

upon the slave as his manumittor possessed it, admitting this single

difference that the person manumitted became only a freed man, although

his manumittor was a free man. And he further declares: We have made all

freed men in general become citizens of Rome, regarding neither the age

of the manumitted, nor the manumittor, nor the ancient forms of

manumission.  We have also introduced many new methods by which slaves

may become Roman citizens.



By the references above given, it is shown, from the nature and objects

of civil and political associations and upon the direct authority of

history, that citizenship was not conferred [60 U.S. 480] by the simple

fact of emancipation, but that such a result was deduced therefrom in

violation of the fundamental principles of free political association,

by the exertion of despotic will to establish, under a false and

misapplied denomination, one equal and universal slavery, and to effect

this result required the exertions of absolute power -- of a power both

in theory and practice, being in its most plenary acceptation the

SOVEREIGNTY, THE STATE ITSELF -- it could not be produced by a less or

inferior authority, much less by the will or the act of one who, with

reference to civil and political rights, was himself a slave.  The

master might abdicate or abandon his interest or ownership in his

property, but his act would be a mere abandonment.  It seems to involve

an absurdity to impute to it the investiture of rights which the

sovereignty alone had power to impart.  There is not perhaps a community

in which slavery is recognised in which the power of emancipation and

the modes of its exercise are not regulated by law -- that is, by the

sovereign authority, and none can fail to comprehend the necessity for

such regulation for the preservation of order and even of political and

social existence.



By the argument for the plaintiff in error, a power equally despotic is

vested in every member of the association, and the most obscure or

unworthy individual it comprises may arbitrarily invade and derange its

most deliberate and solemn ordinances.  At assumptions anomalous as

these, so fraught with mischief and ruin, the mind at once is revolted,

and goes directly to the conclusions that to change or to abolish a

fundamental principle of the society must be the act of the society

itself -- of the sovereignty, and that none other can admit to a

participation of that high attribute.  It may further expose the

character of the argument urged for the plaintiff to point out some of

the revolting consequences which it would authorize.  If that argument

possesses any integrity, it asserts the power in any citizen, or quasi

citizen, or a resident foreigner of anyone of the States, from a motive

either of corruption or caprice, not only to infract the inherent and

necessary authority of such State, but also materially to interfere with

the organization of the Federal Government and with the authority of the

separate and independent States.  He may emancipate his negro slave, by

which process he first transforms that slave into a citizen of his own

State; he may next, under color of article fourth, section second, of

the Constitution of the United States, obtrude him, and on terms of

civil and political equality, upon any and every State in this Union, in

defiance of all regulations of necessity or policy, ordained by those

States for their internal happiness or safety.  Nay, more:  this

manumitted slave [60 U.S. 481] may, by a proceeding springing from the

will or act of his master alone, be mixed up with the institutions of

the Federal Government, to which he is not a party, and in opposition to

the laws of that Government which, in authorizing the extension by

naturalization of the rights and immunities of citizens of the United

States to those not originally parties to the Federal compact, have

restricted that boon to free white aliens alone.  If the rights and

immunities connected with or practiced under the institutions of the

United States can by any indirection be claimed or deduced from sources

or modes other than the Constitution and laws of the United States, it

follows that the power of naturalization vested in Congress is not

exclusive -- that it has in effect no existence, but is repealed or

abrogated.



But it has been strangely contended that the jurisdiction of the Circuit

Court might be maintained upon the ground that the plaintiff was a

resident of Missouri, and that, for the purpose of vesting the court

with jurisdiction over the parties, residence within the State was

sufficient.



The first, and to my mind a conclusive, reply to this singular argument

is presented in the fact that the language of the Constitution restricts

the jurisdiction of the courts to cases in which the parties shall be

citizens, and is entirely silent with respect to residence.  A second

answer to this strange and latitudinous notion is that it so far

stultifies the sages by whom the Constitution was framed as to impute to

them ignorance of the material distinction existing between citizenship

and mere residence or domicil, and of the well known facts that a person

confessedly an alien may be permitted to reside in a country in which he

can possess no civil or political rights, or of which he is neither a

citizen nor subject, and that, for certain purposes, a man may have a

domicil in different countries, in no one of which he is an actual

personal resident.



The correct conclusions upon the question here considered would seem to

be these:



That, in the establishment of the several communities now the States of

this Union, and in the formation of the Federal Government, the African

was not deemed politically a person.  He was regarded and owned in every

State in the Union as property merely, and as such was not and could not

be a party or an actor, much less a peer in any compact or form of

government established by the States or the United States.  That if,

since the adoption of the State Governments, he has been or could have

been elevated to the possession of political rights or powers, this

result could have been effected by no authority less potent than that of

the sovereignty -- the State -- exerted  [60 U.S. 482] to that end,

either in the form of legislation or in some other mode of operation. 

It could certainly never have been accomplished by the will of an

individual operating independently of the sovereign power, and even

contravening and controlling that power.  That, so far as rights and

immunities appertaining to citizens have been defined and secured by the

Constitution and laws of the United States, the African race is not and

never was recognised either by the language or purposes of the former,

and it has been expressly excluded by every act of Congress providing

for the creation of citizens by naturalization, these laws, as has

already been remarked, being restricted to free white aliens

exclusively.



But it is evident that, after the formation of the Federal Government by

the adoption of the Constitution, the highest exertion of State power

would be incompetent to bestow a character or status created by the

Constitution or conferred in virtue of its authority only.  Upon those,

therefore, who were not originally parties to the Federal compact, or

who are not admitted and adopted as parties thereto, in the mode

prescribed by its paramount authority, no State could have power to

bestow the character or the rights and privileges exclusively reserved

by the States for the action of the Federal Government by that compact.



The States, in the exercise of their political power, might, with

reference to their peculiar Government and jurisdiction, guaranty the

rights of person and property, and the enjoyment of civil and political

privileges, to those whom they should be disposed to make the objects of

their bounty, but they could not reclaim or exert the powers which they

had vested exclusively in the Government of the United States.  They

could not add to or change in any respect the class of persons to whom

alone the character of citizen of the United States appertained at the

time of the adoption of the Federal Constitution.  They could not create

citizens of the United States by any direct or indirect proceeding.



According to the view taken of the law as applicable to the demurrer to

the plea in abatement in this cause, the questions subsequently raised

upon the several pleas in bar might be passed by as requiring neither a

particular examination nor an adjudication directly upon them. upon

them.  But as these questions are intrinsically of primary interest and

magnitude, and have been elaborately discussed in argument, and as with

respect to them the opinions of a majority of the court, including my

own, are perfectly coincident, to me it seems proper that they should

here be fully considered, and, so far as it is practicable for this

court to accomplish such an end, finally put to rest. [60 U.S. 483]



The questions then to be considered upon the several pleas in bar, and

upon the agreed statement of facts between the counsel, are:  1st.

Whether the admitted master and owner of the plaintiff, holding him as

his slave in the State of Missouri, and in conformity with his rights

guarantied to him by the laws of Missouri then and still in force, by

carrying with him for his own benefit and accommodation, and as his own

slave, the person of the plaintiff into the State of Illinois, within

which State slavery had been prohibited by the Constitution thereof, and

by retaining the plaintiff during the commorancy of the master within

the State of Illinois, had, upon his return with his slave into the

State of Missouri, forfeited his rights as master by reason of any

supposed operation of the prohibitory provision in the Constitution of

Illinois, beyond the proper territorial jurisdiction of the latter

State?  2d. Whether a similar removal of the plaintiff by his master

from the State of Missouri, and his retention in service at a point

included within no State, but situated north of thirty-six degrees

thirty minutes of north latitude, worked a forfeiture of the right of

property of the master, and the manumission of the plaintiff?



In considering the first of these questions, the acts or declarations of

the master, as expressive of his purpose to emancipate, may be thrown

out of view, since none will deny the right of the owner to relinquish

his interest in any subject of property at any time or in any place. 

The inquiry here bears no relation to acts or declarations of the owner

as expressive of his intent or purpose to make such a relinquishment; it

is simply a question whether, irrespective of such purpose and in

opposition thereto, that relinquishment can be enforced against the

owner of property within his own country, in defiance of every guaranty

promised by its laws, and this through the instrumentality of a claim to

power entirely foreign and extraneous with reference to himself, to the

origin and foundation of his title, and to the independent authority of

his country.  A conclusive negative answer to such an inquiry is at once

supplied by announcing a few familiar and settled principles and

doctrines of public law.



Vattel, in his chapter the the general principles of the laws of

nations, section 15th, tells us that nations, being free and independent

of each other in the same manner that men are naturally free and

independent, the second general law of their society is that each nation

should be left in the peaceable enjoyment of that liberty which she

inherits from nature.



"The natural society of nations," says this writer, "cannot subsist

unless the natural rights of each be respected."  In [60 U.S. 484]

section 16th he says, as a consequence of that liberty and independence,

it exclusively belongs to each nation to form her own judgment of what

her conscience prescribes for her -- of what it is proper or improper

for her to do, and of course it rests solely with her to examine and

determine whether she can perform any office for another nation without

neglecting the duty she owes to herself.  In all cases, therefore, in

which a nation has the right of judging what her duty requires, no other

nation can compel her to act in such or such a particular manner, for

any attempt at such compulsion would be an infringement on the liberty

of nations. Again, in section 18th of the same chapter, nations composed

of men, and considered as so many free persons living together in a

state of nature, are naturally equal, and inherit from nature the same

obligations and rights.  Power or weakness does not produce any

difference. A small republic is no less a sovereign state than the most

powerful kingdom.



So, in section 20: A nation, then, is mistress of her own actions, so

long as they do not affect the proper and perfect rights of any other

nation -- so long as she is only internally bound, and does not lie

under any external and perfect obligation.  If she makes an ill use of

her liberty, she is guilty of a breach of duty, but other nations are

bound to acquiesce in her conduct, since they have no right to dictate

to her.  Since nations are free, independent, and equal, and since each

possesses the right of judging, according to the dictates of her

conscience, what conduct she is to pursue in order to fulfill her

duties, the effect of the whole is to produce, at least externally, in

the eyes of mankind, a perfect equality of rights between nations in the

administration of their affairs and in the pursuit of their pretensions,

without regard to the intrinsic justice of their conduct, of which

others have no right to form a definitive judgment.



Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d,

after collating the opinions of Grotius, Heineccius, Vattel, and

Rutherford, enunciates the following positions as sanctioned by these

and other learned publicists, viz:  that nations are equal in respect to

each other, and entitled to claim equal consideration for their rights,

whatever may be their relative dimensions or strength, or however

greatly they may differ in government, religion, or manners.  This

perfect equality and entire independence of all distinct States is a

fundamental principle of public law.  It is a necessary consequence of

this equality that each nation has a right to govern itself as it may

think proper, and no one nation is entitled to dictate a form of

government or religion, or a course of internal [60 U.S. 485] policy, to

another.  This writer gives some instances of the violation of this

great national immunity, and amongst them the constant interference by

the ancient Romans, under the pretext of settling disputes between their

neighbors, but with the real purpose of reducing those neighbors to

bondage, the interference of Russia, Prussia, and Austria for the

dismemberment of Poland, the more recent invasion of Naples by Austria

in 1821, and of Spain by the French Government in 1823, under the excuse

of suppressing a dangerous spirit of internal revolution and reform.



With reference to this right of self-government in independent sovereign

States, an opinion has been expressed which, whilst it concedes this

right as inseparable from and as a necessary attribute of sovereignty

and independence, asserts nevertheless some implied and paramount

authority of a supposed international law, to which this right of

self-government must be regarded and exerted as subordinate, and from

which independent and sovereign States can be exempted only by a

protest, or by some public and formal rejection of that authority.  With

all respect for those by whom this opinion has been professed, I am

constrained to regard it as utterly untenable, as palpably inconsistent,

and as presenting in argument a complete felo de se.



Sovereignty, independence, and a perfect right of self-government, can

signify nothing less than a superiority to and an exemption from all

claims by any extraneous power, however expressly they may be asserted,

and render all attempts to enforce such claims merely attempts at

usurpation.  Again, could such claims from extraneous sources be

regarded as legitimate, the effort to resist or evade them, by protest

or denial, would be as irregular and unmeaning as it would be futile. 

It could in no wise affect the question of superior right.  For the

position here combatted, no respectable authority has been, and none it

is thought can be, adduced.  It is certainly irreconcilable with the

doctrines already cited from the writers upon public law.



Neither the Case of Lewis Somersett, Howell's State Trials, vol. 20, so

often vaunted as the proud evidence of devotion to freedom under a

Government which has done as much perhaps to extend the reign of slavery

as all the world besides, nor does any decision founded upon the

authority of Somersett's Case, when correctly expounded, assail or

impair the principle of national equality enunciated by each and all of

the publicists already referred to.  In the case of Somersett, although

the applicant for the habeas corpus and the individual claiming property

in that applicant were both subjects and residents [60 U.S. 486] within

the British empire, yet the decision cannot be correctly understood as

ruling absolutely and under all circumstances against the right of

property in the claimant.  That decision goes no farther than to

determine that, within the realm of England, there was no authority to

justify the detention of an individual in private bondage.  If the

decision in Somersett's Case had gone beyond this point, it would have

presented the anomaly of a repeal by laws enacted for and limited in

their operation to the realm alone, of other laws and institutions

established for places and subjects without the limits of the realm of

England, laws and institutions at that very time, and long subsequently,

sanctioned and maintained under the authority of the British Government,

and which the full and combined action of the King and Parliament was

required to abrogate.



But could the decision in Somersett's Case be correctly interpreted as

ruling the doctrine which it has been attempted to deduce from it, still

that doctrine must be considered as having been overruled by the lucid

and able opinion of Lord Stowell in the more recent case of the slave

Grace, reported in the second volume of Haggard, p. 94, in which

opinion, whilst it is conceded by the learned judge that there existed

no power to coerce the slave whilst in England that yet, upon her return

to the island of Antigua, her status as a slave was revived, or, rather,

that the title of the owner to the slave as property had never been

extinguished, but had always existed in that island.  If the principle

of this decision be applicable as between different portions of one and

the same empire, with how much more force does it apply as between

nations or Governments entirely separate, and absolutely independent of

each other?  For in this precise attitude the States of this Union stand

with reference to this subject, and with reference to the tenure of

every description of property vested under their laws and held within

their territorial jurisdiction.



A strong illustration of the principle ruled by Lord Stowell, and of the

effect of that principle even in a case of express contract, is seen in

the case of Lewis v. Fullerton, decided by the Supreme Court of Virginia

and reported in the first volume of Randolph, p. 15.  The case was this:

 a female slave, the property of a citizen of Virginia, whilst with her

master in the State of Ohio, was taken from his possession under a writ

of habeas corpus, and set at liberty.  Soon, or immediately after, by

agreement between this slave and her master, a deed was executed in Ohio

by the latter containing a stipulation that this slave should return to

Virginia, and after a service of two years in that State, should there

be free.  The law of Virginia [60 U.S. 487] regulating emancipation

required that deeds of emancipation should, within a given time from

their date, be recorded in the court of the county in which the grantor

resided, and declared that deeds with regard to which this requisite was

not complied with should be void.  Lewis, an infant son of this female,

under the rules prescribed in such cases, brought an action in forma

pauperis in one of the courts of Virginia for the recovery of his

freedom, claimed in virtue of the transactions above mentioned.  Upon an

appeal to the Supreme Court from a judgment against the plaintiff,

Roane, Justice, in delivering the opinion of the court, after disposing

of other questions discussed in that case, remarks:



As to the deed of emancipation contained in the record that deed, taken

in connection with the evidence offered in support of it, shows that it

had a reference to the State of Virginia, and the testimony shows that

it formed a part of this contract, whereby the slave Milly was to be

brought back (as she was brought back) into the State of Virginia.  Her

object was therefore to secure her freedom by the deed within the State

of Virginia after the time should have expired for which she had

indented herself and when she should be found abiding within the State

of Virginia.



If, then, this contract had an eye to the State of Virginia for its

operation and effect, the lex loci ceases to operate.  In that case, it

must, to have its effect, conform to the laws of Virginia.  It is

insufficient under those laws to effectuate an emancipation, for what of

a due recording in the county court, as was decided in the case of

Givens v. Mann in this court.  It is also ineffectual within the

Commonwealth of Virginia for another reason.  The lex loci is also to be

taken subject to the exception that it is not to be enforced in another

country when it violates some moral duty or the policy of that country

or is not consistent with a positive right secured to a third person or

party by the laws of that country in which it is sought to be enforced. 

In such a case, we are told, "magis jus nostrum, quam jus alienum

servemus."  Huberus, tom. 2, lib. 1, tit. 3, 2 Fontblanque, p. 444. That

third party in this instance is the Commonwealth of Virginia, and her

policy and interests are also to be attended to.  These turn the scale

against the lex loci in the present instance.



The second or last-mentioned position assumed for the plaintiff under

the pleas in bar, as it rests mainly if not solely upon the provision of

the act of Congress of March 6, 1820, prohibiting slavery in Upper

Louisiana north of thirty-six degrees thirty minutes north latitude,

popularly called the Missouri Compromise, that assumption renews the

question, formerly so  [60 U.S. 488] zealously debated, as to the

validity of the provision in the act of Congress, and upon the

constitutional competency of Congress to establish it.



Before proceeding, however, to examine the validity of the prohibitory

provision of the law, it may, so far as the rights involved in this

cause are concerned, be remarked that conceding to that provision the

validity of a legitimate exercise of power, still this concession could

by no rational interpretation imply the slightest authority for its

operation beyond the territorial limits comprised within its terms, much

less could there be inferred from it a power to destroy or in any degree

to control rights, either of person or property, entirely within the

bounds of a distinct and independent sovereignty -- rights invested and

fortified by the guaranty of that sovereignty.  These surely would

remain in all their integrity, whatever effect might be ascribed to the

prohibition within the limits defined by its language.



But, beyond and in defiance of this conclusion, inevitable and

undeniable as it appears, upon every principle of justice or sound

induction, it has been attempted to convert this prohibitory provision

of the act of 1820 not only into a weapon with which to assail the

inherent -- the necessarily inherent -- powers of independent sovereign

Governments, but into a mean of forfeiting that equality of rights and

immunities which are the birthright or the donative from the

Constitution of every citizen of the United States within the length and

breadth of the nation.  In this attempt, there is asserted a power in

Congress, whether from incentives of interest, ignorance, faction,

partiality, or prejudice, to bestow upon a portion of the citizens of

this nation that which is the common property and privilege of all --

the power, in fine, of confiscation, in retribution for no offence, or,

if for an offence, for that of accidental locality only.



It may be that, with respect to future cases, like the one now before

the court, there is felt an assurance of the impotence of such a

pretension; still, the fullest conviction of that result can impart to

it no claim to forbearance, nor dispense with the duty of antipathy and

disgust at its sinister aspect, whenever it may be seen to scowl upon

the justice, the order, the tranquillity, and fraternal feeling which

are the surest, nay, the only, means of promoting or preserving the

happiness and prosperity of the nation, and which were the great and

efficient incentives to the formation of this Government.



The power of Congress to impose the prohibition in the eighth section of

the act of 1820 has been advocated upon an attempted construction of the

second clause of the third section [60 U.S. 489] of the fourth article

of the Constitution, which declares that Congress shall have power to

dispose of and to make all needful rules and regulations respecting the

territory and other property belonging to the United States.



In the discussions in both houses of Congress at the time of adopting

this eighth section of the act of 1820, great weight was given to the

peculiar language of this clause, viz:  territory and other property

belonging to the United States, as going to show that the power of

disposing of and regulating thereby vested in Congress was restricted to

a proprietary interest in the territory or land comprised therein, and

did not extend to the personal or political rights of citizens or

settlers, inasmuch as this phrase in the Constitution, "territory or

other property," identified territory with property, and inasmuch as

citizens or persons could not be property, and especially were not

property belonging to the United States.  And upon every principle of

reason or necessity, this power to dispose of and to regulate the

territory of the nation could be designed to extend no farther than to

its preservation and appropriation to the uses of those to whom it

belonged, viz., the nation.  Scarcely anything more illogical or

extravagant can be imagined than the attempt to deduce from this

provision in the Constitution a power to destroy or in any wise to

impair the civil and political rights of the citizens of the United

States, and much more so the power to establish inequalities amongst

those citizens by creating privileges in one class of those citizens,

and by the disfranchisement of other portions or classes by degrading

them from the position they previously occupied.



There can exist no rational or natural connection or affinity between a

pretension like this and the power vested by the Constitution in

Congress with regard to the Territories; on the contrary, there is an

absolute incongruity between them.



But whatever the power vested in Congress, and whatever the precise

subject to which that power extended, it is clear that the power related

to a subject appertaining to the United States, and one to be disposed

of and regulated for the benefit and under the authority of the United

States.  Congress was made simply the agent or trustee for the United

States, and could not, without a breach of trust and a fraud,

appropriate the subject of the trust to any other beneficiary or cestui

que trust than the United States, or to the people of the United States,

upon equal grounds, legal or equitable.  Congress could not appropriate

that subject to any one class or portion of the people, to the exclusion

of others, politically and constitutionally equals, but every citizen

would, if any one [60 U.S. 490] could claim it, have the like rights of

purchase, settlement, occupation, or any other right, in the national

territory.



Nothing can be more conclusive to show the equality of this with every

other right in all the citizens of the United States, and the iniquity

and absurdity of the pretension to exclude or to disfranchise a portion

of them because they are the owners of slaves, than the fact that the

same instrument which imparts to Congress its very existence and its

every function guaranties to the slaveholder the title to his property,

and gives him the right to its reclamation throughout the entire extent

of the nation, and farther that the only private property which the

Constitution has specifically recognised, and has imposed it as a direct

obligation both on the States and the Federal Government to protect and

enforce, is the property of the master in his slave; no other right of

property is placed by the Constitution upon the same high ground, nor

shielded by a similar guaranty.



Can there be imputed to the sages and patriots by whom the Constitution

was framed, or can there be detected in the text of that Constitution,

or in any rational construction or implication deducible therefrom, a

contradiction so palpable as would exist between a pledge to the

slaveholder of an equality with his fellow citizens, and of the formal

and solemn assurance for the security and enjoyment of his property, and

a warrant given, as it were uno flatu, to another to rob him of that

property, or to subject him to proscription and disfranchisement for

possessing or for endeavoring to retain it?  The injustice and

extravagance necessarily implied in a supposition like this cannot be

rationally imputed to the patriotic or the honest, or to those who were

merely sane.



A conclusion in favor of the prohibitory power in Congress, as asserted

in the eighth section of the act of 1820, has been attempted, as

deducible from the precedent of the ordinance of the convention of 1787,

concerning the cession by Virginia of the territory northwest of the

Ohio, the provision in which ordinance, relative to slavery, it has been

attempted to impose upon other and subsequently acquired territory.



The first circumstance which, in the consideration of this provision,

impresses itself upon my mind is its utter futility and want of

authority.  This court has, in repeated instances, ruled that whatever

may have been the force accorded to this Ordinance of 1787 at the period

of its enactment, its authority and effect ceased, and yielded to the

paramount authority of the Constitution, from the period of the adoption

of the latter.  Such is the principle ruled in the cases of Pollard's

Lessee v. Hagan, 3 How. 212, Parmoli v. The First Municipality of [60

U.S. 491] New Orleans, 3 How. 589, Strader v. Graham, 16 How. 82.  But

apart from the superior control of the Constitution, and anterior to the

adoption of that instrument, it is obvious that the inhibition in

question never had and never could have any legitimate and binding

force.  We may seek in vain for any power in the convention either to

require or to accept a condition or restriction upon the cession like

that insisted on, a condition inconsistent with, and destructive of, the

object of the grant.  The cession was, as recommended by the old

Congress in 1780, made originally and completed in terms to the United

States, and for the benefit of the United States, i.e., for the people,

all the people, of the United States.  The condition subsequently sought

to be annexed in 1787 (declared, too, to be perpetual and immutable),

being contradictory to the terms and destructive of the purposes of the

cession, and after the cession was consummated, and the powers of the

ceding party terminated, and the rights of the grantees, the people of

the United States, vested, must necessarily so far have been ab initio

void.  With respect to the power of the convention to impose this

inhibition, it seems to be pertinent in this place to recur to the

opinion of one contemporary with the establishment of the Government,

and whose distinguished services in the formation and adoption of our

national charter point him out as the artifex maximus of our Federal

system.  James Madison, in the year 1819, speaking with reference to the

prohibitory power claimed by Congress, then threatening the very

existence of the Union, remarks of the language of the second clause of

the third section of article fourth of the Constitution that it cannot

be well extended beyond a power over the territory as property, and the

power to make provisions really needful or necessary for the government

of settlers, until ripe for admission into the Union.



Again, he says, with respect to what has taken place in the Northwest

territory, it may be observed that the ordinance giving it is

distinctive character on the subject of slaveholding proceeded from the

old Congress, acting with the best intentions, but under a charter which

contains no shadow of the authority exercised, and it remains to be

decided how far the States formed within that territory, and admitted

into the Union, are on a different footing from its other members as to

their legislative sovereignty.  As to the power of admitting new States

into the Federal compact, the questions offering themselves are whether

Congress can attach conditions, or the new States concur in conditions,

which after admission would abridge or enlarge the constitutional rights

of legislation common to other States; whether Congress can, by a

compact [60 U.S. 492] with a new State, take power either to or from

itself, or place the new member above or below the equal rank and rights

possessed by the others; whether all such stipulations expressed or

implied would not be nullities, and be so pronounced when brought to a

practical test.  It falls within the scope of your inquiry to state the

fact that there was a proposition in the convention to discriminate

between the old and the new States by an article in the Constitution. 

The proposition, happily, was rejected.  The effect of such a

discrimination is sufficiently evident.



In support of the Ordinance of 1787, there may be adduced the semblance

at least of obligation deductible from compact, the form of assent or

agreement between the grantor and grantee, but this form or similitude,

as is justly remarked by Mr. Madison, is rendered null by the absence of

power or authority in the contracting parties and by the more intrinsic

and essential defect of incompatibility with the rights and avowed

purposes of those parties, and with their relative duties and

obligations to others.  If, then, with the attendant formalities of

assent or compact, the restrictive power claimed was void as to the

immediate subject of the ordinance, how much more unfounded must be the

pretension to such a power as derived from that source (viz., the

Ordinance of 1787) with respect to territory acquired by purchase or

conquest under the supreme authority of the Constitution -- territory

not the subject of mere donation, but obtained in the name of all, by

the combined efforts and resources of all, and with no condition annexed

or pretended.



In conclusion, my opinion is that the decision of the Circuit Court upon

the law arising upon the several pleas in bar is correct, but that it is

erroneous in having sustained the demurrer to the plea in abatement of

the jurisdiction; that, for this error, the decision of the Circuit

Court should be reversed, and the cause remanded to that court with

instructions to abate the action for the reason set forth and pleaded in

the plea in abatement.



In the aforegoing examination of this cause, the circumstance that the

questions involved therein had been previously adjudged between these

parties by the court of the State of Missouri has not been adverted to,

for although it has been ruled by this court that in instances of

concurrent jurisdiction, the court first obtaining possession or

cognizance of the controversy should retain and decide it, yet, as in

this case there had [60 U.S. 493] been no plea, either of a former

judgment or of autre action pendent, it was thought that the fact of a

prior decision, however conclusive it might have been if regularly

pleaded, could not be incidentally taken into view. CAMPBELL, J.,

concurring



Mr. Justice CAMPBELL.



I concur in the judgment pronounced by the Chief Justice, but the

importance of the cause, the expectation and interest it has awakened,

and the responsibility involved in its determination, induce me to file

a separate opinion.



The case shows that the plaintiff, in the year 1834, was a negro slave

in Missouri, the property of Dr. Emerson, a surgeon in the army of the

United States.  In 1834, his master took him to the military station at

Rock Island, on the border of Illinois, and in 1836 to Fort Snelling, in

the present Minnesota, then Wisconsin, Territory.  While at Fort

Snelling, the plaintiff married a slave who was there with her master,

and two children have been born of this connection, one during the

journey of the family in returning to Missouri, and the other after

their return to that State.



Since 1838, the plaintiff and the members of his family have been in

Missouri in the condition of slaves.  The object of this suit is to

establish their freedom.  The defendant, who claims the plaintiff and

his family, under the title of Dr. Emerson, denied the jurisdiction of

the Circuit Court by the plea that the plaintiff was a negro of African

blood, the descendant of Africans who had been imported and sold in this

country as slaves, and thus he had no capacity as a citizen of Missouri

to maintain a suit in the Circuit Court.  The court sustained a demurrer

to this plea, a trial was then had upon the general issue, and special

pleas to the effect that the plaintiff and his family were slaves

belonging to the defendant.



My opinion in this case is not affected by the plea to the jurisdiction,

and I shall not discuss the questions it suggests.  The claim of the

plaintiff to freedom depends upon the effect to be given to his absence

from Missouri, in company with his master, in Illinois and Minnesota,

and this effect is to be ascertained by a reference to the laws of

Missouri.  For the trespass complained of was committed upon one

claiming to be a freeman and a citizen, in that State, and who had been

living for years under the dominion of its laws.  And the rule is that

whatever is a justification where the thing is done, must be a

justification in the forum where the case is tried.  20 How.St.Tri.,

234, Cowp.S.C. 161.



The Constitution of Missouri recognises slavery as a legal condition,

extends guaranties to the masters of slaves, and invites [60 U.S. 494]

immigrants to introduce them, as property, by a promise of protection. 

The laws of the State charge the master with the custody of the slave,

and provide for the maintenance and security of their relation.



The Federal Constitution and the acts of Congress provide for the return

of escaping slaves within the limits of the Union.  No removal of the

slave beyond the limits of the State, against the consent of the master,

nor residence there in another condition, would be regarded as an

effective manumission by the courts of Missouri, upon his return to the

State.  "Sicut liberis captis status restituitur sic servus domino." 

Nor can the master emancipate the slave within the State except through

the agency of a public authority.  The inquiry arises whether the

manumission of the slave is effected by his removal, with the consent of

the master, to a community where the law of slavery does not exist, in a

case where neither the master nor slave discloses a purpose to remain

permanently, and where both parties have continued to maintain their

existing relations.  What is the law of Missouri in such a case? 

Similar inquiries have arisen in a great number of suits, and the

discussions in the State courts have relieved the subject of much of its

difficulty.  12 B.M.Ky.R. 545, Foster v. Foster, 10 Gratt.Va.R. 485, 4

Har. and McH.Md.R. 295, Scott v. Emerson, 15 Misso. 576, 4 Rich.S.C.R.,

186, 17 Misso. 434, 15 Misso. 596, 5 B.M. 173, 8 B.M. 540, 633, 9 B.M.

565, 5 Leigh 614, 1 Raud. 15, 18 Pick. 193.



The result of these discussions is that, in general, the status or civil

and political capacity of a person is determined in the first instance

by the law of the domicil where he is born; that the legal effect on

persons arising from the operation of the law of that domicil is not

indelible, but that a new capacity or status may be acquired by a change

of domicil.  That questions of status are closely connected with

considerations arising out of the social and political organization of

the State where they originate, and each sovereign power must determine

them within its own territories.



A large class of cases has been decided upon the second of the

propositions above stated in the Southern and Western courts -- cases in

which the law of the actual domicil was adjudged to have altered the

native condition and status of the slave although he had never actually

possessed the status of freedom in that domicil.  Rankin v. Lydia, 2

A.K.M., Herny v. Decker, Walk. 36, 4 Mart. 385, 1 Misso. 472, Hunter v.

Fulcher, 1 Leigh.



I do not impugn the authority of these cases.  No evidence is found in

the record to establish the existence of a domicil [60 U.S. 495]

acquired by the master and slave either in Illinois or Minnesota.  The

master is described as an officer of the army who was transferred from

one station to another along the Western frontier in the line of his

duty and who, after performing the usual tours of service, returned to

Missouri; these slaves returned to Missouri with him, and had been there

for near fifteen years in that condition when this suit was instituted. 

But absence in the performance of military duty, without more, is a fact

of no importance in determining a question of a change of domicil. 

Questions of that kind depend upon acts and intentions, and are

ascertained from motives, pursuits, the condition of the family and

fortune of the party, and no change will be inferred unless evidence

shows that one domicil was abandoned and there was an intention to

acquire another.  11 L. and Eq. 6, 6 Exch. 217, 6 M. and W. 511, 2

Curt.Ecc.R. 368.



The cases first cited deny the authority of a foreign law to dissolve

relations which have been legally contracted in the State where the

parties are and have their actual domicil -- relations which were never

questioned during their absence from that State -- relations which are

consistent with the native capacity and condition of the respective

parties, and with the policy of the State where they reside, but which

relations were inconsistent with the policy or laws of the State or

Territory within which they had been for a time, and from which they had

returned, with these relations undisturbed.  It is upon the assumption

that the law of Illinois or Minnesota was indelibly impressed upon the

slave and its consequences carried into Missouri that the claim of the

plaintiff depends.  The importance of the case entitles the doctrine on

which it rests to a careful examination.



It will be conceded that, in countries where no law or regulation

prevails opposed to the existence and consequences of slavery, persons

who are born in that condition in a foreign State would not be liberated

by the accident of their introgression.  The relation of domestic

slavery is recognised in the law of nations, and the interference of the

authorities of one State with the rights of a master belonging to

another, without a valid cause, is a violation of that law.  Wheat. Law

of Na., 724, 5 Stats. at Large 601, Calh.Sp., 378, Reports of the Com.

U.S. and G.B. 187, 238, 241.



The public law of Europe formerly permitted a master to reclaim his

bondsman, within a limited period, wherever he could find him, and one

of the capitularies of Charlemagne abolishes the rule of prescription. 

He directs, that wheresoever, within the bounds of Italy, either the

runaway slave of the king, or of [60 U.S. 496] the church, or of any

other man shall be found by his master, he shall be restored without any

bar or prescription of years, yet upon the provision that the master be

a Frank or German, or of any other nation (foreign,) but if he be a

Lombard or a Roman, he shall acquire or receive his slaves by that law

which has been established from ancient times among them. Without

referring for precedents abroad or to the colonial history for similar

instances, the history of the Confederation and Union affords evidence

to attest the existence of this ancient law.  In 1783, Congress directed

General Washington to continue his remonstrances to the commander of the

British forces respecting the permitting negroes belonging to the

citizens of these States to leave New York, and to insist upon the

discontinuance of that measure.  In 1788, the resident minister of the

United States at Madrid was instructed to obtain from the Spanish Crown

orders to its Governors in Louisiana and Florida to permit and

facilitate the apprehension of fugitive slaves from the States,

promising that the States would observe the like conduct respecting

fugitives from Spanish subjects. The committee that made the report of

this resolution consisted of Hamilton, Madison, and Sedgwick, 2

Hamilton's Works, 473, and the clause in the Federal Constitution

providing for the restoration of fugitive slaves is a recognition of

this ancient right, and of the principle that a change of place does not

effect a change of condition.  The diminution of the power of a master

to reclaim his escaping bondsman in Europe commenced in the enactment of

laws of prescription in favor of privileged communes.  Bremen, Spire,

Worms, Vienna, and Ratisbon, in Germany, Carcassonne, Beziers, Toulouse,

and Paris, in France, acquired privileges on this subject at an early

period.  The ordinance of William the Conqueror that a residence of any

of the servile population of England, for a year and a day, without

being claimed, in any city, burgh, walled town, or castle of the King,

should entitle them to perpetual liberty is a specimen of these laws.



The earliest publicist who has discussed this subject is Bodin, a jurist

of the sixteenth century whose work was quoted in the early discussions

of the courts in France and England on this subject.  He says: In

France, although there be some remembrance of old servitude, yet it is

not lawful here to make a slave or to buy anyone of others, insomuch as

the slaves of strangers, so soon as they set their foot within France,

become frank and free, as was determined by an old decree of the court

of Paris against an ambassador of Spain, who had brought a slave with

him into France. He states another case, which arose in the city of

Toulouse, of a Genoese merchant, who had [60 U.S. 497] carried a slave

into that city on his voyage from Spain, and when the matter was brought

before the magistrates, the procureur of the city, out of the records,

showed certain ancient privileges given unto them of Tholouse, wherein

it was granted that slaves, so soon as they should come into Tholouse,

should be free. These cases were cited with much approbation in the

discussion of the claims of the West India slaves of Verdelin for

freedom, in 1738, before the judges in admiralty, 15 Causes Celebres p.

1, 2 Masse Droit Com., sec. 58, and were reproduced before Lord

Mansfield, in the cause of Somersett, in 1772.  Of the cases cited by

Bodin, it is to be observed that Charles V of France exempted all the

inhabitants of Paris from serfdom or other feudal incapacities in 1371,

and this was confirmed by several of his successors, 3 Dulaire Hist. de

Par. 546, Broud. Court. de Par. 21, and the ordinance of Toulouse is

preserved as follows: Civitas Tholosana fuit et erit sine fine libera,

adeo ut servi et ancillae, sclavi et sclavae, dominos sive dominas

habentes, cum rebus vel sine rebus suis, ad Tholosam vel infra terminos

extra urbem terminatos accedentes acquirant libertatem. Hist. de Langue,

tome 3, p. 69; ibid. 6, p. 8, Loysel Inst. b. 1, sec. 6.



The decisions were made upon special ordinances, or charters, which

contained positive prohibitions of slavery, and where liberty had been

granted as a privilege, and the history of Paris furnishes but little

support for the boast that she was a "sacro sancta civitas," where

liberty always had an asylum, or for the "self-complacent rhapsodies" of

the French advocates in the case of Verdelin, which amused the grave

lawyers who argued the case of Somersett.  The case of Verdelin was

decided upon a special ordinance, which prescribed the conditions on

which West India slaves might be introduced into France, and which had

been disregarded by the master.



The Case of Somersett was that of a Virginia slave carried to England by

his master in 1770, and who remained there two years.  For some cause,

he was confined on a vessel destined to Jamaica, where he was to be

sold.  Lord Mansfield, upon a return to a habeas corpus, states the

question involved.  "Here, the person of the slave himself," he says,

"is the immediate subject of inquiry, can any dominion, authority, or

coercion be exercised in this country, according to the American laws?" 

He answers: The difficulty of adopting the relation, without adopting it

in all its consequences, is indeed extreme, and yet many of those

consequences are absolutely contrary to the municipal law of England.

Again, he says: The return states that the slave departed, and refused

to serve, whereupon he was kept to be sold abroad. . . .  So high [60

U.S. 498] an act of dominion must be recognised by the law of the

country where it is used.  The power of the master over his slave has

been extremely different in different countries. . . .  The state of

slavery is of such a nature that it is incapable of being introduced on

any reasons, moral or political, but only by positive law, which

preserves its force long after the reasons, occasion, and time itself

from whence it was created are erased from the memory.  It is so odious

that nothing can be suffered to support it but positive law. That there

is a difference in the systems of States which recognise and which do

not recognise the institution of slavery cannot be disguised. 

Constitutional law, punitive law, police, domestic economy, industrial

pursuits, and amusements, the modes of thinking and of belief of the

population of the respective communities all show the profound influence

exerted upon society by this single arrangement.  This influence was

discovered in the Federal Convention, in the deliberations on the plan

of the Constitution.  Mr. Madison observed that the States were divided

into different interests not by their difference of size, but by other

different interests, not by their difference of size, but by other

circumstances, the most material of which resulted from climate, but

principally from the effects of their having or not having slaves. 

These two causes concur in forming the great division of interests in

the United States.



The question to be raised with the opinion of Lord Mansfield, therefore,

is not in respect to the incongruity of the two systems, but whether

slavery was absolutely contrary to the law of England, for if it was so,

clearly, the American laws could not operate there.  Historical research

ascertains that, at the date of the Conquest, the rural population of

England were generally in a servile condition, and under various names

denoting noting slight variances in condition, they were sold with the

land like cattle, and were a part of its living money.  Traces of the

existence of African slaves are to be found in the early chronicles. 

Parliament in the time of Richard II, and also of Henry VIII, refused to

adopt a general law of emancipation.  Acts of emancipation by the

last-named monarch and by Elizabeth are preserved.



The African slave trade had been carried on, under the unbounded

protection of the Crown, for near two centuries when the case of

Somersett was heard, and no motion for its suppression had ever been

submitted to Parliament, while it was forced upon and maintained in

unwilling colonies by the Parliament and Crown of England at that

moment.  Fifteen thousand negro slaves were then living in that island,

where they had been introduced under the counsel of the most illustrious

jurists of the realm, and such slaves had been publicly [60 U.S. 499]

sold for near a century in the markets of London.  In the northern part

of the kingdom of Great Britain, there existed a class of from 30,000 to

40,000 persons, of whom the Parliament said, in 1775, 15 George III,

chap. 28, many colliers, coal-heavers, and salters are in a state of

slavery or bondage, bound to the collieries and salt works where they

work for life, transferable with the collieries and salt works when

their original masters have no use for them, and whereas the

emancipating or setting free the colliers, coal-heavers, and salters in

Scotland, who are now in a state of servitude, gradually and upon

reasonable conditions, would be the means of increasing the number of

colliers, coal-heavers, and salters, to the great benefit of the public,

without doing any injury to the present masters, and would remove the

reproach of allowing such a state of servitude to exist in a free

country, &c., and again, in 1799, "they declare that many colliers and

coal-heavers still continue in a state of bondage"  No statute, from the

Conquest till the 15 George III, had been passed upon the subject of

personal slavery.  These facts have led the most eminent civilian of

England to question the accuracy of this judgment, and to insinuate

that, in this judgment, the offence of ampliare jurisdictionem by

private authority was committed by the eminent magistrate who pronounced

it.



This sentence is distinguishable from those cited from the French courts

in this:  that there positive prohibitions existed against slavery, and

the right to freedom was conferred on the immigrant slave by positive

law, whereas here the consequences of slavery merely -- that is the

public policy -- were found to be contrary to the law of slavery.  The

case of the slave Grace, 2 Hagg., with four others, came before Lord

Stowell in 1827, by appeals from the West India vice admiralty courts. 

They were cases of slaves who had returned to those islands, after a

residence in Great Britain, and where the claim to freedom was first

presented in the colonial forum.  The learned judge in that case said:

This suit fails in its foundation.  She (Grace) was not a free person,

no injury is done her by her continuance in slavery, and she has no

pretensions to any other station than that which was enjoyed by every

slave of a family.  If she depends upon such freedom conveyed by a mere

residence in England, she complains of a violation of right which she

possessed no longer than whilst she resided in England, but which

totally expired when that residence ceased, and she was imported into

Antigua.



The decision of Lord Mansfield was, "that so high an act of dominion" as

the master exercises over his slave, in sending him abroad for sale,

could not be exercised in England [60 U.S. 500] under the American laws,

and contrary to the spirit of their own.



The decision of Lord Stowell is that the authority of the English laws

terminated when the slave departed from England.  That the laws of

England were not imported into Antigua with the slave upon her return,

and that the colonial forum had no warrant for applying a foreign code

to dissolve relations which had existed between persons belonging to

that island, and which were legal according to its own system.  There is

no distinguishable difference between the case before us and that

determined in the admiralty of Great Britain.



The complaint here, in my opinion, amounts to this:  that the judicial

tribunals of Missouri have not denounced as odious the Constitution and

laws under which they are organized, and have not superseded them on

their own private authority for the purpose of applying the laws of

Illinois, or those passed by Congress for Minnesota, in their stead. 

The eighth section of the act of Congress of the 6th of March, 1820, 3

Statutes at Large 545, entitled, "An act to authorize the people of

Missouri to form a State Government," &c., is referred to as affording

the authority to this court to pronounce the sentence which the Supreme

Court of Missouri felt themselves constrained to refuse.  That section

of the act prohibits slavery in the district of country west of the

Mississippi, north of thirty-six degrees thirty minutes north latitude,

which belonged to the ancient province of Louisiana, not included in

Missouri.



It is a settled doctrine of this court that the Federal Government can

exercise no power over the subject of slavery within the States, nor

control the intermigration of slaves, other than fugitives, among the

States.  Nor can that Government affect the duration of slavery within

the States, other than by a legislation over the foreign slave trade. 

The power of Congress to adopt the section of the act above cited must

therefore depend upon some condition of the Territories which

distinguishes them from States, and subjects them to a control more

extended.  The third section of the fourth article of the Constitution

is referred to as the only and all-sufficient grant to support this

claim.  It is that new States may be admitted by the Congress to this

Union, but no new State shall be formed or erected within the

jurisdiction of any other State, nor any State be formed by the junction

of two or more States, or parts of State, without the consent of the

Legislatures of the States concerned, as well as of the Congress.  The

Congress shall have power to dispose of and make all needful rules and

regulations respecting the territory or other property [60 U.S. 501]

belonging to the United States, and nothing in this Constitution shall

be so construed as to prejudice any claims of the United States, or of

any particular State.



It is conceded in the decisions of this court that Congress may secure

the rights of the United States in the public domain, provide for the

sale or lease of any part of it, and establish the validity of the

titles of the purchasers, and may organize Territorial Governments, with

powers of legislation.  3 How. 212, 12 How. 1, 1 Pet. 511, 13 P. 436, 16

H. 164.



But the recognition of a plenary power in Congress to dispose of the

public domain or to organize a Government over it does not imply a

corresponding authority to determine the internal polity or to adjust

the domestic relations or the persons who may lawfully inhabit the

territory in which it is situated.  A supreme power to make needful

rules respecting the public domain, and a similar power of framing laws

to operate upon persons and things within the territorial limits where

it lies, are distinguished by broad lines of demarcation in American

history.  This court has assisted us to define them.  In Johnson v.

McIntosh, 8 Wheat. 595-543, they say:



According to the theory of the British Constitution, all vacant lands

are vested in the Crown, and the exclusive power to grant them is

admitted to reside in the Crown, as a branch of the royal prerogative.



All the lands we hold were originally granted by the Crown, and the

establishment of a royal Government has never been considered as

impairing its right to grant lands within the chartered limits of such

colony.



And the British Parliament did claim a supremacy of legislation

coextensive with the absoluteness of the dominion of the sovereign over

the Crown lands.  The American doctrine, to the contrary, is embodied in

two brief resolutions of the people of Pennsylvania in 1774: 1st. That

the inhabitants of these colonies are entitled to the same rights and

liberties, within the colonies that the subjects born in England are

entitled within the realm. 2d. That the power assumed by Parliament to

bind the people of these colonies by statutes, in all cases whatever, is

unconstitutional, and therefore the source of these unhappy

difficulties. The Congress of 1774, in their statement of rights and

grievances, affirm "a free and exclusive power of legislation" in their

several Provincial Legislatures, in all cases of taxation and internal

polity, subject only to the negative of their sovereign, in such manner

as has been heretofore used and accustomed. 1 Jour.Cong. 32.



The unanimous consent of the people of the colonies, then, [60 U.S. 502]

to the power of their sovereign, "to dispose of and make all needful

rules and regulations respecting the territory" of the Crown, in 1774,

was deemed by them as entirely consistent with opposition, remonstrance,

the renunciation of allegiance, and proclamation of civil war, in

preference to submission to his claim of supreme power in the

territories.



I pass now to the evidence afforded during the Revolution and

Confederation.  The American Revolution was not a social revolution.  It

did not alter the domestic condition or capacity of persons within the

colonies, nor was it designed to disturb the domestic relations existing

among them.  It was a political revolution, by which thirteen dependent

colonies became thirteen independent States.  "The Declaration of

Independence was not," says Justice Chase, a declaration that the United

Colonies jointly, in a collective capacity, were independent States,

&c., but that each of them was a sovereign and independent State -- that

is, that each of them had a right to govern itself by its own authority

and its own laws, without any control from any other power on earth. 3

Dall. 199, 4 Cr. 212.



These sovereign and independent States, being united as a Confederation,

by various public acts of cession became jointly interested in territory

and concerned to dispose of and make all needful rules and regulations

respecting it.  It is a conclusion not open to discussion in this court

that there was no territory within the (original) United States that was

claimed by them in any other right than that of some of the confederate

States. Harcourt v. Gaillord, 12 Wh. 523.  "The question whether the

vacant lands within the United States," says Chief Justice Marshall,

became joint property or belonged to the separate States was a momentous

question which threatened to shake the American Confederacy to its

foundations.  This important and dangerous question has been

compromised, and the compromise is not now to be contested. 6 C.R. 87.



The cessions of the States to the Confederation were made on the

condition that the territory ceded should be laid out and formed into

distinct republican States, which should be admitted as members to the

Federal Union having the same rights of sovereignty, freedom, and

independence as the other States.  The first effort to fulfil this trust

was made in 1785 by the offer of a charter or compact to the inhabitants

who might come to occupy the land.



Those inhabitants were to form for themselves temporary State

Governments, founded on the Constitutions of any of the States but to be

alterable at the will of their Legislature, and [60 U.S. 503] permanent

Governments were to succeed these whenever the population became

sufficiently numerous to authorize the State to enter the Confederacy,

and Congress assumed to obtain powers from the States to facilitate this

object.  Neither in the deeds of cession of the States nor in this

compact was a sovereign power for Congress to govern the Territories

asserted.  Congress retained power, by this act, "to dispose of and to

make rules and regulations respecting the public domain," but submitted

to the people to organize a Government harmonious with those of the

confederate States.



The next stage in the progress of colonial government was the adoption

of the Ordinance of 1787 by eight States, in which the plan of a

Territorial Government, established by act of Congress, is first seen. 

This was adopted while the Federal Convention to form the Constitution

was sitting.  The plan placed the Government in that hands of a

Governor, Secretary, and Judges, appointed by Congress, and conferred

power on them to select suitable laws from the codes of the States until

the population should equal 5,000.  A Legislative Council, elected by

the people, was then to be admitted to a share of the legislative

authority, under the supervision of Congress, and States were to be

formed whenever the number of the population should authorize the

measure.



This ordinance was addressed to the inhabitants as a fundamental

compact, and six of its articles define the conditions to be observed in

their Constitution and laws.  These conditions were designed to fulfill

the trust in the agreements of cession that the States to be formed of

the ceded Territories should be "distinct republican States."  This

ordinance was submitted to Virginia in 1788, and the 5th article,

embodying as it does a summary of the entire act, was specifically

ratified and confirmed by that State.  This was an incorporation of the

ordinance into her act of cession.  It was conceded in the argument that

the authority of Congress was not adequate to the enactment of the

ordinance, and that it cannot be supported upon the Articles of

Confederation.  To a part of the engagements, the assent of nine States

was required, and for another portion no provision had been made in

those articles.  Mr. Madison said, in a writing nearly contemporary, but

before the confirmatory act of Virginia, Congress have proceeded to form

new States, to erect temporary Governments, to appoint officers for

them, and to prescribe the conditions on which such States shall be

admitted into the Confederacy; all this has been done, and done without

the least color of constitutional authority. Federalist No. 38.  Richard

Henry Lee, one of the committee who reported the ordinance to Congress,

[60 U.S. 504] transmitted it to General Washington (15th July, 1787),

saying, It seemed necessary, for the security of property among

uninformed and perhaps licentious people, as the greater part of those

who go there are, that a strong-toned Government should exist, and the

rights of property be clearly defined. The consent of all the States

represented in Congress, the consent of the Legislature of Virginia, the

consent of the inhabitants of the Territory, all concur to support the

authority of this enactment.  It is apparent in the frame of the

Constitution that the Convention recognised its validity, and adjusted

parts of their work with reference to it.  The authority to admit new

States into the Union, the omission to provide distinctly for

Territorial Governments, and the clause limiting the foreign slave trade

to States then existing, which might not prohibit it, show that they

regarded this Territory as provided with Government and organized

permanently with a restriction on the subject of slavery.  Justice

Chase, in the opinion already cited, says of the Government before, and

it is in some measure true during the Confederation that the powers of

Congress originated from necessity, and arose out of and were only

limited by events, or, in other words, they were revolutionary in their

very nature.  Their extent depended upon the exigencies and necessities

of public affairs, and there is only one rule of construction, in regard

to the acts done, which will fully support them, viz., that the powers

actually exercised were rightfully exercised wherever they were

supported by the implied sanction of the State Legislatures and by the

ratifications of the people.



The clauses in the 3d section of the 4th article of the Constitution,

relative to the admission of new States and the disposal and regulation

of the territory of the United States, were adopted without debate in

the Convention.



There was a warm discussion on the clauses that relate to the

subdivision of the States, and the reservation of the claims of the

United States and each of the States from any prejudice.  The Maryland

members revived the controversy in regard to the Crown lands of the

Southwest.  There was nothing to indicate any reference to a government

of Territories not included within the limits of the Union, and the

whole discussion demonstrates that the Convention was consciously

dealing with a Territory whose condition, as to government, had been

arranged by a fundamental and unalterable compact.



An examination of this clause of the Constitution, by the light of the

circumstances in which the Convention was placed, will aid us to

determine its significance.  The first clause is "that new States may be

admitted by the Congress to this [60 U.S. 505] Union."  The condition of

Kentucky, Vermont, Rhode Island, and the new States to be formed in the

Northwest suggested this as a necessary addition to the powers of

Congress.  The next clause, providing for the subdivision of States and

the parties to consent to such an alteration, was required by the plans

on foot for changes in Massachusetts, New York, Pennsylvania, North

Carolina, and Georgia.  The clause which enables Congress to dispose of

and make regulations respecting the public domain was demanded by the

exigencies of an exhausted treasury and a disordered finance, for relief

by sales, and the preparation for sales, of the public lands, and the

last clause that nothing in the Constitution should prejudice the claims

of the United States or a particular State was to quiet the jealousy and

irritation of those who had claimed for the United States all the

unappropriated lands.  I look in vain among the discussions of the time

for the assertion of a supreme sovereignty for Congress over the

territory then belonging to the United States, or that they might

thereafter acquire.  I seek in vain for an annunciation that a

consolidated power had been inaugurated, whose subject comprehended an

empire, and which had no restriction but the discretion of Congress. 

This disturbing element of the Union entirely escaped the apprehensive

previsions of Samuel Adams, George Clinton, Luther Martin, and Patrick

Henry, and in respect to dangers from power vested in a central

Government over distant settlements, colonies, or provinces, their

instincts were always alive.  Not a word escaped them to warn their

countrymen that here was a power to threaten the landmarks of this

federative Union, and, with them, the safeguards of popular and

constitutional liberty, or that, under this article, there might be

introduced, on our soil, a single Government over a vast extent of

country -- a Government foreign to the persons over whom it might be

exercised and capable of binding those not represented, by statutes, in

all cases whatever.  I find nothing to authorize these enormous

pretensions, nothing in the expositions of the friends of the

Constitution, nothing in the expressions of alarm by its opponents --

expressions which have since been developed as prophecies.  Every

portion of the United States was then provided with a municipal

Government, which this Constitution was not designed to supersede, but

merely to modify as to its conditions.



The compacts of cession by North Carolina and Georgia are subsequent to

the Constitution.  They adopt the Ordinance of 1787, except the clause

respecting slavery.  But the precautionary repudiation of that article

forms an argument quite as satisfactory to the advocates for Federal

power, as its introduction [60 U.S. 506] would have done.  The refusal

of a power to Congress to legislate in one place seems to justify the

seizure of the same power when another place for its exercise is found.



This proceeds from a radical error which lies at the foundation of much

of this discussion.  It is that the Federal Government may lawfully do

whatever is not directly prohibited by the Constitution.  This would

have been a fundamental error if no amendments to the Constitution had

been made.  But the final expression of the will of the people of the

States, in the 10th amendment, is that the powers of the Federal

Government are limited to the grants of the Constitution.



Before the cession of Georgia was made, Congress asserted rights, in

respect to a part of her territory, which require a passing notice.  In

1798 and 1800, acts for the settlement of limits with Georgia, and to

establish a Government in the Mississippi Territory, were adopted.  A

Territorial Government was organized between the Chattahoochee and

Mississippi rivers.  This was within the limits of Georgia.  These acts

dismembered Georgia.  They established a separate Government upon her

soil, while they rather derisively professed that the establishment of

that Government shall in no respects impair the rights of the State of

Georgia, either to the jurisdiction or soil of the Territory. The

Constitution provided that the importation of such persons as any of the

existing States shall think proper to admit shall not be prohibited by

Congress before 1808.  By these enactments, a prohibition was placed

upon the importation of salves into Georgia, although her Legislature

had made none.



This court have repeatedly affirmed the paramount claim of Georgia to

this Territory.  They have denied the existence of any title in the

United States.  6 C.R. 87, 12 Wh. 523, 3 How. 212, 13 How. 381.  Yet

these acts were cited in the argument as precedents to show the power of

Congress in the Territories.  These statutes were the occasion of

earnest expostulation and bitter remonstrance on the part of the

authorities of the State, and the memory of their injustice and wrong

remained long after the legal settlement of the controversy by the

compact of 1802.  A reference to these acts terminates what I have to

say upon the Constitutions of the Territory within the original limits

of the United States.  These Constitutions were framed by the

concurrence of the States making the cessions and Congress, and were

tendered to immigrants who might be attracted to the vacant territory. 

The legislative powers of the officers of this Government were limited

to the selection of laws from the States, and provision was made for the

introduction of popular institutions, and their emancipation [60 U.S.

507] from Federal control whenever a suitable opportunity occurred.  The

limited reservation of legislative power to the officers of the Federal

Government was excused on the plea of necessity, and the probability is

that the clauses respecting slavery embody some compromise among the

statesmen of that time; beyond these, the distinguishing features of the

system which the patriots of the Revolution had claimed as their

birthright from Great Britain predominated in them.



The acquisition of Louisiana in 1803 introduced another system into the

United States.  This vast province was ceded or Spain.  To establish a

Government constituted on similar principles, and with like conditions,

was not an unnatural proceeding.



But there was great difficulty in finding constitutional authority for

the measure.  The third section of the fourth article of the

Constitution was introduced into the Constitution on the motion of Mr.

Gouverneur Morris.  In 1803, he was appealed to for information in

regard to its meaning.  He answers: I am very certain I had it not in

contemplation to insert a decree de coercendo imperio in the

Constitution of America. . . .  I knew then as well as I do now that all

North America must at length be annexed to us.  Happy indeed, if the

lust of dominion stop here.  It would therefore have been perfectly

utopian to oppose a paper restriction to the violence of popular

sentiment in a popular Government. 3 Mor.Writ. 185.  A few days later,

he makes another reply to his correspondent.  "I perceive," he says, I

mistook the drift of your inquiry, which substantially is whether

Congress can admit, as a new State, territory which did not belong to

the United States when the Constitution was made.  In my opinion, they

cannot.  I always thought, when we should acquire Canada and Louisiana,

it would be proper to GOVERN THEM AS PROVINCES, AND ALLOW THEM NO VOICE

in our councils.  In wording the third SECTION OF THE fourth article, I

went as far as circumstances would permit to establish the exclusion. 

CANDOR OBLIGES ME TO ADD MY BELIEF THAT HAD IT BEEN MORE POINTEDLY

EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE. 3 Mor.Writ. 192. 

The first Territorial Government of Louisiana was an Imperial one,

founded upon a French or Spanish model.  For a time, the Governor,

Judges, Legislative Council, Marshal, Secretary, and officers of the

militia were appointed by the President. [60 U.S. 508]



Besides these anomalous arrangements, the acquisition gave rise to

jealous inquiries as to the influence it would exert in determining the

men and States that were to be "the arbiters and rulers" of the

destinies of the Union, and unconstitutional opinions, having for their

aim to promote sectional divisions, were announced and developed. 

"Something," said an eminent statesman, something has suggested to the

members of Congress the policy of acquiring geographical majorities. 

This is a very direct step towards disunion, for it must foster the

geographical enmities by which alone it can be effected.  This something

must be a contemplation of particular advantages to be derived from such

majorities, and is it not notorious that they consist of nothing else

but usurpations over persons and property, by which they can regulate

the internal wealth and prosperity of States and individuals?



The most dangerous of the efforts to employ a geographical political

power to perpetuate a geographical preponderance in the Union is to be

found in the deliberations upon the act of the 6th of March, 1820,

before cited.  The attempt consisted of a proposal to exclude Missouri

from a place in the Union unless her people would adopt a Constitution

containing a prohibition upon the subject of slavery according to a

prescription of Congress.  The sentiment is now general, if not

universal, that Congress had no constitutional power to impose the

restriction.  This was frankly admitted at the bar in the course of this

argument.  The principles which this court have pronounced condemn the

pretension then made on behalf of the legislative department.  In Groves

v. Slaughter, 15 Pet., the Chief Justice said: The power over this

subject is exclusively with the several States, and each of them has a

right to decide for itself whether it will or will not allow persons of

this description to be brought within its limits. Justice McLean said:

The Constitution of the United States operates alike in all the States,

and one State has the same power over the subject of slavery as every

other State. In Pollard's Lessee v. Hagan, 3 How. 212, the court said:

The United States have no constitutional capacity to exercise municipal

[60 U.S. 509] jurisdiction, sovereignty, or eminent domain within the

limits of a State or elsewhere except in cases where it is delegated,

and the court denies the faculty of the Federal Government to add to its

powers by treaty or compact.



This is a necessary consequence resulting from the nature of the Federal

Constitution, which is a federal compact among the States establishing a

limited Government, with powers delegated by the people of distinct and

independent communities, who reserved to their State Governments, and to

themselves, the powers they did not grant.  This claim to impose a

restriction upon the people of Missouri involved a denial of the

constitutional relations between the people of the States and Congress,

and affirmed a concurrent right for the latter, with their people, to

constitute the social and political system of the new States.  A

successful maintenance of this claim would have altered the basis of the

Constitution.  The new States would have become members of a Union

defined in part by the Constitution and in part by Congress.  They would

not have been admitted to "this Union."  Their sovereignty would have

been restricted by Congress, as well as the Constitution.  The demand

was unconstitutional and subversive, but was prosecuted with an energy

and aroused such animosities among the people that patriots whose

confidence had not failed during the Revolution began to despair for the

Constitution.  Amid the utmost violence of this extraordinary contest,

the expedient contained in the eighth section of this act was proposed

to moderate it, and to avert the catastrophe it menaced.  It was not

seriously debated, nor were its constitutional aspects severely

scrutinized by Congress.  For the first time in the history of the

country has its operation been embodied in a case at law and been

presented to this court for their judgment.  The inquiry is whether

there are conditions in the Constitutions of the Territories which

subject the capacity and status of persons within their limits to the

direct action of Congress.  Can Congress determine the condition and

status of persons who inhabit the Territories?



The Constitution permits Congress to dispose of and to make all needful

rules and regulations respecting the territory or other property

belonging to the United States.  This power applies as well to territory

belonging to the United States within the States as beyond them.  It

comprehends all the public domain, wherever it may be.  The argument is

that [60 U.S. 510] the power to make "ALL needful rules and regulations"

"is a power of legislation," "a full legislative power," "that it

includes all subjects of legislation in the territory," and is without

any limitations, except the positive prohibitions which affect all the

powers of Congress.  Congress may then regulate or prohibit slavery upon

the public domain within the new States, and such a prohibition would

permanently affect the capacity of a slave whose master might carry him

to it.  And why not?  Because no power has been conferred on Congress. 

This is a conclusion universally admitted.  But the power to "make rules

and regulations respecting the territory" is not restrained by State

lines, nor are there any constitutional prohibitions upon its exercise

in the domain of the United States within the States, and whatever rules

and regulations respecting territory Congress may constitutionally make

are supreme, and are not dependent on the situs of "the territory."



The author of the Farmer's Letters, so famous in the ante-revolutionary

history, thus states the argument made by the American loyalists in

favor of the claim of the British Parliament to legislate in all cases

whatever over the colonies:  "It has been urged with great vehemence

against us," he says, and it seems to be thought their FORT by our

adversaries that a power of regulation is a power of legislation, and a

power of legislation, if constitutional, must be universal and supreme,

in the utmost sense of the word.  It is therefore concluded that the

colonies, by acknowledging the power of regulation, acknowledged every

other power.



This sophism imposed upon a portion of the patriots of that day.  Chief

Justice Marshall, in his life of Washington, says that many of the

best-informed men in Massachusetts had perhaps adopted the opinion of

the parliamentary right of internal government over the colonies; . . .

that the English statute book furnishes many instances of its exercise;

. . . that in no case recollected was their authority openly

controverted; and "that the General Court of Massachusetts, on a late

occasion, openly recognised the principle."  Marsh.Wash., v. 2, p. 75,

76.



But the more eminent men of Massachusetts rejected it, and another

patriot of the time employs the instance to warn us of "the stealth with

which oppression approaches," and "the enormities towards which

precedents travel."  And the people of the United States, as we have

seen, appealed to the last argument, rather than acquiesce in their

authority.  Could it have been the purpose of Washington and his

illustrious associates, by the use of ambiguous, equivocal, and

expansive [60 U.S. 511] words, such as "rules," "regulations,"

"territory," to reestablish in the Constitution of their country that

fort which had been prostrated amid the toils and with the sufferings

and sacrifices of seven years of war?  Are these words to be understood

as the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and Dunmores

-- in a word, as George III would have understood them -- or are we to

look for their interpretation to Patrick Henry or Samuel Adams, to

Jefferson, and Jay, and Dickinson, to the sage Franklin, or to Hamilton,

who, from his early manhood, was engaged in combating British

constructions of such words?  We know that the resolution of Congress of

1780 contemplated that the new States to be formed under their

recommendation were to have the same rights of sovereignty, freedom, and

independence, as the old.  That every resolution, cession, compact, and

ordinance of the States observed the same liberal principle.  That the

Union of the Constitution is a union formed of equal States, and that

new States, when admitted, were to enter "this Union."  Had another

union been proposed in "any pointed manner," it would have encountered

not only "strong," but successful, opposition.  The disunion between

Great Britain and her colonies originated in the antipathy of the latter

to "rules and regulations" made by a remote power respecting their

internal policy.  In forming the Constitution, this fact was ever

present in the minds of its authors.  The people were assured by their

most trusted statesmen "that the jurisdiction of the Federal Government

is limited to certain enumerated objects, which concern all members of

the republic," and that the local or municipal authorities form distinct

portions of supremacy, no more subject within their respective spheres

to the general authority than the general authority is subject to them

within its own sphere. Still this did not content them.  Under the lead

of Hancock and Samuel Adams, of Patrick Henry and George Mason, they

demanded an explicit declaration that no more power was to be exercised

than they had delegated.  And the Ninth and Tenth Amendments to the

Constitution were designed to include the reserved rights of the States,

and the people, within all the sanctions of that instrument, and to bind

the authorities, State and Federal, by the judicial oath it prescribes,

to their recognition and observance.  Is it probable, therefore that the

supreme and irresponsible power, which is now claimed for Congress over

boundless territories, the use of which cannot fail to react upon the

political system of the States, to its subversion, was ever within the

contemplation of the statesmen who conducted the counsels of the people

in the formation of this Constitution?  When [60 U.S. 512] the questions

that came to the surface upon the acquisition of Louisiana were

presented to the mind of Jefferson, he wrote: I had rather ask an

enlargement of power from the nation, where it is found necessary, than

to assume it by a construction which would make our powers boundless. 

Our peculiar security is in the possession of a written Constitution. 

Let us not make it blank paper by construction.  I say the same as to

the opinion of those who consider the grant of the treaty-making power

as boundless.  If it is, then we have no Constitution.  If it has

bounds, they can be no others than the definitions of the powers which

that instrument gives.  It specifies and delineates the operations

permitted to the Federal Government, and gives the powers necessary to

carry them into execution. The publication of the journals of the

Federal Convention in 1819, of the debates reported by Mr. Madison in

1840, and the mass of private correspondence of the early statesmen

before and since, enable us to approach the discussion of the aims of

those who made the Constitution with some insight and confidence.



I have endeavored, with the assistance of these, to find a solution for

the grave and difficult question involved in this inquiry.  My opinion

is that the claim for Congress of supreme power in the Territories,

under the grant to "dispose of and make all needful rules and

regulations respecting territory," is not supported by the historical

evidence drawn from the Revolution, the Confederation, or the

deliberations which preceded the ratification of the Federal

Constitution.  The Ordinance of 1787 depended upon the action of the

Congress of the Confederation, the assent of the State of Virginia, and

the acquiescence of the people who recognised the validity of that plea

of necessity which supported so many of the acts of the Governments of

that time, and the Federal Government accepted the ordinance as a

recognised and valid engagement of the Confederation.



In referring to the precedents of 1798 and 1800, I find the Constitution

was plainly violated by the invasion of the rights of a sovereign State,

both of soil and jurisdiction, and in reference to that of 1804, the

wisest statesmen protested against it, and the President more than

doubted its policy and the power of the Government.



Mr. John Quincy Adams, at a later period, says of the last act that the

President found Congress mounted to the pitch of passing those acts

without inquiring where they acquired the authority, and he conquered

his own scruples as they had done theirs. But this court cannot

undertake for themselves the same conquest.  They acknowledge that our

peculiar security [60 U.S. 513] is in the possession of a written

Constitution, and they cannot make it blank paper by construction.



They look to its delineation of the operations of the Federal

Government, and they must not exceed the limits it marks out, in their

administration.  The court have said that Congress cannot exercise

municipal jurisdiction, sovereignty, or eminent domain, within the

limits of a State or elsewhere, beyond what has been delegated. We are

then to find the authority for supreme power in the Territories in the

Constitution.  What are the limits upon the operations of a Government

invested with legislative, executive, and judiciary powers, and charged

with the power to dispose of and to make all needful rules and

regulations respecting a vast public domain?  The feudal system would

have recognised the claim made on behalf of the Federal Government for

supreme power over persons and things in the Territories as an incident

to this title -- that is the title to dispose of and make rules and

regulations respecting it.



The Norman lawyers of William the Conqueror would have yielded an

implicit assent to the doctrine that a supreme sovereignty is an

inseparable incident to a grant to dispose of and to make all needful

rules and regulations respecting the public domain.  But an American

patriot, in contrasting the European and American systems, may affirm

that European sovereigns give lands to their colonists, but reserve to

themselves a power to control their property, liberty, and privileges,

but the American Government sells the lands belonging to the people of

the several States (i.e., United States) to their citizens, who are

already in the possession of personal and political rights which the

Government did not give and cannot take away. And the advocates for

Government sovereignty in the Territories have been compelled to abate a

portion of the pretensions originally made in its behalf, and to admit

that the constitutional prohibitions upon Congress operate in the

Territories.  But a constitutional prohibition is not requisite to

ascertain a limitation upon the authority of of the several departments

of the Federal Government.  Nor are the States or people restrained by

any enumeration or definition of their rights or liberties.



To impair or diminish either, the department must produce an authority

from the people themselves, in their Constitution, and, as we have seen,

a power to make rules and regulations respecting the public domain does

not confer a municipal sovereignty over persons and things upon it.  But

as this is "thought their fort" by our adversaries, I propose a more

definite examination of it.  We have seen, Congress does not [60 U.S.

514] dispose of or make rules and regulations respecting domain

belonging to themselves, but belonging to the United States.



These conferred on their mandatory, Congress, authority to dispose of

the territory which belonged to them in common, and to accomplish that

object beneficially and effectually, they gave an authority to make

suitable rules and regulations respecting it.  When the power of

disposition is fulfilled, the authority to make rules and regulations

terminates, for it attaches only upon territory "belonging to the United

States."



Consequently, the power to make rules and regulations, from the nature

of the subject, is restricted to such administrative and conservatory

acts as are needful for the preservation of the public domain and its

preparation for sale or disposition.  The system of land surveys, the

reservations for schools, internal improvements, military sites, and

public buildings, the preemption claims of settlers, the establishment

of land offices and boards of inquiry to determine the validity of land

titles, the modes of entry and sale, and of conferring titles, the

protection of the lands from trespass and waste, the partition of the

public domain into municipal subdivisions, having reference to the

erection of Territorial Governments and States, and perhaps the

selection, under their authority, of suitable laws for the protection of

the settlers until there may be a sufficient number of them to form a

self-sustaining municipal Government -- these important rules and

regulations will sufficiently illustrate the scope and operation of the

3d section of the 4th article of the Constitution.  But this clause in

the Constitution does not exhaust the powers of Congress within the

territorial subdivisions, or over the persons who inhabit them. 

Congress may exercise there all the powers of Government which belong to

them as the Legislature of the United States, of which these Territories

make a part.  Loughborough v. Blake, 5 Wheat. 317.  Thus, the laws of

taxation, for the regulation of foreign, Federal, and Indian commerce,

and so for the abolition of the slave trade, for the protection of

copyrights and inventions, for the establishment of postal communication

and courts of justice, and for the punishment of crimes are as operative

there as within the States.  I admit that to mark the bounds for the

jurisdiction of the Government of the United States within the

Territory, and of its power in respect to persons and things within the

municipal subdivisions it has created, is a work of delicacy and

difficulty, and in a great measure is beyond the cognizance of the

judiciary department of that Government.  How much municipal power may

be exercised by the people of the Territory before their admission to

the Union, the courts of justice cannot decide.  This must depend, for

[60 U.S. 515] the most part, on political considerations, which cannot

enter into the determination of a case of law or equity.  I do not feel

called upon to define the jurisdiction of Congress.  It is sufficient

for the decision of this case to ascertain whether the residuary

sovereignty of the States or people has been invaded by the 8th section

of the act of 6th March, 1820, I have cited, insofar as it concerns the

capacity and status of persons in the condition and circumstances of the

plaintiff and his family.



These States, at the adoption of the Federal Constitution, were

organized communities, having distinct systems of municipal law, which,

though derived from a common source and recognising in the main similar

principles, yet in some respects had become unlike, and, on a particular

subject, promised to be antagonistic.



Their systems provided protection for life, liberty, and property among

their citizens, and for the determination of the condition and capacity

of the persons domiciled within their limits.  These institutions, for

the most part, were placed beyond the control of the Federal Government.

 The Constitution allows Congress to coin money, and regulate its value,

to regulate foreign and Federal commerce, to secure, for a limited

period, to authors and inventors a property in their writings and

discoveries, and to make rules concerning captures in war, and, within

the limits of these powers, it has exercised, rightly, to a greater or

less extent, the power to determine what shall and what shall not be

property.



But the great powers of war and negotiation, finance, postal

communication, and commerce, in general, when employed in respect to the

property of a citizen, refer to and depend upon the municipal laws of

the States to ascertain and determine what is property, and the rights

of the owner, and the tenure by which it is held.



Whatever these Constitutions and laws validly determine to be property,

it is the duty of the Federal Government, through the domain of

jurisdiction merely Federal, to recognise to be property.



And this principle follows from the structure of the respective

Governments, State and Federal, and their reciprocal relations.  They

are different agents and trustees of the people of the several States,

appointed with different powers and with distinct purposes, but whose

acts, within the scope of their respective jurisdictions, are mutually

obligatory.  They are, respectively, the depositories of such powers of

legislation as the people were willing to surrender, and their duty is

to cooperate within their several jurisdictions to maintain the rights

of the same citizens under both Governments unimpaired.  [60 U.S. 516] A

proscription, therefore, of the Constitution and laws of one or more

States, determining property, on the part of the Federal Government, by

which the stability of its social system may be endangered is plainly

repugnant to the conditions on which the Federal Constitution was

adopted, or which that Government was designed to accomplish.  Each of

the States surrendered its powers of war and negotiation, to raise

armies and to support a navy, and all of these powers are sometimes

required to preserve a State from disaster and ruin.  The Federal

Government was constituted to exercise these powers for the preservation

of the States, respectively, and to secure to all their citizens the

enjoyment of the rights which were not surrendered to the Federal

Government.  The provident care of the statesmen who projected the

Constitution was signalized by such a distribution of the powers of

Government as to exclude many of the motives and opportunities for

promoting provocations and spreading discord among the States, and for

guarding against those partial combinations, so destructive of the

community of interest, sentiment, and feeling, which are so essential to

the support of the Union.  The distinguishing features of their system

consist in the exclusion of the Federal Government from the local and

internal concerns of, and in the establishment of an independent

internal Government within, the States.  And it is a significant fact in

the history of the United States that those controversies which have

been productive of the greatest animosity, and have occasioned most

peril to the peace of the Union, have had their origin in the well

sustained opinion of a minority among the people that the Federal

Government had overstepped its constitutional limits to grant some

exclusive privilege, or to disturb the legitimate distribution of

property or power among the States or individuals.  Nor can a more

signal instance of this be found than is furnished by the act before us.

 No candid or rational man can hesitate to believe that if the subject

of the eighth section of the act of March, 1820, had never been

introduced into Congress and made the basis of legislation, no interest

common to the Union would have been seriously affected.  And certainly

the creation within this Union of large confederacies of unfriendly and

frowning States, which has been the tendency and, to an alarming extent,

the result produced by the agitation arising from it does not commend it

to the patriot or statesman.  This court have determined that the

intermigration of slaves was not committed to the jurisdiction or

control of Congress.  Wherever a master is entitled to go within the

United States, his slave may accompany him without any impediment from

or fear of Congressional [60 U.S. 517] legislation or interference.  The

question then arises whether Congress, which can exercise no

jurisdiction over the relations of master and slave within the limits of

the Union, and is bound to recognise and respect the rights and

relations that validly exist under the Constitutions and laws of the

States, can deny the exercise of those rights, and prohibit the

continuance of those relations, within the Territories.



And the citation of State statutes prohibiting the immigration of

slaves, and of the decisions of State courts enforcing the forfeiture of

the master's title in accordance with their rule, only darkens the

discussion.  For the question is have Congress the municipal sovereignty

in the Territories which the State Legislatures have derived from the

authority of the people, and exercise in the States?



And this depends upon the construction of the article in the

Constitution before referred to.



And, in my opinion that clause confers no power upon Congress to

dissolve the relations of the master and slave on the domain of the

United States, either within or without any of the States.



The eighth section of the act of Congress of the 6th of March, 1820, did

not, in my opinion, operate to determine the domestic condition and

status of the plaintiff and his family during their sojourn in Minnesota

Territory, or after their return to Missouri.



The question occurs as to the judgment to be given in this case.  It

appeared upon the trial that the plaintiff, in 1834, was in a state of

slavery in Missouri, and he had been in Missouri for near fifteen years

in that condition when this suit was brought.  Nor does it appear that

he at any time possessed another state or condition de facto.  His claim

to freedom depends upon his temporary relocation, from the domicil of

his origin, in company with his master, to communities where the law of

slavery did not prevail.  My examination is confined to the case as it

was submitted upon uncontested evidence, upon appropriate issues to the

jury, and upon the instructions given and refused by the court upon that

evidence.  My opinion is that the opinion of the Circuit Court was

correct upon all the claims involved in those issues, and that the

verdict of the jury was justified by the evidence and instructions.



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



Upon this record, it is apparent that this is not a controversy between

citizens of different States, and that the plaintiff, at no period of

the life which has been submitted to the view of the court, has had a

capacity to maintain a suit in the courts [60 U.S. 518] of the United

States.  And in so far as the argument of the Chief Justice upon the

plea in abatement has a reference to the plaintiff or his family in any

of the conditions or circumstances of their lives as presented in the

evidence, I concur in that portion of his opinion.  I concur in the

judgment which expresses the conclusion that the Circuit Court should

not have rendered a general judgment.



The capacity of the plaintiff to sue is involved in the pleas in bar,

and the verdict of the jury discloses an incapacity under the

Constitution.  Under the Constitution of the United States, his is an

incapacity to sue in their courts, while, by the laws of Missouri, the

operation of the verdict would be more extensive.  I think it a safe

conclusion to enforce the lesser disability imposed by the Constitution

of the United States, and leave to the plaintiff all his rights in

Missouri.  I think the judgment should be affirmed, on the ground that

the Circuit Court had no jurisdiction, or that the case should be

reversed and remanded that the suit may be dismissed. CATRON, J.,

separate opinion



Mr. Justice CATRON.



The defendant pleaded to the jurisdiction of the Circuit Court that the

plaintiff was a negro of African blood, the descendant of Africans, who

had been imported and sold in this country as slaves, and thus had no

capacity as a citizen of Missouri to maintain a suit in the Circuit

Court.  The court sustained a demurrer to this plea, and a trial was had

upon the pleas, of the general issue, and also that the plaintiff and

his family were slaves, belonging to the defendant.  In this trial, a

verdict was given for the defendant.



The judgment of the Circuit Court upon the plea in abatement is not

open, in my opinion, to examination in this court upon the plaintiff's

writ.



The judgment was given for him conformably to the prayer of his

demurrer.  He cannot assign an error in such a judgment.  Tidd's Pr.

1163, 2 Williams's Saund. 46a, 2 Iredell N.C. 87, 2 W. and S. 391.  Nor

does the fact that the judgment was given on a plea to the jurisdiction

avoid the application of this rule.  Capron v. Van Noorden, 2 Cr. 126, 6

Wend. 465, 7 Met. 598, 5 Pike 1005.



The declaration discloses a case within the jurisdiction of the court --

a controversy between citizens of different States.  The plea in

abatement, impugning these jurisdictional averments, was waived when the

defendant answered to the declaration by pleas to the merits.  The

proceedings on that plea remain a part of the technical record, to show

the history of the case, but are not open to the review of this court by

a writ [60 U.S. 519] of error.  The authorities are very conclusive on

this point.  Shepherd v. Graves, 14 How. 505, Bailey v. Dozier, 6 How.

23, 1 Stewart (Alabama) 46, 10 Ben. Monroe (Kentucky) 555, 2 Stewart

(Alabama) 370, 443, 2 Scammon (Illinois) 78.  Nor can the court assume

as admitted facts the averments of the plea from the confession of the

demurrer.  That confession was for a single object, and cannot be used

for any other purpose than to test the validity of the plea.  Tompkins

v. Ashley, 1 Moody and Mackin 32, 33 Maine 96, 100.



There being nothing in controversy here but the merits, I will proceed

to discuss them.



The plaintiff claims to have acquired property in himself, and became

free, by being kept in Illinois during two years.



The Constitution, laws, and policy, of Illinois are somewhat peculiar

respecting slavery.  Unless the master becomes an inhabitant of that

State, the slaves he takes there do not acquire their freedom, and if

they return with their master to the slave State of his domicil, they

cannot assert their freedom after their return.  For the reasons and

authorities on this point, I refer to the opinion of my brother Nelson,

with which I not only concur, but think his opinion is the most

conclusive argument on the subject within my knowledge.



It is next insisted for the plaintiff that his freedom (and that of his

wife and eldest child) was obtained by force of the act of Congress of

1820, usually known as the Missouri Compromise Act, which declares: That

in all that territory ceded by France to the United States, which lies

north of thirty-six degrees thirty minutes north latitude, slavery and

involuntary servitude shall be, and are hereby, forever prohibited.



From this prohibition, the territory now constituting the State of

Missouri was excepted, which exception to the stipulation gave it the

designation of a compromise.



The first question presented on this act is whether Congress had power

to make such compromise.  For if power was wanting, then no freedom

could be acquired by the defendant under the act.



That Congress has no authority to pass laws and bind men's rights beyond

the powers conferred by the Constitution is not open to controversy. 

But it is insisted that, by the Constitution, Congress has power to

legislate for and govern the Territories of the United States, and that,

by force of the power to govern, laws could be enacted prohibiting

slavery in any portion of the Louisiana Territory, and, of course, to

abolish slavery in all parts of it whilst it was or is governed as a

Territory.



My opinion is that Congress is vested with power to govern [60 U.S. 520]

the Territories of the United States by force of the third section of

the fourth article of the Constitution.  And I will state my reasons for

this opinion.



Almost every provision in that instrument has a history that must be

understood before the brief and sententious language employed can be

comprehended in the relations its authors intended.  We must bring

before us the state of things presented to the Convention, and in regard

to which it acted, when the compound provision was made, declaring: 

1st.  That "new States may be admitted by the Congress into this Union."

 2d. The Congress shall have power to dispose of and make all needful

rules and regulations respecting the territory or other property

belonging to the United States.  And nothing in this Constitution shall

be so construed as to prejudice any claims of the United States, or any

particular State.



Having ascertained the historical facts giving rise to these provisions,

the difficulty of arriving at the true meaning of the language employed

will be greatly lessened.



The history of these facts is substantially as follows:



The King of Great Britain, by his proclamation of 1763, virtually

claimed that the country west of the mountains had been conquered from

France, and ceded to the Crown of Great Britain by the treaty of Paris

of that year, and he says:  "We reserve it under our sovereignty,

protection, and dominion, for the use of the Indians."



This country was conquered from the Crown of Great Britain, and

surrendered to the United States by the treaty of peace of 1783.  The

colonial charters of Virginia, North Carolina, and Georgia included it. 

Other States set up pretensions of claim to some portions of the

territory north of the Ohio, but they were of no value, as I suppose.  5

Wheat. 375.



As this vacant country had been won by the blood and treasure of all the

States, those whose charters did not reach it insisted that the country

belonged to the States united, and that the lands should be disposed of

for the benefit of the whole, and to which end the western territory

should be ceded to the States united.  The contest was stringent and

angry long before the Convention convened, and deeply agitated that

body.  As a matter of justice, and to quiet the controversy, Virginia

consented to cede the country north of the Ohio as early as 1783, and,

in 1784, the deed of cession was executed by her delegates in the

Congress of the Confederation conveying to the United States in Congress

assembled, for the benefit of said States, all right, title, and claim,

as well of soil as of jurisdiction, which this Commonwealth hath to the

territory or tract of country within the limits of the Virginia [60 U.S.

521] charter, situate, lying, and being to the northwest of the river

Ohio. In 1787 (July 13), the ordinance was passed by the old Congress to

govern the Territory.



Massachusetts had ceded her pretension of claim to western territory in

1785, Connecticut hers in 1786, and New York had ceded hers.  In August,

1787, South Carolina ceded to the Confederation her pretension of claim

to territory west of that State.  And North Carolina was expected to

cede hers, which she did do in April, 1790.  And so Georgia was

confidently expected to cede her large domain, now constituting the

territory of the States of Alabama and Mississippi.



At the time the Constitution was under consideration, there had been

ceded to the United States, or was shortly expected to be ceded, all the

western country from the British Canada line to Florida and from the

head of the Mississippi almost to its mouth, except that portion which

now constitutes the State of Kentucky.



Although Virginia had conferred on the Congress of the Confederation

power to govern the Territory north of the Ohio, still it cannot be

denied, as I think, that power was wanting to admit a new State under

the Articles of Confederation.



With these facts prominently before the Convention, they proposed to

accomplish these ends:



1st.  To give power to admit new States.



2d.  To dispose of the public lands in the Territories, and such as

might remain undisposed of in the new States after they were admitted.



And, thirdly, to give power to govern the different Territories as

incipient States not of the Union, and fit them for admission.  No one

in the Convention seems to have doubted that these powers were

necessary.  As early as the third day of its session (May 29th), Edmund

Randolph brought forward a set of resolutions containing nearly all the

germs of the Constitution, the tenth of which is as follows:



Resolved, That provision ought to be made for the admission of States

lawfully arising within the limits of the United States, whether from a

voluntary junction of government and territory or otherwise, with the

consent of a number of voices in the National Legislature less than the

whole.



August 18th, Mr. Madison submitted, in order to be referred to the

committee of detail, the following powers as proper to be added to those

of the General Legislature:



To dispose of the unappropriated lands of the United States. . . .  To

institute temporary Governments for new States arising therein. 3

Madison Papers 1353. [60 U.S. 522]



These, with the resolution that a district for the location of the seat

of Government should be provided, and some others, were referred,

without a dissent, to the committee of detail to arrange and put them

into satisfactory language.



Gouverneur Morris constructed the clauses, and combined the views of a

majority on the two provisions, to admit new States, and secondly, to

dispose of the public lands and to govern the Territories in the

meantime, between the cessions of the States and the admission into the

Union of new States arising in the ceded territory.  3 Madison Papers

1456 to 1466.



It was hardly possible to separate the power "to make all needful rules

and regulations" respecting the government of the territory and the

disposition of the public lands.



North of the Ohio, Virginia conveyed the lands, and vested the

jurisdiction in the thirteen original States, before the Constitution

was formed.  She had the sole title and sole sovereignty, and the same

power to cede, on any terms she saw proper that the King of England had

to grant the Virginia colonial charter of 1609, or to grant the charter

of Pennsylvania to William Penn.  The thirteen States, through their

representatives and deputed ministers in the old Congress, had the same

right to govern that Virginia had before the cession.  Baldwin's

Constitutional Views 90.  And the sixth article of the Constitution

adopted all engagements entered into by the Congress of the

Confederation as valid against the United States, and that the laws made

in pursuance of the new Constitution to carry out this engagement should

be the supreme law of the land, and the judges bound thereby.  To give

the compact and the ordinance which was part of it full effect under the

new Government, the Act of August 7th, 1789, was passed, which declares,



Whereas, in order that the ordinance of the United States in Congress

assembled, for the government of the Territory northwest of the river

Ohio, may have full effect, it is requisite that certain provisions

should be made so as to adapt the same to the present Constitution of

the United States. It is then provided that the Governor and other

officers should be appointed by the President, with the consent of the

Senate, and be subject to removal, &c., in like manner that they were by

the old Congress, whose functions had ceased.



By the powers to govern given by the Constitution, those amendments to

the ordinance could be made, but Congress guardedly abstained from

touching the compact of Virginia further than to adapt it to the new

Constitution.



It is due to myself to say that it is asking much of a judge [60 U.S.

523] who has for nearly twenty years been exercising jurisdiction from

the western Missouri line to the Rocky Mountains and, on this

understanding of the Constitution, inflicting the extreme penalty of

death for crimes committed where the direct legislation of Congress was

the only rule, to agree that he had been all the while acting in

mistake, and as an usurper.



More than sixty years have passed away since Congress has exercised

power to govern the Territories by its legislation directly or by

Territorial charters, subject to repeal at all times, and it is now too

late to call that power into question, if this court could disregard its

own decisions, which it cannot do, as I think.  It was held in the case

of Cross v. Harrison, 16 How. 193-194, that the sovereignty of

California was in the United States in virtue of the Constitution, by

which power had been given to Congress to dispose of and make all

needful rules and regulations respecting the territory or other property

belonging to the United States, with the power to admit new States into

the Union.  That decision followed preceding ones, there cited.  The

question was then presented, how it was possible for the judicial mind

to conceive that the United States Government, created solely by the

Constitution, could, by a lawful treaty, acquire territory over which

the acquiring power had no jurisdiction to hold and govern it, by force

of the instrument under whose authority the country was acquired, and

the foregoing was the conclusion of this court on the proposition.  What

was there announced was most deliberately done, and with a purpose.  The

only question here is, as I think, how far the power of Congress is

limited.



As to the Northwest Territory, Virginia had the right to abolish slavery

there, and she did so agree in 1787, with the other States in the

Congress of the Confederation, by assenting to and adopting the

Ordinance of 1787 for the government of the Northwest Territory.  She

did this also by an act of her Legislature, passed afterwards, which was

a treaty in fact.



Before the new Constitution was adopted, she had as much right to treat

and agree as any European Government had.  And, having excluded slavery,

the new Government was bound by that engagement by article six of the

new Constitution.  This only meant that slavery should not exist whilst

the United States exercised the power of government, in the Territorial

form, for, when a new State came in, it might do so with or without

slavery.



My opinion is that Congress had no power, in face of the compact between

Virginia and the twelve other States, to force slavery into the

Northwest Territory, because there it was bound to that "engagement,"

and could not break it. [60 U.S. 524]



In 1790, North Carolina ceded her western territory, now the State of

Tennessee, and stipulated that the inhabitants thereof should enjoy all

the privileges and advantages of the ordinance for governing the

territory north of the Ohio river, and that Congress should assume the

government, and accept the cession, under the express conditions

contained in the ordinance:  Provided, "That no regulation made, or to

be made, by Congress, shall tend to emancipate slaves."



In 1802, Georgia ceded her western territory to the United States, with

the provision that the Ordinance of 1787 should in all its parts extend

to the territory ceded, "that article only excepted which forbids

slavery."  Congress had no more power to legislate slavery out from the

North Carolina and Georgia cessions than it had power to legislate

slavery in, north of the Ohio.  No power existed in Congress to

legislate at all, affecting slavery, in either case.  The inhabitants,

as respected this description of property, stood protected whilst they

were governed by Congress, in like manner that they were protected

before the cession was made, and when they were, respectively, parts of

North Carolina and Georgia.



And how does the power of Congress stand west of the Mississippi river? 

The country there was acquired from France by treaty in 1803.  It

declares that the First Consul, in the name of the French Republic, doth

hereby cede to the United States, in full sovereignty, the colony or

province of Louisiana, with all the rights and appurtenances of the said

territory.  And, by article third, that the inhabitants of the ceded

territory shall be incorporated in the Union of the United States, and

admitted as soon as possible, according to the principles of the Federal

Constitution, to the enjoyment of all the rights, advantages, and

immunities, of citizens of the United States, and in the meantime, they

shall be maintained and protected in the free enjoyment of their

liberty, property, and the religion which they profess.



Louisiana was a province where slavery was not only lawful, but where

property in slaves was the most valuable of all personal property.  The

province was ceded as a unit, with an equal right pertaining to all its

inhabitants, in every part thereof, to own slaves.  It was, to a great

extent, a vacant country, having in it few civilized inhabitants.  No

one portion of the colony of a proper size for a State of the Union had

a sufficient number of inhabitants to claim admission into the Union. 

To enable the United States to fulfil the treaty, additional population

was indispensable, and obviously desired with anxiety by both sides so

that the whole country should, as soon as possible, become States of the

Union.  And for this [60 U.S. 525] contemplated future population, the

treaty as expressly provided as it did for the inhabitants residing in

the province when the treaty was made.  All these were to be protected

"in the meantime," that is to say, at all times, between the date of the

treaty and the time when the portion of the Territory where the

inhabitants resided was admitted into the Union as a State.



At the date of the treaty, each inhabitant had the right to the free

enjoyment of his property, alike with his liberty and his religion, in

every part of Louisiana; the province then being one country, he might

go everywhere in it and carry his liberty, property, and religion with

him, and in which he was to be maintained and protected until he became

a citizen of a State of the Union of the United States.  This cannot be

denied to the original inhabitants and their descendants.  And, if it be

true that immigrants were equally protected, it must follow that they

can also stand on the treaty.



The settled doctrine in the State courts of Louisiana is that a French

subject coming to the Orleans Territory, after the treaty of 1803 was

made and before Louisiana was admitted into the Union, and being an

inhabitant at the time of the admission, became a citizen of the United

States by that act that he was one of the inhabitants contemplated by

the third article of the treaty, which referred to all the inhabitants

embraced within the new State on its admission.



That this is the true construction I have no doubt.



If power existed to draw a line at thirty-six degrees thirty minutes

north, so Congress had equal power to draw the line on the thirtieth

degree -- that is due west from the city of New Orleans -- and to

declare that, north of that line, slavery should never exist.  Suppose

this had been done before 1812, when Louisiana came into the Union, and

the question of infraction of the treaty had then been presented on the

present assumption of power to prohibit slavery; who doubts what the

decision of this court would have been on such an act of Congress, yet

the difference between the supposed line and that on thirty-six degrees

thirty minutes north is only in the degree of grossness presented by the

lower line.



The Missouri Compromise line of 1820 was very aggressive; it declared

that slavery was abolished forever throughout a country reaching from

the Mississippi river to the Pacific ocean, stretching over thirty-two

degrees of longitude and twelve and a half degrees of latitude on its

eastern side, sweeping over four-fifths, to say no more, of the original

province of Louisiana.



That the United States Government stipulated in favor of [60 U.S. 526]

the inhabitants to the extent here contended for has not been seriously

denied, as far as I know, but the argument is that Congress had

authority to repeal the third article of the treaty of 1803, insofar as

it secured the right to hold slave property in a portion of the ceded

territory, leaving the right to exist in other parts.  In other words,

that Congress could repeal the third article entirely, at its pleasure. 

This I deny.



The compacts with North Carolina and Georgia were treaties also, and

stood on the same footing of the Louisiana treaty, on the assumption of

power to repeal the one, it must have extended to all, and Congress

could have excluded the slaveholder of North Carolina from the enjoyment

of his lands in the Territory now the State of Tennessee, where the

citizens of the mother State were the principal proprietors.



And so in the case of Georgia.  Her citizens could have been refused the

right to emigrate to the Mississippi or Alabama Territory unless they

left their most valuable and cherished property behind them.



The Constitution was framed in reference to facts then existing or

likely to arise; the instrument looked to no theories of Government.  In

the vigorous debates in the Convention, as reported by Mr. Madison and

others, surrounding facts and the condition and necessities of the

country gave rise to almost every provision; and among those facts, it

was prominently true that Congress dare not be intrusted with power to

provide that, if North Carolina or Georgia ceded her western territory,

the citizens of the State (in either case) could be prohibited, at the

pleasure of Congress, from removing to their lands, then granted to a

large extent, in the country likely to be ceded unless they left their

slaves behind.  That such an attempt, in the face of a population fresh

from the war of the Revolution and then engaged in war with the great

confederacy of Indians extending from the mouth of the Ohio to the Gulf

of Mexico, would end in open revolt all intelligent men knew.



In view of these facts, let us inquire how the question stands by the

terms of the Constitution, aside from the treaty?  How it stood in

public opinion when the Georgia cession was made, in 1802, is apparent

from the fact that no guaranty was required by Georgia of the United

States for the protection of slave property.  The Federal Constitution

was relied on to secure the rights of Georgia and her citizens during

the Territorial condition of the country.  She relied on the

indisputable truths that the States were by the Constitution made equals

in political rights, and equals in the right to participate in the

common property of all the States united, and held in trust for [60 U.S.

527] them.  The Constitution having provided that "The citizens of each

State shall be entitled to all privileges and immunities of citizens of

the several States," the right to enjoy the territory as equals was

reserved to the States, and to the citizens of the States, respectively.

 The cited clause is not that citizens of the United States shall have

equal privileges in the Territories, but the citizen of each State shall

come there in right of his State, and enjoy the common property.  He

secures his equality through the equality of his State by virtue of that

great fundamental condition of the Union -- the equality of the States.



Congress cannot do indirectly what the Constitution prohibits directly. 

If the slaveholder is prohibited from going to the Territory with his

slaves, who are parts of his family in name and in fact, it will follow

that men owning lawful property in their own States, carrying with them

the equality of their State to enjoy the common property, may be told,

you cannot come here with your slaves, and he will be held out at the

border.  By this subterfuge, owners of slave property, to the amount of

thousand of millions, might be almost as effectually excluded from

removing into the Territory of Louisiana north of thirty-six degrees

thirty minutes, as if the law declared that owners of slaves, as a

class, should be excluded, even if their slaves were left behind.



Just as well might Congress have said to those of the North, you shall

not introduce into the territory south of said line your cattle or

horses, as the country is already overstocked, nor can you introduce

your tools of trade, or machines, as the policy of Congress is to

encourage the culture of sugar and cotton south of the line, and so to

provide that the Northern people shall manufacture for those of the

South, and barter for the staple articles slave labor produces.  And

thus the Northern farmer and mechanic would be held out, as the

slaveholder was for thirty years, by the Missouri restriction.



If Congress could prohibit one species of property, lawful throughout

Louisiana when it was acquired, and lawful in the State from whence it

was brought, so Congress might exclude any or all property.



The case before us will illustrate the construction contended for.  Dr.

Emerson was a citizen of Missouri; he had an equal right to go to the

Territory with every citizen of other States.  This is undeniable, as I

suppose.  Scott was Dr. Emerson's lawful property in Missouri; he

carried his Missouri title with him, and the precise question here is

whether Congress had the power to annul that title.  It is idle to say

that, if Congress could not defeat the title directly, that it might be

done [60 U.S. 528] indirectly, by drawing a narrow circle around the

slave population of Upper Louisiana and declaring that, if the slave

went beyond it, he should be free.  Such assumption is mere evasion, and

entitled to no consideration.  And it is equally idle to contend that,

because Congress has express power to regulate commerce among the Indian

tribes and to prohibit intercourse with the Indians, that therefore Dr.

Emerson's title might be defeated within the country ceded by the

Indians to the United States as early as 1805, and which embraces Fort

Snelling.  Am.State Papers, vol. 1, p. 734.  We must meet the question

whether Congress had the power to declare that a citizen of a State,

carrying with him his equal rights secured to him through his State,

could be stripped of his goods and slaves and be deprived of any

participation in the common property?  If this be the true meaning of

the Constitution, equality of rights to enjoy a common country (equal to

a thousand miles square) may be cut off by a geographical line, and a

great portion of our citizens excluded from it.



Ingenious indirect evasions of the Constitution have been attempted and

defeated heretofore.  In the Passenger Cases, 7 How.R., the attempt was

made to impose a tax on the masters, crews, and passengers of vessels,

the Constitution having prohibited a tax on the vessel itself, but this

Court held the attempt to be a mere evasion, and pronounced the tax

illegal.



I admit that Virginia could, and lawfully did, prohibit slavery

northwest of the Ohio by her charter of cession, and that the territory

was taken by the United States with this condition imposed.  I also

admit that France could, by the treaty of 1803, have prohibited slavery

in any part of the ceded territory, and imposed it on the United States

as a fundamental condition of the cession, in the meantime, till new

States were admitted in the Union.



I concur with Judge Baldwin that Federal power is exercised over all the

territory within the United States, pursuant to the Constitution and the

conditions of the cession, whether it was a part of the original

territory of a State of the Union or of a foreign State, ceded by deed

or treaty, the right of the United States in or over it depends on the

contract of cession, which operates to incorporate as well the Territory

as its inhabitants into the Union.  Baldwin's Constitutional Views 84.



My opinion is that the third article of the treaty of 1803, ceding

Louisiana to the United States, stands protected by the Constitution,

and cannot be repealed by Congress.



And, secondly that the Act of 1820, known as the Missouri [60 U.S. 529]

Compromise, violates the most leading feature of the Constitution -- a

feature on which the Union depends and which secures to the respective

States and their citizens and entire EQUALITY of rights, privileges, and

immunities.



On these grounds, I hold the compromise act to have been void, and

consequently that the plaintiff, Scott, can claim no benefit under it.



For the reasons above stated, I concur with my brother judges that the

plaintiff Scott is a slave, and was so when this suit was brought.



Mr. Justice McLEAN and Mr. Justice CURTIS dissented. MCLEAN, J.,

dissenting



Mr. Justice McLEAN dissenting.



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

district of Missouri.



An action of trespass was brought which charges the defendant with an

assault and imprisonment of the plaintiff, and also of Harriet Scott,

his wife, Eliza and Lizzie, his two children, on the ground that they

were his slaves, which was without right on his part and against law.



The defendant filed a plea in abatement, that said causes of action, and

each and every of them, if any such accrued to the said Dred Scott,

accrued out of the jurisdiction of this court, and exclusively within

the jurisdiction of the courts of the State of Missouri, for that,

to-wit, said plaintiff, Dred Scott, is not a citizen of the State of

Missouri, as alleged in his declaration, because he is a negro of

African descent, his ancestors were of pure African blood, and were

brought into this country and sold as negro slaves, and this the said

Sandford is ready to verify, wherefore he prays judgment whether the

court can or will take further cognizance of the action aforesaid.



To this a demurrer was filed which, on argument, was sustained by the

court, the plea in abatement being held insufficient; the defendant was

ruled to plead over.  Under this rule, he pleaded:  1. Not guilty, 2.

That Dred Scott was a negro slave, the property of the defendant, and 3.

That Harriet, the wife, and Eliza and Lizzie, the daughters of the

plaintiff, were the lawful slaves of the defendant.



Issue was joined on the first plea, and replications of de injuria were

filed to the other pleas.



The parties agreed to the following facts:  In the year 1834, the

plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon

in the army of the United States.  In that year, Dr. Emerson took the

plaintiff from the State of Missouri to [60 U.S. 530] the post of Rock

Island, in the State of Illinois, and held him there as a slave until

the month of April or May, 1836.  At the time last mentioned, Dr.

Emerson removed the plaintiff from Rock Island to the military post at

Fort Snelling, situate on the west bank of the Mississippi river, in the

territory Known as Upper Louisiana, acquired by the United States of

France, and situate north of latitude thirty-six degrees thirty minutes

north, and north of the State of Missouri.  Dr. Emerson held the

plaintiff in slavery, at Fort Snelling from the last-mentioned date

until the year 1838.



In the year 1835, Harriet, who is named in the second count of the

plaintiff's declaration, was the negro slave of Major Taliaferro, who

belonged to the army of the United States.  In that year, Major

Taliaferro took Harriet to Fort Snelling, a military post situated as

hereinbefore stated, and kept her there as a slave until the year 1836,

and then sold and delivered her as a slave, at Fort Snelling, unto Dr.

Emerson, who held her in slavery at that place until the year 1838.



In the year 1836, the plaintiff and Harriet were married at Fort

Snelling, with the consent of Dr. Emerson, who claimed to be their

master and owner.  Eliza and Lizzie, named in the third count of the

plaintiff's declaration, are the fruit of that marriage.  Eliza is about

fourteen years old, and was born on board the steamboat Gipsey, north of

the north line of the State of Missouri, and upon the river Mississippi.

 Lizzie is about seven years old, and was born in the State of Missouri

at the military post called Jefferson Barracks.



In the year 1838, Dr. Emerson removed the plaintiff and said Harriet and

their daughter Eliza from Fort Snelling to the State of Missouri, where

they have ever since resided.



Before the commencement of the suit, Dr. Emerson sold and conveyed the

plaintiff, Harriet, Eliza, and Lizzie, to the defendant as slaves, and

he has ever since claimed to hold them as slaves.



At the times mentioned in the plaintiff's declaration, the defendant,

claiming to be the owner, laid his hands upon said plaintiff, Harriet,

Eliza, and Lizzie, and imprisoned them, doing in this respect, however,

no more than he might lawfully do if they were of right his slaves at

such times.



In the first place, the plea to the jurisdiction is not before us on

this writ of error.  A demurrer to the plea was sustained, which ruled

the plea bad, and the defendant, on leave, pleaded over.



The decision on the demurrer was in favor of the plaintiff, and, as the

plaintiff prosecutes this writ of error, he does not complain of the

decision on the demurrer.  The defendant [60 U.S. 531] might have

complained of this decision, as against him, and have prosecuted a writ

of error to reverse it.  But as the case, under the instruction of the

court to the jury, was decided in his favor, of course he had no ground

of complaint.



But it is said, if the court, on looking at the record, shall clearly

perceive that the Circuit Court had no jurisdiction, it is a ground for

the dismissal of the case.  This may be characterized as rather a sharp

practice, and one which seldom, if ever, occurs.  No case was cited in

the argument as authority, and not a single case precisely in point is

recollected in our reports.  The pleadings do not show a want of

jurisdiction.  This want of jurisdiction can only be ascertained by a

judgment on the demurrer to the special plea.  No such case, it is

believed, can be cited.  But if this rule of practice is to be applied

in this case, and the plaintiff in error is required to answer and

maintain as well the points ruled in his favor, as to show the error of

those ruled against him, he has more than an ordinary duty to perform. 

Under such circumstances, the want of jurisdiction in the Circuit Court

must be so clear as not to admit of doubt.  Now the plea which raises

the question of jurisdiction, in my judgment, is radically defective. 

The gravamen of the plea is this: That the plaintiff is a negro of

African descent, his ancestors being of pure African blood, and were

brought into this country and sold as negro slaves.



There is no averment in this plea which shows or conduces to show an

inability in the plaintiff to sue in the Circuit Court.  It does not

allege that the plaintiff had his domicil in any other State, nor that

he is not a free man in Missouri.  He is averred to have had a negro

ancestry, but this does not show that he is not a citizen of Missouri

within the meaning of the act of Congress authorizing him to sue in the

Circuit Court.  It has never been held necessary, to constitute a

citizen within the act, that he should have the qualifications of an

elector.  Females and minors may sue in the Federal courts, and so may

any individual who has a permanent domicil in the State under whose laws

his rights are protected, and to which he owes allegiance.



Being born under our Constitution and laws, no naturalization is

required, as one of foreign birth, to make him a citizen.  The most

general and appropriate definition of the term citizen is "a freeman." 

Being a freeman, and having his domicil in a State different from that

of the defendant, he is a citizen within the act of Congress, and the

courts of the Union are open to him.



It has often been held that the jurisdiction, as regards parties, can

only be exercised between citizens of different States, [60 U.S. 532]

and that a mere residence is not sufficient, but this has been said to

distinguish a temporary from a permanent residence.



To constitute a good plea to the jurisdiction, it must negative those

qualities and rights which enable an individual to sue in the Federal

courts.  This has not been done, and on this ground the plea was

defective, and the demurrer was properly sustained.  No implication can

aid a plea in abatement or in bar; it must be complete in itself; the

facts stated, if true, must abate or bar the right of the plaintiff to

sue.  This is not the character of the above plea.  The facts stated, if

admitted, are not inconsistent with other facts which may be presumed

and which bring the plaintiff within the act of Congress.



The pleader has not the boldness to allege that the plaintiff is a

slave, as that would assume against him the matter in controversy, and

embrace the entire merits of the case in a plea to the jurisdiction. 

But beyond the facts set out in the plea, the court, to sustain it, must

assume the plaintiff to be a slave, which is decisive on the merits. 

This is a short and an effectual mode of deciding the cause, but I am

yet to learn that it is sanctioned by any known rule of pleading.



The defendant's counsel complain that, if the court take jurisdiction on

the ground that the plaintiff is free, the assumption is against the

right of the master.  This argument is easily answered.  In the first

place, the plea does not show him to be a slave; it does not follow that

a man is not free whose ancestors were slaves.  The reports of the

Supreme Court of Missouri show that this assumption has many exceptions,

and there is no averment in the plea that the plaintiff is not within

them.



By all the rules of pleading, this is a fatal defect in the plea.  If

there be doubt, what rule of construction has been established in the

slave States?  In Jacob v. Sharp, Meigs's Rep., Tennessee 114, the court

held, when there was doubt as to the construction of a will which

emancipated a slave, "it must be construed to be subordinate to the

higher and more important right of freedom."



No injustice can result to the master from an exercise of jurisdiction

in this cause.  Such a decision does not in any degree affect the merits

of the case; it only enables the plaintiff to assert his claims to

freedom before this tribunal.  If the jurisdiction be ruled against him

on the ground that he is a slave, it is decisive of his fate.



It has been argued that, if a colored person be made a citizen of a

State, he cannot sue in the Federal court.  The Constitution declares

that Federal jurisdiction "may be exercised between citizens of

different States," and the same is provided [60 U.S. 533] in the act of

1789.  The above argument is properly met by saying that the

Constitution was intended to be a practical instrument, and where its

language is too plain to be misunderstood, the argument ends.



In Chirae v. Chirae, 2 Wheat. 261, 4 Curtis 99, this court says:  "That

the power of naturalization is exclusively in Congress does not seem to

be, and certainly ought not to be, controverted."  No person can legally

be made a citizen of a State, and consequently a citizen of the United

States, of foreign birth, unless he be naturalized under the acts of

Congress. Congress has power "to establish a uniform rule of

naturalization."



It is a power which belongs exclusively to Congress, as intimately

connected with our Federal relations.  A State may authorize foreigners

to hold real estate within its jurisdiction, but it has no power to

naturalize foreigners, and give them the rights of citizens.  Such a

right is opposed to the acts of Congress on the subject of

naturalization, and subversive of the Federal powers.  I regret that any

countenance should be given from this bench to a practice like this in

some of the States, which has no warrant in the Constitution.



In the argument, it was said that a colored citizen would not be an

agreeable member of society.  This is more a matter of taste than of

law.  Several of the States have admitted persons of color to the right

of suffrage, and, in this view, have recognised them as citizens, and

this has been done in the slave as well as the free States.  On the

question of citizenship, it must be admitted that we have not been very

fastidious.  Under the late treaty with Mexico, we have made citizens of

all grades, combinations, and colors.  The same was done in the

admission of Louisiana and Florida.  No one ever doubted, and no court

ever held that the people of these Territories did not become citizens

under the treaty.  They have exercised all the rights of citizens,

without being naturalized under the acts of Congress.



There are several important principles involved in this case which have

been argued, and which may be considered under the following heads:



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

the States.



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

States.



3. The power of Congress to establish Territorial Governments and to

prohibit the introduction of slavery therein.



4. The effect of taking slaves into a new State or Territory, and so

holding them, where slavery is prohibited.



5. Whether the return of a slave under the control of his [60 U.S. 534]

master, after being entitled to his freedom, reduces him to his former

condition.



6. Are the decisions of the Supreme Court of Missouri on the questions

before us binding on this court within the rule adopted.



In the course of my judicial duties, I have had occasion to consider and

decide several of the above points.



1. As to the locality of slavery.  The civil law throughout the

Continent of Europe, it is believed, without an exception, is that

slavery can exist only within the territory where it is established, and

that, if a slave escapes or is carried beyond such territory, his master

cannot reclaim him, unless by virtue of some express stipulation. 

Grotius, lib. 2, chap. 15, 5, 1, lib. 10, chap. 10, 2, 1, Wicqueposts

Ambassador, lib. 1, p. 418, 4 Martin 385, Case of the Creole in the

House of Lords, 1842, 1 Phillimore on International Law 316, 335.



There is no nation in Europe which considers itself bound to return to

his master a fugitive slave under the civil law or the law of nations. 

On the contrary, the slave is held to be free where there is no treaty

obligation, or compact in some other form, to return him to his master. 

The Roman law did now allow freedom to be sold.  An ambassador or any

other public functionary could not take a slave to France, Spain, or any

other country of Europe without emancipating him.  A number of slaves

escaped from a Florida plantation, and were received on board of ship by

Admiral Cochrane; by the King's Bench, they were held to be free.  2

Barn. and Cres. 440.



In the great and leading case of Prigg v. The State of Pennsylvania, 16

Peters 594, 14 Curtis 421, this court said that, by the general law of

nations, no nation is bound to recognise the state of slavery, as found

within its territorial dominions, where it is in opposition to its own

policy and institutions, in favor of the subjects of other nations where

slavery is organized.  If it does it, it is as a matter of comity, and

not as a matter of international right.  The state of slavery is deemed

to be a mere municipal regulation, founded upon and limited to the range

of the territorial laws.  This was fully recognised in Somersett's Case,

Lafft's Rep. 1, 20 Howell's State Trials, 79, which was decided before

the American Revolution.



There was some contrariety of opinion among the judges on certain points

ruled in Prigg's Case, but there was none in regard to the great

principle that slavery is limited to the range of the laws under which

it is sanctioned.



No case in England appears to have been more thoroughly examined than

that of Somersett.  The judgment pronounced [60 U.S. 535] by Lord

Mansfield was the judgment of the Court of King's Bench.  The cause was

argued at great length, and with great ability, by Hargrave and others,

who stood among the most eminent counsel in England.  It was held under

advisement from term to term, and a due sense of its importance was felt

and expressed by the Bench.



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



The state of slavery is of such a nature that it is incapable of being

introduced on any reasons, moral or political, but only by positive law,

which preserves its force long after the reasons, occasion, and time

itself from whence it was created is erased from the memory; it is of a

nature that nothing can be suffered to support it but positive law.



He referred to the contrary opinion of Lord Hardwicke, in October, 1749,

as Chancellor:  "That he and Lord Talbot, when Attorney and Solicitor

General, were of opinion that no such claim as here presented, for

freedom, was valid."



The weight of this decision is sought to be impaired from the terms in

which it was described by the exuberant imagination of Curran.  The

words of Lord Mansfield, in giving the opinion of the court, were such

as were fit to be used by a great judge in a most important case.  It is

a sufficient answer to all objections to that judgment that it was

pronounced before the Revolution, and that it was considered by this

court as the highest authority.  For near a century, the decision in

Somersett's Case has remained the law of England.  The Case of the Slave

Grace, decided by Lord Stowell in 1827, does not, as has been supposed,

overrule the judgment of Lord Mansfield.  Lord Stowell held that, during

the residence of the slave in England, "No dominion, authority, or

coercion, can be exercised over him."  Under another head, I shall have

occasion to examine the opinion in the Case of Grace.



To the position that slavery can only exist except under the authority

of law, it is objected that in few if in any instances has it been

established by statutory enactment.  This is no answer to the doctrine

laid down by the court.  Almost all the principles of the common law had

their foundation in usage.  Slavery was introduced into the colonies of

this country by Great Britain at an early period of their history, and

it was protected and cherished until it became incorporated into the

colonial policy.  It is immaterial whether a system of slavery was

introduced by express law or otherwise, if it have the authority of law.

 There is no slave State where the institution is not recognised and

protected by statutory enactments and judicial decisions.  Slaves are

made property by the laws of the slave States, and as such are liable to

the claims of creditors; [60 U.S. 536] they descend to heirs, are taxed,

and, in the South, they are a subject of commerce.



In the case of Rankin v. Lydia, 2 A. K. Marshall's Rep., Judge Mills,

speaking for the Court of Appeals of Kentucky, says: In deciding the

question [of slavery], we disclaim the influence of the general

principles of liberty which we all admire, and conceive it ought to be

decided by the law as it is, and not as it ought to be.  Slavery is

sanctioned by the laws of this State, and the right to hold slaves under

our municipal regulations is unquestionable.  But we view this as a

right existing by positive law of a municipal character, without

foundation in the law of nature or the unwritten and common law.



I will now consider the relation which the Federal Government bears to

slavery in the States:



Slavery is emphatically a State institution.  In the ninth section of

the first article of the Constitution, it is provided that the migration

or importation of such persons as any of the States now existing shall

think proper to admit shall not be prohibited by the Congress prior to

the year 1808, but a tax or duty may be imposed on such importation not

exceeding ten dollars for each person.



In the Convention, it was proposed by a committee of eleven to limit the

importation of slaves to the year 1800, when Mr. Pinckney moved to

extend the time to the year 1808.  This motion was carried -- New

Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South

Carolina, and Georgia, voting in the affirmative, and New Jersey,

Pennsylvania, and Virginia, in the negative.  In opposition to the

motion, Mr. Madison said: Twenty years will produce all the mischief

that can be apprehended from the liberty to import slaves, so long a

term will be more dishonorable to the American character than to say

nothing about it in the Constitution. Madison Papers.



The provision in regard to the slave trade shows clearly that Congress

considered slavery a State institution, to be continued and regulated by

its individual sovereignty; and to conciliate that interest, the slave

trade was continued twenty years not as a general measure, but for the

"benefit of such States as shall think proper to encourage it."



In the case of Groves v. Slaughter, 15 Peters 499, 14 Curtis 137,

Messrs. Clay and Webster contended that, under the commercial power,

Congress had a right to regulate the slave trade among the several

States, but the court held that Congress had no power to interfere with

slavery as it exists in the States, or to regulate what is called the

slave trade among  [60 U.S. 537] them.  If this trade were subject to

the commercial power, it would follow that Congress could abolish or

establish slavery in every State of the Union.



The only connection which the Federal Government holds with slaves in a

State arises from that provision of the Constitution which declares that

No person held to service or labor in one State, under the laws thereof,

escaping into another, shall, in consequence of any law or regulation

therein, be discharged from such service or labor, but shall be

delivered up on claim of the party to whom such service or labor may be

due.



This being a fundamental law of the Federal Government, it rests mainly

for its execution, as has been held, on the judicial power of the Union,

and so far as the rendition of fugitives from labor has become a subject

of judicial action, the Federal obligation has been faithfully

discharged.



In the formation of the Federal Constitution, care was taken to confer

no power on the Federal Government to interfere with this institution in

the States.  In the provision respecting the slave trade, in fixing the

ratio of representation, and providing for the reclamation of fugitives

from labor, slaves were referred to as persons, and in no other respect

are they considered in the Constitution.



We need not refer to the mercenary spirit which introduced the infamous

traffic in slaves to show the degradation of negro slavery in our

country.  This system was imposed upon our colonial settlements by the

mother country, and it is due to truth to say that the commercial

colonies and States were chiefly engaged in the traffic.  But we know as

a historical fact that James Madison, that great and good man, a leading

member in the Federal Convention, was solicitous to guard the language

of that instrument so as not to convey the idea that there could be

property in man.



I prefer the lights of Madison, Hamilton, and Jay as a means of

construing the Constitution in all its bearings, rather than to look

behind that period into a traffic which is now declared to be piracy,

and punished with death by Christian nations.  I do not like to draw the

sources of our domestic relations from so dark a ground.  Our

independence was a great epoch in the history of freedom, and while I

admit the Government was not made especially for the colored race, yet

many of them were citizens of the New England States, and exercised, the

rights of suffrage when the Constitution was adopted, and it was not

doubted by any intelligent person that its tendencies would greatly

ameliorate their condition.



Many of the States, on the adoption of the Constitution, or [60 U.S.

538] shortly afterward, took measures to abolish slavery within their

respective jurisdictions, and it is a well known fact that a belief was

cherished by the leading men, South as well as North, that the

institution of slavery would gradually decline until it would become

extinct.  The increased value of slave labor, in the culture of cotton

and sugar, prevented the realization of this expectation.  Like all

other communities and States, the South were influenced by what they

considered to be their own interests.



But if we are to turn our attention to the dark ages of the world, why

confine our view to colored slavery?  On the same principles, white men

were made slaves.  All slavery has its origin in power, and is against

right.



The power of Congress to establish Territorial Governments, and to

prohibit the introduction of slavery therein, is the next point to be

considered.



After the cession of western territory by Virginia and other States to

the United States, the public attention was directed to the best mode of

disposing of it for the general benefit.  While in attendance on the

Federal Convention, Mr. Madison, in a letter to Edmund Randolph dated

the 22d April, 1787, says: Congress are deliberating on the plan most

eligible for disposing of the western territory not yet surveyed.  Some

alteration will probably be made in the ordinance on that subject. And

in the same letter he says: The inhabitants of the Illinois complain of

the land jobbers, &c., who are purchasing titles among them.  Those of

St. Vincent's complain of the defective criminal and civil justice among

them, as well as of military protection. And on the next day, he writes

to Mr. Jefferson: The government of the settlements on the Illinois and

Wabash is a subject very perplexing in itself, and rendered more so by

our ignorance of the many circumstances on which a right judgment

depends.  The inhabitants at those places claim protection against the

savages, and some provision for both civil and criminal justice.



In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention

certain propositions as the basis of a Federal Government, among which

was the following:



Resolved, That provision ought to be made for the admission of States

lawfully arising within the limits of the United States, whether from a

voluntary junction of government and territory or otherwise, with the

consent of a number of voices in the National Legislature less than the

whole.



Afterward, Mr. Madison submitted to the Convention, in order to be

referred to the committee of detail, the following powers, as proper to

be added to those of general legislation: [60 U.S. 539]



To dispose of the unappropriated lands of the United States.  To

institute temporary Governments for new States arising therein.  To

regulate affairs with the Indians, as well within as without the limits

of the United States.



Other propositions were made in reference to the same subjects, which it

would be tedious to enumerate.  Mr. Gouverneur Morris proposed the

following:



The Legislature shall have power to dispose of and make all needful

rules and regulations respecting the territory or other property

belonging to the United States, and nothing in this Constitution

contained shall be so construed as to prejudice any claims either of the

United States or of any particular State.



This was adopted as a part of the Constitution, with two verbal

alterations -- Congress was substituted for Legislature, and the word

either was stricken out.



In the organization of the new Government, but little revenue for a

series of years was expected from commerce.  The public lands were

considered as the principal resource of the country for the payment of

the Revolutionary debt.  Direct taxation was the means relied on to pay

the current expenses of the Government.  The short period that occurred

between the cession of western lands to the Federal Government by

Virginia and other States, and the adoption of the Constitution, was

sufficient to show the necessity of a proper land system and a temporary

Government.  This was clearly seen by propositions and remarks in the

Federal Convention, some of which are above cited, by the passage of the

Ordinance of 1787, and the adoption of that instrument by Congress,

under the Constitution, which gave to it validity.



It will be recollected that the deed of cession of western territory was

made to the United States by Virginia in 1784, and that it required the

territory ceded to be laid out into States that the land should be

disposed of for the common benefit of the States, and that all right,

title, and claim, as well of soil as of jurisdiction, were ceded, and

this was the form of cession from other States.



On the 13th of July, the Ordinance of 1787 was passed, "for the

government of the United States territory northwest of the river Ohio,"

with but one dissenting vote.  This instrument provided there should be

organized in the territory not less than three nor more than five

States, designating their boundaries.  It passed while the Federal

Convention was in session, about two months before the Constitution was

adopted by the Convention.  The members of the Convention must therefore

have been well acquainted with the provisions of the [60 U.S. 540]

Ordinance.  It provided for a temporary Government, as initiatory to the

formation of State Governments.  Slavery was prohibited in the

territory.



Can anyone suppose that the eminent men of the Federal Convention could

have overlooked or neglected a matter so vitally important to the

country in the organization of temporary Governments for the vast

territory northwest of the river Ohio?  In the 3d section of the 4th

article of the Constitution, they did make provision for the admission

of new States, the sale of the public lands, and the temporary

Government of the territory.  Without a temporary Government, new States

could not have been formed, nor could the public lands have been sold.



If the third section were before us now for consideration for the first

time, under the facts stated, I could not hesitate to say there was

adequate legislative power given in it.  The power to make all needful

rules and regulations is a power to legislate.  This no one will

controvert, as Congress cannot make "rules and regulations," except by

legislation.  But it is argued that the word "territory" is used as

synonymous with the word "land," and that the rules and regulations of

Congress are limited to the disposition of lands and other property

belonging to the United States.  That this is not the true construction

of the section appears from the fact that, in the first line of the

section, "the power to dispose of the public lands" is given expressly,

and, in addition, to make all needful rules and regulations.  The power

to dispose of is complete in itself, and requires nothing more.  It

authorizes Congress to use the proper means within its discretion, and

any further provision for this purpose would be a useless verbiage.  As

a composition, the Constitution is remarkably free from such a charge.



In the discussion of the power of Congress to govern a Territory, in the

case of the Atlantic Insurance Company v. Canter, 1 Peters 511, 7 Curtis

685, Chief Justice Marshall, speaking for the court, said, in regard to

the people of Florida, they do not, however, participate in political

power, they do not share in the Government till Florida shall become a

State; in the meantime, Florida continues to be a Territory of the

United States, governed by virtue of that clause in the Constitution

which empowers Congress "to make all needful rules and regulations

respecting the territory or other property belonging to the United

States."



And he adds, perhaps the power of governing a Territory belonging to the

United States, which has not, by becoming a State, acquired the means of

self-government, may result [60 U.S. 541] necessarily from the fact that

it is not within the jurisdiction of any particular State, and is within

the power and jurisdiction of the United States.  The right to govern

may be the inevitable consequence of the right to acquire territory,

whichever may be the source whence the power is derived, the possession

of it is unquestioned. And, in the close of the opinion, the court says,

"in legislating for them [the Territories], Congress exercises the

combined powers of the General and State Governments."



Some consider the opinion to be loose and inconclusive, others that it

is obiter dicta, and the last sentence is objected to as recognising

absolute power in Congress over Territories.  The learned and eloquent

Wirt, who, in the argument of a cause before the court, had occasion to

cite a few sentences from an opinion of the Chief Justice, observed, "no

one can mistake the style, the words so completely match the thought."



I can see no want of precision in the language of the Chief Justice; his

meaning cannot be mistaken.  He states, first, the third section as

giving power to Congress to govern the Territories, and two other

grounds from which the power may also be implied.  The objection seems

to be that the Chief Justice did not say which of the grounds stated he

considered the source of the power.  He did not specifically state this,

but he did say, "whichever may be the source whence the power is

derived, the possession of it is unquestioned."  No opinion of the court

could have been expressed with a stronger emphasis; the power in

Congress is unquestioned.  But those who have undertaken to criticise

the opinion consider it without authority because the Chief Justice did

not designate specially the power.  This is a singular objection.  If

the power be unquestioned, it can be a matter of no importance on which

ground it is exercised.



The opinion clearly was not obiter dicta.  The turning point in the case

was whether Congress had power to authorize the Territorial Legislature

of Florida to pass the law under which the Territorial court was

established, whose decree was brought before this court for revision. 

The power of Congress, therefore, was the point in issue.



The word "territory," according to Worcester, "means land, country, a

district of country under a temporary Government."  The words "territory

or other property," as used, do imply, from the use of the pronoun

"other" that territory was used as descriptive of land, but does it

follow that it was not used also as descriptive of a district of

country?  In both of these senses, it belonged to the United States --

as land for the purpose of sale, as territory for the purpose of

government. [60 U.S. 542]



But if it be admitted that the word territory, as used, means land, and

nothing but land, the power of Congress to organize a temporary

Government is clear.  It has power to make all needful regulations

respecting the public lands, and the extent of those "needful

regulations" depends upon the direction of Congress, where the means are

appropriate to the end, and do not conflict with any of the prohibitions

of the Constitution.  If a temporary Government be deemed needful,

necessary, requisite, or is wanted, Congress has power to establish it. 

This court says, in McCulloch v. The State of Maryland, 4 Wheat. 316, If

a certain means to carry into effect any of the powers expressly given

by the Constitution to the Government of the Union be an appropriate

measure, not prohibited by the Constitution, the degree of its necessity

is a question of legislative discretion, not of judicial cognizance.



The power to establish post offices and post roads gives power to

Congress to make contracts for the transportation of the mail, and to

punish all who commit depredations upon it in its transit or at its

places of distribution.  Congress has power to regulate commerce, and,

in the exercise of its discretion, to lay an embargo, which suspends

commerce; so, under the same power, harbors, lighthouses, breakwaters,

&c., are constructed.



Did Chief Justice Marshall, in saying that Congress governed a Territory

by exercising the combined powers of the Federal and State Governments,

refer to unlimited discretion?  A Government which can make white men

slaves?  Surely such a remark in the argument must have been

inadvertently uttered.  On the contrary, there is no power in the

Constitution by which Congress can make either white or black men

slaves.  In organizing the Government of a Territory, Congress is

limited to means appropriate to the attainment of the constitutional

object.  No powers can be exercised which are prohibited by the

Constitution or which are contrary to its spirit, so that, whether the

object may be the protection of the persons and property of purchasers

of the public lands, or of communities who have been annexed to the

Union by conquest or purchase, they are initiatory to the establishment

of State Governments, and no more power can be claimed or exercised than

is necessary to the attainment of the end.  This is the limitation of

all the Federal powers.



But Congress has no power to regulate the internal concerns of a State,

as of a Territory; consequently, in providing for the Government of a

Territory, to some extent the combined powers of the Federal and State

Governments are necessarily exercised. [60 U.S. 543]



If Congress should deem slaves or free colored persons injurious to the

population of a free Territory, as conducing to lessen the value of the

public lands, or on any other ground connected with the public interest,

they have the power to prohibit them from becoming settlers in it.  This

can be sustained on the ground of a sound national policy, which is so

clearly shown in our history by practical results that it would seem no

considerate individual can question it.  And, as regards any unfairness

of such a policy to our Southern brethren, as urged in the argument, it

is only necessary to say that, with one-fourth of the Federal population

of the Union, they have in the slave States a larger extent of fertile

territory than is included in the free States, and it is submitted, if

masters of slaves be restricted from bringing them into free territory,

that the restriction on the free citizens of non-slaveholding States, by

bringing slaves into free territory, is four times greater than that

complained of by the South.  But not only so; some three or four hundred

thousand holders of slaves, by bringing them into free territory, impose

a restriction on twenty millions of the free States.  The repugnancy to

slavery would probably prevent fifty or a hundred freemen from settling

in a slave Territory, where one slaveholder would be prevented from

settling in a free Territory.



This remark is made in answer to the argument urged that a prohibition

of slavery in the free Territories is inconsistent with the continuance

of the Union.  Where a Territorial Government is established in a slave

Territory, it has uniformly remained in that condition until the people

form a State Constitution; the same course where the Territory is free,

both parties acting in good faith, would be attended with satisfactory

results.



The sovereignty of the Federal Government extends to the entire limits

of our territory.  Should any foreign power invade our jurisdiction, it

would be repelled.  There is a law of Congress to punish our citizens

for crimes committed in districts of country where there is no organized

Government.  Criminals are brought to certain Territories or States,

designated in the law, for punishment.  Death has been inflicted in

Arkansas and in Missouri on individuals, for murders committed beyond

the limit of any organized Territory or State, and no one doubts that

such a jurisdiction was rightfully exercised.  If there be a right to

acquire territory, there necessarily must be an implied power to govern

it.  When the military force of the Union shall conquer a country, may

not Congress provide for the government of such country?  This would be

an implied power essential to the acquisition of new territory.  [60

U.S. 544] This power has been exercised, without doubt of its

constitutionality, over territory acquired by conquest and purchase.



And when there is a large district of country within the United States,

and not within any State Government, if it be necessary to establish a

temporary Government to carry out a power expressly vested in Congress

-- as the disposition of the public lands -- may not such Government be

instituted by Congress?  How do we read the Constitution?  Is it not a

practical instrument?



In such cases, no implication of a power can arise which is inhibited by

the Constitution, or which may be against the theory of its

construction.  As my opinion rests on the third section, these remarks

are made as an intimation that the power to establish a temporary

Government may arise, also, on the other two grounds stated in the

opinion of the court in the insurance case, without weakening the third

section.



I would here simply remark that the Constitution was formed for our

whole country.  An expansion or contraction of our territory required no

change in the fundamental law.  When we consider the men who laid the

foundation of our Government and carried it into operation, the men who

occupied the bench, who filled the halls of legislation and the Chief

Magistracy, it would seem, if any question could be settled clear of all

doubt, it was the power of Congress to establish Territorial

Governments.  Slavery was prohibited in the entire Northwestern

Territory, with the approbation of leading men, South and North, but

this prohibition was not retained when this ordinance was adopted for

the government of Southern Territories, where slavery existed.  In a

late republication of a letter of Mr. Madison, dated November 27, 1819,

speaking of this power of Congress to prohibit slavery in a Territory,

he infers there is no such power from the fact that it has not been

exercised.  This is not a very satisfactory argument against any power,

as there are but few, if any, subjects on which the constitutional

powers of Congress are exhausted.  It is true, as Mr. Madison states

that Congress, in the act to establish a Government in the Mississippi

Territory, prohibited the importation of slaves into it from foreign

parts, but it is equally true that, in the act erecting Louisiana into

two Territories, Congress declared, it shall not be lawful for any

person to bring into Orleans Territory, from any port or place within

the limits of the United States, any slave which shall have been

imported since 1798, or which may hereafter be imported, except by a

citizen of the United States who settles in the Territory, under the

penalty of the freedom of such slave. The inference of Mr. Madison,

therefore, against the power of [60 U.S. 545] Congress, is of no force,

as it was founded on a fact supposed, which did not exist.



It is refreshing to turn to the early incidents of our history and learn

wisdom from the acts of the great men who have gone to their account.  I

refer to a report in the House of Representatives, by John Randolph, of

Roanoke, as chairman of a committee, in March, 1803 -- fifty-four years

ago.  From the Convention held at Vincennes, in Indiana, by their

President, and from the people of the Territory, a petition was

presented to Congress praying the suspension of the provision which

prohibited slavery in that Territory.  The report stated that the rapid

population of the State of Ohio sufficiently evinces, in the opinion of

your committee, that the labor of slaves is not necessary to promote the

growth and settlement of colonies in that region.  That this labor,

demonstrably the dearest of any, can only be employed to advantage in

the cultivation of products more valuable than any known to that quarter

of the United States; that the committee deem it highly dangerous and

inexpedient to impair a provision wisely calculated to promote the

happiness and prosperity of the Northwestern country, and to give

strength and security to that extensive frontier.  In the salutary

operation of this sagacious and benevolent restraint, it is believed

that the inhabitants will, at no very distant day, find ample

remuneration for a temporary privation of labor and of emigration. 1

vol. State Papers, Public Lands 160.



The judicial mind of this country, State and Federal, has agreed on no

subject within its legitimate action with equal unanimity as on the

power of Congress to establish Territorial Governments.  No court, State

or Federal, no judge or statesman, is known to have had any doubts on

this question for nearly sixty years after the power was exercised. 

Such Governments have been established from the sources of the Ohio to

the Gulf of Mexico, extending to the Lakes on the north and the Pacific

Ocean on the west, and from the lines of Georgia to Texas.



Great interests have grown up under the Territorial laws over a country

more than five times greater in extent than the original thirteen

States, and these interests, corporate or otherwise, have been cherished

and consolidated by a benign policy without anyone supposing the

law-making power had united with the Judiciary, under the universal

sanction of the whole country, to usurp a jurisdiction which did not

belong to them.  Such a discovery at this late date is more

extraordinary than anything which has occurred in the judicial history

of this or any other country.  Texas, under a previous organization, [60

U.S. 546] was admitted as a State, but no State can be admitted into the

Union which has not been organized under some form of government. 

Without temporary Governments, our public lands could not have been

sold, nor our wildernesses reduced to cultivation and the population

protected, nor could our flourishing States, West and South, have been

formed.



What do the lessons of wisdom and experience teach under such

circumstances if the new light, which has so suddenly and unexpectedly

burst upon us, be true?  Acquiescence; acquiescence under a settled

construction of the Constitution for sixty years, though it may be

erroneous, which has secured to the country an advancement and

prosperity beyond the power of computation.



An act of James Madison, when President, forcibly illustrates this

policy.  He had made up his opinion that Congress had no power under the

Constitution to establish a National Bank.  In 1815, Congress passed a

bill to establish a bank.  He vetoed the bill on objections other than

constitutional.  In his message, he speaks as a wise statesman and Chief

Magistrate, as follows:



Waiving the question of the constitutional authority of the Legislature

to establish an incorporated bank as being precluded, in my judgment, by

the repeated recognitions under varied circumstances of the validity of

such an institution in acts of the Legislative, Executive, and Judicial

branches of the Government, accompanied by indications, in different

modes, of a concurrence of the general will of the nation.



Has this impressive lesson of practical wisdom become lost to the

present generation?



If the great and fundamental principles of our Government are never to

be settled, there can be no lasting prosperity.  The Constitution will

become a floating waif on the billows of popular excitement.



The prohibition of slavery north of thirty-six degrees thirty minutes,

and of the State of Missouri, contained in the act admitting that State

into the Union, was passed by a vote of 134 in the House of

Representatives to 42.  Before Mr. Monroe signed the act, it was

submitted by him to his Cabinet, and they held the restriction of

slavery in a Territory to be within the constitutional powers of

Congress.  It would be singular if, in 1804, Congress had power to

prohibit the introduction of slaves in Orleans Territory from any other

part of the Union, under the penalty of freedom to the slave, if the

same power, embodied in the Missouri Compromise, could not be exercised

in 1820.



But this law of Congress, which prohibits slavery north of [60 U.S. 547]

Missouri and of thirty-six degrees thirty minutes, is declared to have

been null and void by my brethren.  And this opinion is founded mainly,

as I understand, on the distinction drawn between the Ordinance of 1787

and the Missouri Compromise line.  In what does the distinction consist?

 The ordinance, it is said, was a compact entered into by the

confederated States before the adoption of the Constitution, and that,

in the cession of territory, authority was given to establish a

Territorial Government.



It is clear that the ordinance did not go into operation by virtue of

the authority of the Confederation, but by reason of its modification

and adoption by Congress under the Constitution.  It seems to be

supposed in the opinion of the Court that the articles of cession placed

it on a different footing from territories subsequently acquired.  I am

unable to perceive the force of this distinction.  That the ordinance

was intended for the government of the Northwestern Territory, and was

limited to such Territory, is admitted.  It was extended to Southern

Territories, with modifications, by acts of Congress, and to some

Northern Territories.  But the ordinance was made valid by the act of

Congress, and, without such act, could have been of no force.  It rested

for its validity on the act of Congress, the same, in my opinion, as the

Missouri Compromise line.



If Congress may establish a Territorial Government in the exercise of

its discretion, it is a clear principle that a court cannot control that

discretion.  This being the case, I do not see on what ground the act is

held to be void.  It did not purport to forfeit property, or take it for

public purposes.  It only prohibited slavery, in doing which it followed

the Ordinance of 1787.



I will now consider the fourth head, which is: "The effect of taking

slaves into a State or Territory, and so holding them where slavery is

prohibited."



If the principle laid down in the case of Prigg v. The State of

Pennsylvania is to be maintained, and it is certainly to be maintained

until overruled, as the law of this Court, there can be no difficulty on

this point.  In that case, the court says: "The state of slavery is

deemed to be a mere municipal regulation, founded upon and limited to

the range of the territorial laws."  If this be so, slavery can exist

nowhere except under the authority of law, founded on usage having the

force of law, or by statutory recognition.  And the court further says:

It is manifest from this consideration that, if the Constitution had not

contained the clause requiring the rendition of fugitives from labor,

every non-slaveholding State in the Union would have been at liberty to

have declared free all runaway slaves [60 U.S. 548] coming within its

limits, and to have given them entire immunity and protection against

the claims of their masters.



Now if a slave abscond, he may be reclaimed, but if he accompany his

master into a State or Territory where slavery is prohibited, such slave

cannot be said to have left the service of his master where his services

were legalized.  And if slavery be limited to the range of the

territorial laws, how can the slave be coerced to serve in a State or

Territory not only without the authority of law, but against its express

provisions?  What gives the master the right to control the will of his

slave?  The local law, which exists in some form.  But where there is no

such law, can the master control the will of the slave by force?  Where

no slavery exists, the presumption, without regard to color, is in favor

of freedom.  Under such a jurisdiction, may the colored man be levied on

as the property of his master by a creditor?  On the decease of the

master, does the slave descend to his heirs as property?  Can the master

sell him?  Any one or all of these acts may be done to the slave where

he is legally held to service.  But where the law does not confer this

power, it cannot be exercised.



Lord Mansfield held that a slave brought into England was free.  Lord

Stowell agreed with Lord Mansfield in this respect, and that the slave

could not be coerced in England, but on her voluntary return to Antigua,

the place of her slave domicil, her former status attached.  The law of

England did not prohibit slavery, but did not authorize it.  The

jurisdiction which prohibits slavery is much stronger in behalf of the

slave within it than where it only does not authorize it.



By virtue of what law is it that a master may take his slave into free

territory and exact from him the duties of a slave?  The law of the

Territory does not sanction it.  No authority can be claimed under the

Constitution of the United States, or any law of Congress.  Will it be

said that the slave is taken as property, the same as other property

which the master may own?  To this I answer that colored persons are

made property by the law of the State, and no such power has been given

to Congress.  Does the master carry with him the law of the State from

which he removes into the Territory?, and does that enable him to coerce

his slave in the Territory?  Let us test this theory.  If this may be

done by a master from one slave State, it may be done by a master from

every other slave State.  This right is supposed to be connected with

the person of the master, by virtue of the local law.  Is it

transferable?  May it be negotiated, as a promissory note or bill of

exchange?  If it be assigned to a man from a free State, may he coerce

the slave by virtue of it?  What shall this thing be [60 U.S. 549]

denominated?  Is it personal or real property?  Or is it an indefinable

fragment of sovereignty which every person carries with him from his

late domicil?  One thing is certain -- that its origin has been very

recent, and it is unknown to the laws of any civilized country.



A slave is brought to England from one of its islands, where slavery was

introduced and maintained by the mother country.  Although there is no

law prohibiting slavery in England, yet there is no law authorizing it,

and for near a century, its courts have declared that the slave there is

free from the coercion of the master.  Lords Mansfield and Stowell agree

upon this point, and there is no dissenting authority.



There is no other description of property which was not protected in

England, brought from one of its slave islands.  Does not this show that

property in a human being does not arise from nature or from the common

law, but, in the language of this court, "it is a mere municipal

regulation, founded upon and limited to the range of the territorial

laws?"  This decision is not a mere argument, but it is the end of the

law, in regard to the extent of slavery.  Until it shall be overturned,

it is not a point for argument, it is obligatory on myself and my

brethren, and on all judicial tribunals over which this court exercises

an appellate power.



It is said the Territories are common property of the States, and that

every man has a right to go there with his property.  This is not

controverted.  But the court says a slave is not property beyond the

operation of the local law which makes him such.  Never was a truth more

authoritatively and justly uttered by man.  Suppose a master of a slave

in a British island owned a million of property in England, would that

authorize him to take his slaves with him to England?  The Constitution,

in express terms, recognises the status of slavery as founded on the

municipal law:  "No person held to service or labor in one State, under

the laws thereof, escaping into another, shall," &c.  Now unless the

fugitive escape from a place where, by the municipal law, he is held to

labor, this provision affords no remedy to the master.  What can be more

conclusive than this?  Suppose a slave escape from a Territory where

slavery is not authorized by law, can he be reclaimed?



In this case, a majority of the court have said that a slave may be

taken by his master into a Territory of the United States the same as a

horse, or any other kind of property.  It is true this was said by the

court, as also many other things which are of no authority.  Nothing

that has been said by them, which has not a direct bearing on the

jurisdiction of the court, against which they decided, can be considered

as [60 U.S. 550] authority.  I shall certainly not regard it as such. 

The question of jurisdiction, being before the court, was decided by

them authoritatively, but nothing beyond that question.  A slave is not

a mere chattel.  He bears the impress of his Maker, and is amenable to

the laws of God and man, and he is destined to an endless existence.



Under this head I shall chiefly rely on the decisions of the Supreme

Courts of the Southern States, and especially of the State of Missouri.



In the first and second sections of the sixth article of the

Constitution of Illinois, it is declared that neither slavery nor

involuntary servitude shall hereafter be introduced into this State

otherwise than for the punishment of crimes whereof the party shall have

been duly convicted, and in the second section it is declared that any

violation of this article shall effect the emancipation of such person

from his obligation to service.  In Illinois, a right of transit through

the State is given the master with his slaves.  This is a matter which,

as I suppose, belongs exclusively to the State.



The Supreme Court of Illinois, in the case of Jarrot v. Jarrot, 2 Gilmer

7, said:



After the conquest of this Territory by Virginia, she ceded it to the

United States and stipulated that the titles and possessions, rights and

liberties of the French settlers should be guarantied to them.  This, it

has been contended, secured them in the possession of those negroes as

slaves which they held before that time, and that neither Congress nor

the Convention had power to deprive them of it, or, in other words, that

the ordinance and Constitution should not be so interpreted and

understood as applying to such slaves when it is therein declared that

there shall be neither slavery nor involuntary servitude in the

Northwest Territory, nor in the State of Illinois, otherwise than in the

punishment of crimes.  But it was held that those rights could not be

thus protected, but must yield to the ordinance and Constitution.



The first slave case decided by the Supreme Court of Missouri contained

in the reports was Winny v. Whitesides, 1 Missouri Rep. 473, at October

term, 1824.  It appeared that, more than twenty-five years before, the

defendant, with her husband, had removed from Carolina to Illinois, and

brought with them the plaintiff; that they continued to reside in

Illinois three or four years, retaining the plaintiff as a slave, after

which, they removed to Missouri, taking her with them.



The court held that if a slave be detained in Illinois until he be

entitled to freedom, the right of the owner does not revive when he

finds the negro in a slave State. [60 U.S. 551]



That when a slave is taken to Illinois by his owner, who takes up his

residence there, the slave is entitled to freedom.



In the case of Lagrange v. Chouteau, 2 Missouri Rep. 20, at May Term,

1828, it was decided that the Ordinance of 1787 was intended as a

fundamental law for those who may choose to live under it, rather than

as a penal statute.



That any sort of residence contrived or permitted by the legal owner of

the slave, upon the faith of secret trusts or contracts, in order to

defeat or evade the ordinance, and thereby introduce slavery de facto,

would entitle such slave to freedom.



In Julia v. McKinney, 3 Missouri Rep. 279, it was held, where a slave

was settled in the State of Illinois, but with an intention on the part

of the owner to be removed at some future day, that hiring said slave to

a person to labor for one or two days, and receiving the pay for the

hire, the slave is entitled to her freedom, under the second section of

the sixth article of the Constitution of Illinois.



Rachel v. Walker, 4 Missouri Rep. 350, June Term, 1836, is a case

involving, in every particular, the principles of the case before us. 

Rachel sued for her freedom, and it appeared that she had been bought as

a slave in Missouri by Stockton, an officer of the army, taken to Fort

Snelling, where he was stationed, and she was retained there as a slave

a year, and then Stockton removed to Prairie du Chien, taking Rachel

with him as a slave, where he continued to hold her three years, and

then he took her to the State of Missouri, and sold her as a slave.



Fort Snelling was admitted to be on the west side of the Mississippi

river, and north of the State of Missouri, in the territory of the

United States.  That Prairie du Chien was in the Michigan Territory, on

the east side of the Mississippi river.  Walker, the defendant, held

Rachel under Stockton.



The court said, in this case:



The officer lived in Missouri Territory, at the time he bought the

slave; he sent to a slaveholding country and procured her; this was his

voluntary act, done without any other reason than that of his

convenience, and he and those claiming under him must be holden to abide

the consequences of introducing slavery both in Missouri Territory and

Michigan, contrary to law; and on that ground Rachel was declared to be

entitled to freedom.



In answer to the argument that, as an officer of the army, the master

had a right to take his slave into free territory, the court said no

authority of law or the Government compelled him to keep the plaintiff

there as a slave.



Shall it be said that, because an officer of the army owns [60 U.S. 552]

slaves in Virginia, that when, as officer and soldier, he is required to

take the command of a fort in the non-slaveholding States or

Territories, he thereby has a right to take with him as many slaves as

will suit his interests or convenience?  It surely cannot be law.  If

this be true, the court say, then it is also true that the convenience

or supposed convenience of the officer repeals, as to him and others who

have the same character, the ordinance and the act of 1821 admitting

Missouri into the Union, and also the prohibition of the several laws

and Constitutions of the non-slaveholding States.



In Wilson v. Melvin, 4 Missouri R. 592, it appeared the defendant left

Tennessee with an intention of residing in Illinois, taking his negroes

with him.  After a month's stay in Illinois, he took his negroes to St.

Louis, and hired them, then returned to Illinois.  On these facts, the

inferior court instructed the jury that the defendant was a sojourner in

Illinois.  This the Supreme Court held was error, and the judgment was

reversed.



The case of Dred Scott v. Emerson, 15 Missouri R. 682, March Term, 1852,

will now be stated.  This case involved the identical question before

us, Emerson having, since the hearing, sold the plaintiff to Sandford,

the defendant.



Two of the judges ruled the case, the Chief Justice dissenting.  It

cannot be improper to state the grounds of the opinion of the court and

of the dissent.



The court say:



Cases of this kind are not strangers in our court.  Persons have been

frequently here adjudged to be entitled to their freedom on the ground

that their masters held them in slavery in Territories or States in

which that institution is prohibited.  From the first case decided in

our court, it might be inferred that this result was brought about by a

presumed assent of the master, from the fact of having voluntarily taken

his slave to a place where the relation of master and slave did not

exist.  But subsequent cases base the right to "exact the forfeiture of

emancipation," as they term it, on the ground, it would seem, that it

was the duty of the courts of this State to carry into effect the

Constitution and laws of other States and Territories, regardless of the

rights, the policy, or the institutions, of the people of this State.



And the court say that the States of the Union, in their municipal

concerns, are regarded as foreign to each other; that the courts of one

State do not take notice of the laws of other States, unless proved as

facts; and that every State has the right to determine how far its

comity to other States shall extend; and it is laid down that when there

is no act of manumission decreed to the free State, the courts of the

slave States [60 U.S. 553] cannot be called to give effect to the law of

the free State.  Comity, it alleges, between States depends upon the

discretion of both, which may be varied by circumstances.  And it is

declared by the court "that times are not as they were when the former

decisions on this subject were made."  Since then, not only individuals

but States have been possession with a dark and fell spirit in relation

to slavery, whose gratification is sought in the pursuit of measures

whose inevitable consequence must be the overthrow and destruction of

our Government.  Under such circumstances, it does not behoove the State

of Missouri to show the least countenance to any measure which might

gratify this spirit.  She is willing to assume her full responsibility

for the existence of slavery within her limits, nor does she seek to

share or divide it with others.



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



In every slaveholding State in the Union, the subject of emancipation is

regulated by statute, and the forms are prescribed in which it shall be

effected.  Whenever the forms required by the laws of the State in which

the master and slave are resident are complied with, the emancipation is

complete, and the slave is free.  If the right of the person thus

emancipated is subsequently drawn in question in another State, it will

be ascertained and determined by the law of the State in which the slave

and his former master resided, and when it appears that such law has

been complied with, the right to freedom will be fully sustained in the

courts of all the slaveholding States, although the act of emancipation

may not be in the form required by law in which the court sits.



In all such cases, courts continually administer the law of the country

where the right was acquired, and when that law becomes known to the

court, it is just as much a matter of course to decide the rights of the

parties according to its requirements as it is to settle the title of

real estate situated in our State by its own laws.



This appears to me a most satisfactory answer to the argument of the

court.  Chief Justice continues:



The perfect equality of the different States lies at the foundation of

the Union.  As the institution of slavery in the States is one over

which the Constitution of the United States gives no power to the

General Government, it is left to be adopted or rejected by the several

States, as they think best, nor can any one State, or number of States,

claim the right to interfere with any other State upon the question of

admitting or excluding this institution.



A citizen of Missouri who removes with his slave to Illinois [60 U.S.

554] has no right to complain that the fundamental law of that State to

which he removes, and in which he makes his residence, dissolves the

relation between him and his slave.  It is as much his own voluntary act

as if he had executed a deed of emancipation.  No one can pretend

ignorance of this constitutional provision, and, he says, the decisions

which have heretofore been made in this State and in many other

slaveholding States give effect to this and other similar provisions on

the ground that the master, by making the free State the residence of

his slave, has submitted his right to the operation of the law of such

State, and this, he says, "is the same in law as a regular deed of

emancipation."



He adds:



I regard the question as conclusively settled by repeated adjudications

of this court, and if I doubted or denied the propriety of those

decisions, I would not feel myself any more at liberty to overturn them

than I would any other series of decisions by which the law of any other

question was settled.  There is with me, he says, nothing in the law

relating to slavery which distinguishes it from the law on any other

subject or allows any more accommodation to the temporary public

excitements which are gathered around it.



"In this State," he says, it has been recognised from the beginning of

the Government as a correct position in law that a master who takes his

slave to reside in a State or Territory where slavery is prohibited

thereby emancipates his slave. These decisions, which come down to the

year 1837, seemed to have so fully settled the question that, since that

time, there has been no case bringing it before the court for any

reconsideration until the present. In the case of Winny v. Whitesides,

the question was made in the argument "whether one nation would execute

the penal laws of another," and the court replied in this language,

Huberus, quoted in 4 Dallas, which says, personal rights or disabilities

obtained or communicated by the laws of any particular place are of a

nature which accompany the person wherever he goes, and the Chief

Justice observed, in the case of Rachel v. Walker, the act of Congress

called the Missouri Compromise was held as operative as the Ordinance of

1787.



When Dred Scott, his wife and children, were removed from Fort Snelling

to Missouri in 1838, they were free, as the law was then settled, and

continued for fourteen years afterwards, up to 1852, when the above

decision was made.  Prior to this, for nearly thirty years, as Chief

Justice Gamble declares, the residence of a master with his slave in the

State of Illinois, or in the Territory north of Missouri, where slavery

was prohibited [60 U.S. 555] by the act called the Missouri Compromise,

would manumit the slave as effectually as if he had executed a deed of

emancipation, and that an officer of the army who takes his slave into

that State or Territory and holds him there as a slave liberates him the

same as any other citizen -- and, down to the above time, it was settled

by numerous and uniform decisions; and that, on the return of the slave

to Missouri, his former condition of slavery did not attach.  Such was

the settled law of Missouri until the decision of Scott and Emerson.



In the case of Sylvia v. Kirby, 17 Misso.Rep. 434, the court followed

the above decision, observing it was similar in all respects to the case

of Scott and Emerson.



This court follows the established construction of the statutes of a

State by its Supreme Court.  Such a construction is considered as a part

of the statute, and we follow it to avoid two rules of property in the

same State.  But we do not follow the decisions of the Supreme Court of

a State beyond a statutory construction as a rule of decision for this

court.  State decisions are always viewed with respect and treated as

authority, but we follow the settled construction of the statutes not

because it is of binding authority, but in pursuance of a rule of

judicial policy.



But there is no pretence that the case of Dred Scott v. Emerson turned

upon the construction of a Missouri statute, nor was there any

established rule of property which could have rightfully influenced the

decision.  On the contrary, the decision overruled the settled law for

near thirty years.



This is said by my brethren to be a Missouri question, but there is

nothing which gives it this character except that it involves the right

to persons claimed as slaves who reside in Missouri, and the decision

was made by the Supreme Court of that State.  It involves a right

claimed under an act of Congress and the Constitution of Illinois, and

which cannot be decided without the consideration and construction of

those laws.  But the Supreme Court of Missouri held, in this case that

it will not regard either of those laws, without which there was no case

before it, and Dred Scott, having been a slave, remains a slave.  In

this respect, it is admitted this is a Missouri question -- a case which

has but one side if the act of Congress and the Constitution of Illinois

are not recognised.



And does such a case constitute a rule of decision for this court -- a

case to be followed by this court?  The course of decision so long and

so uniformly maintained established a comity or law between Missouri and

the free States and Territories where slavery was prohibited, which must

be somewhat regarded in this case.  Rights sanctioned for twenty-eight

years [60 U.S. 556] ought not and cannot be repudiated, with any

semblance of justice, by one or two decisions, influenced, as declared,

by a determination to counteract the excitement against slavery in the

free States.



The courts of Louisiana having held for a series of years that, where a

master took his slave to France, or any free State, he was entitled to

freedom, and that, on bringing him back, the status of slavery did not

attach, the Legislature of Louisiana declared by an act that the slave

should not be made free under such circumstances.  This regulated the

rights of the master from the time the act took effect.  But the

decision of the Missouri court, reversing a former decision, affects all

previous decisions, technically, made on the same principles, unless

such decisions are protected by the lapse of time or the statute of

limitations.  Dred Scott and his family, beyond all controversy, were

free under the decisions made for twenty-eight years, before the case of

Scott v. Emerson.  This was the undoubted law of Missouri for fourteen

years after Scott and his family were brought back to that State.  And

the grave question arises whether this law may be so disregarded as to

enslave free persons.  I am strongly inclined to think that a rule of

decision so well settled as not to be questioned cannot be annulled by a

single decision of the court.  Such rights may be inoperative under the

decision in future, but I cannot well perceive how it can have the same

effect in prior cases.



It is admitted that, when a former decision is reversed, the technical

effect of the judgment is to make all previous adjudications on the same

question erroneous.  But the case before us was not that the law had

been erroneously construed, but that, under the circumstances which then

existed, that law would not be recognised, and the reason for this is

declared to be the excitement against the institution of slavery in the

free States.  While I lament this excitement as much as anyone, I cannot

assent that it shall be made a basis of judicial action.



In 1816, the common law, by statute, was made a part of the law of

Missouri, and that includes the great principles of international law. 

These principles cannot be abrogated by judicial decisions.  It will

require the same exercise of power to abolish the common law as to

introduce it.  International law is founded in the opinions generally

received and acted on by civilized nations, and enforced by moral

sanctions.  It becomes a more authoritative system when it results from

special compacts, founded on modified rules, adapted to the exigencies

of human society; it is, in fact, an international morality, adapted to

the best interests of nations.  And in regard to the States [60 U.S.

557] of this Union, on the subject of slavery, it is eminently fitted

for a rule of action subject to the Federal Constitution.  "The laws of

nations are but the natural rights of man applied to nations."  Vattel.



If the common law have the force of a statutory enactment in Missouri,

it is clear, as it seems to me, that a slave who, by a residence in

Illinois in the service of his master, becomes entitled to his freedom,

cannot again be reduced to slavery by returning to his former domicil in

a slave State.  It is unnecessary to say what legislative power might do

by a general act in such a case, but it would be singular if a freeman

could be made a slave by the exercise of a judicial discretion.  And it

would be still more extraordinary if this could be done not only in the

absence of special legislation, but in a State where the common law is

in force.



It is supposed by some that the third article in the treaty of cession

of Louisiana to this country by France in 1803 may have some bearing on

this question.  The article referred to provides that the inhabitants of

the ceded territory shall be incorporated into the Union, and enjoy all

the advantages of citizens of the United States, and in the meantime

they shall be maintained and protected in the free enjoyment of their

liberty, property, and the religion they profess.



As slavery existed in Louisiana at the time of the cession, it is

supposed this is a guaranty that there should be no change in its

condition.



The answer to this is, in the first place, that such a subject does not

belong to the treaty-making power, and any such arrangement would have

been nugatory.  And, in the second place, by no admissible construction

can the guaranty be carried further than the protection of property in

slaves at that time in the ceded territory.  And this has been complied

with.  The organization of the slave States of Louisiana, Missouri, and

Arkansas embraced every slave in Louisiana at the time of the cession. 

This removes every ground of objection under the treaty.  There is

therefore no pretence growing out of the treaty that any part of the

territory of Louisiana, as ceded, beyond the organized States, is slave

territory.



Under the fifth head, we were to consider whether the status of slavery

attached to the plaintiff and wife on their return to Missouri.



This doctrine is not asserted in the late opinion of the Supreme Court

of Missouri, and, up to 1852, the contrary doctrine was uniformly

maintained by that court.



In its late decision, the court say that it will not give effect in

Missouri to the laws of Illinois, or the law of Congress [60 U.S. 558]

called the Missouri Compromise.  This was the effect of the decision,

though its terms were that the court would not take notice, judicially,

of those laws.



In 1851, the Court of Appeals of South Carolina recognised the principle

that a slave, being taken to a free State, became free.  Commonwealth v.

Pleasants, 10 Leigh Rep. 697.  In Betty v. Horton, the Court of Appeals

held that the freedom of the slave was acquired by the action of the

laws of Massachusetts by the said slave's being taken there.  5 Leigh

Rep. 615.



The slave States have generally adopted the rule that, where the master,

by a residence with his slave in a State or Territory where slavery is

prohibited, the slave was entitled to his freedom everywhere.  This was

the settled doctrine of the Supreme Court of Missouri.  It has been so

held in Mississippi, in Virginia, in Louisiana, formerly in Kentucky,

Maryland, and in other States.



The law where a contract is made and is to be executed governs it.  This

does not depend upon comity, but upon the law of the contract.  And if,

in the language of the Supreme Court of Missouri, the master, by taking

his slave to Illinois and employing him there as a slave, emancipates

him as effectually as by a deed of emancipation, is it possible that

such an act is not matter for adjudication in any slave State where the

master may take him?  Does not the master assent to the law when he

places himself under it in a free State?



The States of Missouri and Illinois are bounded by a common line.  The

one prohibits slavery; the other admits it.  This has been done by the

exercise of that sovereign power which appertains to each.  We are bound

to respect the institutions of each, as emanating from the voluntary

action of the people.  Have the people of either any right to disturb

the relations of the other?  Each State rests upon the basis of its own

sovereignty, protected by the Constitution.  Our Union has been the

foundation of our prosperity and national glory.  Shall we not cherish

and maintain it?  This can only be done by respecting the legal rights

of each State.



If a citizen of a free State shall entice or enable a slave to escape

from the service of his master, the law holds him responsible not only

for the loss of the slave, but he is liable to be indicted and fined for

the misdemeanor.  And I am bound here to say that I have never found a

jury in the four States which constitute my circuit which have not

sustained this law where the evidence required them to sustain it.  And

it is proper that I should also say that more cases have arisen in my

circuit, by reason of its extent and locality, than in all [60 U.S. 559]

other parts of the Union.  This has been done to vindicate the sovereign

rights of the Southern States and protect the legal interests of our

brethren of the South.



Let these facts be contrasted with the case now before the court. 

Illinois has declared in the most solemn and impressive form that there

shall be neither slavery nor involuntary servitude in that State, and

that any slave brought into it with a view of becoming a resident shall

be emancipated.  And effect has been given to this provision of the

Constitution by the decision of the Supreme Court of that State.  With a

full knowledge of these facts, a slave is brought from Missouri to Rock

Island, in the State of Illinois, and is retained there as a slave for

two years, and then taken to Fort Snelling, where slavery is prohibited

by the Missouri Compromise Act, and there he is detained two years

longer in a state of slavery.  Harriet, his wife, was also kept at the

same place four years as a slave, having been purchased in Missouri. 

They were then removed to the State of Missouri, and sold as slaves,

and, in the action before us, they are not only claimed as slaves, but a

majority of my brethren have held that, on their being returned to

Missouri, the status of slavery attached to them.



I am not able to reconcile this result with the respect due to the State

of Illinois.  Having the same rights of sovereignty as the State of

Missouri in adopting a Constitution, I can perceive no reason why the

institutions of Illinois should not receive the same consideration as

those of Missouri.  Allowing to my brethren the same right of judgment

that I exercise myself, I must be permitted to say that it seems to me

the principle laid down will enable the people of a slave State to

introduce slavery into a free State, for a longer or shorter time, as

may suit their convenience, and by returning the slave to the State

whence he was brought, by force or otherwise, the status of slavery

attaches, and protects the rights of the master, and defies the

sovereignty of the free State.  There is no evidence before us that Dred

Scott and his family returned to Missouri voluntarily.  The contrary is

inferable from the agreed case: In the year 1838, Dr. Emerson removed

the plaintiff and said Harriet, and their daughter Eliza, from Fort

Snelling to the State of Missouri, where they have ever since resided.

This is the agreed case, and can it be inferred from this that Scott and

family returned to Missouri voluntarily?  He was "removed," which shows

that he was passive, as a slave, having exercised no volition on the

subject.  He did not resist the master by absconding or force.  But that

was not sufficient to bring him within Lord Stowell's decision; he must

have acted voluntarily.  It would be a [60 U.S. 560] mockery of law and

an outrage on his rights to coerce his return and then claim that it was

voluntary, and, on that ground, that his former status of slavery

attached.



If the decision be placed on this ground, it is a fact for a jury to

decide whether the return was voluntary, or else the fact should be

distinctly admitted.  A presumption against the plaintiff in this

respect, I say with confidence, is not authorized from the facts

admitted.



In coming to the conclusion that a voluntary return by Grace to her

former domicil, slavery attached, Lord Stowell took great pains to show

that England forced slavery upon her colonies, and that it was

maintained by numerous acts of Parliament and public policy, and, in

short, that the system of slavery was not only established by Great

Britain in her West Indian colonies, but that it was popular and

profitable to many of the wealthy and influential people of England who

were engaged in trade, or owned and cultivated plantations in the

colonies.  No one can read his elaborate views and not be struck with

the great difference between England and her colonies and the free and

slave States of this Union.  While slavery in the colonies of England is

subject to the power of the mother country, our States, especially in

regard to slavery, are independent, resting upon their own sovereignties

and subject only to international laws, which apply to independent

States.



In the case of Williams, who was a slave in Granada, having run away,

came to England, Lord Stowell said: The four judges all concur in this

-- that he was a slave in Granada, though a free man in England, and he

would have continued a free man in all other parts of the world except

Granada.



Strader v. Graham, 10 Howard 82 and 18 Curtis 305, has been cited as

having a direct bearing in the case before us.  In that case, the court

say: It was exclusively in the power of Kentucky to determine for itself

whether the employment of slaves in another State should or should not

make them free on their return. No question was before the court in that

case except that of jurisdiction.  And any opinion given on any other

point is obiter dictum, and of no authority.  In the conclusion of his

opinion, the Chief Justice said:  "In every view of the subject,

therefore, this court has no jurisdiction of the case, and the writ of

error must on that ground be dismissed."



In the case of Spencer v. Negro Dennis, 8 Gill's Rep. 321, the court

say: Once free, and always free, is the maxim of Maryland law upon the

subject.  Freedom having once vested, by no compact between the master

and the the liberated slave, [60 U.S. 561] nor by any condition

subsequent attached by the master to the gift of freedom can a state of

slavery be reproduced.



In Hunter v. Bulcher, 1 Leigh 172:



By a statute of Maryland of 1796, all slaves brought into that State to

reside are declared free; a Virginian-born slave is carried by his

master to Maryland; the master settled there, and keeps the slave there

in bondage for twelve years; the statute in force all the time; then he

brings him as a slave to Virginia, and sells him there.  Adjudged, in an

action brought by the man against the purchaser, that he is free.



Judge Kerr, in the case, says:



Agreeing, as I do, with the general view taken in this case by my

brother Green, I would not add a word but to mark the exact extent to

which I mean to go.  The law of Maryland having enacted that slaves

carried into that State for sale or to reside shall be free, and the

owner of the slave here having carried him to Maryland, and voluntarily

submitting himself and the slave to that law, it governs the case.



In every decision of a slave case prior to that of Dred Scott v.

Emerson, the Supreme Court of Missouri considered it as turning upon the

Constitution of Illinois, the Ordinance of 1787, or the Missouri

Compromise Act of 1820.  The court treated these acts as in force, and

held itself bound to execute them by declaring the slave to be free who

had acquired a domicil under them with the consent of his master.



The late decision reversed this whole line of adjudication, and held

that neither the Constitution and laws of the States nor acts of

Congress in relation to Territories could be judicially noticed by the

Supreme Court of Missouri.  This is believed to be in conflict with the

decisions of all the courts in the Southern States, with some exceptions

of recent cases.



In Marie Louise v. Morat et al., 9 Louisiana Rep. 475, it was held,

where a slave having been taken to the kingdom of France or other

country by the owner, where slavery is not tolerated, operates on the

condition of the slave, and produces immediate emancipation, and that,

where a slave thus becomes free, the master cannot reduce him again to

slavery.



Josephine v. Poultney, Louisiana Annual Rep. 329, where the owner

removes with a slave into a State in which slavery is prohibited, with

the intention of residing there, the slave will be thereby emancipated,

and their subsequent return to the State of Louisiana cannot restore the

relation of master and slave. To the same import are the cases of Smith

v. Smith, 13 Louisiana Rep. 441, Thomas v. Generis, Louisiana Rep. 483,

Harry et al. v. Decker and Hopkins, Walker's Mississippi Rep. 36.  It

was held that slaves within the jurisdiction [60 U.S. 562] of the

Northwestern Territory became freemen by virtue of the Ordinance of

1787, and can assert their claim to freedom in the courts of

Mississippi. Griffith v. Fanny, 1 Virginia Rep. 143.  It was decided

that a negro held in servitude in Ohio, under a deed executed in

Virginia, is entitled to freedom by the Constitution of Ohio.



The case of Rhodes v. Bell, 2 Howard 307, 15 Curtis 152, involved the

main principle in the case before us.  A person residing in Washington

city purchased a slave in Alexandria, and brought him to Washington. 

Washington continued under the law of Maryland, Alexandria under the law

of Virginia.  The act of Maryland of November, 1796, 2 Maxcy's Laws 351,

declared anyone who shall bring any negro, mulatto, or other slave, into

Maryland, such slave should be free.  The above slave, by reason of his

being brought into Washington city, was declared by this court to be

free.  This, it appears to me, is a much stronger case against the slave

than the facts in the case of Scott.



In Bush v. White, 3 Monroe 104, the court say:



That the ordinance was paramount to the Territorial laws, and restrained

the legislative power there as effectually as a Constitution in an

organized State.  It was a public act of the Legislature of the Union,

and a part of the supreme law of the land, and, as such, this court is

as much bound to take notice of it as it can be of any other law.



In the case of Rankin v. Lydia, before cited, Judge Mills, speaking for

the Court of Appeals of Kentucky, says:



If, by the positive provision in our code, we can and must hold our

slaves in the one case, and statutory provisions equally positive decide

against that right in the other, and liberate the slave, he must, by an

authority equally imperious, be declared free.  Every argument which

supports the right of the master on one side, based upon the force of

written law, must be equally conclusive in favor of the slave, when he

can point out in the statute the clause which secures his freedom.



And he further said:



Free people of color in all the States are, it is believed, quasi

citizens, or, at least, denizens.  Although none of the States may allow

them the privilege of office and suffrage, yet all other civil and

conventional rights are secured to them, at least such rights were

evidently secured to them by the ordinance in question for the

government of Indiana.  If these rights are vested in that or any other

portion of the United States, can it be compatible with the spirit of

our confederated Government to deny their existence in any other part? 

Is there less comity existing between State and State, or State [60 U.S.

563] and Territory, than exists between the despotic Governments of

Europe?



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

slave State.



I now come to inquire, under the sixth and last head, "whether the

decisions of the Supreme Court of Missouri on the question before us are

binding on this court."



While we respect the learning and high intelligence of the State courts,

and consider their decisions, with others, as authority, we follow them

only where they give a construction to the State statutes.  On this

head, I consider myself fortunate in being able to turn to the decision

of this court, given by Mr. Justice Grier, in Pease v. Peck, a case from

the State of Michigan, 18 Howard, 589, decided in December Term, 1855. 

Speaking for the court, Judge Grier said:



We entertain the highest respect for that learned court (the Supreme

Court of Michigan), and, in any question affecting the construction of

their own laws where we entertain any doubt, would be glad to be

relieved from doubt and responsibility by reposing on their decision. 

There are, it is true, many dicta to be found in our decisions averring

that the courts of the United States are bound to follow the decisions

of the State courts on the construction of their own laws.  But although

this may be correct, yet a rather strong expression of a general rule,

it cannot be received as the annunciation of a maxim of universal

application.  Accordingly, our reports furnish many cases of exceptions

to it.  In all cases where there is a settled construction of the laws

of the a State by its highest judicature established by admitted

precedent, it is the practice of the courts of the United States to

receive and adopt it without criticism or further inquiry.  When the

decisions of the State court are not consistent, we do not feel bound to

follow the last if it is contrary to our own convictions, and much more

is this the case where, after a long course of consistent decisions,

some new light suddenly springs up, or an excited public opinion has

elicited new doctrines subversive of former safe precedent.



These words, it appears to me, have a stronger application to the case

before us than they had to the cause in which they were spoken as the

opinion of this court, and I regret that they do not seem to be as fresh

in the recollection of some of my brethren as in my own.  For

twenty-eight years, the decisions of the Supreme Court of Missouri were

consistent on all the points made in this case.  But this consistent

course was suddenly terminated, whether by some new light suddenly

springing up, or an excited public opinion, or both, it is not [60 U.S.

564] necessary to say.  In the case of Scott v. Emerson, in 1852, they

were overturned and repudiated.



This, then, is the very case in which seven of my brethren declared they

would not follow the last decision.  On this authority I may well

repose.  I can desire no other or better basis.



But there is another ground which I deem conclusive, and which I will

restate.



The Supreme Court of Missouri refused to notice the act of Congress or

the Constitution of Illinois under which Dred Scott, his wife, and

children claimed that they are entitled to freedom.



This being rejected by the Missouri court, there was no case before it,

or least it was a case with only one side.  And this is the case which,

in the opinion of this court, we are bound to follow.  The Missouri

court disregards the express provisions of an act of Congress and the

Constitution of a sovereign State, both of which laws for twenty-eight

years it had not only regarded, but carried into effect.



If a State court may do this, on a question involving the liberty of a

human being, what protection do the laws afford?  So far from this being

a Missouri question, it is a question, as it would seem, within the

twenty-fifth section of the Judiciary Act, where a right to freedom

being set up under the act of Congress, and the decision being against

such right, it may be brought for revision before this court, from the

Supreme Court of Missouri.



I think the judgment of the court below should be reversed. CURTIS, J.,

dissenting



Mr. Justice CURTIS dissenting.



I dissent from the opinion pronounced by the Chief Justice, and from the

judgment which the majority of the court think it proper to render in

this case.  The plaintiff alleged in his declaration that he was a

citizen of the State of Missouri, and that the defendant was a citizen

of the State of New York.  It is not doubted that it was necessary to

make each of these allegations to sustain the jurisdiction of the

Circuit Court.  The defendant denied, by a plea to the jurisdiction

either sufficient or insufficient, that the plaintiff was a citizen of

the State of Missouri.  The plaintiff demurred to that plea.  The

Circuit Court adjudged the plea insufficient, and the first question for

our consideration is whether the sufficiency of that plea is before this

court for judgment upon this writ of error.  The part of the judicial

power of the United States, conferred by Congress on the Circuit Courts,

being limited to certain described cases and controversies, the question

whether a particular [60 U.S. 565] case is within the cognizance of a

Circuit Court may be raised by a plea to the jurisdiction of such court.

 When that question has been raised, the Circuit Court must, in the

first instance, pass upon and determine it.  Whether its determination

be final or subject to review by this appellate court must depend upon

the will of Congress, upon which body the Constitution has conferred the

power, with certain restrictions, to establish inferior courts, to

determine their jurisdiction, and to regulate the appellate power of

this court.  The twenty-second section of the Judiciary Act of 1789,

which allows a writ of error from final judgments of Circuit Courts,

provides that there shall be no reversal in this court, on such writ of

error, for error in ruling any plea in abatement other than a plea to

the jurisdiction of the court.  Accordingly it has been held from the

origin of the court to the present day that Circuit Courts have not been

made by Congress the final judges of their own jurisdiction in civil

cases.  And that when a record comes here upon a writ of error or

appeal, and on its inspection, it appears to this court that the Circuit

Court had not jurisdiction, its judgment must be reversed and the cause

remanded to be dismissed for want of jurisdiction.



It is alleged by the defendant in error in this case that the plea to

the jurisdiction was a sufficient plea; that it shows, on inspection of

its allegations, confessed by the demurrer, that the plaintiff was not a

citizen of the State of Missouri; that, upon this record, it must appear

to this court that the case was not within the judicial power of the

United States as defined and granted by the Constitution, because it was

not a suit by a citizen of one State against a citizen of another State.



To this it is answered first that the defendant, by pleading over after

the plea to the jurisdiction was adjudged insufficient, finally waived

all benefit of that plea.



When that plea was adjudged insufficient, the defendant was obliged to

answer over.  He held no alternative.  He could not stop the further

progress of the case in the Circuit Court by a writ of error, on which

the sufficiency of his plea to the jurisdiction could be tried in this

court, because the judgment on that plea was not final, and no writ of

error would lie.  He was forced to plead to the merits.  It cannot be

true, then, that he waived the benefit of his plea to the jurisdiction

by answering over.  Waiver includes consent.  Here, there was no

consent.  And if the benefit of the plea was finally lost, it must be

not by any waiver, but because the laws of the United States have not

provided any mode of reviewing the decision of the Circuit Court on such

a plea when that decision is against the defendant.  This is not the [60

U.S. 566] law.  Whether the decision of the Circuit Court on a plea to

the jurisdiction be against the plaintiff or against the defendant, the

losing party may have any alleged error in law, in ruling such a plea,

examined in this court on a writ of error when the matter in controversy

exceeds the sum or value of two thousand dollars.  If the decision be

against the plaintiff, and his suit dismissed for want of jurisdiction,

the judgment is technically final, and he may at once sue out his writ

of error.  Mollan v. Torrance, 9 Wheat. 537.  If the decision be against

the defendant, though he must answer over and wait for a final judgment

in the cause, he may then have his writ of error, and upon it obtain the

judgment of this court on any question of law apparent on the record

touching the jurisdiction.  The fact that he pleaded over to the merits,

under compulsion, can have no effect on his right to object to the

jurisdiction.  If this were not so, the condition of the two parties

would be grossly unequal.  For if a plea to the jurisdiction were ruled

against the plaintiff, he could at once take his writ of error and have

the ruling reviewed here, while, if the same plea were ruled against the

defendant, he must not only wait for a final judgment, but could in no

event have the ruling of the Circuit Court upon the plea reviewed by

this court.  I know of no ground for saying that the laws of the United

States have thus discriminated between the parties to a suit in its

courts.



It is further objected that, as the judgment of the Circuit Court was in

favor of the defendant and the writ of error in this cause was sued out

by the plaintiff, the defendant is not in a condition to assign any

error in the record, and therefore this court is precluded from

considering the question whether the Circuit Court had jurisdiction.



The practice of this court does not require a technical assignment of

errors.  See the rule.  Upon a writ of error, the whole record is open

for inspection, and if any error be found in it, the judgment is

reversed.  Bank of United States v. Smith, 11 Wheat. 171.



It is true, as a general rule, that the court will not allow a party to

rely on anything as cause for reversing a judgment which was for his

advantage.  In this, we follow an ancient rule of the common law.  But

so careful was that law of the preservation of the course of its courts

that it made an exception out of that general rule, and allowed a party

to assign for error that which was for his advantage if it were a

departure by the court itself from its settled course of procedure.  The

cases on this subject are collected in Bac.Ab., Error H. 4.  And this

court followed this practice in Capron v. Van Noorden, [60 U.S. 567] 2

Cranch 126, where the plaintiff below procured the reversal of a

judgment for the defendant on the ground that the plaintiff's

allegations of citizenship had not shown jurisdiction.



But it is not necessary to determine whether the defendant can be

allowed to assign want of jurisdiction as an error in a judgment in his

own favor.  The true question is not what either of the parties may be

allowed to do, but whether this court will affirm or reverse a judgment

of the Circuit Court on the merits when it appears on the record by a

plea to the jurisdiction that it is a case to which the judicial power

of the United States does not extend.  The course of the court is where

no motion is made by either party, on its own motion, to reverse such a

judgment for want of jurisdiction, not only in cases where it is shown,

negatively, by a plea to the jurisdiction that jurisdiction does not

exist, but even where it does not appear, affirmatively that it does

exist.  Pequignot v. The Pennsylvania R.R. Co., 16 How. 104.  It acts

upon the principle that the judicial power of the United States must not

be exerted in a case to which it does not extend, even if both parties

desire to have it exerted.  Cutler v. Rae, 7 How. 729.  I consider,

therefore, that, when there was a plea to the jurisdiction of the

Circuit Court in a case brought here by a writ of error, the first duty

of this court is sua sponte, if not moved to it by either party, to

examine the sufficiency of that plea, and thus to take care that neither

the Circuit Court nor this court shall use the judicial power of the

United States in a case to which the Constitution and laws of the United

States have not extended that power.



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



I do not perceive any sound reason why it is not to be judged by the

rules of the common law applicable to such pleas.  It is true, where the

jurisdiction of the Circuit Court depends on the citizenship of the

parties, it is incumbent on the plaintiff to allege on the record the

necessary citizenship, but when he has done so, the defendant must

interpose a plea in abatement the allegations whereof show that the

court has not jurisdiction, and it is incumbent on him to prove the

truth of his plea.



In Sheppard v. Graves, 14 How. 27, the rules on this subject are thus

stated in the opinion of the court: That although, in the courts of the

United States, it is necessary to set forth the grounds of their

cognizance as courts of limited jurisdiction, yet wherever jurisdiction

shall be averred in the pleadings, in conformity with the laws creating

those courts, it must be taken, prima facie, as existing, and it is

incumbent [60 U.S. 568] on him who would impeach that jurisdiction for

causes dehors the pleading, to allege and prove such causes that the

necessity for the allegation, and the burden of sustaining it by proof,

both rest upon the party taking the exception. These positions are

sustained by the authorities there cited, as well as by Wickliffe v.

Owings, 17 How. 47.



When, therefore, as in this case, the necessary averments as to

citizenship are made on the record, and jurisdiction is assumed to

exist, and the defendant comes by a plea to the jurisdiction to displace

that presumption, he occupies, in my judgment, precisely the position

described in Bacon Ab., Abatement: Abatement, in the general acceptation

of the word, signifies a plea, put in by the defendant, in which he

shows cause to the court why he should not be impleaded, or, if at all,

not in the manner and form he now is.



This being, then, a plea in abatement to the jurisdiction of the court,

I must judge of its sufficiency by those rules of the common law

applicable to such pleas.



The plea was as follows:



And the said John F. A. Sandford, in his own proper person, comes and

says that this court ought not to have or take further cognizance of the

action aforesaid, because he says that said cause of action, and each

and every of them (if any such have accrued to the said Dred Scott),

accrued to the said Dred Scott out of the jurisdiction of this court,

and exclusively within the jurisdiction of the courts of the State of

Missouri, for that, to-wit, the said plaintiff, Dred Scott, is not a

citizen of the State of Missouri, as alleged in his declaration, because

he is a negro of African descent, his ancestors were of pure African

blood, and were brought into this country and sold as negro slaves, and

this the said Sandford is ready to verify.  Wherefore, he prays judgment

whether this court can or will take further cognizance of the action

aforesaid.



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

the plea was insufficient.



I cannot treat this plea as a general traverse of the citizenship

alleged by the plaintiff.  Indeed, if it were so treated, the plea was

clearly bad, for it concludes with a verification, and not to the

country, as a general traverse should.  And though this defect in a plea

in bar must be pointed out by a special demurrer, it is never necessary

to demur specially to a plea in abatement; all matters, though of form

only, may be taken advantage of upon a general demurrer to such a plea. 

Chitty on Pl. 465.



The truth is that, though not drawn with the utmost technical accuracy,

it is a special traverse of the plaintiff's allegation [60 U.S. 569] of

citizenship, and was a suitable and proper mode of traverse under the

circumstances.  By reference to Mr. Stephen's description of the uses of

such a traverse contained in his excellent analysis of pleadings, Steph.

on Pl. 176, it will be seen how precisely this plea meets one of his

descriptions.  No doubt the defendant might have traversed, by a common

or general traverse, the plaintiff's allegation that he was a citizen of

the State of Missouri, concluding to the country.  The issue thus

presented being joined, would have involved matter of law on which the

jury must have passed under the direction of the court.  But, by

traversing the plaintiff's citizenship specially -- that is, averring

those facts on which the defendant relied to show that, in point of law,

the plaintiff was not a citizen, and basing the traverse on those facts

as a deduction therefrom -- opportunity was given to do what was done --

that is, to present directly to the court, by a demurrer, the

sufficiency of those facts to negative, in point of law, the plaintiff's

allegation of citizenship.  This, then, being a special, and not a

general or common, traverse, the rule is settled that the facts thus set

out in the plea as the reason or ground of the traverse must of

themselves constitute, in point of law, a negative of the allegation

thus traversed.  Stephen on Pl. 183, Ch. on Pl. 620.  And upon a

demurrer to this plea, the question which arises is whether the facts

that the plaintiff is a negro of African descent, whose ancestors were

of pure African blood and were brought into this country and sold as

negro slaves, may all be true, and yet the plaintiff be a citizen of the

State of Missouri within the meaning of the Constitution and laws of the

United States which confer on citizens of one State the right to sue

citizens of another State in the Circuit Courts.  Undoubtedly, if these

facts, taken together, amount to an allegation that, at the time of

action brought, the plaintiff was himself a slave, the plea is

sufficient.  It has been suggested that the plea, in legal effect, does

so aver, because, if his ancestors were sold as slaves, the presumption

is they continued slaves, and, if so, the presumption is the plaintiff

was born a slave, and, if so, the presumption is he continued to be a

slave to the time of action brought.



I cannot think such presumptions can be resorted to to help out

defective averments in pleading, especially in pleading in abatement,

where the utmost certainty and precision are required.  Chitty on Pl.

457.  That the plaintiff himself was a slave at the time of action

brought is a substantive fact having no necessary connection with the

fact that his parents were sold as slaves.  For they might have been

sold after he was born, or the plaintiff himself, if once a slave, might

have [60 U.S. 570] became a freeman before action brought.  To aver that

his ancestors were sold as slaves is not equivalent, in point of law, to

an averment that he was a slave.  If it were, he could not even confess

and avoid the averment of the slavery of his ancestors, which would be

monstrous, and if it be not equivalent in point of law, it cannot be

treated as amounting thereto when demurred to, for a demurrer confesses

only those substantive facts which are well pleaded, and not other

distinct substantive facts which might be inferred therefrom by a jury. 

To treat an averment that the plaintiff's ancestors were Africans,

brought to this country and sold as slaves, as amounting to an averment

on the record that he was a slave because it may lay some foundation for

presuming so is to hold that the facts actually alleged may be treated

as intended as evidence of another distinct facts not alleged.  But it

is a cardinal rule of pleading, laid down in Dowman's Case, 9 Rep. 9b,

and in even earlier authorities therein referred to, "that evidence

shall never be pleaded, for it only tends to prove matter of fact, and

therefore the matter of fact shall be pleaded."  Or, as the rule is

sometimes stated, pleadings must not be argumentative.  Stephen on

Pleading 384, and authorities cited by him.  In Com.Dig., Pleader E. 3,

and Bac. Abridgement, Pleas I, 5, and Stephen on Pl., many decisions

under this rule are collected.  In trover, for an indenture whereby A

granted a manor, it is no plea that A did not grant the manor, for it

does not answer the declaration except by argument.  Yelv. 223.



So, in trespass for taking and carrying away the plaintiff's goods, the

defendant pleaded that the plaintiff never had any goods.  The court

said, "this is an infallible argument that the defendant is not guilty,

but it is no plea."  Dyer a 43.



In ejectment, the defendant pleaded a surrender of a copyhold by the

hand of Fosset, the steward.  The plaintiff replied that Fosset was not

steward.  The court held this no issue, for it traversed the surrender

only agrumentatively.  Cro.Elis. 260.



In these cases and many others reported in the books, the inferences

from the facts stated were irresistible.  But the court held they did

not, when demurred to, amount to such inferable facts.  In the case at

bar, the inference that the defendant was a slave at the time of action

brought, even if it can be made at all from the fact that his parents

were slaves, is certainly not a necessary inference.  This case,

therefore, is like that of Digby v. Alexander, 8 Bing. 116.  In that

case, the defendant pleaded many facts strongly tending to show that he

was once Earl of Stirling, but as there was no positive allegation [60

U.S. 571] that he was so at the time of action brought, and, as every

fact averred might be true and yet the defendant not have been Earl of

Stirling at the time of action brought, the plea was held to be

insufficient.



A lawful seizin of land is presumed to continue.  But if, in an action

of trespass quare clausum, the defendant were to plead that he was

lawfully seized of the locus in quo one month before the time of the

alleged trespass, I should have no doubt it would be a bad plea.  See

Mollan v. Torrance, 9 Wheat. 537.  So if a plea to the jurisdiction,

instead of alleging that the plaintiff was a citizen of the same State

as the defendant, were to allege that the plaintiff's ancestors were

citizens of that State, I think the plea could not be supported.  My

judgment would be, as it is in this case, that if the defendant meant to

aver a particular substantive fact as existing at the time of action

brought, he must do it directly and explicitly, and not by way of

inference from certain other averments which are quite consistent with

the contrary hypothesis.  I cannot, therefore, treat this plea as

containing an averment that the plaintiff himself was a slave at the

time of action brought, and the inquiry recurs whether the facts that he

is of African descent, and that his parents were once slaves, are

necessarily inconsistent with his own citizenship in the State of

Missouri within the meaning of the Constitution and laws of the United

States.



In Gassies v. Ballon, 6 Pet. 761, the defendant was described on the

record as a naturalized citizen of the United States, residing in

Louisiana.  The court held this equivalent to an averment that the

defendant was a citizen of Louisiana, because a citizen of the United

States, residing in any State of the Union, is, for purposes of

jurisdiction, a citizen of that State.  Now the plea to the jurisdiction

in this case does not controvert the fact that the plaintiff resided in

Missouri at the date of the writ.  If he did then reside there, and was

also a citizen of the United States, no provisions contained in the

Constitution or laws of Missouri can deprive the plaintiff of his right

to sue citizens of States other than Missouri in the courts of the

United States.



So that, under the allegations contained in this plea and admitted by

the demurrer, the question is whether any person of African descent,

whose ancestors were sold as slaves in the United States, can be a

citizen of the United States.  If any such person can be a citizen, this

plaintiff has the right to the judgment of the court that he is so, for

no cause is shown by the plea why he is not so, except his descent and

the slavery of his ancestors.



The first section of the second article of the Constitution [60 U.S.

572] uses the language, "a citizen of the United States at the time of

the adoption of the Constitution."  One mode of approaching this

question is to inquire who were citizens of the United States at the

time of the adoption of the Constitution.



Citizens of the United States at the time of the adoption of the

Constitution can have been no other than citizens of the United States

under the Confederation.  By the Articles of Confederation, a Government

was organized, the style whereof was "The United States of America." 

This Government was in existence when the Constitution was framed and

proposed for adoption, and was to be superseded by the new Government of

the United States of America, organized under the Constitution.  When,

therefore, the Constitution speaks of citizenship of the United States

existing at the time of the adoption of the Constitution, it must

necessarily refer to citizenship under the Government which existed

prior to and at the time of such adoption.



Without going into any question concerning the powers of the

Confederation to govern the territory of the United States out of the

limits of the States, and consequently to sustain the relation of

Government and citizen in respect to the inhabitants of such territory,

it may safely be said that the citizens of the several States were

citizens of the United States under the Confederation.



That Government was simply a confederacy of the several States,

possessing a few defined powers over subjects of general concern, each

State retaining every power, jurisdiction, and right, not expressly

delegated to the United States in Congress assembled.  And no power was

thus delegated to the Government of the Confederation to act on any

question of citizenship or to make any rules in respect thereto.  The

whole matter was left to stand upon the action of the several States,

and to the natural consequence of such action that the citizens of each

State should be citizens of that Confederacy into which that State had

entered, the style whereof was, "The United States of America."



To determine whether any free persons, descended from Africans held in

slavery, were citizens of the United States under the Confederation, and

consequently at the time of the adoption of the Constitution of the

United States, it is only necessary to know whether any such persons

were citizens of either of the States under the Confederation at the

time of the adoption of the Constitution.



Of this there can be no doubt.  At the time of the ratification of the

Articles of Confederation, all free native-born inhabitants of the

States of New Hampshire, Massachusetts, New [60 U.S. 573] York, New

Jersey, and North Carolina, though descended from African slaves, were

not only citizens of those States, but such of them as had the other

necessary qualifications possessed the franchise of electors, on equal

terms with other citizens.



The Supreme Court of North Carolina, in the case of the State v. Manuel,

4 Dev. and Bat. 20, has declared the law of that State on this subject

in terms which I believe to be as sound law in the other States I have

enumerated, as it was in North Carolina.



"According to the laws of this State," says Judge Gaston, in delivering

the opinion of the court, all human beings within it, who are not

slaves, fall within one of two classes.  Whatever distinctions may have

existed in the Roman laws between citizens and free inhabitants, they

are unknown to our institutions.  Before our Revolution, all free

persons born within the dominions of the King of Great Britain, whatever

their color or complexion, were native-born British subjects -- those

born out of his allegiance were aliens.  Slavery did not exist in

England, but it did in the British colonies.  Slaves were not, in legal

parlance persons, but property.  The moment the incapacity, the

disqualification of slavery, was removed, they became persons, and were

then either British subjects or not British subjects, according as they

were or were not born within the allegiance of the British King.  Upon

the Revolution, no other change took place in the laws of North Carolina

than was consequent on the transition from a colony dependent on a

European King to a free and sovereign State.  Slaves remained slaves. 

British subjects in North Carolina became North Carolina freemen. 

Foreigners, until made members of the State, remained aliens.  Slaves,

manumitted here, became freemen, and therefore, if born within North

Carolina, are citizens of North Carolina, and all free persons born

within the State are born citizens of the State.  The Constitution

extended the elective franchise to every freeman who had arrived at the

age of twenty-one and paid a public tax, and it is a matter of universal

notoriety that, under it, free persons, without regard to color, claimed

and exercised the franchise until it was taken from free men of color a

few years since by our amended Constitution.



In the State v. Newcomb, 5 Iredell's R. 253, decided in 1844, the same

court referred to this case of the State v. Manuel, and said: That case

underwent a very laborious investigation, both by the bar and the bench.

 The case was brought here by appeal, and was felt to be one of great

importance in principle.  It was considered with an anxiety and care

worthy of the principle involved, and which give it a controlling [60

U.S. 574] influence and authority on all questions of a similar

character.



An argument from speculative premises, however well chosen, that the

then state of opinion in the Commonwealth of Massachusetts was not

consistent with the natural rights of people of color who were born on

that soil, and that they were not, by the Constitution of 1780 of that

State, admitted to the condition of citizens, would be received with

surprise by the people of that State who know their own political

history.  It is true, beyond all controversy that persons of color,

descended from African slaves, were by that Constitution made citizens

of the State, and such of them as have had the necessary qualifications

have held and exercised the elective franchise, as citizens, from that

time to the present.  See Com. v. Aves, 18 Pick. R. 210.



The Constitution of New Hampshire conferred the elective franchise upon

"every inhabitant of the State having the necessary qualifications," of

which color or descent was not one.



The Constitution of New York gave the right to vote to "every male

inhabitant, who shall have resided," &c., making no discrimination

between free colored persons and others.  See Con. of N.Y., Art. 2,

Rev.Stats. of N.Y., vol. 1, p. 126.



That of New Jersey, to "all inhabitants of this colony, of full age, who

are worth  50 proclamation money, clear estate."



New York, by its Constitution of 1820, required colored persons to have

some qualifications as prerequisites for voting, which white persons

need not possess.  And New Jersey, by its present Constitution,

restricts the right to vote to white male citizens.  But these changes

can have no other effect upon the present inquiry except to show that,

before they were made, no such restrictions existed, and colored, in

common with white, persons, were not only citizens of those States, but

entitled to the elective franchise on the same qualifications as white

persons, as they now are in New Hampshire and Massachusetts.  I shall

not enter into an examination of the existing opinions of that period

respecting the African race, nor into any discussion concerning the

meaning of those who asserted, in the Declaration of Independence, that

all men are created equal; that they are endowed by their Creator with

certain inalienable rights; that among these are life, liberty, and the

pursuit of happiness.  My own opinion is that a calm comparison of these

assertions of universal abstract truths and of their own individual

opinions and acts would not leave [60 U.S. 575] these men under any

reproach of inconsistency; that the great truths they asserted on that

solemn occasion, they were ready and anxious to make effectual, wherever

a necessary regard to circumstances, which no statesman can disregard

without producing more evil than good, would allow; and that it would

not be just to them nor true in itself to allege that they intended to

say that the Creator of all men had endowed the white race, exclusively,

with the great natural rights which the Declaration of Independence

asserts.  But this is not the place of vindicate their memory.  As I

conceive, we should deal here not with such disputes, if there can be a

dispute concerning this subject, but with those substantial facts

evinced by the written Constitutions of States and by the notorious

practice under them.  And they show, in a manner which no argument can

obscure, that, in some of the original thirteen States, free colored

persons, before and at the time of the formation of the Constitution,

were citizens of those States.



The fourth of the fundamental articles of the Confederation was as

follows:



The free inhabitants of each of these States, paupers, vagabonds, and

fugitives from justice, excepted, shall be entitled to all the

privileges and immunities of free citizens in the several States.



The fact that free persons of color were citizens of some of the several

States, and the consequence that this fourth article of the

Confederation would have the effect to confer on such persons the

privileges and immunities of general citizenship, were not only known to

those who framed and adopted those articles, but the evidence is

decisive that the fourth article was intended to have that effect, and

that more restricted language, which would have excluded such persons,

was deliberately and purposely rejected.



On the 25th of June, 1778, the Articles of Confederation being under

consideration by the Congress, the delegates from South Carolina moved

to amend this fourth article by inserting after the word "free," and

before the word "inhabitants," the word "white," so that the privileges

and immunities of general citizenship would be secured only to white

persons.  Two States voted for the amendment, eight States against it,

and the vote of one State was divided.  The language of the article

stood unchanged, and both by its terms of inclusion, "free inhabitants,"

and the strong implication from its terms of exclusion, "paupers,

vagabonds, and fugitives from justice," who alone were excepted, it is

clear that under the Confederation, and at the time of the adoption of

the Constitution, free colored persons of African descent might be, and,

by reason of their citizenship in certain States, were, entitled to the

[60 U.S. 576] privileges and immunities of general citizenship of the

United States.



Did the Constitution of the United States deprive them or their

descendants of citizenship?



That Constitution was ordained and established by the people of the

United States, through the action, in each State, or those persons who

were qualified by its laws to act thereon in behalf of themselves and

all other citizens of that State.  In some of the States, as we have

seen, colored persons were among those qualified by law to act on this

subject.  These colored persons were not only included in the body of

"the people of the United States" by whom the Constitution was ordained

and established, but, in at least five of the States, they had the power

to act, and doubtless did act, by their suffrages, upon the question of

its adoption.  It would be strange if we were to find in that instrument

anything which deprived of their citizenship any part of the people of

the United States who were among those by whom it was established.



I can find nothing in the Constitution which, proprio vigore, deprives

of their citizenship any class of persons who were citizens of the

United States at the time of its adoption, or who should be native-born

citizens of any State after its adoption, nor any power enabling

Congress to disfranchise persons born on the soil of any State, and

entitled to citizenship of such State by its Constitution and laws.  And

my opinion is that, under the Constitution of the United States, every

free person born on the soil of a State, who is a citizen of that State

by force of its Constitution or laws, is also a citizen of the United

States.



I will proceed to state the grounds of that opinion.



The first section of the second article of the Constitution uses the

language, "a natural-born citizen."  It thus assumes that citizenship

may be acquired by birth.  Undoubtedly, this language of the

Constitution was used in reference to that principle of public law, well

understood in this country at the time of the adoption of the

Constitution, which referred citizenship to the place of birth.  At the

Declaration of Independence, and ever since, the received general

doctrine has been in conformity with the common law that free persons

born within either of the colonies were subjects of the King that by the

Declaration of Independence, and the consequent acquisition of

sovereignty by the several States, all such persons ceased to be

subjects, and became citizens of the several States, except so far as

some of them were disfranchised by the legislative power of the States,

or availed themselves, seasonably, of the right to adhere to the British

Crown in the civil contest, [60 U.S. 577] and thus to continue British

subjects.  McIlvain v. Coxe's Lessee, 4 Cranch 209; Inglis v. Sailors'

Snug Harbor, 3 Peters, p. 99; |>Shanks v. Dupont, ibid., p. 242.



The Constitution having recognised the rule that persons born within the

several States are citizens of the United States, one of four things

must be true:



First.  That the Constitution itself has described what native-born

persons shall or shall not be citizens of the United States, or



Second.  That it has empowered Congress to do so, or



Third.  That all free persons born within the several States are

citizens of the United States, or



Fourth.  That it is left to each State to determine what free persons

born within its limits shall be citizens of such State, and thereby be

citizens of the United States.



If there be such a thing as citizenship of the United States acquired by

birth within the States, which the Constitution expressly recognises,

and no one denies, then these four alternatives embrace the entire

subject, and it only remains to select that one which is true.



That the Constitution itself has defined citizenship of the United

States by declaring what persons born within the several States shall or

shall not be citizens of the United States will not be pretended.  It

contains no such declaration.  We may dismiss the first alternative as

without doubt unfounded.



Has it empowered Congress to enact what free persons, born within the

several States, shall or shall not be citizens of the United States?



Before examining the various provisions of the Constitution which may

relate to this question, it is important to consider for a moment the

substantial nature of this inquiry.  It is, in effect, whether the

Constitution has empowered Congress to create privileged classes within

the States who alone can be entitled to the franchises and powers of

citizenship of the United States.  If it be admitted that the

Constitution has enabled Congress to declare what free persons born

within the several States shall be citizens of the United States, it

must at the same time be admitted that it is an unlimited power.  If

this subject is within the control of Congress, it must depend wholly on

its discretion.  For certainly no limits of that discretion can be found

in the Constitution, which is wholly silent concerning it, and the

necessary consequence is that the Federal Government may select classes

of persons within the several States who alone can be entitled to the

political privileges of citizenship of the United States.  If this power

exists, what persons born within the States may be President or Vice

President [60 U.S. 578] of the United States, or members of either House

of Congress, or hold any office or enjoy any privilege whereof

citizenship of the United States is a necessary qualification must

depend solely on the will of Congress.  By virtue of it, though Congress

can grant no title of nobility, they may create an oligarchy in whose

hands would be concentrated the entire power of the Federal Government.



It is a substantive power, distinct in its nature from all others,

capable of affecting not only the relations of the States to the General

Government, but of controlling the political condition of the people of

the United States. Certainly we ought to find this power granted by the

Constitution, at least by some necessary inference, before we can say it

does not remain to the States or the people.  I proceed therefore to

examine all the provisions of the Constitution which may have some

bearing on this subject.



Among the powers expressly granted to Congress is "the power to

establish a uniform rule of naturalization."  It is not doubted that

this is a power to prescribe a rule for the removal of the disabilities

consequent on foreign birth.  To hold that it extends further than this

would do violence to the meaning of the term naturalization, fixed in

the common law, Co.Lit. 8a, 129a; 2 Ves. sen. 286; 2 Bl.Com. 293, and in

the minds of those who concurred in framing and adopting the

Constitution.  It was in this sense of conferring on an alien and his

issue the rights and powers of a native-born citizen that it was

employed in the Declaration of Independence.  It was in this sense it

was expounded in the Federalist No. 42; has been understood by Congress,

by the Judiciary, 2 Wheat. 259, 269, 3 Wash.R. 313, 322, 12 Wheat. 277,

and by commentators on the Constitution.  3 Story's Com. on Con., 1-3; 1

Rawle on Con. 84-88; 1 Tucker's Bl.Com. App. 255-259.



It appears, then that the only power expressly granted to Congress to

legislate concerning citizenship is confined to the removal of the

disabilities of foreign birth.



Whether there be anything in the Constitution from which a broader power

may be implied will best be seen when we come to examine the two other

alternatives, which are whether all free persons, born on the soil of

the several States, or only such of them as may be citizens of each

State, respectively, are thereby citizens of the United States.  The

last of these alternatives, in my judgment, contains the truth.



Undoubtedly, as has already been said, it is a principle of public law,

recognised by the Constitution itself, that birth on the soil of a

country both creates the duties and confers the rights of citizenship. 

But it must be remembered that, though [60 U.S. 579] the Constitution

was to form a Government, and under it the United States of America were

to be one united sovereign nation to which loyalty and obedience, on the

one side, and from which protection and privileges, on the other, would

be due, yet the several sovereign States whose people were then citizens

were not only to continue in existence, but with powers unimpaired

except so far as they were granted by the people to the National

Government.



Among the powers unquestionably possessed by the several States was that

of determining what persons should and what persons should not be

citizens.  It was practicable to confer on the Government of the Union

this entire power.  It embraced what may well enough, for the purpose

now in view, be divided into three parts.  First:  the power to remove

the disabilities of alienage, either by special acts in reference to

each individual case or by establishing a rule of naturalization to be

administered and applied by the courts.  Second:  determining what

persons should enjoy the privileges of citizenship in respect to the

internal affairs of the several States.  Third:  what native-born

persons should be citizens of the United States.



The first-named power -- that of establishing a uniform rule of

naturalization -- was granted, and here the grant, according to its

terms, stopped.  Construing a Constitution containing only limited and

defined powers of government, the argument derived from this definite

and restricted power to establish a rule of naturalization must be

admitted to be exceedingly strong.  I do not say it is necessarily

decisive.  It might be controlled by other parts of the Constitution. 

But when this particular subject of citizenship was under consideration,

and in the clause specially intended to define the extent of power

concerning it, we find a particular part of this entire power separated

from the residue and conferred on the General Government, there arises a

strong presumption that this is all which is granted, and that the

residue is left to the States and to the people.  And this presumption

is, in my opinion, converted into a certainty by an examination of all

such other clauses of the Constitution as touch this subject.



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

question.



The first clause of the second section of the third article of the

Constitution is The judicial power shall extend to controversies between

a State and citizens of another State, between citizens of different

States, between citizens of the same State, claiming lands under grants

of different States, and between States, or the citizens thereof, and

foreign States, [60 U.S. 580] citizens, or subjects. I do not think this

clause has any considerable bearing upon the particular inquiry now

under consideration.  Its purpose was to extend the judicial power to

those controversies into which local feelings or interests might to

enter as to disturb the course of justice, or give rise to suspicions

that they had done so, and thus possibly give occasion to jealousy or

ill will between different States, or a particular State and a foreign

nation.  At the same time, I would remark in passing that it has never

been held -- I do not know that it has ever been supposed -- that any

citizen of a State could bring himself under this clause and the

eleventh and twelfth sections of the Judiciary Act of 1789, passed in

pursuance of it, who was not a citizen of the United States.  But I have

referred to the clause only because it is one of the places where

citizenship is mentioned by the Constitution.  Whether it is entitled to

any weight in this inquiry or not, it refers only to citizenship of the

several States; it recognises that, but it does not recognise

citizenship of the United States as something distinct therefrom.



As has been said, the purpose of this clause did not necessarily connect

it with citizenship of the United States, even if that were something

distinct from citizenship of the several States in the contemplation of

the Constitution.  This cannot be said of other clauses of the

Constitution, which I now proceed to refer to.



"The citizens of each State shall be entitled to all the privileges and

immunities of citizens of the several States."  Nowhere else in the

Constitution is there anything concerning a general citizenship, but

here, privileges and immunities to be enjoyed throughout the United

States, under and by force of the national compact, are granted and

secured.  In selecting those who are to enjoy these national rights of

citizenship, how are they described?  As citizens of each State.  It is

to them these national rights are secured.  The qualification for them

is not to be looked for in any provision of the Constitution or laws of

the United States.  They are to be citizens of the several States, and

as such, the privileges and immunities of general citizenship, derived

from and guarantied by the Constitution, are to be enjoyed by them.  It

would seem that, if it had been intended to constitute a class of

native-born persons within the States who should derive their

citizenship of the United States from the action of the Federal

Government, this was an occasion for referring to them.  It cannot be

supposed that it was the purpose of this article to confer the

privileges and immunities of citizens in all the States upon persons not

citizens of the United States. [60 U.S. 581]



And if it was intended to secure these rights only to citizens of the

United States, how has the Constitution here described such persons? 

Simply as citizens of each State.



But, further:  though, as I shall presently more fully state, I do not

think the enjoyment of the elective franchise essential to citizenship,

there can be no doubt it is one of the chiefest attributes of

citizenship under the American Constitutions, and the just and

constitutional possession of this right is decisive evidence of

citizenship.  The provisions made by a Constitution on this subject must

therefore be looked to as bearing directly on the question what persons

are citizens under that Constitution, and as being decisive, to this

extent -- that all such persons as are allowed by the Constitution to

exercise the elective franchise, and thus to participate in the

Government of the United States, must be deemed citizens of the United

States.



Here, again, the consideration presses itself upon us that, if there was

designed to be a particular class of native-born persons within the

States, deriving their citizenship from the Constitution and laws of the

United States, they should at least have been referred to as those by

whom the President and House of Representatives were to be elected, and

to whom they should be responsible.



Instead of that, we again find this subject referred to the laws of the

several States.  The electors of President are to be appointed in such

manner as the Legislature of each State may direct, and the

qualifications of electors of members of the House of Representatives

shall be the same as for electors of the most numerous branch of the

State Legislature.



Laying aside, then, the case of aliens, concerning which the

Constitution of the United States has provided, and confining our view

to free persons born within the several States, we find that the

Constitution has recognised the general principle of public law that

allegiance and citizenship depend on the place of birth; that it has not

attempted practically to apply this principle by designating the

particular classes of persons who should or should not come under it;

that, when we turn to the Constitution for an answer to the question

what free persons born within the several States are citizens of the

United States, the only answer we can receive from any of its express

provisions is the citizens of the several States are to enjoy the

privileges and immunities of citizens in every State, and their

franchise as electors under the Constitution depends on their

citizenship in the several States.  Add to this that the Constitution

was ordained by the citizens of the several States that they were "the

people of the United States," for whom [60 U.S. 582] and whose posterity

the Government was declared in the preamble of the Constitution to be

made; that each of them was "a citizen of the United States at the time

of the adoption of the Constitution" within the meaning of those words

in that instrument; that by them the Government was to be and was in

fact organized; and that no power is conferred on the Government of the

Union to discriminate between them, or to disfranchise any of them --

the necessary conclusion is that those persons born within the several

States who, by force of their respective Constitutions and laws, are

citizens of the State are thereby citizens of the United States.



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

the subject.



It has been often asserted that the Constitution was made exclusively by

and for the white race.  It has already been shown that, in five of the

thirteen original States, colored persons then possessed the elective

franchise, and were among those by whom the Constitution was ordained

and established.  If so, it is not true, in point of fact, that the

Constitution was made exclusively by the white race.  And that it was

made exclusively for the white race is, in my opinion, not only an

assumption not warranted by anything in the Constitution, but

contradicted by its opening declaration that it was ordained and

established by the people of the United States, for themselves and their

posterity.  And as free colored persons were then citizens of at least

five States, and so in every sense part of the people of the United

States, they were among those for whom and whose posterity the

Constitution was ordained and established.



Again, it has been objected that if the Constitution has left to the

several States the rightful power to determine who of their inhabitants

shall be citizens of the United States, the States may make aliens

citizens.



The answer is obvious.  The Constitution has left to the States the

determination what persons, born within their respective limits, shall

acquire by birth citizenship of the United States; it has not left to

them any power to prescribe any rule for the removal of the disabilities

of alienage.  This power is exclusively in Congress.



It has been further objected that, if free colored persons, born within

a particular State and made citizens of that State by its Constitution

and laws, are thereby made citizens of the United States, then, under

the second section of the fourth article of the Constitution, such

persons would be entitled to all the privileges and immunities of

citizens in the several States, and, if so, then colored persons could

vote, and be [60 U.S. 583] eligible to not only Federal offices, but

offices even in those States whose Constitution and laws disqualify

colored persons from voting or being elected to office.



But this position rests upon an assumption which I deem untenable.  Its

basis is that no one can be deemed a citizen of the United States who is

not entitled to enjoy all the privileges and franchises which are

conferred on any citizen.  See 1 Lit.Kentucky R. 326.  That this is not

true under the Constitution of the United States seems to me clear.



A naturalized citizen cannot be President of the United States, nor a

Senator till after the lapse of nine years, nor a Representative till

after the lapse of seven years, from his naturalization.  Yet as soon as

naturalized, he is certainly a citizen of the United States.  Nor is any

inhabitant of the District of Columbia, or of either of the Territories,

eligible to the office of Senator or Representative in Congress, though

they may be citizens of the United States.  So, in all the States,

numerous persons, though citizens, cannot vote, or cannot hold office,

either on account of their age, or sex, or the want of the necessary

legal qualifications.  The truth is that citizenship, under the

Constitution of the United States, is not dependent on the possession of

any particular political or even of all civil rights, and any attempt so

to define it must lead to error.  To what citizens the elective

franchise shall be confided is a question to be determined by each State

in accordance with its own views of the necessities or expediencies of

its condition.  What civil rights shall be enjoyed by its citizens, and

whether all shall enjoy the same, or how they may be gained or lost, are

to be determined in the same way.



One may confine the right of suffrage to white male citizens; another

may extend it to colored persons and females; one may allow all persons

above a prescribed age to convey property and transact business; another

may exclude married women.  But whether native-born women, or persons

under age, or under guardianship because insane or spendthrifts, be

excluded from voting or holding office, or allowed to do so, I apprehend

no one will deny that they are citizens of the United States.  Besides,

this clause of the Constitution does not confer on the citizens of one

State, in all other States, specific and enumerated privileges and

immunities.  They are entitled to such as belong to citizenship, but not

to such as belong to particular citizens attended by other

qualifications.  Privileges and immunities which belong to certain

citizens of a State by reason of the operation of causes other than mere

citizenship are not conferred.  Thus, if the laws of a State require, in

addition to [60 U.S. 584] citizenship of the State, some qualification

for office or the exercise of the elective franchise, citizens of all

other States coming thither to reside and not possessing those

qualifications cannot enjoy those privileges, not because they are not

to be deemed entitled to the privileges of citizens of the State in

which they reside, but because they, in common with the native-born

citizens of that State, must have the qualifications prescribed by law

for the enjoyment of such privileges under its Constitution and laws. 

It rests with the States themselves so to frame their Constitutions and

laws as not to attach a particular privilege or immunity to mere naked

citizenship.  If one of the States will not deny to any of its own

citizens a particular privilege or immunity -- if it confer it on all of

them by reason of mere naked citizenship -- then it may be claimed by

every citizen of each State by force of the Constitution, and it must be

borne in mind that the difficulties which attend the allowance of the

claims of colored persons to be citizens of the United States are not

avoided by saying that, though each State may make them its citizens,

they are not thereby made citizens of the United States, because the

privileges of general citizenship are secured to the citizens of each

State.  The language of the Constitution is "The citizens of each State

shall be entitled to all privileges and immunities of citizens in the

several States."  If each State may make such persons its citizens, they

became, as such, entitled to the benefits of this article if there be a

native-born citizenship of the United States distinct from a native-born

citizenship of the several States.



There is one view of this article entitled to consideration in this

connection.  It is manifestly copied from the fourth of the Articles of

Confederation, with only slight changes of phraseology which render its

meaning more precise, and dropping the clause which excluded paupers,

vagabonds, and fugitives from justice, probably because these cases

could be dealt with under the police powers of the States, and a special

provision therefor was not necessary.  It has been suggested that, in

adopting it into the Constitution, the words "free inhabitants" were

changed for the word "citizens."  An examination of the forms of

expression commonly used in the State papers of that day, and an

attention to the substance of this article of the Confederation, will

show that the words "free inhabitants," as then used, were synonymous

with citizens.  When the Articles of Confederation were adopted, we were

in the midst of the war of the Revolution, and there were very few

persons then embraced in the words "free inhabitants" who were not born

on our soil.  It was not a time when many save the [60 U.S. 585]

children of the soil were willing to embark their fortunes in our cause,

and though there might be an inaccuracy in the uses of words to call

free inhabitants citizens, it was then a technical, rather than a

substantial, difference.  If we look into the Constitutions and State

papers of that period, we find the inhabitants or people of these

colonies, or the inhabitants of this State or Commonwealth, employed to

designate those whom we should now denominate citizens.  The substance

and purpose of the article prove it was in this sense it used these

words; it secures to the free inhabitants of each State the privileges

and immunities of free citizens in every State.  It is not conceivable

that the States should have agreed to extend the privileges of

citizenship to persons not entitled to enjoy the privileges of citizens

in the States where they dwelt that, under this article, there was a

class of persons in some of the States, not citizens, to whom were

secured all the privileges and immunities of citizens when they went

into other States; and the just conclusion is that, though the

Constitution cured an inaccuracy of language, it left the substance of

this article in the National Constitution the same as it was in the

Articles of Confederation.



The history of this fourth article, respecting the attempt to exclude

free persons of color from its operation, has been already stated.  It

is reasonable to conclude that this history was known to those who

framed and adopted the Constitution.  That, under this fourth article of

the Confederation, free persons of color might be entitled to the

privileges of general citizenship, if otherwise entitled thereto, is

clear.  When this article was, in substance, placed in and made part of

the Constitution of the United States, with no change in its language

calculated to exclude free colored persons from the benefit of its

provisions, the presumption is, to say the least, strong that the

practical effect which it was designed to have, and did have, under the

former Government, it was designed to have, and should have, under the

new Government.



It may be further objected that, if free colored persons may be citizens

of the United States, it depends only on the will of a master whether he

will emancipate his slave and thereby make him a citizen.  Not so.  The

master is subject to the will of the State.  Whether he shall be allowed

to emancipate his slave at all; if so, on what conditions; and what is

to be the political status of the freed man depend, not on the will of

the master, but on the will of the State, upon which the political

status of all its native-born inhabitants depends.  Under the

Constitution of the United States, each State has retained this power of

determining the political status of its native-born [60 U.S. 586]

inhabitants, and no exception thereto can be found in the Constitution. 

And if a master in a slaveholding State should carry his slave into a

free State, and there emancipate him, he would not thereby make him a

native-born citizen of that State, and consequently no privileges could

be claimed by such emancipated salve as a citizen of the United States. 

For whatever powers the States may exercise to confer privileges of

citizenship on persons not born on their soil, the Constitution of the

United States does not recognise such citizens.  As has already been

said, it recognises the great principle of public law that allegiance

and citizenship spring from the place of birth.  It leaves to the States

the application of that principle to individual cases.  It secured to

the citizens of each State the privileges and immunities of citizens in

every other State.  But it does not allow to the States the power to

make aliens citizens, or permit one State to take persons born on the

soil of another State, and contrary to the laws and policy of the State

where they were born, make them its citizens, and so citizens of the

United States.  No such deviation from the great rule of public law was

contemplated by the Constitution, and when any such attempt shall be

actually made, it is to be met by applying to it those rules of law and

those principles of good faith which will be sufficient to decide it,

and not, in my judgment, by denying that all the free native-born

inhabitants of a State who are its citizens under its Constitution and

laws are also citizens of the United States.



It has sometimes been urged that colored persons are shown not to be

citizens of the United States by the fact that the naturalization laws

apply only to white persons.  But whether a person born in the United

States be or be not a citizen cannot depend on laws which refer only to

aliens, and do not affect the status of persons born in the United

States.  The utmost effect which can be attributed to them is to show

that Congress has not deemed it expedient generally to apply the rule to

colored aliens.  That they might do so, if though fit, is clear.  The

Constitution has not excluded them.  And since that has conferred the

power on Congress to naturalize colored aliens, it certainly shows color

is not a necessary qualification for citizenship under the Constitution

of the United States.  It may be added that the power to make colored

persons citizens of the United States under the Constitution has been

actually exercised in repeated and important instances.  See the

Treaties with the Choctaws, of September 27, 1830, art. 14; with the

Cherokees, of May 23, 1836, art. 12; Treaty of Guadalupe Hidalgo,

February 2, 1848, art. 8.



I do not deem it necessary to review at length the legislation [60 U.S.

587] of Congress having more or less bearing on the citizenship of

colored persons.  It does not seem to me to have any considerable

tendency to prove that it has been considered by the legislative

department of the Government that no such persons are citizens of the

United States.  Undoubtedly they have been debarred from the exercise of

particular rights or privileges extended to white persons, but, I

believe, always in terms which, by implication, admit they may be

citizens.  Thus, the act of May 17, 1792, for the organization of the

militia directs the enrollment of "every free, able-bodied, white male

citizen."  An assumption that none but white persons are citizens would

be as inconsistent with the just import of this language as that all

citizens are able-bodied, or males.



So the Act of February 28, 1803, 2 Stat. at Large 205, to prevent the

importation of certain persons into States when by the laws thereof

their admission is prohibited, in its first section, forbids all masters

of vessels to import or bring "any negro, mulatto, or other person of

color, not being a native, a citizen, or registered seaman of the United

States," &c.



The Acts of March 3, 1813, section 1, 2 Stat. at Large 809, and March 1,

1817, section 3, 3 Stat. at Large 351, concerning seamen, certainly

imply there may be persons of color, natives of the United States who

are not citizens of the United States.  This implication is undoubtedly

in accordance with the fact.  For not only slaves, but free persons of

color, born in some of the States, are not citizens.  But there is

nothing in these laws inconsistent with the citizenship of persons of

color in others of the States, nor with their being citizens of the

United States.



Whether much or little weight should be attached to the particular

phraseology of these and other laws, which were not passed with any

direct reference to this subject, I consider their tendency to be, as

already indicated, to show that, in the apprehension of their framers,

color was not a necessary qualification of citizenship.  It would be

strange if laws were found on our statute book to that effect when, by

solemn treaties, large bodies of Mexican and North American Indians as

well as free colored inhabitants of Louisiana have been admitted to

citizenship of the United States.



In the legislative debates which preceded the admission of the State of

Missouri into the Union, this question was agitated.  Its result is

found in the resolution of Congress of March 5, 1821, for the admission

of that State into the Union.  The Constitution of Missouri, under which

that State applied for admission into the Union, provided that it should

be the duty [60 U.S. 588] of the Legislature "to pass laws to prevent

free negroes and mulattoes from coming to and settling in the State

under any pretext whatever."  One ground of objection to the admission

of the State under this Constitution was that it would require the

Legislature to exclude free persons of color, who would be entitled,

under the second section of the fourth article of the Constitution, not

only to come within the State, but to enjoy there the privileges and

immunities of citizens.  The resolution of Congress admitting the State

was upon the fundamental condition that the Constitution of Missouri

shall never be construed to authorize the passage of any law, and that

no law shall be passed in conformity thereto, by which any citizen of

either of the States of this Union shall be excluded from the enjoyment

of any of the privileges and immunities to which such citizen is

entitled under the Constitution of the United States. It is true that

neither this legislative declaration nor anything in the Constitution or

laws of Missouri could confer or take away any privilege or immunity

granted by the Constitution.  But it is also true that it expresses the

then conviction of the legislative power of the United States that free

negroes, as citizens of some of the States, might be entitled to the

privileges and immunities of citizens in all the States.



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



First.  That the free native-born citizens of each State are citizens of

the United States.



Second.  That, as free colored persons born within some of the States

are citizens of those States, such persons are also citizens of the

United States.



Third.  That every such citizen, residing in any State, has the right to

sue and is liable to be sued in the Federal courts, as a citizen of that

State in which he resides.



Fourth.  That, as the plea to the jurisdiction in this case shows no

facts, except that the plaintiff was of African descent, and his

ancestors were sold as slaves, and as these facts are not inconsistent

with his citizenship of the United States and his residence in the State

of Missouri, the plea to the jurisdiction was bad, and the judgment of

the Circuit Court overruling it was correct.



I dissent, therefore, from that part of the opinion of the majority of

the court in which it is held that a person of African descent cannot be

a citizen of the United States, and I regret I must go further and

dissent both from what I deem their assumption of authority to examine

the constitutionality of the act of Congress commonly called the

Missouri Compromise [60 U.S. 589] Act and the grounds and conclusions

announced in their opinion.



Having first decided that they were bound to consider the sufficiency of

the plea to the jurisdiction of the Circuit Court, and having decided

that this plea showed that the Circuit Court had not jurisdiction, and

consequently that this is a case to which the judicial power of the

United States does not extend, they have gone on to examine the merits

of the case as they appeared on the trial before the court and jury on

the issues joined on the pleas in bar, and so have reached the question

of the power of Congress to pass the act of 1820.  On so grave a subject

as this, I feel obliged to say that, in my opinion, such an exertion of

judicial power transcends the limits of the authority of the court as

described by its repeated decisions, and as I understand, acknowledged

in this opinion of the majority of the court.



In the course of that opinion, it became necessary to comment on the

case of Legrand v. Darnall, reported in 2 Peters' R. 664.  In that case,

a bill was filed, by one alleged to be a citizen of Maryland against one

alleged to be a citizen of Pennsylvania.  The bill stated that the

defendant was the son of a white man by one of his slaves, and that the

defendant's father devised to him certain lands, the title to which was

put in controversy by the bill.  These facts were admitted in the

answer, and upon these and other facts, the court made its decree,

founded on the principle that a devise of land by a master to a slave

was, by implication, also a bequest of his freedom.  The facts that the

defendant was of African descent and was born a slave were not only

before the court, but entered into the entire substance of its

inquiries.  The opinion of the majority of my brethren in this case

disposes of the case of Legrand v. Darnall by saying, among other

things, that as the fact that the defendant was born a slave only came

before this court on the bill and answer; it was then too late to raise

the question of the personal disability of the party, and therefore that

decision is altogether inapplicable in this case.



In this I concur.  Since the decision of this court in Livingston v.

Story, 11 Pet. 351, the law has been settled that, when the declaration

or bill contains the necessary averments of citizenship, this court

cannot look at the record to see whether those averments are true except

so far as they are put in issue by a plea to the jurisdiction.  In that

case, the defendant denied by his answer that Mr. Livingston was a

citizen of New York, as he had alleged in the bill.  Both parties went

into proofs.  The court refused to examine those proofs with reference

to the personal disability of the plaintiff.  This is the [60 U.S. 590]

settled law of the court, affirmed so lately as Shepherd v. Graves, 14

How. 27, and Wickliff v. Owings, 17 How. 51.  See also De Wolf v.

Rabaud, 1 Pet. 476.  But I do not understand this to be a rule which the

court may depart from at its pleasure.  If it be a rule, it is as

binding on the court as on the suitors.  If it removes from the latter

the power to take any objection to the personal disability of a party

alleged by the record to be competent, which is not shown by a plea to

the jurisdiction, it is because the court are forbidden by law to

consider and decide on objections so taken.  I do not consider it to be

within the scope of the judicial power of the majority of the court to

pass upon any question respecting the plaintiff's citizenship in

Missouri save that raised by the plea to the jurisdiction, and I do not

hold any opinion of this Court, or any court, binding, when expressed on

a question not legitimately before it.  Carroll v. Carroll, 16 How. 275.

 The judgment of this Court is that the case is to be dismissed for want

of jurisdiction because the plaintiff was not a citizen of Missouri, as

he alleged in his declaration.  Into that judgment, according to the

settled course of this Court, nothing appearing after a plea to the

merits can enter.  A great question of constitutional law, deeply

affecting the peace and welfare of the country, is not, in my opinion, a

fit subject to be thus reached.



But as, in my opinion, the Circuit Court had jurisdiction, I am obliged

to consider the question whether its judgment on the merits of the case

should stand or be reversed.



The residence of the plaintiff in the State of Illinois, and the

residence of himself and his wife in the territory acquired from France

lying north of latitude thirty-six degrees thirty minutes and north of

the State of Missouri, are each relied on by the plaintiff in error.  As

the residence in the territory affects the plaintiff's wife and children

as well as himself, I must inquire what was its effect.



The general question may be stated to be whether the plaintiff's status

as a slave was so changed by his residence within that territory that he

was not a slave in the State of Missouri at the time this action was

brought.



In such cases, two inquiries arise which may be confounded, but should

be kept distinct.



The first is what was the law of the Territory into which the master and

slave went respecting the relation between them?



The second is whether the State of Missouri recognises and allows the

effect of that law of the Territory on the status of the slave on his

return within its jurisdiction.



As to the first of these questions, the will of States and nations, [60

U.S. 591] by whose municipal law slavery is not recognised, has been

manifested in three different ways.



One is absolutely to dissolve the relation, and terminate the rights of

the master existing under the law of the country whence the parties

came.  This is said by Lord Stowell, in the Case of the Slave Grace, 2

Hag.Ad.R. 94, and by the Supreme Court of Louisiana in the Case of Maria

Louise v. Marot, 9 Louis.R. 473, to be the law of France, and it has

been the law of several States of this Union, in respect to slaves

introduced under certain conditions.  Wilson v. Isabel, 5 Call's R. 430;

Hunter v. Hulcher, 1 Leigh 172; Stewart v. Oaks, 5 Har. and John. 107.



The second is where the municipal law of a country not recognising

slavery, it is the will of the State to refuse the master all aid to

exercise any control over his slave, and if he attempt to do so, in a

manner justifiable only by that relation, to prevent the exercise of

that control.  But no law exists designed to operate directly on the

relation of master and slave, and put an end to that relation.  This is

said by Lord Stowell, in the case above mentioned, to be the law of

England, and by Mr. Chief Justice Shaw, in the case of the Commonwealth

v. Aves, 18 Pick. 193, to be the law of Massachusetts.



The third is to make a distinction between the case of a master and his

slave only temporarily in the country, animo non manendi, and those who

are there to reside for permanent or indefinite purposes.  This is said

by Mr. Wheaton to be the law of Prussia, and was formerly the statute

law of several States of our Union.  It is necessary in this case to

keep in view this distinction between those countries whose laws are

designed to act directly on the status of a slave, and make him a

freeman, and those where his master can obtain no aid from the laws to

enforce his rights.



It is to the last case only that the authorities, out of Missouri,

relied on by defendant, apply when the residence in the nonslaveholding

Territory was permanent.  In the Commonwealth v. Aves, 18 Pick. 218, Mr.

Chief Justice Shaw said: From the principle above stated, on which a

slave brought here becomes free, to-wit, that he becomes entitled to the

protection of our laws, it would seem to follow as a necessary

conclusion that, if the slave waives the protection of those laws and

returns to the State where he is held as a slave, his condition is not

changed. It was upon this ground, as is apparent from his whole

reasoning, that Sir William Scott rests his opinion in the Case of the

Slave Grace.  To use one of his expressions, the effect of the law of

England was to put the liberty of the slave into a parenthesis.  If

there had been an [60 U.S. 592] act of Parliament declaring that a slave

coming to England with his master should thereby be deemed no longer to

be a slave, it is easy to see that the learned judge could not have

arrived at the same conclusion.  This distinction is very clearly stated

and shown by President Tucker in his opinion in the case of Betty v.

Horton, 5 Leigh's Virginia R. 615.  See also Hunter v. Fletcher, 1

Leigh's Va.R. 172; Maria Louise v. Marot, 9 Louisiana R.; Smith v.

Smith, 13 ib. 441; Thomas v. Genevieve, 16 ib. 483; Rankin v. Lydia, 2

A. K. Marshall 467; Davies v. Tingle, 8 B.Munroe 539; Griffeth v. Fanny,

Gilm.Va.R. 143; Lumford v. Coquillon, 14 Martin's La.R. 405; Josephine

v. Poultney, 1 Louis.Ann.R. 329.



But if the acts of Congress on this subject are valid, the law of the

Territory of Wisconsin, within whose limits the residence of the

plaintiff and his wife and their marriage and the birth of one or both

of their children took place, falls under the first category, and is a

law operating directly on the status of the slave.  By the eighth

section of the Act of March 6, 1820, 3 Stat. at Large 548, it was

enacted that, within this Territory, slavery and involuntary servitude,

otherwise than in the punishment of crimes, whereof the parties shall

have been duly convicted, shall be, and is hereby, forever prohibited: 

Provided always that any person escaping into the same, from whom labor

or service is lawfully claimed in any State or Territory of the United

States, such fugitive may be lawfully reclaimed, and conveyed to the

person claiming his or her labor or service, as aforesaid.



By the Act of April 20, 1836, 4 Stat. at Large 10, passed in the same

month and year of the removal of the plaintiff to Fort Snelling, this

part of the territory ceded by France, where Fort Snelling is, together

with so much of the territory of the United States east of the

Mississippi as now constitutes the State of Wisconsin, was brought under

a Territorial Government under the name of the Territory of Wisconsin. 

By the eighteenth section of this act, it was enacted That the

inhabitants of this Territory shall be entitled to and enjoy all and

singular the rights, privileges, and advantages, granted and secured to

the people of the Territory of the United States northwest of the river

Ohio, by the articles of compact contained in the ordinance for the

government of said Territory, passed on the 13th day of July, 1787, and

shall be subject to all the restrictions and prohibitions in said

articles of compact imposed upon the people of the said Territory. The

sixth article of that compact is there shall be neither slavery nor

involuntary servitude in the said Territory, otherwise than in [60 U.S.

593] the punishment of crimes, whereof the party shall have been duly

convicted.  Provided always that any person escaping into the same, from

whom labor or service is lawfully claimed in anyone of the original

States, such fugitive may be lawfully reclaimed, and conveyed to the

person claiming his or her labor or service, as aforesaid. By other

provisions of this act establishing the Territory of Wisconsin, the laws

of the United States, and the then existing laws of the State of

Michigan, are extended over the Territory, the latter being subject to

alteration and repeal by the legislative power of the Territory created

by the act.



Fort Snelling was within the Territory of Wisconsin, and these laws were

extended over it.  The Indian title to that site for a military post had

been acquired from the Sioux nation as early as September 23, 1805,

Am.State Papers, Indian Affairs, vol. 1, p. 744, and until the erection

of the Territorial Government, the persons at that post were governed by

the rules and articles of war, and such laws of the United States,

including the eighth section of the Act of March 6, 1820, prohibiting

slavery, as were applicable to their condition; but after the erection

of the Territory, and the extension of the laws of the United States and

the laws of Michigan over the whole of the Territory, including this

military post, the persons residing there were under the dominion of

those laws in all particulars to which the rules and articles of war did

not apply.



It thus appears that, by these acts of Congress, not only was a general

system of municipal law borrowed from the State of Michigan, which did

not tolerate slavery, but it was positively enacted that slavery and

involuntary servitude, with only one exception, specifically described,

should not exist there.  It is not simply that slavery is not recognised

and cannot be aided by the municipal law.  It is recognised for the

purpose of being absolutely prohibited and declared incapable of

existing within the Territory, save in the instance of a fugitive slave.



It would not be easy for the Legislature to employ more explicit

language to signify its will that the status of slavery should not exist

within the Territory than the words found in the Act of 1820, and in the

Ordinance of 1787, and if any doubt could exist concerning their

application to cases of masters coming into the Territory with their

slaves to reside that doubt must yield to the inference required by the

words of exception.  That exception is of cases of fugitive slaves.  An

exception from a prohibition marks the extent of the prohibition, for it

would be absurd, as well as useless, to except from a prohibition [60

U.S. 594] a case not contained within it.  9 Wheat. 200.  I must

conclude, therefore that it was the will of Congress that the state of

involuntary servitude of a slave coming into the Territory with his

master should cease to exist.  The Supreme Court of Missouri so held in

Rachel v. Walker, 4 Misso.R., 350, which was the case of a military

officer going into the Territory with two slaves.



But it is a distinct question whether the law of Missouri recognised and

allowed effect to the change wrought in the status of the plaintiff by

force of the laws of the Territory of Wisconsin.



I say the law of Missouri because a judicial tribunal in one State or

nation can recognise personal rights acquired by force of the law of any

other State or nation only so far as it is the law of the former State

that those rights should be recognised.  But, in the absence of positive

law to the contrary, the will of every civilized State must be presumed

to be to allow such effect to foreign laws as is in accordance with the

settled rules of international law.  And legal tribunals are bound to

act on this presumption.  It may be assumed that the motive of the State

in allowing such operation to foreign laws is what has been termed

comity.  But, as has justly been said per Chief Justice Taney, 13 Pet.

589, it is the comity of the State, not of the court.  The judges have

nothing to do with the motive of the State.  Their duty is simply to

ascertain and give effect to its will.  And when it is found by them

that its will to depart from a rule of international law has not been

manifested by the State, they are bound to assume that its will is to

give effect to it.  Undoubtedly, every sovereign State may refuse to

recognise a change, wrought by the law of a foreign State, on the status

of a person while within such foreign State, even in cases where the

rules of international law require that recognition.  Its will to refuse

such recognition may be manifested by what we term statute law, or by

the customary law of the State.  It is within the province of its

judicial tribunals to inquire and adjudge whether it appears, from the

statute or customary law of the State, to be the will of the State to

refuse to recognise such changes of status by force of foreign law, as

the rules of the law of nations require to be recognised.  But, in my

opinion, it is not within the province of any judicial tribunal to

refuse such recognition from any political considerations, or any view

it may take of the exterior political relations between the State and

one or more foreign States, or any impressions it may have that a change

of foreign opinion and action on the subject of slavery may afford a

reason why the State should change its own action.  To understand and

give [60 U.S. 595] just effect to such considerations, and to change the

action of the State in consequence of them, are functions of

diplomatists and legislators, not of judges.



The inquiry to be made on this part of the case is therefore whether the

State of Missouri has, by its statute, or its customary law, manifested

its will to displace any rule of international law, applicable to a

change of the status of a slave, by foreign law.



I have not heard it suggested that there was any statute of the State of

Missouri bearing on this question.  The customary law of Missouri is the

common law, introduced by statute in 1816.  1 Ter.Laws, 436.  And the

common law, as Blackstone says, 4 Com. 67, adopts, in its full extent,

the law of nations, and holds it to be a part of the law of the land.



I know of no sufficient warrant for declaring that any rule of

international law concerning the recognition, in that State, of a change

of status wrought by an extraterritorial law has been displaced or

varied by the will of the State of Missouri.



I proceed then to inquire what the rules of international law prescribe

concerning the change of status of the plaintiff wrought by the law of

the Territory of Wisconsin.



It is generally agreed by writers upon international law, and the rule

has been judicially applied in a great number of cases, that wherever

any question may arise concerning the status of a person, it must be

determined according to that law which has next previously rightfully

operated on and fixed that status.  And further, that the laws of a

country do not rightfully operate upon and fix the status of persons who

are within its limits in itinere, or who are abiding there for definite

temporary purposes, as for health, curiosity, or occasional business;

that these laws, known to writers on public and private international

law as personal statutes, operate only on the inhabitants of the

country.  Not that it is or can be denied that each independent nation

may, if it thinks fit, apply them to all persons within their limits. 

But when this is done not in conformity with the principles of

international law, other States are not understood to be willing to

recognise or allow effect to such applications of personal statutes.



It becomes necessary, therefore, to inquire whether the operation of the

laws of the Territory of Wisconsin upon the status of the plaintiff was

or was not such an operation as these principles of international law

require other States to recognise and allow effect to.



And this renders it needful to attend to the particular facts and

circumstances of this case. [60 U.S. 596]



It appears that this case came on for trial before the Circuit Court and

a jury upon an issue, in substance, whether the plaintiff, together with

his wife and children, were the slaves of the defendant.



The court instructed the jury that, "upon the facts in this case, the

law is with the defendant."  This withdrew from the jury the

consideration and decision of every matter of fact.  The evidence in the

case consisted of written admissions, signed by the counsel of the

parties.  If the case had been submitted to the judgment of the court

upon an agreed statement of facts, entered of record, in place of a

special verdict, it would have been necessary for the court below, and

for this court, to pronounce its judgment solely on those facts, thus

agreed, without inferring any other facts therefrom.  By the rules of

the common law applicable to such a case, and by force of the seventh

article of the amendments of the Constitution, this court is precluded

from finding any fact not agreed to by the parties on the record.  No

submission to the court on a statement of facts was made.  It was a

trial by jury, in which certain admissions, made by the parties, were

the evidence.  The jury were not only competent, but were bound to draw

from that evidence every inference which, in their judgment, exercised

according to the rules of law, it would warrant.  The Circuit Court took

from the jury the power to draw any inferences from the admissions made

by the parties, and decided the case for the defendant.  This course can

be justified here, if at all, only by its appearing that, upon the facts

agreed and all such inferences of fact favorable to the plaintiff's case

as the jury might have been warranted in drawing from those admissions,

the law was with the defendant.  Otherwise, the plaintiff would be

deprived of the benefit of his trial by jury, by whom, for aught we can

know, those inferences favorable to his case would have been drawn.



The material facts agreed bearing on this part of the case are that Dr.

Emerson, the plaintiff's master, resided about two years at the military

post of Fort Snelling, being a surgeon in the army of the United States,

his domicil of origin being unknown, and what, if anything, he had done

to preserve or change his domicil prior to his residence at Rock Island

being also unknown.



Now it is true that, under some circumstances the residence of a

military officer at a particular place in the discharge of his official

duties does not amount to the acquisition of a technical domicil.  But

it cannot be affirmed with correctness that it never does.  There being

actual residence, and this being presumptive evidence of domicil, all

the circumstances [60 U.S. 597] of the case must be considered before a

legal conclusion can be reached that his place of residence is not his

domicil.  If a military officer stationed at a particular post should

entertain an expectation that his residence there would be indefinitely

protracted, and in consequence should remove his family to the place

where his duties were to be discharged, form a permanent domestic

establishment there, exercise there the civil rights and discharge the

civil duties of an inhabitant, while he did not act and manifested no

intent to have a domicil elsewhere, I think no one would say that the

mere fact that he was himself liable to be called away by the orders of

the Government would prevent his acquisition of a technical domicil at

the place of the residence of himself and his family.  In other words, I

do not think a military officer incapable of acquiring a domicil.  Bruce

v. Bruce, 2 Bos. and Pul. 230; Munroe v. Douglass, 5 Mad.Ch.R. 232. 

This being so, this case stands thus:  there was evidence before the

jury that Emerson resided about two years at Fort Snelling, in the

Territory of Wisconsin.  This may or may not have been with such intent

as to make it his technical domicil.  The presumption is that it was. 

It is so laid down by this court, in Ennis v. Smith, 14 How. and the

authorities in support of the position are there referred to.  His

intent was a question of fact for the jury.  Fitchburg v. Winchendon, 4

Cush. 190.



The case was taken from the jury.  If they had power to find that the

presumption of the necessary intent had not been rebutted, we cannot

say, on this record that Emerson had not his technical domicil at Fort

Snelling.  But, for reasons which I shall now proceed to give, I do not

deem it necessary in this case to determine the question of the

technical domicil of Dr. Emerson.



It must be admitted that the inquiry whether the law of a particular

country has rightfully fixed the status of a person, so that in

accordance with the principles of international law that status should

be recognised in other jurisdictions, ordinarily depends on the question

whether the person was domiciled in the country whose laws are asserted

to have fixed his status.  But, in the United States, questions of this

kind may arise where an attempt to decide solely with reference to

technical domicil, tested by the rules which are applicable to changes

of places of abode from one country to another, would not be consistent

with sound principles.  And, in my judgment, this is one of those cases.



The residence of the plaintiff, who was taken by his master, Dr.

Emerson, as a slave, from Missouri to the State of Illinois, and thence

to the Territory of Wisconsin, must be deemed to [60 U.S. 598] have been

for the time being, and until he asserted his own separate intention,

the same as the residence of his master, and the inquiry whether the

personal statutes of the Territory were rightfully extended over the

plaintiff, and ought, in accordance with the rules of international law,

to be allowed to fix his status, must depend upon the circumstances

under which Dr. Emerson went into that Territory and remained there, and

upon the further question whether anything was there rightfully done by

the plaintiff to cause those personal statutes to operate on him.



Dr. Emerson was an officer in the army of the United States.  He went

into the Territory to discharge his duty to the United States.  The

place was out of the jurisdiction of any particular State, and within

the exclusive jurisdiction of the United States.  It does not appear

where the domicil of origin of Dr. Emerson was, nor whether or not he

had lost it, and gained another domicil, nor of what particular State,

if any, he was a citizen.



On what ground can it be denied that all valid laws of the United

States, constitutionally enacted by Congress for the government of the

Territory, rightfully extended over an officer of the United States and

his servant who went into the Territory to remain there for an

indefinite length of time, to take part in its civil or military

affairs?  They were not foreigners, coming from abroad.  Dr. Emerson was

a citizen of the country which had exclusive jurisdiction over the

Territory, and not only a citizen, but he went there in a public

capacity, in the service of the same sovereignty which made the laws. 

Whatever those laws might be, whether of the kind denominated personal

statutes or not, so far as they were intended by the legislative will,

constitutionally expressed, to operate on him and his servant, and on

the relations between them, they had a rightful operation, and no other

State or country can refuse to allow that those laws might rightfully

operate on the plaintiff and his servant, because such a refusal would

be a denial that the United States could, by laws constitutionally

enacted, govern their own servants, residing on their own Territory,

over which the United States had the exclusive control, and in respect

to which they are an independent sovereign power.  Whether the laws now

in question were constitutionally enacted, I repeat once more, is a

separate question.  But, assuming that they were, and that they operated

directly on the status of the plaintiff, I consider that no other State

or country could question the rightful power of the United States so to

legislate, or, consistently with the settled rules of international law,

could refuse to recognise the effects [60 U.S. 599] of such legislation

upon the status of their officers and servants, as valid everywhere.



This alone would, in my apprehension, be sufficient to decide this

question.



But there are other facts stated on the record which should not be

passed over.  It is agreed that, in the year 1836, the plaintiff, while

residing in the Territory, was married, with the consent of Dr. Emerson,

to Harriet, named in the declaration as his wife, and that Eliza and

Lizzie were the children of that marriage, the first named having been

born on the Mississippi river, north of the line of Missouri, and the

other having been born after their return to Missouri.  And the inquiry

is whether, after the marriage of the plaintiff in the Territory, with

the consent of Dr. Emerson, any other State or country can, consistently

with the settled rules of international law, refuse to recognise and

treat him as a free man when suing for the liberty of himself, his wife,

and the children of the marriage.  It is in reference to his status as

viewed in other States and countries that the contract of marriage and

the birth of children becomes strictly material.  At the same time, it

is proper to observe that the female to whom he was married having been

taken to the same military post of Fort Snelling as a slave, and Dr.

Emerson claiming also to be her master at the time of her marriage, her

status, and that of the children of the marriage, are also affected by

the same considerations.



If the laws of Congress governing the Territory of Wisconsin were

constitutional and valid laws, there can be no doubt these parties were

capable of contracting a lawful marriage, attended with all the usual

civil rights and obligations of that condition.  In that Territory, they

were absolutely free persons, having full capacity to enter into the

civil contract of marriage.



It is a principle of international law, settled beyond controversy in

England and America, that a marriage, valid by the law of the place

where it was contracted, and not in fraud of the law of any other place,

is valid everywhere, and that no technical domicil at the place of the

contract is necessary to make it so.  See Bishop on Mar. and Div.

125-129, where the cases are collected.



If, in Missouri, the plaintiff were held to be a slave, the validity and

operation of his contract of marriage must be denied.  He can have no

legal rights, of course, not those of a husband and father.  And the

same is true of his wife and children.  The denial of his rights is the

denial of theirs.  So that, though lawfully married in the Territory,

when they came out of it, into the State of Missouri, they were no

longer [60 U.S. 600] husband and wife, and a child of that lawful

marriage, though born under the same dominion where its parents

contracted a lawful marriage, is not the fruit of that marriage, nor the

child of its father, but subject to the maxim partus sequitur ventrem.



It must be borne in mind that, in this case, there is no ground for the

inquiry whether it be the will of the State of Missouri not to recognise

the validity of the marriage of a fugitive slave, who escapes into a

State or country where slavery is not allowed and there contracts a

marriage, or the validity of such a marriage where the master, being a

citizen of the State of Missouri, voluntarily goes with his slave, in

itinere, into a State or country which does not permit slavery to exist,

and the slave there contracts marriage without the consent of his

master, for in this case, it is agreed, Dr. Emerson did consent, and no

further question can arise concerning his rights so far as their

assertion is inconsistent with the validity of the marriage.  Nor do I

know of any ground for the assertion that this marriage was in fraud of

any law of Missouri.  It has been held by this court that a bequest of

property by a master to his slave by necessary implication entitles the

slave to his freedom, because only as a freeman could he take and hold

the bequest.  Legrand v. Darnall, 2 Pet.R. 664.  It has also been held

that, when a master goes with his slave to reside for an indefinite

period in a State where slavery is not tolerated, this operates as an

act of manumission, because it is sufficiently expressive of the consent

of the master that the slave should be free.  2 Marshall's Ken.R. 470,

14 Martin's Louis.R. 401.



What, then, shall we say of the consent of the master that the slave may

contract a lawful marriage, attended with all the civil rights and

duties which belong to that relation; that he may enter into a relation

which none but a free man can assume -- a relation which involves not

only the rights and duties of the slave, but those of the other party to

the contract, and of their descendants to the remotest generation?  In

my judgment, there can be no more effectual abandonment of the legal

rights of a master over his slave than by the consent of the master that

the slave should enter into a contract of marriage in a free State,

attended by all the civil rights and obligations which belong to that

condition.



And any claim by Dr. Emerson, or anyone claiming under him the effect of

which is to deny the validity of this marriage and the lawful paternity

of the children born from it, wherever asserted, is, in my judgment, a

claim inconsistent with good faith and sound reason, as well as with the

rules of international law.  And I go further:  in my opinion, a law of

the State [60 U.S. 601] of Missouri which should thus annul a marriage,

lawfully contracted by these parties while resident in Wisconsin, not in

fraud of any law of Missouri, or of any right of Dr. Emerson, who

consented thereto, would be a law impairing the obligation of a

contract, and within the prohibition of the Constitution of the United

States.  See 4 Wheat. 629, 695, 696.



To avoid misapprehension on this important and difficult subject, I will

state distinctly the conclusions at which I have arrived.  They are:



First.  The rules of international law respecting the emancipation of

slaves, by the rightful operation of the laws of another State or

country upon the status of the slave, while resident in such foreign

State or country, are part of the common law of Missouri, and have not

been abrogated by any statute law of that State.



Second.  The laws of the United States, constitutionally enacted, which

operated directly on and changed the status of a slave coming into the

Territory of Wisconsin with his master, who went thither to reside for

an indefinite length of time, in the performance of his duties as an

officer of the United States, had a rightful operation on the status of

the slave, and it is in conformity with the rules of international law

that this change of status should be recognised everywhere.



Third.  The laws of the United States, in operation in the Territory of

Wisconsin at the time of the plaintiff's residence there, did act

directly on the status of the plaintiff, and change his status to that

of a free man.



Fourth.  The plaintiff and his wife were capable of contracting, and,

with the consent of Dr. Emerson, did contract a marriage in that

Territory, valid under its laws, and the validity of this marriage

cannot be questioned in Missouri, save by showing that it was in fraud

of the laws of that State or of some right derived from them, which

cannot be shown in this case, because the master consented to it.



Fifth.  That the consent of the master that his slave, residing in a

country which does not tolerate slavery, may enter into a lawful

contract of marriage, attended with the civil rights and duties which

being to that condition, is an effectual act of emancipation.  And the

law does not enable Dr. Emerson, or anyone claiming under him, to assert

a title to the married persons as slaves, and thus destroy the

obligation of the contract of marriage and bastardize their issue and

reduce them to slavery.



But it is insisted that the Supreme Court of Missouri has settled this

case by its decision in Scott v. Emerson, 15 Missouri Reports 576, and

that this decision is in conformity [60 U.S. 602] with the weight of

authority elsewhere, and with sound principles.  If the Supreme Court of

Missouri had placed its decision on the ground that it appeared Dr.

Emerson never became domiciled in the Territory, and so its laws could

not rightfully operate on him and his slave, and the facts that he went

there to reside indefinitely as an officer of the United States, and

that the plaintiff was lawfully married there with Dr. Emerson's

consent, were left out of view, the decision would find support in other

cases, and I might not be prepared to deny its correctness.  But the

decision is not rested on this ground.  The domicil of Dr. Emerson in

that Territory is not questioned in that decision, and it is placed on a

broad denial of the operation, in Missouri, of the law of any foreign

State or country upon the status of a slave, going with his master from

Missouri into such foreign State or country, even though they went

thither to become, and actually became, permanent inhabitants of such

foreign State or country, the laws whereof acted directly on the status

of the slave, and changed his status to that of a freeman.



To the correctness of such a decision I cannot assent.  In my judgment,

the opinion of the majority of the court in that case is in conflict

with its previous decisions, with a great weight of judicial authority

in other slaveholding States, and with fundamental principles of private

international law.  Mr. Chief Justice Gamble, in his dissenting opinion

in that case, said:



I regard the question as conclusively settled by repeated adjudications

of this court, and if I doubted or denied the propriety of those

decisions, I would not feel myself any more at liberty to overturn them

than I would any other series of decisions by which the law upon any

other question had been settled.  There is with me nothing in the law of

slavery which distinguishes it from the law on any other subject, or

allows any more accommodation to the temporary excitements which have

gathered around it. . . .  But, in the midst of all such excitement, it

is proper that the judicial mind, calm and self-balanced, should adhere

to principles established when there was no feeling to disturb the view

of the legal questions upon which the rights of parties depend.



In this State, it has been recognized from the beginning of the

Government as a correct position in law that the master who takes his

slave to reside in a State or Territory where slavery is prohibited,

thereby emancipates his slave. Winney v. Whitesides, 1 Mo. 473; Le

Grange v. Chouteau, 2 Mo. 20; Milley v. Smith, ib. 36; Ralph v. Duncan,

3 Mo. 194; Julia v. McKinney, ib. 270; Nat v. Ruddle, ib. 400; Rachel v.

Walker, 4 Mo. 350; Wilson v. Melvin, 592. [60 U.S. 603]



Chief Justice Gamble has also examined the decisions of the courts of

other States in which slavery is established, and finds them in

accordance with these preceding decisions of the Supreme Court of

Missouri, to which he refers.



It would be a useless parade of learning for me to go over the ground

which he has so fully and ably occupied.



But it is further insisted we are bound to follow this decision.  I do

not think so.  In this case, it is to be determined what laws of the

United States were in operation in the Territory of Wisconsin, and what

was their effect on the status of the plaintiff.  Could the plaintiff

contract a lawful marriage there?  Does any law of the State of Missouri

impair the obligation of that contract of marriage, destroy his rights

as a husband, bastardize the issue of the marriage, and reduce them to a

state of slavery?



These questions, which arise exclusively under the Constitution and laws

of the United States, this Court, under the Constitution and laws of the

United States, has the rightful authority finally to decide.  And if we

look beyond these questions, we come to the consideration whether the

rules of international law, which are part of the laws of Missouri until

displaced by some statute not alleged to exist, do or do not require the

status of the plaintiff, as fixed by the laws of the Territory of

Wisconsin, to be recognised in Missouri.  Upon such a question, not

depending on any statute or local usage, but on principles of universal

jurisprudence, this court has repeatedly asserted it could not hold

itself bound by the decisions of State courts, however great respect

might be felt for their learning, ability, and impartiality.  See Swift

v. Tyson, 16 Peters's R. 1; Carpenter v. The Providence Ins. Co., ib.

495; Foxcroft v. Mallet, 4 How. 353; Rowan v. Runnels, 5 How. 134.



Some reliance has been placed on the fact that the decision in the

Supreme Court of Missouri was between these parties, and the suit there

was abandoned to obtain another trial in the courts of the United

States.



In Homer v. Brown, 16 How. 354, this court made a decision upon the

construction of a devise of lands, in direct opposition to the unanimous

opinion of the Supreme Court of Massachusetts, between the same parties,

respecting the same subject matter -- the claimant having become nonsuit

in the State court in order to bring his action in the Circuit Court of

the United States.  I did not sit in that case, having been of counsel

for one of the parties while at the bar, but, on examining the report of

the argument of the counsel for the plaintiff in error, I find they made

the point that this court ought to give effect to the construction put

upon the will by the State  [60 U.S. 604] court, to the end that rights

respecting lands may be governed by one law, and that the law of the

place where the lands are situated that they referred to the State

decision of the case, reported in 3 Cushing 390, and to many decisions

of this court.  But this court does not seem to have considered the

point of sufficient importance to notice it in their opinions.  In

Millar v. Austin, 13 How. 218, an action was brought by the endorsee of

a written promise.  The question was whether it was negotiable under a

statute of Ohio.  The Supreme Court of that State having decided it was

not negotiable, the plaintiff became nonsuit, and brought his action in

the Circuit Court of the United States.  The decision of the Supreme

Court of the State, reported in 4 Ves.L.J. 527, was relied on.  This

court unanimously held the paper to be negotiable.



When the decisions of the highest court of a State are directly in

conflict with each other, it has been repeatedly held here that the last

decision is not necessarily to be taken as the rule.  State Bank v.

Knoop, 16 How. 369; Pease v. Peck, 18 How. 599.



To these considerations I desire to add that it was not made known to

the Supreme Court of Missouri, so far as appears, that the plaintiff was

married in Wisconsin with the consent of Dr. Emerson, and it is not made

known to us that Dr. Emerson was a citizen of Missouri, a fact to which

that court seem to have attached much importance.



Sitting here to administer the law between these parties, I do not feel

at liberty to surrender my own convictions of what the law requires, to

the authority of the decision in 15 Missouri Reports.



I have thus far assumed, merely for the purpose of the argument that the

laws of the United States respecting slavery in this Territory were

constitutionally enacted by Congress.  It remains to inquire whether

they are constitutional and binding laws.



In the argument of this part of the case at bar, it was justly

considered by all the counsel to be necessary to ascertain the source of

the power of Congress over the territory belonging to the United States.

 Until this is ascertained, it is not possible to determine the extent

of that power.  On the one side, it was maintained that the Constitution

contains no express grant of power to organize and govern what is now

known to the laws of the United States as a Territory.  That whatever

power of this kind exists is derived by implication from the capacity of

the United States to hold and acquire territory out of the limits of any

State, and the necessity for its having some government. [60 U.S. 605]



On the other side, it was insisted that the Constitution has not failed

to make an express provision for this end, and that it is found in the

third section of the fourth article of the Constitution.



To determine which of these is the correct view, it is needful to advert

to some facts respecting this subject which existed when the

Constitution was framed and adopted.  It will be found that these facts

not only shed much light on the question whether the framers of the

Constitution omitted to make a provision concerning the power of

Congress to organize and govern Territories, but they will also aid in

the construction of any provision which may have been made respecting

this subject.



Under the Confederation, the unsettled territory within the limits of

the United States had been a subject of deep interest.  Some of the

States insisted that these lands were within their chartered boundaries,

and that they had succeeded to the title of the Crown to the soil.  On

the other hand, it was argued that the vacant lands had been acquired by

the United States by the war carried on by them under a common

Government and for the common interest.



This dispute was further complicated by unsettled questions of boundary

among several States.  It not only delayed the accession of Maryland to

the Confederation, but at one time seriously threatened its existence. 

5 Jour. of Cong. 208, 442.  Under the pressure of these circumstances,

Congress earnestly recommended to the several States a cession of their

claims and rights to the United States.  5 Jour. of Cong. 442.  And

before the Constitution was framed, it had been begun.  That by New York

had been made on the 1st day of March, 1781; that of Virginia on the 1st

day of March, 1784; that of Massachusetts on the 19th day of April,

1785; that of Connecticut on the 14th day of September, 1786; that of

South Carolina on the 8th day of August, 1787, while the Convention for

framing the Constitution was in session.



It is very material to observe in this connection that each of these

acts cedes, in terms, to the United States as well the jurisdiction as

the soil.



It is also equally important to note that, when the Constitution was

framed and adopted, this plan of vesting in the United States, for the

common good, the great tracts of ungranted lands claimed by the several

States, in which so deep an interest was felt, was yet incomplete.  It

remained for North Carolina and Georgia to cede their extensive and

valuable claims.  These were made by North Carolina on the 25th day of

February, 1790, and by Georgia on the 24th day of April, [60 U.S. 606]

1802.  The terms of these last-mentioned cessions will hereafter be

noticed in another connection, but I observe here that each of them

distinctly shows upon its face that they were not only in execution of

the general plan proposed by the Congress of the Confederation, but of a

formed purpose of each of these States existing when the assent of their

respective people was given to the Constitution of the United States.



It appears, then, that when the Federal Constitution was framed and

presented to the people of the several States for their consideration,

the unsettled territory was viewed as justly applicable to the common

benefit so far as it then had or might attain thereafter a pecuniary

value, and so far as it might become the seat of new States, to be

admitted into the Union upon an equal footing with the original States. 

And also that the relations of the United States to that unsettled

territory were of different kinds.  The titles of the States of New

York, Virginia, Massachusetts, Connecticut, and South Carolina, as well

of soil as of jurisdiction, had been transferred to the United States. 

North Carolina and Georgia had not actually made transfers, but a

confident expectation, founded on their appreciation of the justice of

the general claim and fully justified by the results, was entertained

that these cessions would be made.  The Ordinance of 1787 had made

provision for the temporary government of so much of the territory

actually ceded as lay northwest of the river Ohio.



But it must have been apparent both to the framers of the Constitution

and the people of the several States who were to act upon it that the

Government thus provided for could not continue unless the Constitution

should confer on the United States the necessary powers to continue it. 

That temporary Government, under the ordinance, was to consist of

certain officers, to be appointed by and responsible to the Congress of

the Confederation, their powers had been conferred and defined by the

ordinance.  So far as it provided for the temporary government of the

Territory, it was an ordinary act of legislation, deriving its force

from the legislative power of Congress and depending for its vitality

upon the continuance of that legislative power.  But the officers to be

appointed for the Northwestern Territory, after the adoption of the

Constitution, must necessarily be officers of the United States, and not

of the Congress of the Confederation, appointed and commissioned by the

President and exercising powers derived from the United States under the

Constitution.



Such was the relation between the United States and the Northwestern

Territory which all reflecting men must have foreseen would exist when

the Government created by the [60 U.S. 607] Constitution should

supersede that of the Confederation.  That if the new Government should

be without power to govern this Territory, it could not appoint and

commission officers, and send them into the Territory to exercise there

legislative, judicial, and executive power, and that this Territory,

which was even then foreseen to be so important, both politically and

financially, to all the existing States, must be left not only without

the control of the General Government in respect to its future political

relations to the rest of the States, but absolutely without any

Government, save what its inhabitants, acting in their primary capacity,

might from time to time create for themselves.



But this Northwestern Territory was not the only territory the soil and

jurisdiction whereof were then understood to have been ceded to the

United States.  The cession by South Carolina, made in August, 1787, was

of all the territory included within the river Mississippi, and a line

beginning at that part of the said river which is intersected by the

southern boundary of North Carolina, and continuing along the said

boundary line until it intersects the ridge or chain of mountains which

divides the Eastern from the Western waters, then to be continued along

the top of the said ridge of mountains until it intersects a line to be

drawn due west from the head of the southern branch of the Tugaloo

river, to the said mountains, and thence to run a due west course to the

river Mississippi.



It is true that, by subsequent explorations, it was ascertained that the

source of the Tugaloo river, upon which the title of South Carolina

depended, was so far to the northward that the transfer conveyed only a

narrow slip of land, about twelve miles wide, lying on the top of the

ridge of mountains, and extending from the northern boundary of Georgia

to the southern boundary of North Carolina.  But this was a discovery

made long after the cession, and there can be no doubt that the State of

South Carolina, in making the cession, and the Congress, in accepting

it, viewed it as a transfer to the United States of the soil and

jurisdiction of an extensive and important part of the unsettled

territory ceded by the Crown of Great Britain by the treaty of peace,

though its quantity or extent then remained to be ascertained.



It must be remembered also, as has been already stated that not only was

there a confident expectation entertained by the [60 U.S. 608] other

States that North Carolina and Georgia would complete the plan already

so far executed by New York, Virginia, Massachusetts, Connecticut, and

South Carolina, but that the opinion was in no small degree prevalent

that the just title to this "back country," as it was termed, had vested

in the United States by the treaty of peace, and could not rightfully be

claimed by any individual State.



There is another consideration applicable to this part of the subject,

and entitled, in my judgment, to great weight.



The Congress of the Confederation had assumed the power not only to

dispose of the lands ceded, but to institute Governments and make laws

for their inhabitants.  In other words, they had proceeded to act under

the cession, which, as we have seen, was as well of the jurisdiction as

of the soil.  This ordinance was passed on the 13th of July, 1787.  The

Convention for framing the Constitution was then in session at

Philadelphia.  The proof is direct and decisive that it was known to the

Convention.  It is equally clear that it was admitted and understood not

to be within the legitimate powers of the Confederation to pass this

ordinance.  Jefferson's Works, vol. 9, pp. 251, 276; Federalist, Nos.

38, 43.



The importance of conferring on the new Government regular powers

commensurate with the objects to be attained, and thus avoiding the

alternative of a failure to execute the trust assumed by the acceptance

of the cessions made and expected, or its execution by usurpation, could

scarcely fail to be perceived.  That it was in fact perceived is clearly

shown by the Federalist, No. 38, where this very argument is made use of

in commendation of the Constitution.



Keeping these facts in view, it may confidently be asserted that there

is very strong reason to believe, before we examine the Constitution

itself, that the necessity for a competent grant of power to hold,

dispose of, and govern territory ceded and expected to be ceded could

not have escaped the attention of those who framed or adopted the

Constitution, and that, if it did not escape their attention, it could

not fail to be adequately provided for.



Any other conclusion would involve the assumption that a subject of the

gravest national concern, respecting which the small States felt so much

jealousy that it had been almost an insurmountable obstacle to the

formation of the Confederation, and as to which all the States had deep

pecuniary and political interests, and which had been so recently and

constantly agitated, [60 U.S. 609] was nevertheless overlooked, or that

such a subject was not overlooked, but designedly left unprovided for,

though it was manifestly a subject of common concern which belonged to

the care of the General Government, and adequate provision for which

could not fail to be deemed necessary and proper.



The admission of new States, to be framed out of the ceded territory,

early attracted the attention of the Convention.  Among the resolutions

introduced by Mr. Randolph, on the 29th of May, was one on this subject,

Res.No. 10, 5 Elliot 128, which, having been affirmed in Committee of

the Whole, on the 5th of June, 5 Elliot 156, and reported to the

Convention on the 13th of June, 5 Elliot 190, was referred to the

Committee of Detail, to prepare the Constitution, on the 26th of July, 5

Elliot 376.  This committee reported an article for the admission of new

States "lawfully constituted or established."  Nothing was said

concerning the power of Congress to prepare or form such States.  This

omission struck Mr. Madison, who, on the 18th of August, 5 Elliot 439,

moved for the insertion of power to dispose of the unappropriated lands

of the United States, and to institute temporary Governments for new

States arising therein.



On the 29th of August, 5 Elliot 492, the report of the committee was

taken up, and after debate, which exhibited great diversity of views

concerning the proper mode of providing for the subject, arising out of

the supposed diversity of interests of the large and small States, and

between those which had and those which had not unsettled territory, but

no difference of opinion respecting the propriety and necessity of some

adequate provision for the subject, Gouverneur Morris moved the clause

as it stands in the Constitution.  This met with general approbation,

and was at once adopted.  The whole section is as follows:



New States may be admitted by the Congress into this Union, but no new

State shall be formed or erected within the jurisdiction of any other

State, nor any State be formed by the junction of two or more States, or

parts of States, without the consent of the Legislatures of the States

concerned, as well as of Congress.



The Congress shall have power to dispose of and make all needful rules

and regulations respecting the territory or other property belonging to

the United States, and nothing in this Constitution shall be so

construed as to prejudice any claims of the United States or any

particular State.



That Congress has some power to institute temporary Governments over the

territory, I believe all agree, and if it be admitted that the necessity

of some power to govern the territory [60 U.S. 610] of the United States

could not and did not escape the attention of the Convention and the

people, and that the necessity is so great that, in the absence of any

express grant, it is strong enough to raise an implication of the

existence of that power, it would seem to follow that it is also strong

enough to afford material aid in construing an express grant of power

respecting that territory, and that they who maintain the existence of

the power, without finding any words at all in which it is conveyed,

should be willing to receive a reasonable interpretation of language of

the Constitution, manifestly intended to relate to the territory, and to

convey to Congress some authority concerning it.



It would seem, also that when we find the subject matter of the growth

and formation and admission of new States, and the disposal of the

territory for these ends, were under consideration, and that some

provision therefor was expressly made, it is improbable that it would

be, in its terms, a grossly inadequate provision, and that an

indispensably necessary power to institute temporary Governments, and to

legislate for the inhabitants of the territory, was passed silently by,

and left to be deduced from the necessity of the case.



In the argument at the bar, great attention has been paid to the meaning

of the word "territory."



Ordinarily, when the territory of a sovereign power is spoken of, it

refers to that tract of country which is under the political

jurisdiction of that sovereign power.  Thus, Chief Justice Marshall, in

United States v. Bevans, 3 Wheat. 386, says: What, then, is the extent

of jurisdiction which a State possesses?  We answer without hesitation

the jurisdiction of a State is coextensive with its territory. Examples

might easily be multiplied of this use of the word, but they are

unnecessary, because it is familiar.  But the word "territory" is not

used in this broad and general sense in this clause of the Constitution.



At the time of the adoption of the Constitution, the United States held

a great tract of country northwest of the Ohio, another tract, then of

unknown extent, ceded by South Carolina, and a confident expectation was

then entertained, and afterwards realized, that they then were or would

become the owners of other great tracts claimed by North Carolina and

Georgia.  These ceded tracts lay within the limits of the United States

and out of the limits of any particular State, and the cessions embraced

the civil and political jurisdiction and so much of the soil as had not

previously been granted to individuals.



These words, "territory belonging to the United States" [60 U.S. 611]

were not used in the Constitution to describe an abstraction, but to

identify and apply to these actual subjects matter then existing and

belonging to the United States and other similar subjects which might

afterwards be acquired, and, this being so, all the essential qualities

and incidents attending such actual subjects are embraced within the

words "territory belonging to the United States" as fully as if each of

those essential qualities and incidents had been specifically described.



I say, the essential qualities and incidents.  But in determining what

were the essential qualities and incidents of the subject with which

they were dealing, we must take into consideration not only all the

particular facts which were immediately before them, but the great

consideration, ever present to the minds of those who framed and adopted

the Constitution, that they were making a frame of government for the

people of the United States and their posterity under which they hoped

the United States might be what they have now become -- a great and

powerful nation, possessing the power to make war and to conclude

treaties, and thus to acquire territory.  See Cerre v. Pitot, 6 Cr. 336;

Am. Ins. Co. v. Canter, 1 Pet. 542.  With these in view, I turn to

examine the clause of the article now in question.



It is said this provision has no application to any territory save that

then belonging to the United States.  I have already shown that, when

the Constitution was framed, a confident expectation was entertained,

which was speedily realized, that North Carolina and Georgia would cede

their claims to that great territory which lay west of those States.  No

doubt has been suggested that the first clause of this same article

which enabled Congress to admit new States refers to and includes new

States to be formed out of this territory expected to be thereafter

ceded by North Carolina and Georgia, as well as new States to be formed

out of territory northwest of the Ohio, which then had been ceded by

Virginia.  It must have been seen, therefore, that the same necessity

would exist for an authority to dispose of and make all needful

regulations respecting this territory, when ceded, as existed for a like

authority respecting territory which had been ceded.



No reason has been suggested why any reluctance should have been felt by

the framers of the Constitution to apply this provision to all the

territory which might belong to the United States, or why any

distinction should have been made, founded on the accidental

circumstance of the dates of the cessions -- a circumstance in no way

material as respects the necessity for rules and regulations or the

propriety of conferring [60 U.S. 612] on the Congress power to make

them.  And if we look at the course of the debates in the Convention on

this article, we shall find that the then unceded lands, so far from

having been left out of view in adopting this article, constituted, in

the minds of members, a subject of even paramount importance.



Again, in what an extraordinary position would the limitation of this

clause to territory then belonging to the United States, place the

territory which lay within the chartered limits of North Carolina and

Georgia.  The title to that territory was then claimed by those States,

and by the United States; their respective claims are purposely left

unsettled by the express words of this clause, and when cessions were

made by those States, they were merely of their claims to this

territory, the United States neither admitting nor denying the validity

of those claims, so that it was impossible then, and has ever since

remained impossible, to know whether this territory did or did not then

belong to the United States, and consequently to know whether it was

within or without the authority conferred by this clause to dispose of

and make rules and regulations respecting the territory of the United

States.  This attributes to the eminent men who acted on this subject a

want of ability and forecast, or a want of attention to the known facts

upon which they were acting, in which I cannot concur.



There is not, in my judgment, anything in the language, the history, or

the subject matter of this article which restricts its operation to

territory owned by the United States when the Constitution was adopted.



But it is also insisted that provisions of the Constitution respecting

territory belonging to the United States do not apply to territory

acquired by treaty from a foreign nation.  This objection must rest upon

the position that the Constitution did not authorize the Federal

Government to acquire foreign territory, and consequently has made no

provision for its government when acquired, or that, though the

acquisition of foreign territory was contemplated by the Constitution,

its provisions concerning the admission of new States, and the making of

all needful rules and regulations respecting territory belonging to the

United States, were not designed to be applicable to territory acquired

from foreign nations.



It is undoubtedly true that, at the date of the treaty of 1803 between

the United States and France for the cession of Louisiana, it was made a

question whether the Constitution had conferred on the executive

department of the Government of the United States power to acquire

foreign territory by a treaty. [60 U.S. 613]



There is evidence that very grave doubts were then entertained

concerning the existence of this power.  But that there was then a

settled opinion in the executive and legislative branches of the

Government that this power did not exist cannot be admitted without at

the same time imputing to those who negotiated and ratified the treaty,

and passed the laws necessary to carry it into execution, a deliberate

and known violation of their oaths to support the Constitution; and

whatever doubts may them have existed, the question must now be taken to

have been settled.  Four distinct acquisitions of foreign territory have

been made by as many different treaties, under as many different

Administrations.  Six States formed on such territory are now in the

Union.  Every branch of this Government, during a period of more than

fifty years, has participated in these transactions.  To question their

validity now is vain.  As was said by Mr. Chief Justice Marshall in the

American Insurance Company v. Canter, 1 Peters 542, the Constitution

confers absolutely on the Government of the Union the powers of making

war and of making treaties; consequently, that Government possesses the

power of acquiring territory either by conquest or treaty. See Cerre v.

Pitot, 6 Cr. 336.  And, I add, it also possesses the power of governing

it when acquired, not by resorting to supposititious powers, nowhere

found described in the Constitution, but expressly granted in the

authority to make all needful rules and regulations respecting the

territory of the United States.



There was to be established by the Constitution a frame of government

under which the people of the United States and their posterity were to

continue indefinitely.  To take one of its provisions, the language of

which is broad enough to extend throughout the existence of the

Government and embrace all territory belonging to the United States

throughout all time, and the purposes and objects of which apply to all

territory of the United States, and narrow it down to territory

belonging to the United States when the Constitution was framed, while

at the same time it is admitted that the Constitution contemplated and

authorized the acquisition, from time to time, of other and foreign

territory, seems to me to be an interpretation as inconsistent with the

nature and purposes of the instrument as it is with its language, and I

can have no hesitation in rejecting it.



I construe this clause, therefore, as if it had read Congress shall have

power to make all needful rules and regulations respecting those tracts

of country, out of the limits of the several States, which the United

States have acquired, or may hereafter acquire, by cessions, as well of

the jurisdiction as of the [60 U.S. 614] soil, so far as the soil may be

the property of the party making the cession, at the time of making it.



It has been urged that the words "rules and regulations" are not

appropriate terms in which to convey authority to make laws for the

government of the territory.



But it must be remembered that this is a grant of power to the Congress

-- that it is therefore necessarily a grant of power to legislate --

and, certainly, rules and regulations respecting a particular subject,

made by the legislative power of a country, can be nothing but laws. 

Nor do the particular terms employed, in my judgment, tend in any degree

to restrict this legislative power.  Power granted to a Legislature to

make all needful rules and regulations respecting the territory is a

power to pass all needful laws respecting it.



The word "regulate," or "regulation," is several times used in the

Constitution.  It is used in the fourth Section of the First Article to

describe those laws of the States which prescribe the times, places, and

manner, of choosing Senators and Representatives; in the Second Section

of the Fourth Article to designate the legislative action of a State on

the subject of fugitives from service, having a very close relation to

the matter of our present inquiry; in the Second Section of the Third

Article, to empower Congress to fix the extent of the appellate

jurisdiction of this court; and finally in the Eighth Section of the

First Article are the words, "Congress shall have power to regulate

commerce."



It is unnecessary to describe the body of legislation which has been

enacted under this grant of power; its variety and extent are well

known.  But it may be mentioned in passing that, under this power to

regulate commerce, Congress has enacted a great system of municipal

laws, and extended it over the vessels and crews of the United States on

the high seas and in foreign ports, and even over citizens of the United

States resident in China, and has established judicatures with power to

inflict even capital punishment within that country.



If, then, this clause does contain a power to legislate respecting the

territory, what are the limits of that power?



To this I answer that, in common with all the other legislative powers

of Congress, it finds limits in the express prohibitions on Congress not

to do certain things; that, in the exercise of the legislative power,

Congress cannot pass an ex post facto law or bill of attainder; and so

in respect to each of the other prohibitions contained in the

Constitution.



Besides this, the rules and regulations must be needful.  But

undoubtedly the question whether a particular rule or regulation be

needful must be finally determined by Congress itself.  Whether a law be

needful is a legislative or political, [60 U.S. 615] not a judicial,

question.  Whatever Congress deems needful is so, under the grant of

power.



Nor am I aware that it has ever been questioned that laws providing for

the temporary government of the settlers on the public lands are needful

not only to prepare them for admission to the Union as States, but even

to enable the United States to dispose of the lands.



Without government and social order, there can be no property, for

without law, its ownership, its use, and the power of disposing of it,

cease to exist in the sense in which those words are used and understood

in all civilized States.



Since, then, this power was manifestly conferred to enable the United

States to dispose of its public lands to settlers, and to admit them

into the Union as States when, in the judgment of Congress, they should

be fitted therefor, since these were the needs provided for, since it is

confessed that Government is indispensable to provide for those needs,

and the power is to make all needful rules and regulations respecting

the territory, I cannot doubt that this is a power to govern the

inhabitants of the territory, by such laws as Congress deems needful,

until they obtain admission as States.



Whether they should be thus governed solely by laws enacted by Congress,

or partly by laws enacted by legislative power conferred by Congress, is

one of those questions which depend on the judgment of Congress -- a

question which of these is needful.



But it is insisted that, whatever other powers Congress may have

respecting the territory of the United States, the subject of negro

slavery forms an exception.



The Constitution declares that Congress shall have power to make "all

needful rules and regulations" respecting the territory belonging to the

United States.



The assertion is, though the Constitution says "all," it does not mean

all -- though it says "all" without qualification, it means all except

such as allow or prohibit slavery.  It cannot be doubted that it is

incumbent on those who would thus introduce an exception not found in

the language of the instrument to exhibit some solid and satisfactory

reason, drawn from the subject matter or the purposes and objects of the

clause, the context, or from other provisions of the Constitution,

showing that the words employed in this clause are not to be understood

according to their clear, plain, and natural signification.



The subject matter is the territory of the United States out of the

limits of every State, and consequently under the exclusive power of the

people of the United States.  Their [60 U.S. 616] will respecting it,

manifested in the Constitution, can be subject to no restriction.  The

purposes and objects of the clause were the enactment of laws concerning

the disposal of the public lands, and the temporary government of the

settlers thereon until new States should be formed.  It will not be

questioned that, when the Constitution of the United States was framed

and adopted, the allowance and the prohibition of negro slavery were

recognised subjects of municipal legislation; every State had in some

measure acted thereon, and the only legislative act concerning the

territory -- the Ordinance of 1787, which had then so recently been

passed -- contained a prohibition of slavery.  The purpose and object of

the clause being to enable Congress to provide a body of municipal law

for the government of the settlers, the allowance or the prohibition of

slavery comes within the known and recognised scope of that purpose and

object.



There is nothing in the context which qualifies the grant of power.  The

regulations must be "respecting the territory."  An enactment that

slavery may or may not exist there is a regulation respecting the

territory.  Regulations must be needful, but it is necessarily left to

the legislative discretion to determine whether a law be needful.  No

other clause of the Constitution has been referred to at the bar, or has

been seen by me, which imposes any restriction or makes any exception

concerning the power of Congress to allow or prohibit slavery in the

territory belonging to the United States.



A practical construction, nearly contemporaneous with the adoption of

the Constitution, and continued by repeated instances through a long

series of years, may always influence, and in doubtful cases should

determine, the judicial mind on a question of the interpretation of the

Constitution.  Stuart v. Laird, 1 Cranch 269; Martin v. Hunter, 1 Wheat.

304; Cohens v. Virginia, 6 Wheat. 264; Prigg v. Pennsylvania, 16 Pet.

621; Cooley v. Port Wardens, 12 How. 315.



In this view, I proceed briefly to examine the practical construction

placed on the clause now in question so far as it respects the inclusion

therein of power to permit or prohibit slavery in the Territories.



It has already been stated that, after the Government of the United

States was organized under the Constitution, the temporary Government of

the Territory northwest of the River Ohio could no longer exist save

under the powers conferred on Congress by the Constitution.  Whatever

legislative, judicial, or executive authority should be exercised

therein could be derived only from the people of the United States under

the Constitution.  And, accordingly, an act was passed on the [60 U.S.

617] 7th day of August, 1789, 1 Stat. at Large 50, which recites:



Whereas, in order that the ordinance of the United States in Congress

assembled, for the government of the territory northwest of the River

Ohio, may continue to have full effect, it is required that certain

provisions should be made, so as to adapt the same to the present

Constitution of the United States. It then provides for the appointment

by the President of all officers, who, by force of the ordinance, were

to have been appointed by the Congress of the Confederation, and their

commission in the manner required by the Constitution, and empowers the

Secretary of the Territory to exercise the powers of the Governor in

case of the death or necessary absence of the latter.



Here is an explicit declaration of the will of the first Congress, of

which fourteen members, including Mr. Madison, had been members of the

Convention which framed the Constitution, that the ordinance, one

article of which prohibited slavery, "should continue to have full

effect."  Gen. Washington, who signed this bill as President, was the

President of that Convention.



It does not appear to me to be important in this connection that that

clause in the ordinance which prohibited slavery was one of a series of

articles of what is therein termed a compact.  The Congress of the

Confederation had no power to make such a compact, nor to act at all on

the subject, and after what had been so recently said by Mr. Madison on

this subject, in the thirty-eighth number of the Federalist, I cannot

suppose that he, or any others who voted for this bill, attributed any

intrinsic effect to what was denominated in the ordinance a compact

between "the original States and the people and States in the new

territory," there being no new States then in existence in the territory

with whom a compact could be made, and the few scattered inhabitants,

unorganized into a political body, not being capable of becoming a party

to a treaty even if the Congress of the Confederation had had power to

make one touching the government of that territory.



I consider the passage of this law to have been an assertion by the

first Congress of the power of the United States to prohibit slavery

within this part of the territory of the United States, for it clearly

shows that slavery was thereafter to be prohibited there, and it could

be prohibited only by an exertion of the power of the United States

under the Constitution, no other power being capable of operating within

that territory after the Constitution took effect.



On the 2d of April, 1790, 1 Stat. at Large 106, the first Congress

passed an act accepting a deed of cession by North [60 U.S. 618]

Carolina of that territory afterwards erected into the State of

Tennessee.  The fourth express condition contained in this deed of

cession, after providing that the inhabitants of the Territory shall be

temporarily governed in the same manner as those beyond the Ohio, is

followed by these words: "Provided always that no regulations made or to

be made by Congress shall tend to emancipate slaves."



This provision shows that it was then understood Congress might make a

regulation prohibiting slavery, and that Congress might also allow it to

continue to exist in the Territory, and, accordingly, when, a few days

later, Congress passed the Act of May 20th, 1790, 1 Stat. at Large 123,

for the government of the Territory south of the River Ohio, it

provided, and the Government of the Territory south of the Ohio shall be

similar to that now exercised in the Territory northwest of the Ohio

except so far as is otherwise provided in the conditions expressed in an

act of Congress of the present session, entitled, "An act to accept a

cession of the claims of the State of North Carolina to a certain

district of western territory." Under the Government thus established,

slavery existed until the Territory became the State of Tennessee.



On the 7th of April, 1798, 1 Stat. at Large 649, an act was passed to

establish a Government in the Mississippi Territory in all respects like

that exercised in the Territory northwest of the Ohio, "excepting and

excluding the last article of the ordinance made for the government

thereof by the late Congress, on the 13th day of July, 1787."  When the

limits of this Territory had been amicably settled with Georgia, and the

latter ceded all its claim thereto, it was one stipulation in the

compact of cession that the Ordinance of July 13th, 1787, "shall in all

its parts extend to the Territory contained in the present act of

cession, that article only excepted which forbids slavery."  The

Government of this Territory was subsequently established and organized

under the act of May 10th, 1800, but so much of the ordinance as

prohibited slavery was not put in operation there.



Without going minutely into the details of each case, I will now give

reference to two classes of acts, in one of which Congress has extended

the Ordinance of 1787, including the article prohibiting slavery, over

different Territories, and thus exerted its power to prohibit it; in the

other, Congress has erected Governments over Territories acquired from

France and Spain, in which slavery already existed, but refused to apply

to them that part of the Government under the ordinance which excluded

slavery.



Of the first class are the Act of May 7th, 1800, 2 Stat. at [60 U.S.

619] Large 58, for the government of the Indiana Territory; the Act of

January 11th, 1805, 2 Stat. at Large 309, for the government of Michigan

Territory; the Act of May 3d, 1809, 2 Stat. at Large 514, for the

government of the Illinois Territory; the Act of April 20th, 1836, 5

Stat. at Large 10, for the government of the Territory of Wisconsin; the

Act of June 12th, 1838, for the government of the Territory of Iowa; the

Act of August 14th, 1848, for the government of the Territory of Oregon.

 To these instances should be added the Act of March 6th, 1820, 3 Stat.

at Large 548, prohibiting slavery in the territory acquired from France,

being northwest of Missouri and north of thirty-six degrees thirty

minutes north latitude.



Of the second class, in which Congress refused to interfere with slavery

already existing under the municipal law of France or Spain, and

established Governments by which slavery was recognised and allowed,

are:  the Act of March 26th, 1804, 2 Stat. at Large 283, for the

government of Louisiana; the Act of March 2d, 1805, 2 Stat. at Large

322, for the government of the Territory of Orleans; the Act of June

4th, 1812, 2 Stat. at Large 743, for the government of the Missouri

Territory; the Act of March 30th, 1822, 3 Stat. at Large 654, for the

government of the Territory of Florida.  Here are eight distinct

instances, beginning with the first Congress, and coming down to the

year 1848, in which Congress has excluded slavery from the territory of

the United States, and six distinct instances in which Congress

organized Governments of Territories by which slavery was recognised and

continued, beginning also with the first Congress, and coming down to

the year 1822.  These acts were severally signed by seven Presidents of

the United States, beginning with General Washington, and coming

regularly down as far as Mr. John Quincy Adams, thus including all who

were in public life when the Constitution was adopted.



If the practical construction of the Constitution contemporaneously with

its going into effect, by men intimately acquainted with its history

from their personal participation in framing and adopting it, and

continued by them through a long series of acts of the gravest

importance, be entitled to weight in the judicial mind on a question of

construction, it would seem to be difficult to resist the force of the

acts above adverted to.



It appears, however, from what has taken place at the bar that,

notwithstanding the language of the Constitution and the long line of

legislative and executive precedents under it, three different and

opposite views are taken of the power of Congress respecting slavery in

the Territories. [60 U.S. 620]



One is that, though Congress can make a regulation prohibiting slavery

in a Territory, they cannot make a regulation allowing it; another is

that it can neither be established nor prohibited by Congress, but that

the people of a Territory, when organized by Congress, can establish or

prohibit slavery; while the third is that the Constitution itself

secures to every citizen who holds slaves, under the laws of any State,

the indefeasible right to carry them into any Territory and there hold

them as property.



No particular clause of the Constitution has been referred to at the bar

in support of either of these views.  The first seems to be rested upon

general considerations concerning the social and moral evils of slavery,

its relations to republican Governments, its inconsistency with the

Declaration of Independence and with natural right.



The second is drawn from considerations equally general concerning the

right of self-government and the nature of the political institutions

which have been established by the people of the United States.



While the third is said to rest upon the equal right of all citizens to

go with their property upon the public domain, and the inequality of a

regulation which would admit the property of some and exclude the

property of other citizens, and inasmuch as slaves are chiefly held by

citizens of those particular States where slavery is established, it is

insisted that a regulation excluding slavery from a Territory operates,

practically, to make an unjust discrimination between citizens of

different States in respect to their use and enjoyment of the territory

of the United States.



With the weight of either of these considerations, when presented to

Congress to influence its action, this court has no concern.  One or the

other may be justly entitled to guide or control the legislative

judgment upon what is a needful regulation.  The question here is

whether they are sufficient to authorize this court to insert into this

clause of the Constitution an exception of the exclusion or allowance of

slavery not found therein nor in any other part of that instrument.  To

engraft on any instrument a substantive exception not found in it must

be admitted to be a matter attended with great difficulty.  And the

difficulty increases with the importance of the instrument and the

magnitude and complexity of the interests involved in its construction. 

To allow this to be done with the Constitution, upon reasons purely

political, renders its judicial interpretation impossible -- because

judicial tribunals, as such, cannot decide upon political

considerations.  Political reasons have not the requisite certainty to

afford rules of juridical [60 U.S. 621] interpretation.  They are

different in different men.  They are different in the same men at

different times.  And when a strict interpretation of the Constitution,

according to the fixed rules which govern the interpretation of laws, is

abandoned, and the theoretical opinions of individuals are allowed to

control its meaning, we have no longer a Constitution; we are under the

government of individual men who, for the time being, have power to

declare what the Constitution is according to their own views of what it

ought to mean.  When such a method of interpretation of the Constitution

obtains, in place of a republican Government, with limited and defined

powers, we have a Government which is merely an exponent of the will of

Congress, or, what in my opinion would not be preferable, an exponent of

the individual political opinions of the members of this court.



If it can be shown by anything in the Constitution itself that, when it

confers on Congress the power to make all needful rules and regulations

respecting the territory belonging to the United States, the exclusion

or the allowance of slavery was excepted, or if anything in the history

of this provision tends to show that such an exception was intended by

those who framed and adopted the Constitution to be introduced into it,

I hold it to be my duty carefully to consider, and to allow just weight

to such considerations in interpreting the positive text of the

Constitution.  But where the Constitution has said all needful rules and

regulations, I must find something more than theoretical reasoning to

induce me to say it did not mean all.



There have been eminent instances in this court closely analogous to

this one in which such an attempt to introduce an exception not found in

the Constitution itself has failed of success.



By the eighth section of the first article, Congress has the power of

exclusive legislation in all cases whatsoever within this District.



In the case of Loughborough v. Blake, 5 Whea. 324, the question arose

whether Congress has power to impose direct taxes on persons and

property in this District.  It was insisted that, though the grant of

power was in its terms broad enough to include direct taxation, it must

be limited by the principle that taxation and representation are

inseparable.  It would not be easy to fix on any political truth better

established or more fully admitted in our country than that taxation and

representation must exist together.  We went into the war of the

Revolution to assert it, and it is incorporated as fundamental into all

American Governments.  But however true and important [60 U.S. 622] this

maxim may be, it is not necessarily of universal application.  It was

for the people of the United States, who ordained the Constitution, to

decide whether it should or should not be permitted to operate within

this District.  Their decision was embodied in the words of the

Constitution, and as that contained no such exception as would permit

the maxim to operate in this District, this court, interpreting that

language, held that the exception did not exist.



Again, the Constitution confers on Congress power to regulate commerce

with foreign nations.  Under this, Congress passed an act on the 22d of

December, 1807, unlimited in duration, laying an embargo on all ships

and vessels in the ports or within the limits and jurisdiction of the

United States.  No law of the United States ever pressed so severely

upon particular States.  Though the constitutionality of the law was

contested with an earnestness and zeal proportioned to the ruinous

effects which were felt from it, and though, as Mr. Chief Justice

Marshall has said, 9 Wheat. 192, a want of acuteness in discovering

objections to a measure to which they felt the most deep-rooted

hostility will not be imputed to those who were arrayed in opposition to

this, I am not aware that the fact that it prohibited the use of a

particular species of property, belonging almost exclusively to citizens

of a few States, and this indefinitely, was ever supposed to show that

it was unconstitutional.  Something much more stringent as a ground of

legal judgment was relied on -- that the power to regulate commerce did

not include the power to annihilate commerce.



But the decision was that, under the power to regulate commerce, the

power of Congress over the subject was restricted only by those

exceptions and limitations contained in the Constitution, and as neither

the clause in question, which was a general grant of power to regulate

commerce, nor any other clause of the Constitution imposed any

restrictions as to the duration of an embargo, an unlimited prohibition

of the use of the shipping of the country was within the power of

Congress.  On this subject, Mr. Justice Daniel, speaking for the court

in the case of United States v. Marigold, 9 How. 560, says: Congress

are, by the Constitution, vested with the power to regulate commerce

with foreign nations, and however, at periods of high excitement, an

application of the terms "to regulate commerce" such as would embrace

absolute prohibition may have been questioned, yet, since the passage of

the embargo and nonintercourse laws and the repeated judicial sanctions

these statutes have received, it can scarcely at this day be open to

doubt that every subject falling legitimately [60 U.S. 623] within the

sphere of commercial regulation may be partially or wholly excluded when

either measure shall be demanded by the safety or the important

interests of the entire nation.  The power once conceded, it may operate

on any and every subject of commerce to which the legislative discretion

may apply it.



If power to regulate commerce extends to an indefinite prohibition of

the use of all vessels belonging to citizens of the several States, and

may operate, without exception, upon every subject of commerce to which

the legislative discretion may apply it, upon what grounds can I say

that power to make all needful rules and regulations respecting the

territory of the United States is subject to an exception of the

allowance or prohibition of slavery therein?



While the regulation is one "respecting the territory;" while it is, in

the judgment of Congress, "a needful regulation," and is thus completely

within the words of the grant; while no other clause of the Constitution

can be shown which requires the insertion of an exception respecting

slavery; and while the practical construction for a period of upwards of

fifty years forbids such an exception, it would, in my opinion, violate

every sound rule of interpretation to force that exception into the

Constitution upon the strength of abstract political reasoning, which we

are bound to believe the people of the United States thought

insufficient to induce them to limit the power of Congress, because what

they have said contains no such limitation.



Before I proceed further to notice some other grounds of supposed

objection to this power of Congress, I desire to say that if it were not

for my anxiety to insist upon what I deem a correct exposition of the

Constitution, if I looked only to the purposes of the argument, the

source of the power of Congress asserted in the opinion of the majority

of the court would answer those purposes equally well.  For they admit

that Congress has power to organize and govern the Territories until

they arrive at a suitable condition for admission to the Union; they

admit also that the kind of Government which shall thus exist should be

regulated by the condition and wants of each Territory, and that it is

necessarily committed to the discretion of Congress to enact such laws

for that purpose as that discretion may dictate, and no limit to that

discretion has been shown, or even suggested, save those positive

prohibitions to legislate which are found in the Constitution.



I confess myself unable to perceive any difference whatever between my

own opinion of the general extent of the power of Congress and the

opinion of the majority of the court, save [60 U.S. 624] that I consider

it derivable from the express language of the Constitution, while they

hold it to be silently implied from the power to acquire territory. 

Looking at the power of Congress over the Territories as of the extent

just described, what positive prohibition exists in the Constitution,

which restrained Congress from enacting a law in 1820 to prohibit

slavery north of thirty-six degrees thirty minutes north latitude?



The only one suggested is that clause in the fifth article of the

amendments of the Constitution which declares that no person shall be

deprived of his life, liberty, or property, without due process of law. 

I will now proceed to examine the question whether this clause is

entitled to the effect thus attributed to it.  It is necessary, first,

to have a clear view of the nature and incidents of that particular

species of property which is now in question.



Slavery, being contrary to natural right, is created only by municipal

law.  This is not only plain in itself, and agreed by all writers on the

subject, but is inferable from the Constitution and has been explicitly

declared by this court.  The Constitution refers to slaves as "persons

held to service in one State, under the laws thereof."  Nothing can more

clearly describe a status created by municipal law.  In Prigg v.

Pennsylvania, 10 Pet. 611, this court said:  "The state of slavery is

deemed to be a mere municipal regulation, founded on and limited to the

range of territorial laws."  In Rankin v. Lydia, 2 Marsh. 12, 470, the

Supreme Court of Appeals of Kentucky said: Slavery is sanctioned by the

laws of this State, and the right to hold them under our municipal

regulations is unquestionable.  But we view this as a right existing by

positive law of a municipal character, without foundation in the law of

nature or the unwritten common law. I am not acquainted with any case or

writer questioning the correctness of this doctrine.  See also 1 Burge,

Col. and For.Laws 738-741, where the authorities are collected.



The status of slavery is not necessarily always attended with the same

powers on the part of the master.  The master is subject to the supreme

power of the State, whose will controls his action towards his slave,

and this control must be defined and regulated by the municipal law.  In

one State, as at one period of the Roman law, it may put the life of the

slave into the hand of the master; others, as those of the United

States, which tolerate slavery, may treat the slave as a person when the

master takes his life; while in others, the law may recognise a right of

the slave to be protected from cruel treatment.  In other words, the

status of slavery embraces every condition from that in which the slave

is known to the law simply as a [60 U.S. 625] chattel, with no civil

rights, to that in which he is recognised as a person for all purposes,

save the compulsory power of directing and receiving the fruits of his

labor.  Which of these conditions shall attend the status of slavery

must depend on the municipal law which creates and upholds it.



And not only must the status of slavery be created and measured by

municipal law, but the rights, powers, and obligations which grow out of

that status must be defined, protected, and enforced by such laws.  The

liability of the master for the torts and crimes of his slave, and of

third persons for assaulting or injuring or harboring or kidnapping him,

the forms and modes of emancipation and sale, their subjection to the

debts of the master, succession by death of the master, suits for

freedom, the capacity of the slave to be party to a suit, or to be a

witness, with such police regulations as have existed in all civilized

States where slavery has been tolerated, are among the subjects upon

which municipal legislation becomes necessary when slavery is

introduced.



Is it conceivable that the Constitution has conferred the right on every

citizen to become a resident on the territory of the United States with

his slaves, and there to hold them as such, but has neither made nor

provided for any municipal regulations which are essential to the

existence of slavery?



Is it not more rational to conclude that they who framed and adopted the

constitution were aware that persons held to service under the laws of a

State are property only to the extent and under the conditions fixed by

those laws that they must cease to be available as property, when their

owners voluntarily place them permanently within another jurisdiction,

where no municipal laws on the subject of slavery exist, and that, being

aware of these principles, and having said nothing to interfere with or

displace them, or to compel Congress to legislate in any particular

manner on the subject, and having empowered Congress to make all needful

rules and regulations respecting the territory of the United States, it

was their intention to leave to the discretion of Congress what

regulations, if any, should be made concerning slavery therein? 

Moreover, if the right exists, what are its limits, and what are its

conditions?  If citizens of the United States have the right to take

their slaves to a Territory, and hold them there as slaves, without

regard to the laws of the Territory, I suppose this right is not to be

restricted to the citizens of slaveholding States.  A citizen of a State

which does not tolerate slavery can hardly be denied the power of doing

the same thing.  And what law of slavery does either take with him to

the Territory?  If it be said to be those laws respecting [60 U.S. 626]

slavery which existed in the particular State from which each slave last

came, what an anomaly is this?  Where else can we find, under the law of

any civilized country, the power to introduce and permanently continue

diverse systems of foreign municipal law, for holding persons in

slavery?  I say not merely to introduce, but permanently to continue,

these anomalies.  For the offspring of the female must be governed by

the foreign municipal laws to which the mother was subject, and when any

slave is sold or passes by succession on the death of the owner, there

must pass with him, by a species of subrogation, and as a kind of

unknown jus in re, the foreign municipal laws which constituted,

regulated, and preserved, the status of the slave before his

exportation.  Whatever theoretical importance may be now supposed to

belong to the maintenance of such a right, I feel a perfect conviction

that it would, if ever tried, prove to be as impracticable in fact as it

is, in my judgment, monstrous in theory.



I consider the assumption which lies at the basis of this theory to be

unsound not in its just sense, and when properly understood, but in the

sense which has been attached to it.  That assumption is that the

territory ceded by France was acquired for the equal benefit of all the

citizens of the United States.  I agree to the position.  But it was

acquired for their benefit in their collective, not their individual,

capacities.  It was acquired for their benefit, as an organized

political society, subsisting as "the people of the United States,"

under the Constitution of the United States, to be administered justly

and impartially, and as nearly as possible for the equal benefit of

every individual citizen, according to the best judgment and discretion

of the Congress, to whose power, as the Legislature of the nation which

acquired it, the people of the United States have committed its

administration.  Whatever individual claims may be founded on local

circumstances or sectional differences of condition cannot, in my

opinion, be recognised in this court without arrogating to the judicial

branch of the Government powers not committed to it, and which, with all

the unaffected respect I feel for it when acting in its proper sphere, I

do not think it fitted to wield.



Nor, in my judgment, will the position that a prohibition to bring

slaves into a Territory deprives anyone of his property without due

process of law bear examination.



It must be remembered that this restriction on the legislative power is

not peculiar to the Constitution of the United States; it was borrowed

from Magna Charta, was brought to America by our ancestors, as part of

their inherited liberties, and has existed in all the States, usually in

the very words of [60 U.S. 627] the great charter.  It existed in every

political community in America in 1787, when the ordinance prohibiting

slavery north and west of the Ohio was passed.



And if a prohibition of slavery in a Territory in 1820 violated this

principle of Magna Charta, the Ordinance of 1787 also violated it, and

what power had, I do not say the Congress of the Confederation alone,

but the Legislature of Virginia, of the Legislature of any or all the

States of the Confederacy, to consent to such a violation?  The people

of the States had conferred no such power.  I think I may at least say,

if the Congress did then violate Magna Charta by the ordinance, no one

discovered that violation.  Besides, if the prohibition upon all

persons, citizens as well as others, to bring slaves into a Territory,

and a declaration that, if brought, they shall be free, deprives

citizens of their property without due process of law, what shall we say

of the legislation of many of the slaveholding States which have enacted

the same prohibition?  As early as October, 1778, a law was passed in

Virginia that thereafter no slave should be imported into that

Commonwealth by sea or by land, and that every slave who should be

imported should become free.  A citizen of Virginia purchased in

Maryland a slave who belonged to another citizen of Virginia, and

removed with the slave to Virginia.  The slave sued for her freedom, and

recovered it, as may be seen in Wilson v. Isabel, 5 Call's R. 425.  See

also Hunter v. Hulsher, 1 Leigh 172, and a similar law has been

recognised as valid in Maryland in Stewart v. Oaks, 5 Har. and John.

107.  I am not aware that such laws, though they exist in many States,

were ever supposed to be in conflict with the principle of Magna Charta

incorporated into the State Constitutions.  It was certainly understood

by the Convention which framed the Constitution, and has been so

understood ever since, that, under the power to regulate commerce,

Congress could prohibit the importation of slaves, and the exercise of

the power was restrained till 1808.  A citizen of the United States owns

slaves in Cuba, and brings them to the United States, where they are set

free by the legislation of Congress.  Does this legislation deprive him

of his property without due process of law?  If so, what becomes of the

laws prohibiting the slave trade?  If not, how can similar regulation

respecting a Territory violate the fifth amendment of the Constitution?



Some reliance was placed by the defendant's counsel upon the fact that

the prohibition of slavery in this territory was in the words, "that

slavery, &c., shall be and is hereby forever prohibited."  But the

insertion of the word "forever" can have no legal effect.  Every

enactment not expressly limited in its [60 U.S. 628] duration continues

in force until repealed or abrogated by some competent power, and the

use of the word "forever" can give to the law no more durable operation.

 The argument is that Congress cannot so legislate as to bind the future

States formed out of the territory, and that, in this instance, it has

attempted to do so.  Of the political reasons which may have induced the

Congress to use these words, and which caused them to expect that

subsequent Legislatures would conform their action to the then general

opinion of the country that it ought to be permanent, this court can

take no cognizance.



However fit such considerations are to control the action of Congress,

and however reluctant a statesman may be to disturb what has been

settled, every law made by Congress may be repealed, and, saving private

rights and public rights gained by States, its repeal is subject to the

absolute will of the same power which enacted it.  If Congress had

enacted that the crime of murder, committed in this Indian Territory,

north of thirty-six degrees thirty minutes, by or on any white man,

should forever be punishable with death, it would seem to me an

insufficient objection to an indictment, found while it was a Territory,

that, at some future day, States might exist there, and so the law was

invalid because, by its terms, it was to continue in force forever. 

Such an objection rests upon a misapprehension of the province and power

of courts respecting the constitutionality of laws enacted by the

Legislature.



If the Constitution prescribe one rule, and the law another and

different rule, it is the duty of courts to declare that the

Constitution, and not the law, governs the case before them for

judgment.  If the law include no case save those for which the

Constitution has furnished a different rule, or no case which the

Legislature has the power to govern, then the law can have no operation.

 If it includes cases which the Legislature has power to govern, and

concerning which the Constitution does not prescribe a different rule,

the law governs those cases, though it may, in its terms, attempt to

include others on which it cannot operate.  In other words, this court

cannot declare void an act of Congress which constitutionally embraces

some cases, though other cases within its terms are beyond the control

of Congress or beyond the reach of that particular law.  If, therefore,

Congress had power to make a law excluding slavery from this territory

while under the exclusive power of the United States, the use of the

word "forever" does not invalidate the law so long as Congress has the

exclusive legislative power in the territory. [60 U.S. 629]



But it is further insisted that the treaty of 1803 between the United

States and France, by which this territory was acquired, has so

restrained the constitutional powers of Congress that it cannot, by law,

prohibit the introduction of slavery into that part of this territory

north and west of Missouri and north of thirty-six degrees thirty

minutes north latitude.



By a treaty with a foreign nation, the United States may rightfully

stipulate that the Congress will or will not exercise its legislative

power in some particular manner, on some particular subject.  Such

promises, when made, should be voluntarily kept with the most scrupulous

good faith.  But that a treaty with a foreign nation can deprive the

Congress of any part of the legislative power conferred by the people,

so that it no longer can legislate as it was empowered by the

Constitution to do, I more than doubt.



The powers of the Government do and must remain unimpaired.  The

responsibility of the Government to a foreign nation for the exercise of

those powers is quite another matter.  That responsibility is to be met,

and justified to the foreign nation according to the requirements of the

rules of public law, but never upon the assumption that the United

States had parted with or restricted any power of acting according to

its own free will, governed solely by its own appreciation of its duty.



The second section of the fourth article is This Constitution, and the

laws of the United States which shall be made in pursuance thereof, and

all treaties made or which shall be made under the authority of the

United States, shall be the supreme law of the land. This has made

treaties part of our municipal law, but it has not assigned to them any

particular degree of authority, nor declared that laws so enacted shall

be irrepealable.  No supremacy is assigned to treaties over acts of

Congress.  That they are not perpetual, and must be in some way

repealable, all will agree.



If the President and the Senate alone possess the power to repeal or

modify a law found in a treaty, inasmuch as they can change or abrogate

one treaty only by making another inconsistent with the first, the

Government of the United States could not act at all, to that effect,

without the consent of some foreign Government.  I do not consider, I am

not aware it has ever been considered that the Constitution has placed

our country in this helpless condition.  The action of Congress in

repealing the treaties with France by the Act of July 7th, 1798, 1 Stat.

at Large 578, was in conformity with these views.  In the case of Taylor

et al. v. Morton, 2 Curtis' Cir.Ct.R. [60 U.S. 630] 454, I had occasion

to consider this subject, and I adhere to the views there expressed.



If, therefore, it were admitted that the treaty between the United

States and France did contain an express stipulation that the United

States would not exclude slavery from so much of the ceded territory as

is now in question, this court could not declare that an act of Congress

excluding it was void by force of the treaty.  Whether or no a case

existed sufficient to justify a refusal to execute such a stipulation

would not be a judicial, but a political and legislative, question,

wholly beyond the authority of this Court to try and determine.  It

would belong to diplomacy and legislation, and not to the administration

of existing laws.  Such a stipulation in a treaty, to legislate or not

to legislate in a particular way has been repeatedly held in this court

to address itself to the political or the legislative power, by whose

action thereon this court is bound.  Foster v. Nicolson, 2 Peters 314;

Garcia v. Lee, 12 Peters 519.



But, in my judgment, this treaty contains no stipulation in any manner

affecting the action of the United States respecting the territory in

question.  Before examining the language of the treaty, it is material

to bear in mind that the part of the ceded territory lying north of

thirty-six degrees thirty minutes, and west and north of the present

State of Missouri was then a wilderness, uninhabited save by savages

whose possessory title had not then been extinguished.



It is impossible for me to conceive on what ground France could have

advanced a claim, or could have desired to advance a claim, to restrain

the United States from making any rules and regulations respecting this

territory which the United States might think fit to make, and still

less can I conceive of any reason which would have induced the United

States to yield to such a claim.  It was to be expected that France

would desire to make the change of sovereignty and jurisdiction as

little burdensome as possible to the then inhabitants of Louisiana, and

might well exhibit even an anxious solicitude to protect their property

and persons, and secure to them and their posterity their religious and

political rights, and the United States, as a just Government, might

readily accede to all proper stipulations respecting those who were

about to have their allegiance transferred.  But what interest France

could have in uninhabited territory which, in the language of the

treaty, was to be transferred "forever, and in full sovereignty," to the

United States, or how the United States could consent to allow a foreign

nation to interfere in its purely internal affairs, in which that

foreign nation had no concern [60 U.S. 631] whatever, is difficult for

me to conjecture.  In my judgment, this treaty contains nothing of the

kind.



The third article is supposed to have a bearing on the question.  It is

as follows: The inhabitants of the ceded territory shall be incorporated

in the Union of the United States, and admitted as soon as possible,

according to the principles of the Federal Constitution, to the

enjoyment of all the rights, advantages, and immunities of citizens of

the United States, and in the meantime they shall be maintained and

protected in the enjoyment of their liberty, property, and the religion

they profess.



There are two views of this article, each of which, I think, decisively

shows that it was not intended to restrain the Congress from excluding

slavery from that part of the ceded territory then uninhabited.  The

first is that, manifestly, its sole object was to protect individual

rights of the then inhabitants of the territory.  They are to be

"maintained and protected in the free enjoyment of their liberty,

property, and the religion they profess."  But this article does not

secure to them the right to go upon the public domain ceded by the

treaty, either with or without their slaves.  The right or power of

doing this did not exist before or at the time the treaty was made.  The

French and Spanish Governments, while they held the country, as well as

the United States, when they acquired it, always exercised the undoubted

right of excluding inhabitants from the Indian country, and of

determining when and on what conditions it should be opened to settlers.

 And a stipulation that the then inhabitants of Louisiana should be

protected in their property can have no reference to their use of that

property where they had no right, under the treaty, to go with it save

at the will of the United States.  If one who was an inhabitant of

Louisiana at the time of the treaty had afterwards taken property then

owned by him, consisting of firearms, ammunition, and spirits, and had

gone into the Indian country north of thirty-six degrees thirty minutes

to sell them to the Indians, all must agree the third article of the

treaty would not have protected him from indictment under the Act of

Congress of March 30, 1802, 2 Stat. at Large 139, adopted and extended

to this territory by the Act of March 26, 1804, (2 Stat. at Large 283.)



Besides, whatever rights were secured were individual rights.  If

Congress should pass any law which violated such rights of any

individual, and those rights were of such a character as not to be

within the lawful control of Congress under the Constitution, that

individual could complain, and the act of Congress, as to such rights of

his, would be inoperative, but it [60 U.S. 632] would be valid and

operative as to all other persons, whose individual rights did not come

under the protection of the treaty.  And inasmuch as it does not appear

that any inhabitant of Louisiana whose rights were secured by treaty had

been injured, it would be wholly inadmissible for this court to assume,

first, that one or more such cases may have existed, and second, that if

any did exist, the entire law was void -- not only as to those cases, if

any, in which it could not rightfully operate, but as to all others,

wholly unconnected with the treaty, in which such law could rightfully

operate.



But it is quite unnecessary, in my opinion, to pursue this inquiry

further, because it clearly appears from the language of the article,

and it has been decided by this court, that the stipulation was

temporary, and ceased to have any effect when the then inhabitants of

the Territory of Louisiana, in whose behalf the stipulation was made,

were incorporated into the Union.



In the cases of New Orleans v. De Armas et al., 9 Peters, 223, the

question was whether a title to property which existed at the date of

the treaty continued to be protected by the treaty after the State of

Louisiana was admitted to the Union.  The third article of the treaty

was relied on.  Mr. Chief Justice Marshall said: This article obviously

contemplates two objects.  One, that Louisiana shall be admitted into

the Union as soon as possible on an equal footing with the other States,

and the other that, till such admission, the inhabitants of the ceded

territory shall be protected in the free enjoyment of their liberty,

property, and religion.  Had anyone of these rights been violated while

these stipulations continued in force, the individual supposing himself

to be injured might have brought his case into this Court, under the

twenty-fifth section of the judicial act.  But this stipulation ceased

to operate when Louisiana became a member of the Union, and its

inhabitants were "admitted to the enjoyment of all the rights,

advantages, and immunities, of citizens of the United States."



The cases of Chouteau v. Marguerita, 12 Peters 507, and Permoli v. New

Orleans, 3 How. 589, are in conformity with this view of the treaty.



To convert this temporary stipulation of the treaty in behalf of French

subjects who then inhabited a small portion of Louisiana into a

permanent restriction upon the power of Congress to regulate territory

then uninhabited, and to assert that it not only restrains Congress from

affecting the rights of property of the then inhabitants, but enabled

them and all other citizens of the United States to go into any part of

the [60 U.S. 633] ceded territory with their slaves, and hold them

there, is a construction of this treaty so opposed to its natural

meaning, and so far beyond its subject matter and the evident design of

the parties that I cannot assent to it.  In my opinion, this treaty has

no bearing on the present question.



For these reasons, I am of opinion that so much of the several acts of

Congress as prohibited slavery and involuntary servitude within that

part of the Territory of Wisconsin lying north of thirty-six degrees

thirty minutes north latitude and west of the river Mississippi, were

constitutional and valid laws.



I have expressed my opinion, and the reasons therefor, at far greater

length than I could have wished, upon the different questions on which I

have found it necessary to pass to arrive at a judgment on the case at

bar.  These questions are numerous, and the grave importance of some of

them required me to exhibit fully the grounds of my opinion.  I have

touched no question which, in the view I have taken, it was not

absolutely necessary for me to pass upon to ascertain whether the

judgment of the Circuit Court should stand or be reversed.  I have

avoided no question on which the validity of that judgment depends.  To

have done either more or less, would have been inconsistent with my

views of my duty.



In my opinion, the judgment of the Circuit Court should be reversed, and

the cause remanded for a new trial. Footnotes DANIEL, J., separate

opinion (Footnotes)



1. Vide Gibbons's Decline and Fall of the Roman Empire.  London edition

of 1825, vol. 3d, chap. 44, p. 183.



2. Letter from James Madison to Robert Walsh, November 27th, 1819, on

the subject of the Missouri Compromise. CAMPBELL, J., concurring

(Footnotes)



1. Mr. Varnum said:  "The bill provided such a Government as had never

been known in the United States."  Mr. Eustis:  "The Government laid

down in this bill is certainly a new thing in the United States."  Mr.

Lucas:  "It has been remarked that this bill establishes elementary

principles never previously introduced in the Government of any

Territory of the United States.  Granting the truth of this

observation," &c.  Mr. Macon:  "My first objection to the principle

contained in this section is that it establishes a species of government

unknown to the United States."  Mr. Boyle:  "Were the President an angel

instead of a man, I would not clothe him with this power."  Mr. G. W.

Campbell:  "On examining the section, it will appear that it really

establishes a complete despotism."  Mr. Sloan:  "Can anything be more

repugnant to the principles of just government?  Can anything be more

despotic?" -- Annals of Congress, 1803-1804



2. Mr. Jefferson wrote: The Missouri question is the most portentous one

that ever threatened our Union.  In the gloomiest moments of the

revolutionary war, I never had any apprehension equal to that I feel

from this source. CURTIS, J., dissenting (Footnotes)



1. This statement that some territory did actually pass by this cession

is taken from the opinion of the court, delivered by Mr. Justice Wayne,

in the case of Howard v. Ingersoll, reported in 13 How. 405.  It is an

obscure matter, and, on some examination of it, I have been led to doubt

whether any territory actually passed by this cession.  But as the fact

is not important to the argument, I have not thought it necessary

further to investigate it.



2. It was published in a newspaper at Philadelphia, in May, and a copy

of it was sent by R. H. Lee to Gen. Washington on the 15th of July.  See

p. 261, Cor. of Am.Rev., vol. 4, and Writings of Washington, vol. 9, p.

174.

