Dred Scott v. Sandford legal definition of Dred Scott v. Sandford. Dred Scott v. Sandford synonyms by the Free Online Law Dictionary.

In Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857), the U.S. Supreme Court faced the divisive issue of Slavery. Chief Justice roger b. taney, a former slaveholder, authored the Court's opinion, holding that the U.S. Constitution permitted the unrestricted ownership of black slaves by white U.S. citizens. In a stunning 7–2 decision, the Court declared that slaves and emancipated blacks could not be full U.S. citizens. Any attempt by Congress to limit the spread of slavery in U.S. territories was held to be a direct violation of slave owners' due process rights.

Chief Justice Taney's opinion fueled the nineteenth-century abolitionist movement and helped push the United States toward civil war. Although Taney was an accomplished jurist who served as chief justice for 29 years, his record was permanently tarnished by what many considered to be his flawed reasoning in the Dred Scott case.

African slavery was introduced in the American colonies in 1619. As the new country grew, slavery spread throughout the South, where cheap labor was needed for harvesting large cotton and tobacco crops. During the early nineteenth century, opponents of slavery began to organize in the North.

Abolitionists initially wanted to restrict slavery to the southern states, but their ultimate goal was to outlaw black servitude throughout the United States. As new territories from the Louisiana Purchase applied for U.S. state-hood, the issue became a sticking point. Most southerners supported the spread of slavery, viewing it as a necessary condition for their social, political, and economic survival. Most northerners favored the containment and eventual eradication of slavery. Although political moderates called for voters in each new territory to resolve the slavery issue, a national consensus on this point was never reached.

The 1820 Missouri Compromise was an attempt by the U.S. Congress to balance the competing viewpoints. Congress passed a law designating as free states any new states located north of a line drawn across the Louisiana Purchase. New states south of the line would be slave states. In other words, slavery was outlawed north of Missouri's border and west to the Rocky Mountains. After the passage of the Missouri Compromise, two new states were admitted: Missouri, where slavery was permitted, and Maine, where it was forbidden.

The Missouri Compromise did not improve the bitter rivalry between pro-slavery and anti-slavery forces. The controversial Dred Scott opinion further exacerbated regional tensions.

Dred Scott was a slave owned by Dr. John Emerson, a U.S. Army officer. In 1834, Scott moved with Emerson from Missouri, a slave state, to Illinois, a state in which slavery was prohibited by statute. Scott and Emerson also lived in northern U.S. territories that later became the free states of Minnesota and Wisconsin. In 1838, Scott and his family returned to Missouri with Emerson.

When Emerson died, Scott sued Emerson's widow in Missouri state court, seeking freedom for himself and his family. Scott's 1846 lawsuit claimed that his prior residence in a free state and free territories entitled him to liberty and back wages since 1834.

Scott won his case in the lower court. Emerson's widow appealed to the state supreme court, which sided with her. Then, she married Calvin Clifford Chafee, a prominent Massachusetts abolitionist and member of Congress. The new Mrs. Chafee switched to the abolitionist camp and agreed to seek a federal ruling against slavery on Scott's behalf.

Scott was sold in a sham transaction to Mrs. Chafee's brother, John F. A. Sanford, an abolitionist from New York. Sanford agreed to participate in the Dred Scott case as a personal protest against slavery. (Mr. Sanford's name was misspelled by a clerk in the case title as "Sandford" and has remained so in court records.)

Scott filed a lawsuit against his new owner in federal court. A federal court was able to hear the case because of diversity of jurisdiction, which entitles litigants from two different states (in this case, Missouri and New York) to pursue claims in federal court.

Like the state lawsuit, the federal case claimed that Scott was no longer a slave, owing to his previous residence in a free state and free territory. The federal court ruled against Scott, who then brought his case before the U.S. Supreme Court in a writ of error—an order from an appeals court requiring a trial court to send records to the U.S. Supreme Court for review.

The Supreme Court conducted a four-day hearing. Chief Justice Taney delivered what he hoped would be the definitive statement on slavery in the United States. Taney, a respected Maryland lawyer and former U.S. attorney general, had succeeded the legendary John Marshall as chief justice. He used Dred Scott as a national forum on constitutional rights and race.

Chief Justice Taney's colleague, Associate Justice Samuel Nelson, urged the Court to reach a narrow decision based on the facts in Dred Scott. Because Scott's original action was brought in a Missouri court, Nelson believed simply that state law should prevail in the case. Under Missouri law, a slave's status was not affected by a temporary change in residence.

Chief Justice Taney did not want Scott defeated in a narrow holding. Instead, he wrote a sweeping defense of slavery, emphasizing the slave owners' constitutional rights and privileges. Taney observed that under the due process clause of the Fifth Amendment of the U.S. Constitution, no person can be deprived of property without legal proceedings. By outlawing slavery in certain U.S. territories, the Missouri Compromise stripped slave owners of their constitutional right to own property, or "articles of merchandise," as Taney referred to slaves. Taney found the Missouri Compromise unconstitutional. (Actually, the Missouri Compromise had been repealed by Congress in 1854, but Taney's ruling nevertheless worried abolitionists, who feared that Taney's findings could be applied to any federal legislation that restricted slavery.) Thus, the Scott decision both sanctioned slavery and encouraged its spread throughout all U.S. territories.

Taney's opinion also declared that black slaves and their descendants could not become U.S. citizens. Because blacks were ineligible for citizenship, they could not sue in federal court. Taney claimed that the architects of the U.S. Constitution did not intend for blacks to have constitutionally protected rights and immunities. The Founding Fathers had regarded blacks as socially and politically unfit. Taney observed that even if Scott were free, he could not appear before federal court, because of his race. However, Taney determined that Scott was not free, because his brief residence in a free state did not divest him of slave status.

President James Buchanan hoped that the Supreme Court's unequivocal ruling in Scott would dispose of the slavery issue once and for all. The opinion had the opposite effect. Outrage among abolitionists and fence-sitters was deep. The nascent Republican Party benefited from Scott, as new members joined in the wake of the pro-slavery ruling. The Republican party denounced the Scott decision, calling for measures to restrict slavery. Presidential candidate Abraham Lincoln used the case as a campaign issue and pledged to overturn the Court's ruling against Scott. Lincoln won the presidential election in 1860, and in 1861, the Civil War began.

After the unfortunate ruling, Scott was freed by Sanford and worked as a porter in a St. Louis hotel. He died of tuberculosis in 1858 or 1859. Sanford was institutionalized for mental illness, a condition his friends traced to his public involvement in the Scott fiasco.

The Supreme Court's reputation suffered greatly owing to its poor handling of the slavery issue. Newspaper editors and politicians lambasted the Court for its colossal misstep. Historians single out Taney's Dred Scott decision as one of the lowest points in U.S. Jurisprudence.

Cross-references

Civil Rights Acts; "Dred Scott Case" (Appendix, Primary Document); Prejudice; Racial and Ethnic Discrimination.

The U.S. Supreme Court attempted to resolve the legal status of African Americans in Dred Scott v. Sandford. Chief Justice roger taney's belief that the Court could settle the issue proved mistaken, however. The decision heightened tensions and convinced abolitionists that the legal system was immoral.

Dred Scott was a slave owned by an army surgeon, John Emerson, who resided in Missouri. In 1836 Emerson took Scott to Fort Snelling, in what is now Minnesota, but then was a territory in which slavery had been expressly forbidden by the Missouri Compromise of 1820. In 1846 Scott sued for his freedom in Missouri state court, arguing that his residence in a free territory had released him from slavery. The Missouri Supreme Court rejected his argument, and Scott appealed to the U.S. Supreme Court.

The Court heard arguments on Dred Scott in 1855 and 1856. The Court could have disposed of the case on narrower grounds by holding that Scott had not become free through his temporary stay with Emerson in free territory. Instead, Taney decided that the Court needed to address the broader issue of the status of slavery in the territories. He wrote a tortuous opinion, arguing that because of the attitudes toward slavery and African Americans that prevailed in 1787–1789, when the Constitution was drafted and ratified, a slave was not and never could become a federal citizen. In addition, Taney ruled that the free descendants of slaves were not federal citizens and that property in slaves was entitled to such protection that Congress could not constitutionally forbid slavery in the territories.

The immediate effect of the Dred Scott decision was to convince abolitionists that the South and the Supreme Court planned to impose slavery throughout the Union. With the start of the U.S. Civil War in 1861, it became clear that Taney's decision had failed in its essential purpose.

Dred Scott, Plff. in Er., v. John F.A. Sandford

(See S. C. 19 How. 393–633.)

Plea in abatement, when may be reviewed—the word "citizen" in the Constitution does not embrace one of the negro race—negro cannot become a citizen—slave not made free by residence in a free state or territory—Declaration of Independence does not include slaves as part of the people—the rights and privileges conferred by the constitution upon citizens do not apply to the negro race—Constitution should have the meaning intended when it was adopted—court may examine other errors besides plea in abatement—Constitution expressly affirms right of property in slaves—Missouri compromise unconstitutional and void.

Where a plea in abatement, by defendant, to the jurisdiction of the court below is overruled on demurrer, and the defendant thereupon pleads in bar, upon which issues were joined and the trial and verdict were in his favor, and the plaintiff thereupon brought the case into this court by writ of error, and the plea and demurrer and judgment of the court below upon it are part of the record; held, that this court has power to review the decision of the court below upon the plea in abatement.

It is therefore the duty of the court 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 the court of the United States.

The provisions of the Constitution of the United States in relation to the personal rights and privileges to which the citizen of a state should be entitled, do not embrace the negro African race, at that time in this country, or who might afterwards be imported, who had then been or should afterwards be made free in any state.

Such provisions of the Constitution do not put it in the power of a single state to make out one of the negro African race a citizen of the United States, and to endue him with the full rights of citizenship in every other state without their consent.

The Constitution of the United States does not act upon one of the negro race whenever he shall be made free under the laws of a state, and raise him to the rank of a citizen, and immediately clothe him with all the privileges of a citizen of any other state, and in its own courts.

The plaintiff in error was a negro slave, and brought into a free State (Illinois), and in the free territory of the United States for about four years, during which time he was married to another negro slave who also was in said free territory. One of their children (Eliza) was born on the River Mississippi, north of the north line of Missouri, and another of their children was born in the State of Missouri, to which state he had returned.

Held, that the plaintiff in error could not be and was not 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.

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 part of the people, nor intended to be included in the general words used in that instrument.

The descendants of Africans who were imported into this country and sold as slaves, when they shall become emancipated, or who are born of parents who had become free before their birth, are not citizens of a state in the sense in which the word "citizens" is used in the Constitution of the United States.

The enslaved African race was not intended to be included in, and formed no part of, the people who framed and adopted the Declaration of Independence.

When the framers of the Constitution were conferring special rights and privileges upon the citizens of a state in every other part of the Union, it is impossible to believe that these rights and privileges were intended to be extended to the negro race.

The words of the Constitution should be given the meaning they were intended to bear, when that instrument was framed and adopted.

Where this court has decided against the jurisdiction of the Circuit Court on a plea of abatement, it has still the right to examine any question presented by exception or by the record, and may reverse the judgement for errors committed, and remand the case to the Circuit Court for it to dismiss the case for want of jurisdiction.

The right of property in a slave is distinctly and expressly affirmed in the Constitution.

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 (thirty-six degrees thirty minutes north latitude), is not warranted by the Constitution, and is therefore void.

Neither Dred Scott himself, nor any of his family were made free by being carried into such territory; even if they had been carried there by their owner with the intention of becoming permanent residents.

Scott was not made free by being taken to Rock Island in the State of Illinois.

As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back into Missouri in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois. He and his family were not free, by the laws of Missouri, the property of defendant.

Argued Feb. 11, 12, 13 and 14, 1856. May 12, 1856, ordered to be re-argued at the next term. Re-argued Dec. 15, 16, 17 and 18, 1856. Decided March 6, 1857.

In Error to the Circuit Court of the United States for the District of Missouri.

On November 2, 1853, Dred Scott, by his attorney, filed in the clerk's office of the Circuit Court of the United States for the District of Missouri, the following declaration against the defendant, John F.A. Sandford:

Dred Scott, of St. Louis, in the State of Missouri, and a citizen of the State of Missouri, complains of John F.A. Sandford, of the City of New York, and a citizen of the State of New York, in the plea of trespass for that the defendant heretofore, to wit: on the 1st day of January, A.D. 1853, at St. Louis, in the County of St. Louis and State of Missouri, with force and arms assaulted the plaintiff, and without law or right held him as a slave, and imprisoned him for the space of six hours and more, and then and there did threaten to beat the plaintiff and to hold him in prison, and restrained of liberty, so that by means of such threats the plaintiff was put in fear and could not attend to his business, to wit: $2,500, and other wrongs to the plaintiff then and there did, against the peace and to the damage of the plaintiff $3,000.

And also for that the defendant heretofore, on the 1st day of January, A.D. 1853, with force and arms at St. Louis aforesaid, an assault did make on Harriet Scott, then and still the wife of the plaintiff, and then and there did imprison said Harriet, and hold her as a slave, without law or right, for the space of six hours, and then and there did threaten to beat said Harriet and hold her as a slave, so that by means of the premises said Harriet was put in great fear and pain, and could not and did not attend to the plaintiff's business, and the plaintiff lost and was deprived of the society, comfort and assistance of his wife, and thereby lost great gains and profits, of the value, to wit: of $2,500, and other wrongs to the plaintiff, the defendant then and there did, against the peace and to the plaintiff's damage, $3,000.

And also for that the defendant heretofore, to wit: on the 1st day of January, A.D. 1853, with force and arms at St. Louis aforesaid, made an assault on Eliza Scott and Lizzie Scott, then and still infant daughters and servants of the plaintiff, and then and here imprisoned and held as slaves said Eliza and Lizzie, for a long space of time, to wit: six hours, and then and there did threaten to beat said Eliza and Lizzie and hold them as slaves and restrained of their liberty, so that by means of the premises, said Eliza and Lizzie were put in great fear, and could not and did not attend to plaintiff's business as otherwise they might and would have done, and the plaintiff thereby lost the comfort, society, service and assistance of his said children and servants, of great value, to wit: $2,500, and other wrongs to the plaintiff, the defendant then and there did against the peace, and to the damage of plaintiff $3,000, and the plaintiff on account of the aforesaid several grievances, brings suit, etc. by his attorney, R.M. Field.

The defendant, by his attorney, filed the following plea:

Plea to the jurisdiction of the court. April Term, 1854.

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

The plea was verified.

The plaintiff filed the following demurrer to this plea:

And now comes the plaintiff and demurs in law to the plea of the defendant to the jurisdiction of the court, and says that the said plea and the matters therein contained are not sufficient in law to preclude the court of its jurisdiction of this case, and that the plaintiff is not bound by law to reply to said plea. Wherefore the plaintiff prays judgment of said plea, and that the defendant answer further to the plaintiff's said action, etc.

On April 24, 1854, the matters of law arising upon the demurrer were argued and submitted to the court. On April 25, the court rendered a decision that the law was for plaintiff on said demurrer, and that the said demurrer be, and the same is hereby sustained.

On May 4, 1854, in accordance with an agreement by the attorneys, the defendant filed pleas, Nos. 1, 2 and 3, to all of which pleas the plaintiff filed replications. Said attorneys also filed an agreement upon the statement of the facts in this case. The pleas are as follows:

1. And the said John F.A. Sandford, by H.A. Garland, his attorney, comes and defends the wrong and injury, when, etc., and says that he is not guilty of the said supposed trespass above laid to his charge, or any part thereof in manner and form as the said Dred Scott hath above thereof complained against him, and of this he, the said Sandford, putteth himself upon the country.

2. And for a further plea in this behalf, as to the making of said assault on said Dred Scott in the first count in said declaration mentioned, imprisoning him and keeping and detaining him in prison, etc., the said Sandford, by leave of the court first obtained, says that the said Dred Scott ought not have or maintain his aforesaid action thereof against him, because he says that before, and at the time when, etc., in the said first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant, and as such slave he gently laid his hands upon him, and only restrained him of such liberty as he had a right to do, and this the said Sandford is ready to verify, wherefore he prays judgment whether the said Scott ought to have or maintain his aforesaid action thereof against him.

3. And for a further plea in this behalf, as to making the said assault upon Harriet, the wife, and Eliza and Lizzie, the daughters of the said Dred Scott, in the second and third counts of the said declaration mentioned, and imprisoning them and keeping and detaining them in prison, etc., the said John F.A. Sandford, by leave of the court obtained, says that said Dred Scott out not to have or maintain his aforesaid action thereof against him, because he says that before and at the said time, etc., when etc., in the said second and third counts mentioned, the said Harriet, wife of said Scott, and Eliza and Lizzie, his daughters, were the lawful slaves of the said Sandford, and as such slaves he gently laid his hands upon them and restrained them of their liberty as he had a right to do. And this he is ready to verify. Wherefore he prays judgment, etc.

Garland, for defendant.

The replications are as follows:

The plaintiff, as to the plea of the defendant firstly above pleaded, and whereof he has put himself on the country, doth do like. Field.

And the plaintiff, as to the plea of the defendant secondly above pleaded as to said several trespasses in the introductory part of that plea mentioned and therein attempted to be justified, says that the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having and maintaining his aforesaid action against the defendant, because he says that said defendant at said time, when, etc., of his own wrong, and without the cause by him in his said second plea alleged, committed the said several trespasses in the introductory part of that plea mentioned, in manner and form as the plaintiff has above in his declaration complained, and this the plaintiff prays may be inquired of by the country.

The replication to the third plea was similar to the second.

The agreed statement of facts was as follows:

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 Doctor 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 Doctor 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 36 degrees 30 minutes north, and north of the State of Missouri. Said doctor 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 Doctor Emerson hereinbefore named. Said Doctor 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 Doctor Emerson, who then claimed to be heir 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 of 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 Doctor Emerson remove 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 Doctor 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 time.

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

Mr. R.M. Field, for plaintiff.

Mr. H.A. Garland for defendant.

The case was tried, at the Circuit Court held for the District of Missouri at St. Louis on May 15, 1854, before the court and a jury.

The jury 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, etc., 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, etc., in the second and third counts mentioned, the said Harriet wife of said Dred Scott, and Eliza and Lizzie the daughters of the said Dred Scott were negro slaves, the lawful property of the defendant." Whereupon it is now considered by the court, that the plaintiff take nothing by his writ in this case, and that the defendant John F.A. Sandford go hence without day and recover against said plaintiff, Dred Scott, the costs by him expended in the defense of this suit.

A motion for a new trial was made by the attorneys for the plaintiff, which the court overruled. Thereupon the said plaintiff filed a bill of exception, which is as follows:

Dred Scott v. John F.A. Sandford.

April Term, 1854.

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.

"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.

Mr. Field, for plaintiff.

Mr. Garland, for defendant."

No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give the jury, the following instructions:

Plaintiff's Instruction.

The jury are instructed, 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:

Defendant's Instruction.

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

To the giving of such instruction the plaintiff then and there duly excepted.

The jury found the verdict as above. The plaintiff thereupon immediately filed in court the following motion for a new trial:

And now, after verdict, and before judgment, the plaintiff comes and moves the court to set aside the verdict and grant a new trial, because the court misdirected the jury in matter of law on said trial. Field.

The court overruled the said motion and gave judgment on verdict for the defendant; and to such action of the court the plaintiff then and there duly excepted.

The plaintiff writes this bill of exceptions and prays that it may be allowed, and signed and sealed. Field.

Allowed and signed and sealed, May 15, 1854.

R. W. Wells. [seal.]

A writ of error was issued, and in the Supreme Court of the United States, December Term, 1854, the following was filed:

And now comes said plaintiff in error and says that in the record of the proceedings, and in the giving of judgment below, there is manifest error, because the court below gave judgment for the defendant below, when the judgment should have been for plaintiff below, wherefore for said errors and others the plaintiff prays judgment of reversal here, and that he may be restored to all he has lost.

By his attorney, Nathaniel Holmes. Filed, Dec. 30, 1854.

Messrs. M. Blair and Curtis, for the plaintiff in error:

1. The first question is, whether this court will consider the question raised in the Circuit Court by the plea to the jurisdiction, no final judgment having been rendered on the demurrer to that plea, and the defendant having pleaded over after the demurrer was sustained, and the final judgment assigned for error having been rendered on the issue on the merits.

2. Whether, if the ruling of the Circuit Court on the demurrer to the plea in abatement is subject to be reviewed here, the judgment of the court, in holding the plaintiff to be "a citizen" in such sense as to enable him to maintain an action in that character in the courts of the United States, was erroneous.

3. Whether the facts stated in the agreed case entitle the plaintiff and his family to freedom, supposing the 8th section of the Act of 1820, known as the Missouri Compromise, to be constitutional.

4. Whether the said Act is constitutional.

Upon the first point the counsel cited, Shephard v. Graves, 14 How. 519; U. S. v. Boyd, 5 How. 51; Smith v. Kernochen, 7 How. 216; Sims v. Hundley, 6 How.1; Bailey v. Dozier, 6 How . 23; Conard v. Atlantic Ins. Co. 1 Pet. 386; De Wolf v. Rabaud, 1 Pet. 476; Evans v. Gee, 11 Pet. 89; 1 Wash. C. C. 70, 80; 2 Sumn. 251; 2 Dall. 341; 4 Dall. 330, and then said: In this case, as in those cited, the declaration gives jurisdiction, and the facts alleged in support of it can only be contested by making an issue as in other cases. If that issue be not made, or be waived in the conduct of the cause according to a well-settled practice of the court, there is no reason in this case more than in any other why the objection should be available at a later stage of the case. If the fact had been that plaintiff was not a resident of Missouri, and that was the reason why he was not a citizen, no advantage could be taken of the fact at any subsequent stage of the case. What difference does it make that another fact is relied on to show that he is not a citizen? It is the right to sue as "a citizen" of Missouri, which is questioned: and it is immaterial whether the right be questioned on account of residence, or on account of any other circumstances which deprives him of the character of a citizen of Missouri.

2. But if the court should be of opinion that the question raised by the plea in abatement, and the demurrer thereto, is not waived, and that the judgment of the Circuit Court therein must be maintained before it will consider the questions affecting his right to freedom, I submit the following considerations in support of the judgment on the demurrer:

The opinion of the court in Amy v. Smith, 1 Litt. 326, 4 Ga. 68, that free negroes are not citizens within the meaning of the 2d section of the 4th article of the Constitution, delivered in the spring of 1822, displays no research, logic or learning. On the other hand, the dissenting opinion of Judge Mills, p. 337, is sustained by the views of Judge Washington in Corfield v. Coryell, 4 Wash. C. C. 71.

21 Ala. 434; State v. Manuel, 4 Dev. & Bat. 24.

The other decisions relied on, Meigs, 339; 1 English, 509, are to the same effect as the decision in Amy v. Smith, and simply follow that.

The argument most relied on by those who deny the citizenship of free colored men is, that the Acts of Congress on the subject of naturalization provide for naturalizing white persons only. But even naturalization was not limited to the whites by the Constitution, and it has been extended repeatedly by treaty and Act of Congress to Indians and negroes.

Treaty with Choctaws, art. 14, 20th September, 1830; Treaty with the Cherokees, 12th art. Vol. V. U. S. Laws, 647; Treaties of 1803 for Louisiana, 1819 for Florida, 1847 for California; 21 Ala. 454; and as Judge Gaston says, 4 Dev. & Bat. 24, there is no connection between the subject of citizenship as acquired by birth and that acquired under the laws of Congress, and it would be a dangerous mistake to confound them. That citizenship is acquired by birth, is a well settled common law principle.

Vattel, ch. 19, secs. 212, 313, 314; Justinian, Lib. 1, Tit. 5, sec. 3; Constitution, sec. 5, art. 2.

The Constitution of the United States recognizes but two kinds of free persons, citizens and aliens. Nobody supposes that free negroes are aliens. They must therefore be citizens.

Opinions Atty.-Gen. Vol. IV. p. 417; 3d sec. Act march 6, 1820; 6th sec. Act of 1812, to form a territorial government in Missouri; Militia Act, May 17, 1792; Constitutions of Kentucky, Louisiana, Mississippi, Connecticut and Missouri.

All of the above define the qualifications of electors in terms, "free white male citizens;" and thus show that it is as a class of citizens that the negroes are excluded. These considerations would authorize the conclusion that the framers of the Constitutions and the patriots of that era regarded this class of persons as citizens, and included them in that character in the provisions of the Constitutions; and this is fully confirmed by reference to the laws and records of that day.

Act of Mass. 6th March, 1788; Proposal of South Carolina, Jan. 25, 1778. to amend the 4th article; Journals, Vol. II. p. 606; Journals, Vol. IV. p. 183; Organization of the Western Territory, Resolutions, April 23, 1784; Ordinance 1787, art. 4; 2 Kent's Com. p. 258, note b.

Missouri Rev. Laws of 1845, p. 755, and Code of 1835, allude to free negroes who were "citizens."

No reason can be imagined for permitting a suit between free white persons of different states, for wrongs which the local tribunals were deemed inadequate to redress, which will not apply with equal force to controversies to which a free negro may be a party. They have equal capacity with other citizens to hold property and carry on business, and therefore to create the mischief against which the national judiciary was provided. The words of a law are to be construed with reference to the object of the law.

16 Pet. 640; 12 Wheat. 441; 16 Pet. 104.

In 1 Paine, C. C. 394, the courts say that a person need not have acquired political rights; it is only necessary that he should have acquired a domicil, to enable him to sue as a citizen; and in 3 Wash. C. C. 546, that "citizenship means nothing but residence."

3. The next question to be considered is, whether Dred and his family, or either of them, was emancipated by being taken to Illinois, and to that part of Louisiana Territory lying north of 36 degrees 30 minutes, and being detained there in the manner described in the agreed case. The eldest child, Eliza, having been born north of the Missouri line, on the boat whilst descending the Mississippi, was free under the Constitution of Illinois, and well settled legal principles.

Constitutions of Illinois, art. 6, secs. 1 and 2; 3 U. S. Stat. at L. p. 544; Spotts v. Gillaspie, 6 Rand. (Va.), 572; Commonwealth v. Holloway, 2 S. & R. 305.

The Circuit Court decided against the plaintiff on the strength of Scott v. Emerson, 15 Mo. 586.

But the question depends on general principles, and the courts of the United States, whilst they will respectfully consider the decisions of the State Court, decide such questions according to their own judgment of the law.

Swift v. Tyson, 16 Pet. 1; Carpenter v. Ins. Co. 16 Pet. 511; Lane v. Vick, 3 How. 476; Foxcroft v. Mallett, 4 How 379.

During the time that Dr. Emerson kept Dred at his station at Rock Island, and Harriet at Fort Snelling, there is no evidence that he had or claimed a residence elsewhere, and this court, in Ennis v. Smith, 14 how. 423, "where a party lives, is taken prima facie to be his domicil."

See, also Sylvia v. Kirby, 17 Mo. 434.

In the case of Scott v. Emerson, 15 Mo. 576, the court base their decision on two grounds:

1st. That by returning to Missouri to reside the master's right, which was suspended during the residence in Illinois, and in the Territory, is revived.

2d. The Constitution of Illinois, and the 8th sec. of the Act of 1820, are penal statutes which the courts of other States were not bound to enforce.

In support of the first position, Ex parte Grace, 2 Hagg. 90; Commonwealth v. Aves, 18 Pick. 193, and Mahoney v. Ashton, 4 H. & McH. 295, were cited.

These decisions are inapplicable to the case at bar, for the present case the Constitution and Statute of Illinois expressly provide that emancipation shall be the effect of the violation of the provision. The laws under which the above decisions were made were different.

David v. Porter, 4 H. & McH. 418; Betty v. Horton, 1 Lee, 615.

The second ground relied upon by the court was equally untenable. See opinion of Judge Gambles, of the same case of Emerson v. Scott, "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, emancipates his slave.

Also McMicken v. Amos, 4 Rand. 134; Bank v. Earle, 13 Pet. 590; Spencer v. Dennis, 8 Gill 321.

4. The freedom of Harriet and her daughter Lizzie depends on the validity of the 8th section of the Act of March 6, 1820, entitled "An Act to authorize the people of Missouri Territory to form a constitution and state government," etc.

The section is as follows:

That in all that territory ceded by France to the United States, which lies north of 36 degrees 30 minutes north latitude, not included within the limits of the State contemplated by this Act, slavery and involuntary servitude, otherwise than in the punishment of crimes whereof the party shall have been duly convicted, shall be, and the same 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.

The Validity of this section is denied, on the ground that Congress possessed no power to prohibit slavery in the Territories.

It is not the power to govern the Territories, but the extent of the power which is questioned. Even those who deny any constitutional power on the ground of necessity; but they say where the necessity stops, there the power ceases. But this concedes the whole question; for it be lawful to legislate at all, the quantum which may be necessary is purely a legislative question; and indeed, whether the Constitution confers directly the legislative power in question or not is immaterial, seeing that it owns the lands, and has power to pass what laws it may deem expedient to dispose of and make them available.

Undoubtedly, for temporary purposes, it is indispensable that provision be made to govern the people in order that the lands shall posses any value, or that what remains after part is sold, may not be seized and confiscated. What would be proper provisions to this end, is not within the scope of judicial inquiry. If it were, it is demonstrable that the provision in question is most judicious, as a mere regulation to facilitate the disposition of public lands.

But it is alleged that the particular provision prohibiting slavery is violative of some part of the Constitution, which establishes the quality of the States and the rights of slave holders to take that species of property into the Territories of the United States. I admit that whether the power of Congress to legislate be given expressly or implication, it is given with the limitation that it shall be exercised in subordination to the Constitution, and that if it be exercised in violation of any provisions of the Constitution, the Act would be void. Subject to this limitation, Congress is at liberty to adopt any means to accomplish its object.

McCulloch v. Maryland, 4 Wheat. 316.

But where is it written in the Constitution that no law shall be passed prohibiting slavery in the territories? Not only was this measure adopted as one deemed advisable and proper to the well government of the territories under both the Confederation and the Constitution, but when the Mississippi Territory was ceded in 1798, it was deemed necessary to stipulate that slavery should not be prohibited, in order to limit the discretion of Congress. The limitation sought to be imposed is one dependent altogether upon state laws, and subjects Congress to the State Legislatures. The Act is now claimed as unconstitutional, because a species of property recognized in the laws of the States cannot be held in the Territories; but it would become constitutional if the States should cease to recognize such property; and again unconstitutional if the States should recognize it again. How the law in question affects the States as States, in any respect, is not perceived; it is not pretended that any State has legislative rights in the Territories.

Pollard v. Hagan, 3 How. 322.

On other subjects, there are difficulties in adjusting the rights of the general and state governments; but there can be no conflict on this. Over the Territories, the general government alone has any power; and in the exercise of that, as of all other powers, is a government of the people. "In form and substance (this court says, it emanates from them, its powers are granted by them, and are to be exercised on them and for their benefit."

On this branch of the subject, the counsel cited the following authorities: Story's Com. Const. Vol. III., pp. 193, 195; 1 Kent's Com. 360; Sergeant, Const. Law, 389; McCulloch v. Maryland, 4 Wheat. 422; Am. Ins. Co. v. Canter, 1 Pet. 543; Cherokee Nation v. Georgia, 5 Pet. 44; Menard v. Aspasia, 5 Pet. 505; Strader v. Graham, 10 How. 93; Cross v. Harrison, 16 How. 193; Hogg v. Zanesville Canal Co. 5 Ohio, 410; Phoebe v. Jay, Breese, 210; Spooner v. McConnell, 1 McL. 341; Harry v. Decker, Walker (Miss.) 36; Rachael v. Walker, 4 Mo. 350; 3 How 223. And the following Acts of Congress; 1 Stat. at L., pp. 50, 551; 2 Stat. at L., pp. 58, 283, 309, 514; 3 Stat. at L., p. 546; 4 Stat. at L., p. 740; 5 Stat. at L., pp. 10, 235, 797; 9 Stat. at L., pp. 223, 447.

Messrs. H. S. Geyer and R. Johnson, for the defendant in error:

This cause was argued before this court at the December Term, 1855, when it was ordered to be re-argued by counsel for their respective parties, at a next term of court, and especially upon the following points:

1. Whether or not the facts being admitted by the demurrer to the plea to the jurisdiction, the judgment on the demurrer being that the defendant answer over, and the submission of the defendant to that judgment, by pleading over the merits, the appellate court can take notice of these facts thus admitted upon the record, in determining the question of the jurisdiction to the court below, to hear and fully dispose of the case.

2. Whether or not, assuming that the appellate court is bound to take notice of the facts thus appearing upon the record, the plaintiff is a citizen of the State of Missouri within the meaning of the 11th section of the Judiciary Act of 1789.

l. The averment that the plaintiff is a citizen of the State of Missouri, is a necessary averment. If it had been omitted or defectively stated, it would have been error in the Circuit Court to entertain jurisdiction, even though the defendant had not traversed the averment, but pleaded to the merits.

3 Dall. 382; 2 Cranch, 1, 126; Sullivan v. Fulton Steamboat Co. 6 Wheat. 450; Turner v. Enrille, 4 Dall. 7; Capron v. Van Noorden, 2 Cranch, 126.

If the plea demurred to, is to be regarded as a traverse or averment of citizenship of the plaintiff, then the fact on which the plaintiff claims a right to sue in the Circuit Court does not appear by the record; on the contrary, it appears affirmatively that he had no right to sue in that court. The whole question, whether the court could entertain jurisdiction and allow the defendant to plead over, depends on the decision on the demurrer. If that was erroneous, it was error to proceed further, and the defendants pleading over could not give jurisdiction.

2. It appears by the record that the defendant is a negro, born a slave; and therefore, whether he is entitled to freedom or not, by his temporary residence at Rock Island or Fort Snelling, or both, he is not and cannot be a citizen of the State of Missouri, within the meaning of the Constitution, or sec. 11 of the Judiciary Act.

Citizens, within the meaning of art. 3, sec. 2, are citizens of the United States, who are citizens of the state in which they respectively reside.

Read v. Bertrand, 4 Wash. C. C. 516; Knox v. Greenleaf, 4 Dall. 360; 3 Story on Const. 565, secs. 1687, 1688; 6 Pet. 761.

Citizens are natives or naturalized. All persons born in the United States are not citizens.

Exceptions are:

First. Children of foreign ambassadors.

Second. Indians.

Third. In general, persons of color.

1 Bouv. Inst. pp. 16, 64; Amy v. Smith, 1 Lit. Ky. 334; 2 Kent's Com. p. 258, note b.

Free blacks are not citizens within the provision of the Constitution, art. 4, sec. 2; so held by Dagget, Ch. J., in Connecticut. See note Kent's Com. supra.

See also, State v. Claiborne, 1 Meigs, 331; Opinions Atty.Gen. Vol. I. 382, ed. 41; Vol. I. p. 506, ed. 52. "An inquiry into the political grade of the free colored population, under the Constitution of the United States," by John P. Denny.

Persons who are not citizens of the United States by birth, can become such only by virtue of treaty, or in pursuance of some law of the United States.

The power of naturalization is exclusively vested in Congress.

U.S. v. Villato, 2 Dall. 370; Chirac v. Chirac, 2 Wheat. 269; Houston v. Moore, 5 Wheat. 48.

A slave cannot become a citizen merely by a discharge from bondage.

3. Assuming that the Circuit Court had jurisdiction, the facts, as agreed by the parties, do not establish the right of the plaintiff, his wife and children, or either of them, to freedom.

Sec. 1 of art. 5 of the Constitution of Illinois, and sec. 8 of the Act of 6 March, 1820, do not declare the consequence of bringing a slave within the Territory, embraced. There is no exception or saving in respect to the rights of travelers. The effect of the provision is, in terms, the same, whether a slave is introduced to reside there or for some temporary purpose. Neither clause changes the condition of the slave brought into the Territory embraced by it. The slave is held to be free while he remains within such State or country, only because his owner has not the authority of law to restrain him of his liberty.

The owner's authority is restored if the slave is found within a State or country where slavery exists by law.

The Slave Grace, 2 Hagg. Adm. 94; Willard v. The People, 4 Scam. 461; Graham v. Strader, 5 B. Mon. 181; 7 B. Mon. 633; Collins v. America, 9 B. Mon 565; Mercer v. Gilman, 11 B. Mon. 210; Maria v. Kirby, 12 B. Mon. 542; Lewis v. Fullerton, 1 Rand. 15.

It has been held that where an owner of a slave brings him into a State or country in which slavery does not exist, or is prohibited by law, with the intention to make it his domicil, it operates as an emancipation, and the master cannot resume domain, though the slave return to, or is found in a country where slavery exists by law.

Rankin v. Lydia, 2 A. K. Marsh. 467; Griffith v. Fanny, Gilm. (Va.) 143; Lunsford v. Coquillon, 2 Mart. N. S. 405; Josephine v. Poultney, 1 La. Ann. 329; Winney v. Whitesides, 1 Mo. 472; Milly v. Smith, 2 Mo. 172; Nat v. Ruddle, 8 Mo. 282; Rachel v. Walker, 4 Mo. 350; overruled in Scott v. Emerson, 15 Mo. 570; Sylvia v. Kirby, 17 Mo. 434.

These are cases of emancipation by the voluntary act of the master, binding upon him everywhere, as would be emancipation upon any other proof recognized by law. Slaves, however, attending their owners temporarily sojourning in, or traveling through a State wherein slavery does not exist by law, are not thereby emancipated.

2 A. K. Marsh. 467; Graham v. Strader, 5 B. Mon. 181; Mercer v. Gilman, 11 B. Mon. 210; Maria v. Kirby, 12 B. Mon. 542; Lewis v. Fullerton, 1 Rand. 15; Henry v. Ball, 1 Wheat. 1; Spragg v. Mary, 3 Harr. & J.; Pocock v. Hendricks, 8 Gill & J. 421; The Slave Grace, 2 Hagg. 94; Commonwealth v. Aves, 18 Pick. 193; Mahoney v. Ashton, 4 H. & McH. 295.

The present plaintiff in error was held not entitled to his freedom, on the same state of facts as is now in evidence, in Scott v. Emerson, 15 Mo. 576.

This decision was affirmed in Sylvia v. Kirby, 17 Mo. 434.

By the laws of Missouri, therefore, the claimants are slaves, and these laws must determine their condition in the courts of the United States.

Strader v. Graham, 10 How. 93.

4. No residence of a slave at Fort Snelling could change his condition or devest the title of his owner.

Slavery existed by law in all the territory ceded by France to the United States, and Congress has not the constitutional power to repeal that law, or abolish or prohibit slavery within any part of that Territory.

Sec. 8 of the Act of March 6, 1820, is the first, and almost the only instance of an assumption by Congress of the power to abolish slavery in the Territory. It has never been recognized by this court. It is understood to be claimed that authority of Congress to erect territorial governments is confirmed by art. 4, sec. 3, of the Constitution, which gives the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," or to result from the power to acquire territory; and in either case, it comprehends a power of legislation exclusive, universal, absolute and unlimited.

3 Story, const. secs. 1314, 1315, 1318, 1319, 1320, 1322; 1 Kent's Com. 423.

The clause of the Constitution, however, has been judicially interpreted to be a power to dispose of and make all needful rules and regulations respecting the lands and other property of the United States.

U. S. v. Gratiot, 14 Pet. 526, 537; Am. Ins. Co. v. Canter, 1 Pet. 342; see, also, Federalist, No. 43.

The subject of the power conferred by art. 4, sec. 3, is property, and the property only of the United States. This power is over unappropriated lands.

To organize a municipal government or corporation for the district or country, to prohibit slavery, is not to make needful rules and regulations respecting the territory or other property belonging within such district; therefore, the power to institute such a government, and more specially an unlimited power to legislate in all cases over the inhabitants in a territory and their property, cannot be deduced from the clause under consideration.

The power of Congress to institute temporary government over any territory, results 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. It is a power resulting from the necessity of the State, and is limited to the necessity from which it arises; to change the law of property, to emancipate slavery, to abolish slavery where, by the law it exists, to confiscate property, or devest vested rights, cannot be necessary or proper to institution of a temporary government. The power of Congress over the territory belonging to the United States cannot authorize legislation which practically excludes from such territory the people of any portion of the Union, or prevents them from taking with them and holding in such territory any property recognized by the Constitution, and the local laws of the territory.

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 the highest importance, and the court wax at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case, and direct a re-argument on some of the points, in order that we might have an opportunity of giving to the whole subject a more deliberate consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion.

There are two leading questions presented by the record:

l. 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, 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 defense by pleading over, and thereby admitted the jurisdiction of the court. But in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been adverted to. This peculiar and limited jurisdiction had 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 writ of error brought by the plaintiff, the question upon the plea in abatement would be open for revision in the appellate court. Cases that may have been decided in such courts, or rules that may have been laid down by common law pleaders, can have no influence in the decision in this court. Because, under the constitution and laws of the United States, the rules which govern the pleadings in its courts, in questions of jurisdiction, stand on different principles and are regulated by different laws.

This difference arises, as we have said, from the peculiar character of the government of the United States. For although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the Constitution, have been conferred upon it; and neither the Legislative, Executive nor Judicial Departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution. And in regulating the Judicial Department, the cases in which the courts of the United States shall have jurisdiction are particularly and specifically enumerated and defined; and they are not authorized to take cognizance of any case which does not come within the description therein specified. Hence, when a plaintiff sues in a court of the United States, it is necessary that he should show, in his pleading, that the suit he brings is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by an 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 pleading.

This point was decided in the case of Bingham v. Cabot, 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 Chapron v. Van Noorden, in 2 Cranch, 126, and Montalet v. Murray, 4 Cranch, 46, are sufficient to show the rule of which we have spoken. The case of Capron v. Van Noorden strikingly illustrates the difference between a common law court and a court of the United States.

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

We think they are before us. The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ of error always bring us up to the superior court the whole record of the proceedings in the court below. And in the case of The Bank of the U.S. 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 these rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

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

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

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

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

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy of these laws. The decision of that question belonged to the political or 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 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 a citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the federal government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.

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

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

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

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

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in the 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 the time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

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

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen Colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaved 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, sec. 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 be 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 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," etc.; and it provides, that "if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justices before whom the offender shall be convicted."

And "that none of Her Majesty's English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to Her Majesty, for and towards the support of the government within this province, and the other moiety to him or them that shall inform and sue for the same in any of Her Majesty's courts of record within the Province, by will, 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 unnaturally and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.

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

The language of the Declaration of Independence is equally conclusive.

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

It then proceeds to say: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among them is life, liberty, and 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 embraced the negro race, which, by common consent, had been excluded from civilized governments and the family of nations, and doomed to slavery. The spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

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

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, 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 of 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 or liberty, or any of the personal rights so carefully provided for the citizen.

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

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

It is very true, that in that portion of the Union where the labor of the negro race was found to be unsuited to the climate, and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and productions of these States: for some of the States, where it had ceased or nearly ceased to exist, were actively engaged in the slave trade, procuring cargoes on the coast of Africa, and transporting them for sale to those parts of the Union where their labor was found to be profitable, and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided. And it can hardly be supposed that, in the States where it was then countenanced in it 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 regulation, drawing a broad line of distinction between the citizen and the slave races, and legislating in relation to them upon the same principle which prevailed at the time of the Declaration of Independence. As relates to these States, it is too plain for argument, that they have never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure. And as long 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' Tenn. 321.

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 £50 upon anyone who shall join them in marriage; and declares all such marriages absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And this mark of degradation was renewed, and again impressed upon the race, in the careful and deliberate preparation of their Revised Code published in 1836. This Code forbids any person from joining in marriage any white person with any Indian, negro or mulatto, and subjects the party who shall offend in this respect, to imprisonment, not exceeding six months, in the common jail, or hard labor, and to a fine of not less than fifty nor more than two hundred dollars; and, like the Law of 1786, it declares the marriage to be absolutely null and void. It will be seen that the punishment is increased by the Code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty.

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

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

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

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

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

"Whereas sound policy requires that the abolition of slavery should be effected as soon as may be consistent with the rights of individuals, and the public safety and welfare"—showing that the right of property on 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 institution, or board or harbor for that purpose, any such person, without 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. 340, that upon an information filed against Prudence Crandall for a violation of this law, one of the points raised in the defense 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 Daggett, 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. Buy why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not by the institutions and laws of the State numbered among its people. He forms no part of the sovereignty of the State, and is not, therefore, called on to uphold and defend it.

Again in 1822, Rhode Island in its Revised Code, passed a law forbidding persons who were authorized to join persons in marriage from joining in marriage any white person with any negro, Indian or mulatto, under the penalty of $200, 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, 2d vol. 258, note b, that in no part of the country, except Maine, did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights.

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word "citizens," or would have consented to a constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestations, 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, 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 in 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 confined 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 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 5th section of the 9th 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 defense. And it cannot for a moment be supposed, that a class of persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words "free inhabitants," in the preceding article, to whom privileges and immunities were so carefully secured in every State.

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

To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the government went into operation, will be abundantly sufficient to show this. The first two 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 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 not 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 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 person of color, natives of the United States.

Here the line of distinction is drawn in express words. Persons of color, in the judgment of Congress, were not included in the word "citizen," 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 offense; 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 his 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 citizens, and entitled to that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognized there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class, resident in the State, and refuse to him the full rights of citizenship.

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

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

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

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

But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the state as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen of the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a state, and of the United States, they wold 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 State 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 guarantees 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 Pet. 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 residenc

Dred Scott v. Sandford

Further readings

Cross-references

Dred Scott, Plff. in Er., v. John F.A. Sandford