[*399] [***698]
Mr. Chief Justice TANEY delivered the opinion of the court.
This case has been twice argued. After the argument [**18] at the
last term, differences of opinion were found to exist among the members of the
court; and as the questions in controversy are of the highest importance, and
the court was at that time much pressed by the ordinary business of the term,
it was deemed advisable to continue the case, and direct a re-argument on some
of the points, in order that we might have an opportunity of giving to the
whole subject a more deliberate [*400] consideration. It has
accordingly been again argued by counsel, and considered by the court; and I
now proceed to deliver its opinion.
There are two leading questions presented by the record:
1. Had the Circuit Court of the United States jurisdiction to hear and
determine the case between these parties? And
2. If it had jurisdiction, is the judgment it has given erroneous or not?
The plaintiff in error, who was also the plaintiff in the court below, was,
with his wife and children, held as slaves by the defendant, in the State of
Missouri; and he brought this action in the Circuit Court of the United States
for that district, to assert the title of himself and his family to freedom.
The declaration is in the form usually adopted in that [**19] State
to try questions of this description, and contains the averment necessary to
give the court jurisdiction; that he and the defendant are citizens of
different States; that is, that he is a citizen of Missouri, and the defendant
& 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 [***699] 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 [**20] it is legally before us, and the
court should be of opinion that the facts stated in it disqualify the plaintiff
from becoming a citizen, in the sense in which that word is used in the
Constitution of the United States, then the judgment of the Circuit Court is
erroneous, and must be reversed.
It is suggested, however, that this plea is not before us; and that as the
judgment in the court below on this plea was in favor of the plaintiff, he does
not seek to reverse it, or bring it before the court for revision by his writ
of error; and also that the defendant waived this defence by pleading over, and
thereby admitted the jurisdiction of the court.
[*401] But, in making this objection, we think the peculiar and
limited jurisdiction of courts of the United States has not been adverted to.
This peculiar and limited jurisdiction has made it necessary, in these courts,
to adopt different rules and principles of pleading, so far as jurisdiction is
concerned, from those which regulate courts of common law in England, and in
the different States of the Union which have adopted the common-law rules.
In these last-mentioned courts, where their character and rank are analogous to
[**21] that of a Circuit Court of the United States; in other
words, where they are what the law terms courts of general jurisdiction; they
are presumed to have jurisdiction, unless the contrary appears. No averment in
the pleadings of the plaintiff is necessary, in order to give jurisdiction. If
the defendant objects to it, he must plead it specially, and unless the fact on
which he relies is found to be true by a jury, or admitted to be true by the
plaintiff, the jurisdiction cannot be disputed in an appellate court.
Now, it is not necessary to inquire whether in courts of that description a
party who pleads over in bar, when a plea to the jurisdiction has been ruled
against him, does or does not waive his plea; nor whether upon a judgment in his
favor on the pleas in bar, and a writ of error brought by the plaintiff, the
question upon the plea in abatement would be open for revision in the appellate
court. Cases that may have been decided in such courts, or rules that may have
been laid down by common-law pleaders, can have no influence in the decision in
this court. Because, under the Constitution and laws of the United States, the
rules which govern the pleadings in its courts, [**22] 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
[*402] show, in his pleading, that the suit he brings is within the
jurisdiction of the court, and that he is entitled to sue there. And if he
omits to do this, and should, [**23] by any oversight of the
Circuit Court, obtain a judgment in his favor, the judgment would be reversed
in the appellate court for want of jurisdiction in the court below. The
jurisdiction would not be presumed, as in the case of a common-law English or
State court, unless the contrary appeared. But the record, when it comes before
the appellate court, must show, affirmatively, that the inferior court had
authority, under the Constitution, to hear and determine the case. And if the
plaintiff claims a right to sue in a Circuit Court of the United States, under
that provision of the Constitution which gives jurisdiction in controversies between
citizens of different States, he must distinctly aver in his pleading that they
are citizens of different States; and he cannot maintain his suit without
showing that fact in the pleadings.
This point was decided in the case of Bingham v. Cabot, (in 3 Dall., 382,) and
ever since adhered to by the court. And in Jackson v. Ashton, (8 Pet., 148,) it
was held that the objection to which it was open could not be waived by the
opposite party, because consent of parties could not give jurisdiction.
It is needless to accumulate cases on this subject. [**24] Those
already referred to, and the cases of Capron v. Van Noorden, (in 2 Cr., 126,)
and Montalet v. Murray, (4 Cr., 46,) are sufficient to show the rule of which
we have spoken. The case of Carpron 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 [**25] us upon this record,
the question to be decided is, whether the facts stated in the plea are
sufficient to show that the plaintiff is not entitled to sue as citizen in a
court of the United States.
[*403] We think they are before us. The plea in abatement and the
judgment of the [***700] court upon it, are a part of the judicial
proceedings in the Circuit Court, and are there recorded as such; and a writ of
error always brings up to the superior court the whole record of the
proceedings in the court below. And in the case of the United States v. Smith,
(11 Wheat., 172,) this court said, that the case being brought up by writ of
error, the whole record was under the consideration of this court. And this
being the case in the present instance, the plea in abatement is necessarily
under the consideration; and it becomes, therefore, our duty to decide whether
the facts stated in the plea are or are not sufficient to show that the
plaintiff is not entitled to sue as a citizen in a court of the United States.
This is certainly a very serious question, and one that now for the first time
has been brought for decision before this court. But it is brought here by
those who have [**26] 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 salves, become a member of the political community
formed and brought into existence by the Constitution of the United States, and
as such become entitled to all the rights, and privileges, and immunities,
guarantied by that instrument to the citizen? One of which rights is the
privilege of suing in a court of the United States in the cases specified in
the Constitution.
It will be observed, that the plea applies to that class of persons only whose
ancestors were negroes of the African race, and imported into this country, and
sold and held as salves. The only matter in issue before the court, therefore,
is, whether the descendants of such salves, 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 [**27] persons who are the descendants of
Africans who were imported into this country, and sold as salves.
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 [*404] right of dominion. But that claim was
acknowledged to be subject to the right of the Indians to occupy it as long as
they though 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 [**28] 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, [**29] 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 [*405] and inferior class of beings,
who had been subjugated by the dominant race, and, whether emancipated or not,
yet remained subject to their authority, and had no rights or privileges but
such as those who held the power and the Government might choose to grant them.
It is not the province of the court to [**30] decide upon the
justice or injustice, the policy or impolicy, of these laws. The decision of
that question belonged to the political or law-making power; to those who
formed the sovereignty and framed the Constitution. The duty of the court is,
to interpret the instrument they have framed, with the best lights we can
obtain on the subject, and to administer it as we find it, according to its
true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights of citizenship
which a State may confer within its own limits, and the rights of citizenship
as a member of the Union. It does not by any means follow, because he has all
the rights and privileges of a citizen of a State, that he must be a citizen of
the United States. He may have all of the rights and privileges of the citizen
of a State, and yet not be entitled to the rights and privileges of a citizen
[***701] in any other State. For, previous to the adoption of the
Constitution of the United States, every State had the undoubted right to
confer on whomsoever it pleased the character of citizen, and to endow him with
all its rights. But this character of course was confined to [**31]
the boundaries of the State, and gave him no rights or privileges in other
States beyond those secured to him by the laws of nations and the comity of
States. Nor have the several States surrendered the power of conferring these
rights and privileges by adopting the Constitution of the United States. Each
State may still confer them upon an alien, or any one it thinks proper, or upon
any class or description of persons; yet he would not be a citizen in the sense
in which that word is used in the Constitution of the United States, nor
entitled to sue as such in one of its courts, nor to the privileges and
immunities of a citizen in the other States. The rights which he would acquire
would be restricted to the State which gave them. The Constitution has
conferred on Congress the right to establish an uniform rule of naturalization,
and this right is evidently exclusive, and has always been held by this court
to be so. Consequently, no State, since the adoption of the Constitution, can
be naturalizing an alien invest him with the rights and privileges secured to a
citizen of a State under the Federal Government, although, so far as the State
alone was concerned, he would undoubtedly [**32] be entitled to the
rights of a citizen, and clothed with all the [*406] rights and
immunities which the Constitution and laws of the State attached to that
character.
It is very clear, therefore, that no State can, by any act or law of its own,
passed since the adoption of the Constitution, introduce a new member into the
political community created by the Constitution of the United States. It cannot
make him a member of this community by making him a member of its own. And for
the same reason it cannot introduce any person, or description of persons, who
were not intended to be embraced in this new political family, which the
Constitution brought into existence, but were intended to be excluded from it.
The question then arises, whether the provisions of the Constitution, in relation
to the personal rights and privileges to which the citizen of a State should be
entitled, embraced the negro African race, at that time in this country, or who
might afterwards be imported, who had then or should afterwards be made free in
any State; and to put it in the power of a single State to make him a citizen
of the United States, and endue him with the full rights of citizenship in
[**33] every other State without their consent? Does the
Constitution of the United States act upon him whenever he shall be made free
under the laws of a State, and raised there to the rank of a citizen, and
immediately cloth him with all the privileges of a citizen in every other
State, and in its own courts?
The court think the affirmative of these propositions cannot be maintained. And
if it cannot, the plaintiff in error could not be a citizen of the State of
Missouri, within the meaning of the Constitution of the United States, and,
consequently, was not entitled to sue in its courts.
It is true, every person, and every class and description of persons, who were
at the time of the adoption of the Constitution 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
[**34] and the principles on which it was founded. It was the union
of those who were at that time members of distinct and separate political
communities into one political family, whose power, for certain specified
purposes, was to extend over the whole territory of the United States. And it
gave to each citizen rights and privileges outside of his State
[*407] which he did not before possess, and placed him in every
other State upon a perfect equality with its own citizens as to rights of
person and rights of property; it made him a citizen of the United States.
It becomes necessary, therefore, to determine who were citizens of the several
States when the Constitution was adopted. And in order to do this, we must
recur to the Governments and institutions of the thirteen colonies, when they
separated from Great Britain and formed new sovereignties, and took their
places in the family of independent nations. We must inquire who, at that time,
were 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. [**35]
In the opinion of the court, the legislation and histories of the times, and
the language used in the Declaration of Independence, show, that neither the
class of persons who had been imported as slaves, nor their descendants,
whether they had become free or not, were then acknowledged as a part of the
people, nor intended to be included in the general words used in that memorable
instrument.
It is difficult at this day to realize the state of public opinion in relation
to that unfortunate race, which prevailed in the civilized and enlightened
portions of the world at the time of the Declaration of Independence, and when
the Constitution of the United States was framed and adopted. But the public
history of every European nation displays it in a manner too plain to be
mistaken.
They had for more than a century before been regarded as beings of an inferior
order, and altogether unfit to associate with the white race, either in social
or political relations; and so far inferior, that they had no rights which the
white man was bound to respect; and that the negro might justly and lawfully be
reduced to slavery for his benefit. He was bought and sold, and treated as an
ordinary [**36] article of merchandise and traffic, whenever a profit
could be made by it. This opinion was at that time fixed and universal in the
civilized portion of the white race. It was regarded as an axiom in morals as
well as in politics, which no one thought of disputing, or supposed to be open
to dispute; and men in [***702] 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 [*408]
uniformly acted upon than by the English Government and English people. They
not only seized them on the coast of Africa, and sold them or held them in
slavery for their own use; but they took them as ordinary articles of merchandise
to every country where they could make a profit on them, and were far more
extensively engaged in this commerce than any other nation in the world.
The opinion thus entertained and acted upon in England was naturally impressed
upon the colonies they founded on this side of the Atlantic. And, accordingly,
a negro of the African race was regarded by them as an [**37]
article of property, and held, and bought and sold as such, in every one of the
thirteen colonies which united in the Declaration of Independence, and
afterwards formed the Constitution of the United States. The slaves were more
or less numerous in the different colonies, as slave labor was found more or
less profitable. But no one seems to have doubted the correctness of the
prevailing opinion of the time.
The legislation of the different colonies furnishes positive and indisputable
proof of this fact.
It would be tedious, in this opinion, to enumerate the various laws they passed
upon this subject. It will be sufficient, as a sample of the legislation which
then generally prevailed throughout the British colonies, to give the laws of
two of them; one being still a large slaveholding State, and the other the
first State in which slavery ceased to exist.
The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law declaring
"that if any free negro or mulatto intermarry with any white woman, or if
any white man shall intermarry with any negro or mulatto woman, such negro or
mulatto shall become a salve during life, excepting mulattoes born of white
women, who, for such intermarriage, [**38] shall only become
servants for seven years, to be disposed of as the justices of the county
court, where such marriage so happens, shall think fit; to be applied by them
towards the support of a public school within the said county. And any white
man or white woman who shall intermarry as aforesaid, with any negro or
mulatto, such white man or white woman shall become servants during the term of
seven years, and shall be disposed of by the justices as aforesaid, and be
applied to the uses aforesaid."
the other colonial law to which we refer was passed by Massachusetts in 1705,
(chap, 6.) It is entitled "An act for the better preventing of a spurious
and mixed issue," &c.; and it provides, that "if any negro or
mulatto shall presume to smite or strike any person of the English or other
Christian nation, such negro or mulatto shall be severely whipped, at
[*409] the discretion of the justices before whom the offender
shall be convicted."
And "that none of her Majesty's English or Scottish subjects, nor of any
other Christian nation, within this province, shall contract matrimony with any
negro or mulatto; nor shall any person, duly authorized to solemnize marriage,
presume [**39] to join any such in marriage, on pain of forfeiting
the sum of fifty pounds; one moiety thereof to her Majesty, for and towards the
support of the Government within this province, and the other moiety to him or
them that shall inform and sue for the same, in any of her Majesty's courts of
record within the province, by bill, plaint, or information."
We give both of these laws in the words used by the respective legislative
bodies, because the language in which they are framed, as well as the
provisions contained in them, show, too plainly to be misunderstood, the
degraded condition of this unhappy race. They were still in force when the
Revolution began, and are a faithful index to the state of feeling towards the
class of persons of whom they speak, and of the position they occupied
throughout the thirteen colonies, in the eyes and thoughts of the men who
framed the Declaration of Independence and established the State Constitutions
and Governments. They show that a perpetual and impassable barrier was intended
to be erected between the white race and the one which they had reduced to
slavery, and governed as subjects with absolute and despotic power, and which
they then looked [**40] upon as so far below them in the scale of
created beings, that intermarriages between white persons and negroes or
mulattoes were regarded as unnatural and immoral, and punished as crimes, not
only in the parties, but in the person who joined them in marriage. And no
distinction in this respect was made between the free negro or mulatto and the
slave, but this stigma, of the deepest degradation, was fixed upon the whole
race.
We refer to these historical facts for the purpose of showing the fixed
opinions concerning that race, upon which the statesmen of that day spoke and
acted. It is necessary to do this, in order to determine whether the general
terms used in the Constitution of the United States, as to the rights of man
and the rights of the people, was intended to include them, or to give to them
or their posterity the benefit of any of its provisions.
The language of the Declaration of Independence is equally Conclusive:
It begins by declaring that, "when in the course of human events it
becomes necessary for one people to dissolve the political bands which have
connected them with another, and to [*410] assume among the powers
of the earth the separate and equal [**41] station to which the
laws of nature and nature's God entitle them, a decent respect for the opinions
of mankind requires that they should declare the causes which impel them to the
separation."
It then proceeds to say: "We hold these truths to be self-evident: that
all men are created equal; that they are endowed by their Creator with certain
unalienable rights; that among them is life, liberty, and the pursuit of
happiness; that to secure these rights, Governments are instituted, deriving
their just powers from the consent of the governed."
The general words above quoted would seem to embrace the whole human family,
and if they were used in a similar instrument at this day would be so
understood. But it is too clear for dispute, that the enslaved African
[***703] 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 [**42] appeared,
they would have deserved and received universal rebuke and reprobation.
Yet the men who framed this declaration were great men -- high in literary
acquirements -- high in their sense of honor, and incapable of asserting principles
inconsistent with those on which they were acting. They perfectly understood
the meaning of the language they used, and how it would be understood by
others; and they knew that it would not in any part of the civilized world be
supposed to embrace the negro race, which, by common consent, had been excluded
from civilized Governments and the family of nations, and doomed to slavery.
They spoke and acted according to the then established doctrines and
principles, and in the ordinary language of the day, no one misunderstood them.
The unhappy black race were separated from the white by indelible marks, and
laws long before established, and were never thought of or spoken of except as
property, and when the claims of the owner or the profit of the trader were
supposed to need protection.
This state of public opinion had undergone no change when the Constitution was
adopted, as is equally evident from its provisions and language.
The brief preamble [**43] sets forth by whom it was formed, for
what purposes, and for whose benefit and protection. It declares
[*411] that it is formed by the people of the United States; that
is to say, by those who were members of the different political communities in
the several States; and its great object is declared to be to secure the
blessings of liberty to themselves and their posterity. It speaks in general
terms of the people of the United States, and of citizens of the several
States, when it is providing for the exercise of the powers granted or the
privileges secured to the citizen. It does not define what description of
persons are intended to be included under these terms, or who shall be regarded
as a citizen and one of the people. It uses them as terms so well understood,
that no further description or definition was necessary.
But there are two clauses in the Constitution which point directly and
specifically to the negro race as a separate class of persons, and show clearly
that they were not regarded as a portion of the people or citizens of the
Government then formed.
One of these clauses reserves to each of the thirteen States the right to
import slaves until the year [**44] 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 th
description of persons therein referred to, not their descendants, were
embraced in any of the other provisions of the Constitution; for certainly
these two clauses were not intended to confer on them or their posterity the
blessings of liberty, or any of the personal rights so carefully provided for
the citizen. [**45]
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 [*412] even in the minds of the
framers of the Constitution when they were conferring special rights and
privileges upon the citizens of a State in every other part of the Union.
Indeed, when we look to the condition of this race in the several States at the
time, it is impossible to believe that these rights and privileges were
intended to be extended to them.
It is very true, that in that portion of the Union where the labor of the negro
race was found to be unsuited to the climate and unprofitable to the master,
but few slaves were held at the time of the Declaration of Independence; and
when the Constitution was adopted, it had entirely worn out in one of them, and
measures had been taken for its gradual abolition in several others. But this
change [**46] had not been produced by any change of opinion in
relation to this race; but because it was discovered, from experience, that
slave labor was unsuited to the climate and productions of these States: for
some of the States, where it had ceased or nearly ceased to exist, were
actively engaged in the slave trade, procuring cargoes on the coast of Africa,
and transporting them for sale to those parts of the Union where their labor
was found to be profitable, and suited to the climate and productions. And this
traffic was openly carried on, and fortunes accumulated by it, without reproach
from the people of the States where they resided. And it can hardly be supposed
that, in the States where it was then countenances in its worst form -- that
is, in the seizure and transportation -- the people could have regarded those
who were emancipated as entitled to equal rights with themselves.
And we may here again refer, in support of this proposition, to the plain and
unequivocal language of the laws of the several States, some passed after the
Declaration of Independence and before the Constitution was adopted, and some
since the Covernment went into operation.
We need not refer, on this [**47] point, particularly
[***704] to the laws of the present slaveholding States. Their statute
books are full of provisions in relation to this class, in the same spirit with
the Maryland law which we have before quoted. They have continued to treat them
as an inferior class, and to subject them to strict police regulations, drawing
a broad line of distinction between the citizen and the slave races, and
legislating in relation to them upon the same principle which prevailed at the
time of the Declaration of Independence. As related to these States, it is too
plain for argument, that they have never been regarded as a part of the people
or citizens of the State, nor supposed to possess any political rights which
the dominant race might not withhold or grant at their pleasure.
[*413] And as long ago as 1822, the Court of Appeals of Kentucky
decided that free negroes and mulattoes were not citizens within the meaning of
the Constitution of the United States; and the connectness of this decision is
recognized, and the same doctrine affirmed, in 1 Meigs's Tenn. Reports, 331.
And if we turn to the legislation of the States where slavery had worn out, or
measures taken for its speedy [**48] abolition, we shall find the
same opinions and principles equally fixed and equally acted upon.
Thus, Massachusetts, in 1786, passed a law similar to the colonial one of which
we have spoken. The law of 1786, like the law of 1705, forbids the marriage of
any white person with any negro, Indian, or mulatto, and inflicts a penalty of
fifty pounds upon any one who shall join them in marriage; and declares all such
marriages absolutely null and void, and degrades thus the unhappy issue of the
marriage by fixing upon it the stain of bastardy. And this mark of degradation
was renewed, and again impressed upon the race in the careful and deliberate
preparation of their revised code published in 1836. This code forbids any
person from joining in marriage any white person with any Indian, negro, or
mulatto, and subjects the party who shall offend in this respect, to
imprisonment, not exceeding six months, in the common jail, or to hard labor,
and to a fine of not less than fifty nor more than two hundred dollars; and,
like the law of 1786, it declares the marriage to be absolutely null and void.
It will be seen that the punishment is increased by the code upon the person who
shall marry [**49] 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 [*414] the new
Constitution, the equal rights and privileges and rank of citizens
[**50] in every other State.
The first step taken by Connecticut upon this subject was as early as 1774,
when it passed an act forbidding the further importation of slaves into the
State. But the section containing the prohibition is introduced by the
following preamble:
"And whereas the increase of slaves in this State is injurious to the
poor, and inconvenient."
This recital would appear to have been carefully introduced, in order to
prevent any misunderstanding of the motive which induced the Legislature to
pass the law, and places it distinctly upon the interest and convenience of the
white population -- excluding the inference that it might have been intended in
any degree for the benefit of the other.
And in the act of 1784, by which the issue of slaves, born after the time
therein mentioned, were to be free at a certain age, the section is again
introduced by a preamble assigning a similar motive for the act. It is in these
words:
"Whereas sound policy requires that the abolition of slavery should be
effected as soon as may be consistent with the rights of individuals, and the
public safety and welfare" -- showing that the right of property in the
master was to be protected, [**51] and that the measure was one of
policy, and to prevent the injury and inconvenience, to the whites, of a slave
population in the State.
And still further pursuing its legislation, we find that in the same statute
passed in 1774, which prohibited the further importation of slaves into the
State, there is also a provision by which any negro, Indian, or mulatto
servant, who was found wandering out of the town or place to which he belonged,
without a written pass such as is therein described, was made liable to be
seized by any one, and taken before the next authority to be examined and
delivered up to his master -- who was required to pay the-charge which had
accrued thereby. And a subsequent section of the same law provides, that if any
free negro shall travel without such pass, and shall be stopped, seized, or
taken up, he shall pay all charges arising thereby. And this law was in full
operation when the Constitution of the United States was adopted, and was not
repealed till 1797. So that up to that time free negroes and mulattoes were
associated with servants and slaves in the police regulations established by
the laws of the State.
And again, in 1833, Connecticut passed another [**52] 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 [*415] institution, or
board or harbor for that purpose, any such person, without the previous consent
in writing of the civil authority of the town in which such school or
institution might be.
And it appears by the case of Crandall v. The State, reported in 10 Conn. Rep.,
340, that upon an information filed against Prudence Crandall
[***705] for a violation of this law, one of the points raised in
the defence was, that the law was a violation of the Constitution of the United
States; and that the persons instructed, although of the African race, were
citizens of other States, and therefore entitled to the rights and privileges
of citizens in the State of Connecticut.But Chief Justice Dagget, before whom
the case was tried, held, that persons of that description were not citizens of
a State, within the meaning of the word citizen in the Constitution of the
United States, and were not therefore entitled to the privileges and immunities
of citizens in other States.
The case [**53] 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 [**54] could more strongly mark the entire
repudiation of the African race. The alien is excluded, because, being born in
a foreign country, he cannot be a member of the community until he is
naturalized. But why are the African race, born in the State, not permitted to
share in one of the highest duties of the citizen? The answer is obvious; he is
not, bv 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.
[*416] Again, in 1822, Rhode Island, in its revised code, passed a
law forbidding persons who were authorized to join persons in marriage, from
joining in marriage any white person with any negro, Indian, or mulatto, under
the penalty of two hundred dollars, and declaring all such marriages absolutely
null and void; and the same law was again re-enacted in its revised code of
1844. So that, down to the last-mentioned period, the strongest mark of
inferiority and degradation was fastened upon the African race in that State.
It would be impossible to enumerate and compress in the space usually allotted
to an opinion of a court, the various laws, marking the [**55]
condition of this race, which were passed from time to time after the
Revolution, and before and since the adoption of the Constitution of the United
States. In addition to those already referred to, it is sufficient to say, that
Chancellor Kent, whose accuracy and research no one will question, states in
the sixth edition of his Commentaries, (published in 1848, 2 vol., 258, note
b,) that in no part of the country except Maine, did the African race, in point
of fact, participate equally with the whites in the exercise of civil and
political rights.
The legislation of the States therefore shows, in a manner not to be mistaken,
the inferior and subject condition of that race at the time the Constitution
was adopted, and long afterwards, throughout the thirteen States by which that
instrument was framed; and it is hardly consistent with the respect due to
these States, to suppose that they regarded at that time, as fellow-citizens
and members of the sovereignty, a class of beings whom they had thus
stigmatized; whom, as we are bound, out of respect to the State sovereignties,
to assume they had deemed it just and necessary thus to stigmatize, and upon whom
they had impressed such [**56] 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
[*417] 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, [**57] singly or in companies, without pass
or passport, and without obstruction, to sojourn there as long as they pleased,
to go where they pleased at every hour of the day or night without molestation,
unless they committed some violation of law for which a white man would be
punished; and it would give them the full liberty of speech in public and in
private upon all subjects upon which its own citizens might speak; to hold
public meetings upon political affairs, and to keep and carry arms wherever
they went. And all of this would be done in the face of the subject race of the
same color, both free and slaves, and inevitably producing discontent and
insubordination among them, and endangering the peace and safety of the State.
It is impossible, it would seem, to believe that the great men of the slaveholding
States, who took so large a share in framing the Constitution of the United
States, and exercised so much influence in procuring its adoption, could have
been so forgetful or regardless of their own safety and the safety of those who
trusted and confided in them.
[***706] Besides, this want of foresight and care would have been
utterly inconsistent with the caution displayed [**58] in providing
for the admission of new members into this political family. For, when they
gave to the citizens of each State the privileges and immunities of citizens in
the several States, they at the same time took from the several States the
power of naturalization, and confined that power exclusively to the Federal
Government. No State was willing to permit another State to determine who
should or should not be admitted as one of its citizens, and entitled to demand
equal rights and privileges with their own people, within their own
territories. The right of naturalization was therefore, with one accord, surrendered
by the States, and confided to the Federal Government. And this power granted
to Congress to establish an uniform rule of naturalization is, by the
well-understood meaning of the word, confined to persons born in a foreign
country, under a foreign Government. It is not a power to raise to the rank of
a citizen any one born in the United States, who, from birth or parentage, by
the laws of the country, belongs to an inferior and subordinate class. And when
we find the States guarding themselves from the indiscreet or improper
admission by other States of emigrants [**59] 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 [*418] more important
power -- that is, the power of transforming into citizens a numerous class of
persons, who in that character would be much more dangerous to the peace and
safety of a large portion of the Union, than the few foreigners one of the
States might improperly naturalize. The Constitution upon its adoption
obviously took from the States all power by any subsequent legislation to
introduce as a citizen into the political family of the United States any one,
no matter where he was born, or what might be his character or condition; and
it gave to Congress the power to confer this character upon those only who were
born outside of the dominions of the United States. And no law of a State,
therefore, passed since the Constitution was adopted, can give any right of
citizenship outside of its own territory.
A clause similar to the one in the Constitution, in relation to the rights and
immunities of citizens of one State in the other States, was contained in the
Articles of Confederation. But there is a difference of language,
[**60] which is worthy of note. The provision in the Articles of
Confederation was, "that the free inhabitants of each of the States,
paupers, vagabonds, and fugitives from justice, excepted, should be entitled to
all the privileges and immunities of free citizens in the several States."
It will be observed, that under this Confederation, each State had the right to
decide for itself, and in its own tribunals, whom it would acknowledge as a
free inhabitant of another State. The term free inhabitant, in the generality
of its terms, would certainly include one of the African race who had been
manumitted. But no example, we think, can be found of his admission to all the
privileges of citizenship in any State of the Union after these Articles were
formed, and while they continued in force. And, notwithstanding the generality
of the words "free inhabitants," it is very clear that, according to
their accepted meaning in that day, they did not include the African race,
whether free or not: for the fifth section of the ninth article provides that
Congress should have the power "to agree upon the number of land forces to
be raised, and to make requisitions from each State for its quota in proportion
[**61] 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 fro the general defence. And it cannot
for moment be supposed, that a class of [*419] persons thus
separated and rejected from those who formed the sovereignty of the States,
were yet intended to be included under the words "free inhabitants,"
in the preceding article, to whom privileges and immunities were so carefully
secured in every State.
But although this clause of the Articles of Confederation is the same in
principle with that inserted in the Constitution, yet the comprehensive word
inhabitant, which might be construed to include an emancipated slave, is
omitted; and the privilege is confined to citizens of the State. And this
alteration in words would hardly have been made, unless a different meaning was
intended to be conveyed, or a possible doubt removed. The just and fair
inference is, that as this privilege [**62] was about to be placed
under the protection of the General Government, and the words expounded by its
tribunals, and all power in relation to it taken from the State and its courts,
it was deemed prudent to describe with precision and caution the persons to
whom this high privilege was given -- and the word citizen was on that account
substituted for the words free inhabitant. The word citizen excluded, and no
doubt intended to exclude, foreigners who had not become citizens of some one
of the States when the Constitution was adopted; and also every description of
persons who were not fully recognized as citizens in the several States. This,
upon any fair construction of the instruments to which we have referred, was
evidently the object and purpose of this change of words.
To all this mass of proof we have still to add, that Congress has repeatedly
legislated upon the same construction of the Constitution that we have given.
Three laws, two of which were passed almost immediately after the Government
went into operation, will be abundantly sufficient to show this. The two first
are particularly worthy of notice, because many of the men who assisted in
framing the Constitution, [**63] 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."
[***707] Now, the Constitution does not limit the power of Congress
in this respect to white persons. And they may, if they think proper, authorize
the naturalization of any one, of any color, who was born under allegiance to
another Government. But the language of the law above quoted, shows that
citizenship [*420] at that time was perfectly understood to be
confined to the white race; and that they alone constituted the sovereignty in
the Government.
Congress might, as we before said, have authorized the naturalization of
Indians, because they were aliens and foreigners. But, in their then untutored
and savage state no one would have thought of admitting them as citizens in a
civilized community. And, moreover, the atrocities [**64] they had
but recently committed, when they were the allies of Great Britain in the
Revolutionary war, were yet fresh in the recollection of the people of the
United States, and they were even then guarding themselves against the
threatened renewal of Indian hostilities. No one supposed then that any Indian
would ask for, or was capable of enjoying, the privileges of an American
citizen, and the word white was not used with any particular reference to them.
Neither was it used with any reference to the African race imported into or
born in this country; because Congress had no power to naturalize them, and
therefore there was no necessity for using particular words to exclude them.
It would seem to have been used merely because it followed out the line of
division which the Constitution has drawn between the citizen race, who formed
and held the Government, and the African race, which they held in subjection
and slavery, and governed at their own pleasure.
Another of the early laws of which we have spoken, is the first militia law,
which was passed in 1792, at the first session of the second Congress. The
language of this law is equally plain and significant with the one just
[**65] mentioned. It directs that every "free able-bodied
white male citizen" shall be enrolled in the militia. The word white is
evidently used to exclude the African race, and the word "citizen" to
exclude unnaturalized foreigners; the latter forming no part of the
sovereignty, owing it no allegiance, and therefore under no obligation to
defend it. The African race, however, born in the country, did owe allegiance
to the Government, whether they were slave or free; but it is repudiated, and
rejected from the duties and obligations of citizenship in marked language.
The third act to which we have alluded is even still more decisive; it was
passed as late as 1813, (2 Stat., 809,) and it provides: "That from and
after the termination of the war in which the United States are now engaged
with Great Britain, it shall not be lawful to employ, on board of any public or
private vessels of the United States, any person or persons except citizens of
the United States, or persons of color, natives of the United States.
[*421] Here the line of distinction is drawn in express words
Persons of color, in the judgment of Congress, were not included in the word
citizens, and they are described [**66] 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 salves, proceeds in the
following words: "And to punish such free negroes and mulattoes by
penalties not exceeding twenty dollars for any one offence; and in case of the
inability of any such free negro or mulatto to pay any such penalty and cost
thereon, to cause him or her to be confined to labor for any time not exceeding
six calendar months." And in a subsequent part of the same section, the
act authorizes the corporation "to prescribe the terms and conditions upon
which free negroes and mulattoes may reside in the city."
This law, like the laws of the States, shows that this class of persons were
governed by special legislation directed expressly to them, and always
connected with provisions for the government of slaves, and not with [**67]
those for the government of free white citizens. And after such an uniform
course of legislation as we have stated, by the colonies, by the States, and by
Congress, running through a period of more than a century, it would seem that
to call persons thus marked and stigmatized, "citizens" of the United
States, "fellow-citizens," a constituent part of the sovereignty,
would be an abuse of terms, and not calculated to exalt the character of an
American citizen in the eyes of other nations.
The conduct of the Executive Department of the Government has been in perfect
harmony upon this subject with this course of legislation. The question was
brought officially before the late William Wirt, when he was the Attorney
General of the United States, in 1821, and he decided that the words
"citizens of the United States" were used in the acts of Congress in
the same sense as in the Constitution; and that free persons of color were not
citizens, within the meaning of the Constitution and laws; and this opinion has
been confirmed by that of the late Attorney General, Caleb Cushing, in a recent
case, and acted upon by the Secretary of State, who refused to grant passports
to them as "citizens [**68] of the United States."
But it is said that a person may be a citizen, and entitled to
[*422] that character, although he does not possess all the rights
which may belong to other citizens; as, for example, the right to vote, or to
hold particular offices; and that yet, when he goes into another State, he is
entitled to be recognized there as a citizen, although the State may measure
his rights by the rights which it allows to persons of a like character or
class resident in the State, and refuse to him the full rights of citizenship.
This argument overlooks the language of the provision in the Constitution of
which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of the community who
form the sovereignty, although he exercises no share of the political power,
and is incapacitated from [***708] holding particular offices.
Women and minors, who form a part of the political family, cannot vote; and
when a property qualification is required to vote or hold a particular office,
those who have not the necessary qualification cannot vote or hold the office,
yet they are citizens.
So, too, a person may be entitled to vote by the law of the State,
[**69] 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, [**70] or in any other
respect. For a citizen of one State has no right to participate in the
government of another. But if he ranks as a citizen in the State to which he
belongs, within the meaning of the Constitution of the United States, then,
whenever he goes into another State, the Constitution clothes him, as to the
rights of person, with all the privileges and immunities which belong to
citizens of the [*423] State. And if persons of the African race
are citizens of a State, and of the United States, they would be entitled to
all of these privileges and immunities in every State, and the State could not
restrict them; for they would hold these privileges and immunities under the
paramount authority of the Federal Government, and its courts would be bound to
maintain and enforce them, the Constitution and laws of the State to the
contrary notwithstanding. And if the States could limit or restrict them, or
place the party in an inferior grade, this clause of the Constitution would be
unmeaning, and could have no operation; and would give no rights to the citizen
when in another State. He would have none but what the State itself chose to
allow him. This is evidently not the [**71] construction or meaning
of the clause in question. It guaranties rights to the citizen, and the State
cannot withhold them. And these rights are of a character and would lead to
consequences which make it absolutely certain that the African race were not
included under the name of citizens of a State, and were not in the
contemplation of the framers of the Constitution when these privileges and
immunities were provided for the protection of the citizen in other States.
The case of Legrand v. Darnall (2 Peters, 664) has been referred to for the purpose
of showing that this court has decided that the descendant of a slave may sue
as a citizen in a court of the United States; but the case itself shows that
the question did not arise and could not have arisen in the case.
It appears from the report, that Darnall was born in Maryland, and was the son
of a white man by one of his slaves, and his father executed certain
instruments to manumit him, and devised to him some landed property in the
State. This property Darnall afterwards sold to Legrand, the appellant, who
gave his notes for the purchase-money. But becoming afterwards apprehensive
that the appellee had not been emancipated [**72] according to the
laws of Maryland, he refused to pay the notes until he could be better
satisfied as to Darnall's right to convey. Darnall, in the mean time, had taken
up his residence in Pennsylvania, and brought suit on the notes, and recovered
judgment in the Circuit Court for the district of Maryland.
The whole proceeding, as appears by the report, was an amicable one; Legrand
being perfectly willing to pay the money, if he could obtain a title, and
Darnall not wishing him to pay unless he could make him a good one. In point of
fact, the whole proceeding was under the direction of the counsel who argued
the case for the appellee, who was the mutual friend of the parties, and
confided in by both of them, and whose only [*424] object was to
have the rights of both parties established by judicial decision in the most
speedy and least expensive manner.
Legrand, therefore, raised no objection to the jurisdiction of the court in the
suit at law, because he was himself anxious to obtain the judgment of the court
upon his title. Consequently, there was nothing in the record before the court
to show that Darnall was of African descent, and the usual judgment and award
of execution [**73] was entered. And Legrand thereupon filed his
bill on the equity side of the Circuit Court, stating that Darnall was born a
slave, and had not been legally emancipated, and could not therefore take the
land devised to him, nor make Legrand a good title; and praying an injunction
to restrain Darnall from proceeding to execution on the judgment, which was
granted. Darnall answered, averring in his answer that he was a free man, and capable
of conveying a good title. Testimony was taken on this point, and at the
hearing the Circuit Court was of opinion that Darnall was a free man and his
title good, and dissolved the injunction and dismissed the bill; and that
decree was affirmed here, upon the appeal of Legrand.
Now, it is difficult to imagine how any question about the citizenship of
Darnall, or his right to sue in that character, can be supposed to have arisen
or been decided in that case. The fact that he was of African descent was first
brought before the court upon the bill in equity. The suit at law had then
passed into judgment and award of execution, and the Circuit Court, as a court
of law, had no longer any authority over it. It was a valid and legal judgment,
which [**74] the court that rendered it had not the power to
reverse or set aside. And unless it had jurisdiction as a court of equity to
restrain him from using its process as [***709] a court of law,
Darnall, if he thought proper, would have been at liberty to proceed on his
judgment, and compel the payment of the money, although the allegations in the
bill were true, and he was incapable of making a title. No other court could
have enjoined him, for certainly no State equity court could interfere in that
way with the judgment of a Circuit Court of the United States.
But the Circuit Court as a court of equity certainly had equity jurisdiction
over its own judgment as a court of law, without regard to the character of the
parties; and had not only the right, but it was its duty -- no matter who were
the parties in the judgment -- to prevent them from proceeding to enforce it by
execution, if the court was satisfied that the money was not justly and
equitably due. The ability of Darnall to convey did not depend upon his
citizenship, but upon his title to freedom. And if he was free, he could hold
and [*425] convey property, by the laws of Maryland, although he
was not a citizen. But [**75] if he was by law still a slave, he
could not. It was therefore the duty of the court, sitting as a court of equity
in the latter case, to prevent him from using its process, as a court of common
law, to compel the payment of the purchase-money, when it was evident that the
purchaser must lose the land. But if he was free, and could make a title, it
was equally the duty of the court not to suffer Legrand to keep the land, and
refuse the payment of the money, upon the ground that Darnall was incapable of
suing or being sued as a citizen in a court of the United States. The character
or citizenship of the parties had no connection with the question of
jurisdiction, and the matter in dispute had no relation to the citizenship of
Darnall. Nor is such a question alluded to in the opinion of the court.
Besides, we are by no means prepared to say that there are not many cases,
civil as well as criminal, in which a Circuit Court of the United States may
exercise jurisdiction, although one of the African race is a party; that broad
question is not before the court. The question with which we are now dealing
is, whether a person of the African race can be a citizen of the United States,
[**76] and become thereby entitled to a special privilege, by
virtue of his title to that character, and which, under the Constitution, no
one but a citizen can claim. It is manifest that the case of Legrand and
Darnall has no bearing on that question, and can have no application to the
case now before the court.
This case, however, strikingly illustrates the consequences that would follow
the construction of the Constitution which would give the power contended for
to a State. It would in effect give it also to an individual. For if the father
of young Darnall had manumitted him in his lifetime, and sent him to reside in
a State which recognized him as a citizen, he might have visited and sojourned
in Maryland when he pleased, and as long as he pleased, as a citizen of the
United States; and the States officers and tribunals would be compelled, by the
paramount authority of the Constitution, to receive him and treat him as one of
its citizens, exempt from the laws and police of the State in relation to a
person of that description, and allow him to enjoy all the rights and
privileges of citizenship, without respect to the laws of Maryland, although
such laws were deemed by it absolutely [**77] essential to its own
safety.
The only two provisions which point to them and include them, treat them as
property, and make it the duty of the Government to protect it; no other power,
in relation to this race, is to be found in the Constitution; and as it is a
Government [*426] of special, delegated, powers, no authority
beyond these two provisions can be constitutionally exercised. The Government
of the United States had no right to interfere for any other purpose but that
of protecting the rights of the owner, leaving it altogether with the several
States to deal with this race, whether emancipated or not, as each State may
think justice, humanity, and the interests and safety of society, require. The
States evidently intended to reserve this power exclusively to themselves.
No one, we presume, supposes that any change in public opinion or feeling, in
relation to this unfortunate race, in the civilized nations of Europe or in
this country, should induce the court to give to the words of the Constitution
a more liberal construction in their favor than they were intended to bear when
the instrument was framed and adopted. Such an argument would be altogether
inadmissible [**78] in any tribunal called on to interpret it. If
any of its provisions are deemed unjust, there is a mode prescribed in the
instrument itself by which it may be amended; but while it remains unaltered,
it must be construed now as it was understood at the time of its adoption. It
is not only the same in words, but the same in meaning, and delegates the same
powers to the Government, and reserves and secures the same rights and
privileges to the citizen; and as long as it continues to exist in its present
form, it speaks not only in the same words, but with the same meaning and
intent with which it spoke when it came from the hands of its framers, and was
voted on and adopted by the people of the United States. Any other rule of
construction would abrogate the judicial character of this court, and make it
the mere reflex of the popular opinion or passion of the day. This court was
not created by the Constitution for such purposes. Higher and graver trusts
have been confided to it, and it must not falter in the path of duty.
What the construction was at that time, we think can hardly admit of doubt. We
have the language of the Declaration of Independence and of the Articles of
Confederation, [**79] in addition to the plain words of the
Constitution itself; we have the legislation of the different States, before,
about the time, and since, the Constitution was adopted; we have the
legislation of Congress, from the time of its adoption to a recent period; and
we have the constant and uniform action of the Executive Department, all
concurring together, and leading to the same result. And if anything in
relation to the construction of the Constitution can be regarded as settled, it
is that which we now give to the word "citizen" and the word
"people."
And upon a full and careful consideration of the subject, [*427]
the court is of opinion, that, upon the facts stated in the plea in abatement,
Dred Scott was not a citizen of Missouri within the meaning of the Constitution
[***710] of the United States, and not entitled as such to sue in
its courts; and, consequently, that the Circuit Court had no jurisdiction of
the case, and that the judgment on the plea in abatement is erroneous.
We are aware that doubts are entertained by some of the members of the court,
whether the plea in abatement is legally before the court upon this writ of
error; but if that plea is regarded [**80] as waived, or out of the
case upon any other ground, yet the question as to the jurisdiction of the
Circuit Court is presented on the face of the bill of exception itself, taken
by the plaintiff at the trial; for he admits that he and his wife were born
slaves, but endeavors to make out his title to freedom and citizenship by
showing that they were taken by their owner to certain places, hereinafter
mentioned, where slavery could not by law exist, and that they thereby became
free, and upon their return to Missouri became citizens of that State.
Now, if the removal of which he speaks did not give them their freedom, then by
his own admission he is still a slave; and whatever opinions may be entertained
in favor of the citizenship of a free person of the African race, no one
supposes that a slave is a citizen of the State or of the United States. If,
therefore, the acts done by his owner did not make them free persons, he is still
a slave, and certainly incapable of suing in the character of a citizen.
The principle of law is too well settled to be disputed, that a court can give
no judgment for either party, where it has no jurisdiction; and if, upon the
showing of Scott himself, [**81] it appeared that he was still a
slave, the case ought to have been dismissed, and the judgment against him and
in favor of the defendant for costs, is, like that on the plea in abatement,
erroneous, and the suit ought to have been dismissed by the Circuit Court for
want of jurisdiction in that court.
But, before we proceed to examine this part of the case, it may be proper to
notice an objection taken to the judicial authority of this court to decide it;
and it has been said, that as this court has decided against the jurisdiction
of the Circuit Court on the plea in abatement, it has no right to examine any
question presented by the exception; and that anything it may say upon that
part of the case will be extra-judicial, and mere obiter dicta.
This is a manifest mistake; there can be no doubt as to the jurisdiction of
this court to revise the judgment of a Circuit Court, and to reverse it for any
error apparent on the record, [*428] whether it be the error of
giving judgment in a case over which it had no jurisdiction, or any other
material error; and this, too, whether there is a plea in abatement or not.
The objection appears to have arisen from confounding writs of error
[**82] to a State court, with writs of error to a Circuit Court of
the United States. Undoubtedly, upon a writ of error to a State court, unless
the record shows a case that gives jurisdiction, the case must be dismissed for
want of jurisdiction in this court. And if it is dismissed on that ground, we
have no right to examine and decide upon any question presented by the bill of
exceptions, or any other part of the record. But writs of error to a State
court, and to a Circuit Court of the United States, are regulated by different
laws, and stand upon entirely different principles. And in a writ of error to a
Circuit Court of the United States, the whole record is before this court for
examination and decision; and if the sum in controversy is large enough to give
jurisdiction, it is not only the right, but it is the judicial duty of the
court, to examine the whole case as presented by the record; and if it appears
upon its face that any material error or errors have been committed by the
court below, it is the duty of this court to reverse the judgment, and remand
the case. And certainly an error in passing a judgment upon the merits in favor
of either party, in a case which it was not [**83] authorized to
try, and over which it had no jurisdiction, is as grave an error as a court can
commit.
The plea in abatement is not a plea to the jurisdiction of this court, but to
the jurisdiction of the Circuit Court. And it appears by the record before us,
that the Circuit Court committed an error, in deciding that it had
jurisdiction, upon the facts in the case, admitted by the pleadings. It is the
duty of the appellate tribunal to correct this error; but that could not be
done by dismissing the case for want of jurisdiction here -- for that would
leave the erroneous judgment in full force, and the injured party without
remedy. And the appellate court therefore exercises the power for which alone
appellate courts are constituted, by reversing the judgment of the court below
for this error. It exercises its proper and appropriate jurisdiction over the
judgment and proceedings of the Circuit Court, as they appear upon the record
brought up by the writ by error.
The correction of one error in the court below does not deprive the appellate
court of the power of examining further into the record, and correcting any
other material errors which may have been committed by the inferior
[**84] court. There is certainly no rule of law -- nor any practice
-- nor any decision of a [*429] court -- which even questions this
power in the appellate tribunal. On the contrary, it is the daily practice of
this court, and of all appellate courts where they reverse the judgment of an
inferior court for error, to correct by its opinions whatever errors may appear
on the record material to the case; and they have always held it to be their
duty to do so where the silence of the court might lead to misconstruction of
future controversy, and the point has been relied on by either side, and argued
before the court.
In the case before us, we have already decided that the Circuit Court erred in
deciding that it had jurisdiction upon the facts admitted by the pleadings. And
it appears that, in the further progress of the case, it acted upon the
erroneous principle it had decided on the pleadings, and gave judgment for the
defendant, where, upon the facts admitted in the exception, it had no
jurisdiction.
We are at a loss to understand upon what principle of law, applicable to
appellate jurisdiction, it can be supposed that this court has not judicial
authority to correct the last-mentioned [**85] error, because they
had before corrected the former; or by what process of reasoning it can be made
out, that the error of an inferior court in actually pronouncing judgment
[***711] for one of the parties, in a case in which it had no
jurisdiction, cannot be looked into or corrected by this court, because we have
decided a similar question presented in the pleadings. The last point is
distinctly presented by the facts contained in the plaintiff's own bill of
exceptions, which he himself brings here by this writ of error. It was the
point which chiefly occupied the attention of the counsel on both sides in the
argument -- and the judgment which this court must render upon both errors is
precisely the same. It must, in each of them, exercise jurisdiction over the judgment,
and reverse it for the errors committed by the court below; and issue a mandate
to the Circuit Court to conform its judgment to the opinion pronounced by this
court, by dismissing the case for want of jurisdiction in the Circuit Court.
This is the constant and invariable practice of this court, where it reverses a
judgment for want of jurisdiction in the Circuit Court.
It can scarcely be necessary to pursue [**86] such a question
further. The want of jurisdiction in the court below may appear on the record
without any plea in abatement. This is familiarly the case where a court of
chancery has exercised jurisdiction in a case where the plaintiff had a plain
and adequate remedy at law, and it so appears by the transcript when brought
here by appeal. So also where it appears that a court of admiralty has
exercised jurisdiction in a case belonging exclusively [*430] to a
court of common law. In these cases there is no plea in abatement. And for the
same reason, and upon the same principles, where the defect of jurisdiction is
patent on the record, this court is bound to reverse the judgment, although the
defendant has not pleaded in abatement to the jurisdiction of the inferior
court.
The cases of Jackson v. Ashton and of Capron v. Van Noorden, to which we have
referred in a previous part of this opinion, are directly in point. In the
last-mentioned case, Capron brought an action against Van Noorden in a Circuit
Court of the United States, without showing, by the usual averments of
citizenship, that the court had jurisdiction. There was no plea in abatement
put in, and the parties [**87] went to trial upon the merits. The
court gave judgment in favor of the defendant with costs. The plaintiff
thereupon brought his writ of error, and this court reversed the judgment given
in favor of the defendant, and remanded the case with directions to dismiss it,
because it did not appear by the transcript that the Circuit Court had
jurisdiction.
The case before us still more strongly imposes upon this court the duty of
examining whether the court below has not committed an error, in taking
jurisdiction and giving a judgment for costs in favor of the defendant; for in
Capron v. Van Noorden the judgment was reversed, because it did not appear that
the parties were citizens of different States. They might or might not be. But
in this case it does appear that the plaintiff was born a slave; and if the
facts upon which he relies have not made him free, then it appears
affirmatively on the record that he is not a citizen, and consequently his suit
against Sandford was not a suit between citizens of different States, and the
court had no authority to pass any judgment between the parties. The suit
ought, in this view of it, to have been dismissed by the Circuit Court, and its
judgment [**88] in favor of Sandford is erroneous, and must be
reversed.
It is true that the result either way, by dismissal or by a judgment for the
defendant, makes very little, if any, difference in a pecuniary or personal
point of view to either party. But the fact that the result would be very
nearly the same to the parties in either form of judgment, would not justify
this court in sanctioning an error in the judgment which is patent on the
record, and which, if sanctioned, might be drawn into precedent, and lead to
serious mischief and injustice in some future suit.
We proceed, therefore, to inquire whether the facts relied on by the plaintiff
entitled him to his freedom.
[*431] The case, as he himself states it, on the record brought
here by his writ of error, it this:
The plaintiff was a negro salve, belonging to Dr. Emerson, who was a surgeon in
the army of the United States. In the year 1834, he took the plaintiff from the
State of Missouri to the military post at Rock Island, in the State of
Illinois, and held him there as a slave until the month of April or May, 1836.
At the time last mentioned, said Dr. Emerson removed the plaintiff from said
military post at Rock Island [**89] to the military post at Fort
Snelling, situate on the west bank of the Mississippi river, in the Territory
known as Upper Louisiana, acquired by the United States of France, and situate
north of the latitude of thirty-six degrees thirty minutes north, and north of
the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said
Fort Snelling, from said last-mentioned date until the year 1838.
In the year 1835, Harriet, who is named in the second count of the plaintiff's
declaration, who the negro slave of Major Taliaferro, who belonged to the army
of the United States. In that year, 1835, said Major Taliaferro took said
Harriet to said Fort Snelling, a military post, situated as hereinbefore
stated, and kept her there as a slave until the year 1836, and then sold and
delivered her as a slave, at said Fort Snelling, unto the said Dr. Emerson
hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort
Snelling until the year 1838.
In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling,
with the consent of Dr. Emerson, who then claimed to be their master and owner.
Eliza and Lizzie, named in the third count of the plaintiff's
[**90] declaration, are the fruit of that marriage. Eliza is about
fourteen years old, and was born on board the steamboat Gipsey, north of the
north line of the State of Missouri, and upon the river Mississippi. Lizzie is
about seven years old, and was born in the State of Missouri, at the military
post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and
their said daughter Eliza, from said Fort Snelling to the State of Missouri,
where they have ever since resided.
Before the commencement of this suit, said Dr. Emerson sold and conveyed the
plaintiff, and Harriet, Eliza, and Lizzie, to the defendant,
[***712] as slaves, and the defendant has ever since claimed to
hold them, and each of them, as slaves.
In considering this part of the controversy, two questions arise: 1. Was he,
together with his family, free in Missouri by reason of the stay in the
territory of the United States hereinbefore [*432] mentioned? And
2. If they were not, is Scott himself free by reason of his removal to Rock
Island, in the State of Illinois, as stated in the above admissions?
We proceed to examine the first question.
The act of Congress, [**91] upon which the plaintiff relies,
declares that slavery and involuntary servitude, except as a punishment for
crime, shall be forever prohibited in all that part of the territory ceded by
France, under the name of Louisiana, which lies north of thirty-six degrees
thirty minutes north latitude, and not included within the limits of Missouri.
And the difficulty which meets us at the threshold of this part of the inquiry
is, whether Congress was authorized to pass this law under any of the powers
granted to it by the Constitution; for if the authority is not given by that
instrument, it is the duty of this court to declare it void and inoperative,
and incapable of conferring freedom upon any one who is held as a slave under
the laws of any one of the States.
The counsel for the plaintiff has laid much stress upon that article in the
Constitution which confers on Congress the power "to dispose of and make
all needful rules and regulations respecting the territory or other property
belonging to the United States;" but, in the judgement of the court, that
provision had no bearing on the present controversy, and the power there given,
whatever it may be, is confined, and was intended to [**92] be
confined, to the territory which at that time belonged to, or was claimed by,
the United States, and was within their boundaries as settled by the treaty
with Great Britain, and can have no influence upon a territory afterwards
acquired from a foreign Government. It was a special provision for a known and
particular territory, and to meet a present emergency, and nothing more.
A brief summary of the history of the times, as well as the careful and
measured terms in which the article is framed, will show the correctness of
this proposition.
It will be remembered that, from the commencement of the Revolutionary war,
serious difficulties existed between the States, in relation to the disposition
of large and unsettled territories which were included in the chartered limits
of some of the States. And some of the other States, and more especially
Maryland, which had no unsettled lands, insisted that as the unoccupied lands,
if wrested from Great Britain, would owe their preservation to the common purse
and the common sword, the money arising from them ought to be applied in just
proportion among the several States to pay the expenses of the war, and ought
not to be appropriated [**93] to the use of the State in whose
chartered limits they might happen [*433] to lie, to the exclusion
of the other States, by whose combined efforts and common expense the territory
was defended and preserved against the claim of the British Government.
These difficulties caused much uneasiness during the war, while the issue was
in some degree doubtful, and the future boundaries of the United States yet to
be defined by treaty, if we achieved our independence.
The majority of the Congress of the Confederation obviously concurred in
opinion with the State of Maryland, and desired to obtain from the States which
claimed it a cession of this territory, in order that Congress might raise
money on this security to carry on the war. This appears by the resolution
passed on the 6th of September, 1780, strongly urging the States to cede these
lands to the United States, both for the sake of peace and union among
themselves, and to maintain the public credit; and this was followed by the
resolution of October 10th, 1780, by which Congress pledged itself, that if the
lands were ceded, as recommended by the resolution above mentioned, they should
be disposed of for the common benefit [**94] of the United States,
and be settled and formed into distinct republican States, which should become
members of the Federal Union, and have the same rights of sovereignty, and
freedom, and independence, as other States.
But these difficulties became much more serious after peace took place, and the
boundaries of the United States were established. Every State, at that time,
felt severely the pressure of its war debt; but in Virginia, and some other
States, there were large territories of unsettled lands, the sale of which
would enable them to discharge their obligations without much inconvenience;
while other States, which had no such resource, saw before them many years of
heavy and burden-some taxation; and the latter insisted, for the reasons before
stated, that these unsettled lands should be treated as the common property of
the States, and the proceeds applied to their common benefit.
The letters from the statesmen of that day will show how much this controversy
occupied their thoughts, and the dangers that were apprehended from it. It was
the disturbing element of the time, and fears were entertained that it might
dissolve the Confederation by which the States were then [**95]
united.
These fears and dangers were, however, at once removed, when the State of
Virginia, in 1784, voluntarily ceded to the United States the immense tract of
country lying northwest of the river Ohio, and which was within the
acknowledged limits of the State. The only object of the State, in making
[*434] this cession, was to put an end to the threatening and
exciting controversy, and to enable the Congress of that time to dispose of the
lands, and appropriate the proceeds as a common fund for the common benefit of
the States. It was not ceded, because it was inconvenient to the State to hold
and govern it, nor from any expectation that it could be better or more
conveniently governed by the United States.
The example of Virginia was soon afterwards followed by other States, and, at
the time of the adoption of the Constitution, all of the States, similarly
situated, had ceded their unappropriated lands, except North Carolina and
Georgia. The main object for which these cessions were desired and made, was on
account of their money value, and to put an end to a dangerous controversy, as
to who was justly entitled to the proceeds when the lands [***713]
should be sold. [**96] It is necessary to bring this part of the
history of these cessions thus distinctly into view, because it will enable us
the better to comprehend the phraseology of the article in the Constitution, so
often referred to in the argument.
Undoubtedly the powers of sovereignty and the eminent domain were ceded with
the land. This was essential, in order to make it effectual, and to accomplish
its objects. But it must be remembered that, at that time, there was no
Government of the United States in existence with enumerated and limited
powers; what was then called the United States, were thirteen separate,
sovereign, independent States, which had entered into a league or confederation
for their mutual protection and advantage, and the Congress of the United
States was composed of the representatives of these separate sovereignties,
meeting together, as equals, to discuss and decide on certain measures which
the States, by the Articles of Confederation, had agreed to submit to their
decision. But this Confederation had none of the attributes of sovereignty in
legislative, executive, or judicial power. It was little more than a congress
of ambassadors, authorized to represent separate [**97] nations, in
matters in which they had a common concern.
It was this Congress that accepted the cession from Virginia. They had no power
to accept it under the Articles of Confederation. But they had an undoubted
right, as independent sovereignties, to accept any cession of territory for
their common benefit, which all of them assented to; and it is equally clear
that as their common property, and having no superior to control them they had
the right to exercise absolute dominion over it, subject only to the
restrictions which Virginia had imposed in her act of cession. There was, as we
have said, no Government of the United States then in existence
[*435] with special enumerated and limited powers. The territory
belonged to sovereignties, who, subject to the limitations above mentioned, had
a right to establish any form of government they pleased, by compact or treaty among
themselves, and to regulate rights of person and rights of property in the
territory, as they might deem proper. It was by a Congress, representing the
authority of these several and separate sovereignties, and acting under their
authority and command, (but not from any authority derived from the Articles
[**98] of Confederation,) that the instrument usually called the
ordinance of 1787 was adopted; regulating in much detail the principles and the
laws by which this territory should be governed; and among other provisions,
slavery is prohibited in it. We do not question the power of the States, by
agreement among themselves, to pass this ordinance, nor its obligatory force in
the territory, while the confederation or league of the States in their separate
sovereign character continued to exist.
This was the state of things when the Constitution of the United States was
formed. The territory ceded by Virginia belonged to the several confederated
States as common property, and they had united in establishing in it a system
of government and jurisprudence, in order to prepare it for admission as
States, according to the terms of the cession. They were about to dissolve this
federative Union, and to surrender a portion of their independent sovereignty to
a new Government, which, for certain purposes, would make the people of the
several States one people, and which was to be supreme and controlling within
its sphere of action throughout the United States; but this Government was to
be carefully [**99] limited in its powers, and to exercise no
authority beyond those expressly granted by the Constitution, or necessarily to
be implied from the language of the instrument, and the objects it was intended
to accomplish; and as this league of States would, upon the adoption of the new
Government, cease to have any power over the territory, and the ordinance they
had agreed upon be incapable of execution, and a mere nullity, it was obvious
that some provision was necessary to give the new Government sufficient power
to enable it to carry into effect the objects for which it was ceded, and the
compacts and agreements which the States had made with each other in the
exercise of their powers of sovereignty. It was necessary that the lands should
be sold to pay the war debt; that a Government and system of jurisprudence
should be maintained in it, to protect the citizens of the United States who
should migrate to the territory, in their rights of person and of property. It
was also necessary that the new Government, about to be [*436]
adopted, should be authorized to maintain the claim of the United States to the
unappropriated lands in North Carchna and Georgia, which had not then been
[**100] ceded, but the cession of which was confidently anticipated
upon some terms that would be arranged between the General Government and these
two States. And, moreover, there were many articles of value besides this
property in land, such as arms, military stores, munitions, and ships of war,
which were the common property of the States, when acting in their independent
characters as confederates, which neither the new Government nor any one else
would have a right to take possession of, or control, without authority from
them; and it was to place these things under the guardianship and protection of
the new Government, and to clothe it with the necessary powers, that the clause
was inserted in the Constitution which gives Congress the power "to
dispose of and make all needful rules and regulations respecting the territory or
other property belonging to the United States." It was intended for a
specific purpose, to provide for the things we have mentioned. It was to
transfer to the new Government the property then held in common by the States,
and to give to that Government power to apply it to the objects for which it
had been destined by mutual agreement among the States before their
[**101] league was dissolved. It applied only to the property which
the States held in common at that time, and had no reference whatever to any territory
or other property which the new sovereignty might afterwards itself acquire.
The language used in the clause, the arrangement and combination of the powers,
and the somewhat unusual phraseology it uses, when it speaks of the political
power to be exercised in the government of the territory, all indicate the
design and meaning of the clause to be such as we have mentioned. It does not
speak of any territory, nor of Territories, but uses language which, according
to its legitimate [***714] meaning, points to a particular thing.
The power is given in relation only to the territory of the United States --
that is, to a territory then in existence, and then known or claimed as the
territory of the United States. It begins its enumeration of powers by that of
disposing, in other words, making sale of the lands, or raising money from
them, which, as we have already said, was the main object to the cession, and
which is accordingly the first thing provided for in the article. It then gives
the power which was necessarily associated with [**102] the
disposition and sale of the lands -- that is, the power of making needful rules
and regulations respecting the territory. And whatever construction may now be
given to these words, every one, we think, [*437] must admit that
they are not the words usually employed by statesmen in giving supreme power of
legislation. They are certainly very unlike the words used in the power granted
to legislate over territory which the new Government might afterwards itself obtain
by cession from a State, either for its seat of Government, of for forts,
magazines, arsenals, dock yards, and other needful buildings.
And the same power of making needful rules respecting the territory is, in
precisely the same language, applied to the other property belonging to the
United States -- associating the power over the territory in this respect with
the power over movable or personal property -- that is, the ships, arms, and
munitions of war, which then belonged in common to the State sovereignties. And
it will hardly be said, that this power, in relation to the last-mentioned
objects, was deemed necessary to be thus specially given to the new Government,
in order to authorize it to make needful [**103] rules and regulations
respecting the ships it might itself build, or arms and munitions of war it
might itself manufacture or provide for the public service.
No one, it is believed, would think a moment of deriving the power of Congress
to make needful rules and regulations in relation to property of this kind from
this clause of the Constitution. Nor can it, upon any fair construction, be
applied to any property but that which the new Government was about to receive
from the confederated States. And if this be true as to this property, it must
be qually true and limited as to the territory, which is so carefully and
precisely coupled with it -- and like it referred to as property in the power
granted. The concluding words of the clause appear to render this construction
irresistible; for, after the provisions we have mentioned, it proceeds to say,
"that nothing in the Constitution shall be so construed as to prejudice
any claims of the United States, or of any particular State."
Now, as we have before said, all of the States, except North Carolina and
Georgia, had made the cession before the Constitution was adopted, according to
the resolution of Congress of October 10, 1780. [**104] The claims
of other States, that the unappropriated lands in these two States should be
applied to the common benefit, in like manner, was still insisted on, but
refused by the States. And this member of the clause in question evidently
applies to them, and can apply to nothing else. It was to exclude the
conclusion that either party, by adopting the Constitution, would surrender
what they deemed their rights. And when the latter provision relates so
obviously to the unappropriated lands not yet ceded by the States, and the
first clause makes provision for those then actually ceded, it is [*438]
impossible, by any just rule of construction, to make the first provision
general, and extend to all territories, which the Federal Government might in
any way afterwards acquire, when the latter is plainly and unequivocally
confined to a particular territory; which was a part of the same controversy,
and involved in the same dispute, and depended upon the same principles. The
union of the two provisions in the same clause shows that they were kindred
subjects; and that the whole clause is local, and relates only to lands, within
the limits of the United States, which had been or [**105] then
were claimed by a State; and that no other territory was in the mind of the
framers of the Constitution, or intended to be embraced in it. Upon any other
construction it would be impossible to account for the insertion of the last
provision in the place where it is found, or to comprehend why, or for what
object, it was associated with the previous provision.
This view of the subject is confirmed by the manner in which the present
Government of the United States dealt with the subject as soon as it came into
existence. It must be borne in mind that the same States that formed the
Confederation also formed and adopted the new Government, to which so large a
portion of their former sovereign powers were surrendered. It must also be
borne in mind that all of these same States which had then ratified the new
Constitution were represented in the Congress which passed the first law for
the government of this territory; and many of the members of that legislative
body had been deputies from the States under the Confederation -- had united in
adopting the ordinance of 1787, and assisted in forming the new Government
under which they were then acting, and whose powers they were then [**106]
exercising. And it is obvious from the law they passed to carry into effect the
principles and provisions of the ordinance, that they regarded it as the act of
the States done in the exercise of their legitimate powers at the time. The new
Government took the territory as it found it, and in the condition in which it
was transferred, and did not attempt to undo anything that had been done. And,
among the earliest laws passed under the new Government, is one reviving the
ordinance of 1787, which had become inoperative and a nullity upon the adoption
of the Constitution. This law introduces no new form or principles for its
government, but recites, in the preamble, that it is passed in order that this
ordinance may continue to have full effect, and proceeds to make only those
rules and regulations which were needful to adapt it to the new Government,
into whose hands the power had fallen. It appears, therefore, that this
Congress regarded the purposes [*439] to which the land in this
Territory was to be applied, and the form of government and principles of
jurisprudence which were to prevail there, while it remained in the Territorial
state, as already determined on by the [**107] States when they had
full power and right to make the decision; and that the new Government, having
received it in this condition, ought to carry substantially into effect the
plans and principles which had been previously adopted by the States, and which
no doubt the [***715] States anticipated when they surrendered their
power to the new Government. And if we regard this clause of the Constitution
as pointing to this Territory, with a Territorial Government already
established in it, which had been ceded to the States for the purposes
hereinbefore mentioned -- every word in it is perfectly appropriate and easily
understood, and the provisions it contains are in perfect harmony with the
objects for which it was ceded, and with the condition of its government as a
Territory at the time. We can, then, easily account for the manner in which the
first Congress legislated on the subject -- and can also understand why this
power over the territory was associated in the same clause with the other
property of the United States, and subjected to the like power of making
needful rules and regulations. But if the clause is construed in the expanded
sense contended for, so as to embrace [**108] any territory
acquired from a foreign nation by the present Government, and to give it in
such territory a despotic and unlimited power over persons and property, such
as the confederated States might exercise in their common property, it would be
difficult to account for the phraseology used, when compared with other grants
of power -- and also for its association with the other provisions in the same
clause.
The Constitution has always been remarkable for the felicity of its arrangement
of different subjects, and the perspicuity and appropriateness of the language
it sues. But if this clause is construed to extend to territory acquired by the
present Government from a foreign nation, outside of the limits of any charter
from the British Government to a colony, it would be difficult to say, why it
was deemed necessary to give the Government the power to sell any vacant lands
beloging to the sovereignty which might be found within it; and if this was
necessary, why the grant of this power should precede the power to legislate
over it and establish a Government there; and still more difficult to say, why
it was deemed necessary so specially and particularly to grant the power to
[**109] make needful rules and regulations in relation to any
personal or movable property it might acquire there. For the words, other
property necessarily, by every known rule of interpretation, must mean [*440]
property of a different description from territory of land. And the difficulty
would perhaps be insurmountable in endeavoring to account for the last member
of the sentence, which provides that "nothing in this Constitution shall
be so construed as to prejudice any claims of the United States or any
particular State," or to say how any particular State could have claims in
or to a territory ceded by a foreign Government, or to account for associating
this provisions with the preceding provisions of the clause, with which it
would appear to have no connection.
The words "needful rules and regulations" would seem, also, to have
been cautiously used for some definite object. They are not the words usually
employed by statesmen, when they mean to give the powers of sovereignty, or to
establish a Government, or to authorize its establishment. Thus, in the law to
renew and keep alive the ordinance of 1787, and to reestablish the Government,
the title of the law is: "An act to [**110] provide for the
government of the territory northwest of the river Ohio." And in the
Constitution, when granting the power to legislate over the territory that may
be selected for the seat of Government independently of a State, it does not
say Congress shall have power "to make all needful rules and regulations
respecting the territory;" but it declares that "Congress shall have
power to exercise exclusive legislation in all cases whatsoever over such
District (not exceeding ten miles square) as may, by cession of particular States
and the acceptance of Congress, become the seat of the Government of the United
States.
The words "rules and regulations" are usually employed in the
Constitution in speaking of some particular specified power which it means to
confer on the Government, and not, as we have seen, when granting general
powers of legislation. As, for example, in the particular power to Congress
"to make rules for the Government and regulation of the land and naval
forces, or the particular and specific power to regulate commerce;"
"to establish an uniform rule of naturalization;" "to coin money
and regulate the value thereof." And to construe the words of which we are
speaking [**111] as a general and unlimited grant of sovereignty
over territories which the Government might afterwards acquire, is to use them
in a sense and for a purpose for which they were not used in any other part of
the instrument. But if confined to a particular Territory, in which a
Government and laws had already been established, but which would require some
alterations to adapt it to the new Government, the words are peculiarly
applicable and appropriate for that purpose.
[*441] The necessity of this special provision in relation to
property and the rights or property held in common by the confederated States,
is illustrated by the first clause of the sixth article. This clause provides
that "all debts, contracts, and engagements entered into before the
adoption of this Constitution, shall be as valid against the United States
under this Government as under the Confederation." This provision, like
the one under consideration, was indispensable if the new Constitution was
adopted. The new Government was not a mere change in a dynasty, or in a form of
government, leaving the nation or sovereignty the same, and clothed with all
the rights, and bound by all the obligations of the [**112]
preceding one. But, when the present United States came into existence under
the new Government, it was a new political body, a new nation, then for the
first time taking its place in the family of nations. It took nothing by
succession from the Confederation. It had no right, as its successor, to any
property or rights of property which it had acquired, and was not liable for
any of its obligations. It was evidently viewed in this light by the framers of
the Constitution. And as the several States would cease to exist in their
former confederated character upon the adoption of the Constitution, and could
not, in that character, again assemble together, special provisions were
indispensable to transfer to the new Government the property and rights which
at that time they held in common; and at the same time to authorize it to lay
taxes and appropriate money to pay the common debt which they had contracted;
and this power could only be given to it by special provisions in the
Constitution. [***716] The clause in relation to the territory and
other property of the United States provided for the first, and the clause last
quoted provided for the other. They have no connection [**113] with
the general powers and rights of sovereignty delegated to the new Government,
and can neither enlarge nor diminish them. They were inserted to meet a present
emergency, and not to regulate its powers as a Government.
Indeed, a similar provision was deemed necessary, in relation to treaties made
by the Confederation; and when in the clause next succeeding the one of which
we have last spoken, it is declared that treaties shall be the supreme law of
the land, care is taken to include, by express words, the treaties made by the
confederated States. The language is: "and all treaties made, or which
shall be made, under the authority of the United States, shall be the supreme
law of the land."
Whether, therefore, we take the particular clause in question, by itself, or in
connection with the other provisions of the Constitution, we think it clear,
that it applies only to the particular [*442] territory of which we
have spoken, and cannot, by any just rule of interpretation, be extended to
territory which the new Government might afterwards obtain from a foreign
nation. Consequently, the power which Congress may have lawfully exercised in
this Territory, while it remained [**114] under a Territorial
Government, and which may have been sanctioned by judicial decision, can
furnish no justification and no argument to support a similar exercise of power
over territory afterwards acquired by the Federal Government. We put aside,
therefore, any argument, drawn from precedents, showing the extent of the power
which the General Government exercised over slavery in this Territory, as
altogether inapplicable to the case before us.
But the case of the American and Ocean Insurance Companies v. Canter (1 Pet.,
511) has been quoted as establishing a different construction of this clause of
the Constitution. There is, however, not the slightest conflict between the
opinion now given and the one referred to; and it is only by taking a single
sentence out of the latter and separating it from the context, that even an
appearance of conflict can be shown. We need not comment on such a mode of
expounding an opinion of the court. Indeed it most commonly misrepresents
instead of expounding it. And this is fully exemplified in the case referred
to, where, if one sentence is taken by itself, the opinion would appear to be
in direct conflict with that now given; but the words [**115] which
immediately follow that sentence show that the court did not mean to decide the
point, but merely affirmed the power of Congress to establish a Government in
the Territory, leaving it an open question, whether that power was derived from
this clause in the Constitution, or was to be necessarily inferred from a power
to acquire territory by cession from a foreign Government. The opinion on this
part of the case is short, and we give the whole of it to show how well the
selection of a single sentence is calculated to mislead.
The passage referred to is in page 542, in which the court, in speaking of the
power of Congress to establish a Territorial Government in Florida until it
should become a State, uses the following language:
"In the mean time Florida continues to be a Territory of the United
States, governed by that clause of the Constitution which empowers Congress to
make all needful rules and regulations respecting the territory or other
property of the United States. Perhaps the power of governing a Territory
belonging to the United States, which has not, by becoming a State, acquired
the means of self-government, may result, necessarily, from the facts that it
is [**116] not within the jurisdiction of any particular
[*443] State, and is within the power and jurisdiction of the
United States. The right to govern may be the inevitable consequence of the right
to acquire territory. Whichever may be the source from which the power is
derived, the possession of it is unquestionable."
It is thus clear, from the whole opinion on this point, that the court did not
mean to decide whether the power was derived from the clause in the Constitution,
or was the necessary consequence of the right to acquire. They do decide that
the power in Congress is unquestionable, and in this we entirely concur, and
nothing will be found in this opinion to the contrary. The power stands firmly
on the latter alternative put by the court -- that is, as "the inevitable
consequence of the right to acquire territory."
And what still more clearly demonstrates that the court did not mean to decide
the question, but leave it open for future consideration, is the fact that the
case was decided in the Circuit Court By Mr. Justice Johnson, and his decision
was affirmed by the Supreme Court. His opinion at the circuit is given in full
in a note to the case, and in that opinion [**117] he states, in explicit
terms, that the clause of the Constitution applies only to the territory then
within the limits of the United States, and not to Florida, which had been
acquired by cession from Spain. This part of his opinion will be found in the
note in page 517 of the report. But he does not dissent from the opinion of the
Supreme Court; thereby showing that, in his judgment, as well as that of the
court, the case before them did not call for a decision on that particular
point, and the court abstained from deciding it. And in a part of its opinion
subsequent to the passage we have quoted, where the court speak of the
legislative power of Congress in Florida, they still speak with the same
reserve. And in page 546, speaking of the power of Congress to authorize the
Territorial Legislature to establish courts there, the court say: "They
are legislative courts, created in virtue of the general right of sovereignty
which exists in the Government, or in virtue of that clause which enables
Congress to make all needful rules and regulations respecting the territory
belonging to the United States."
It has been said that the construction given to this clause is new, and now
[**118] for the first time brought forward. The case of which we
are speaking, and which has been so much discussed, shows that the fact is
otherwise. It shows that precisely the same question came before Mr. Justice
Johnson, at his circuit, thirty years ago -- was fully considered by him, and
the same construction given to the clause in the Constitution which is now
given by this court. And that upon an appeal [*444] from
[***717] his decision the same question was brought before this
court, but was not decided because a decision upon it was not required by the
case before the court.
There is another sentence in the opinion which has been commented on, which
even in a still more striking manner shows how one may mislead or be misled by
taking out a single sentence from the opinion of a court, and leaving out of
view what precedes and follows. It is in page 546, near the close of the
opinion, in which the court say: "In legislating for them," (the
territories of the United States,) "Congress exercises the combined powers
of the General and of a State Government." And it is said, that as a State
may unquestionably prohibit slavery within its territory, this sentence decides
in [**119] effect that Congress may do the same in a Territory of
the United States, exercising there the powers of a State, as well as the power
of the General Government.
The examination of this passage in the case referred to, would be more
appropriate when we come to consider in another part of this opinion what power
Congress can constitutionally exercise in a Territory, over the rights of
person or rights of property of a citizen. But, as it is in the same case with
the passage we have before commented on, we dispose of it now, as it will save
the court from the necessity of referring again to the case. And it will be
seen upon reading the page in which this sentence is found, that it has no
reference whatever to the power of Congress over rights of person or rights of
property -- but relates altogether to the power of establishing judicial
tribunals to administer the laws constitutionally passed, and defining the
jurisdiction they may exercise.
The law of Congress establishing a Territorial Government in Florida, provided
that the Legislature of the Territory should have legislative powers over
"all rightful objects of legislation; but no law should be valid which was
inconsistent [**120] with the laws and Constitution of the United
States."
Under the power thus conferred, the Legislature of Florida passed an act,
erecting a tribunal at Key West to decide cases of salvage. And in the case of
which we are speaking, the question arose whether the Territorial Legislature
could be authorized by Congress to establish such a tribunal, with such powers;
and one of the parties, among other objections, insisted that Congress could
not under the Constitution authorize the Legislature of the Territory to
establish such a tribunal with such powers, but that it must be established by
Congress itself; and that a sale of cargo made under its order, to pay salvors,
was void, as made without legal authority, and passed no property to the
purchaser.
[*445] It is in disposition of this objection that the sentence
relied on occurs, and the court begin that part of the opinion by stating with
great precision the point which they are about to decide.
They say: "It has been contended that by the Constitution of the United
States, the judicial power of the United States extends to all cases of
admiralty and maritime jurisdiction; and that the whole of the judicial power
must be [**121] vested 'in one Supreme Court, and in such inferior
courts as Congress shall from time to time ordain and establish.' Hence it has
been argued that Congress cannot vest admiralty jurisdiction in courts created
by the Territorial Legislature."
And after thus clearly stating the point before them, and which they were about
to decide, they proceed to show that these Territorial tribunals were not
constitutional courts, but merely legislative, and that Congress might,
therefore, delegate the power to the Territorial Government to establish the
court in question; and they conclude that part of the opinion in the following
words: "Although admiralty jurisdiction can be exercised in the States in
those courts only which are established in pursuance of the third article of
the Constitution, the same limitation does not extend to the Territories. In
legislating for them, Congress exercises the combined powers of the General and
State Governments."
Thus it will be seen by these quotations from the opinion, that the court,
after stating the question it was about to decide in a manner too plain to be
misunderstood, proceeded to decide it, and announced, as the opinion of the
tribunal, that [**122] in organizing the judicial department of the
Government in a Territory of the United States, Congress does not act under, and
is not restricted by, the third article in the Constitution, and is not bound,
in a Territory, to ordain and establish courts in which the judges hold their
offices during good behavior, but may exercise the discretionary power which a
State exercises in establishing its judicial department, and regulating the
jurisdiction of its courts, and may authorize the territorial Government to
establish, or may itself establish, courts in which the judges hold their
offices for a term of years only; and may vest in them judicial power upon
subjects confided to the judiciary of the United States. And in doing this,
Congress undoubtedly exercises the combined power of the General and a State
Government. It exercises the discretionary power of a State Government in
authorizing the establishment of a court in which the judges hold their
appointments for a term of years only, and not during good behavior; and it
exercises the power of the General Government in investing that
[*446] court with admiralty jurisdiction, over which the general
Government had exclusive jurisdiction [**123] in the Territory.
No one, we presume, will question the correctness of that opinion; nor is there
anything in conflict with it in the opinion now given. The point decided in the
case cited has no relation to the question now before the court. That depended
on the construction of the third article of the Constitution, in relation to
the judiciary of the United States, and the power which Congress might exercise
in a Territory in organizing the judicial department of the Government. The
case before us depends upon other and different provisions of the Constitution,
altogether separate and apart from the one above mentioned. The question as to
what courts Congress may ordain or establish in a Territory to administer laws
which the Constitution authorizes it to pass, and what laws it is or is not
authorized by the Constitution to pass, are widely different -- are regulated
by different and separate articles of the Constitution, and stand
[***718] upon different principles. And we are satisfied that no
one who reads attentively the page in Peters's Reports to which we have
referred, can suppose that the attention of the court was drawn for a moment to
the question now before this [**124] court, or that it meant in
that case to say that Congress had a right to prohibit a citizen of the United
States from taking any property which he lawfully held into a Territory of the
United States.
This brings us to examine by what provision of the Constitution the present
Federal Government, under its delegated and restricted powers, is authorized to
acquire territory outside of the original limits of the Untited States, and
what powers it may exercise therein over the person or property of a citizen of
the United States, while it remains a Territory, and until it shall be admitted
as one of the States of the Union.
There is certainly no power given by the Constitution to the Federal Government
to establish or maintain colonies bordering on the United States or at a
distance, to be ruled and governed at its own pleasure; nor to enlarge its
territorial limits in any way, except by the admission of new States. That
power is plainly given; and if a new State is admitted, it needs no further
legislation by Congress, because the Constitution itself defines the relative
rights and powers, and duties of the State, and the citizens of the State, and
the Federal Government. But no [**125] power is given to acquire a
Territory to be held and governed permanently in that character.
And indeed the power exercised by Congress to acquire territory and establish a
Government there, according to its own unlimited discretion, was viewed with
great jealousy by the [*447] leading statesmen of the day. And in
the Federalist, (No. 38,) written by Mr. Madison, he speaks of the acquisition
of the Northwestern Territory by the Confederated States, by the cession from
Virginia, and the establishment of a Government there, as an exercise of power
not warranted by the Articles of Confederation, and dangerous to the liberties
of the people. And he urges the adoption of the Constitution as a security and
safeguard against such an exercise of power.
We do not mean, however, to question the power of Congress in this respect. The
power to expand the territory of the United States by the admission of new
States is plainly given; and in the construction of this power by all the
departments of the Government, it has been held to authorize the acquisition of
territory, not fit for admission at the time, but to be admitted as soon as its
population and situation would entitle it to [**126] admission. It
is acquired to become a State, and not to be held as a colony and governed by
Congress with absolute authority; and as the propriety of admitting a new State
is committed to the sound discretion of Congress, the power to acquire
territory for that purpose, to be held by the United States until it is in a
suitable condition to become a Stated upon an equal footing with the other
States, must rest upon the same discretion. It is a question for the political
department of the Government, and not the judicial; and whatever the political
department of the Government shall recognize as within the limits of the United
States, the judicial department is also bound to recognize, and to administer
in it the laws of the United States, so far as they apply, and to maintain in
the Territory the authority and rights of the Government, and also the personal
rights and rights of property of individual citizens, as secured by the
Constitution. All we mean to say on this point is, that, as there is no express
regulation in the Constitution defining the power which the General Government
may exercise over the person or property of a citizen in a Territory thus
acquired, the court must [**127] necessarily look to the provisions
and principles of the Constitution, and its distribution of powers, for the
rules and principles by which its decision must be governed.
Taking this rule to guide us, it may be safely assumed that citizens of the
United States who migrate to a Territory belonging to the people of the United
States, cannot be ruled as mere colonists, dependent upon the will of the
General Government, and to be governed by any laws it may think proper to
impose. The principle upon which our Governments rest, and upon which alone
they continue to exist, is the union of States, sovereign and independent
within their own limits in [*448] their internal and domestic
concerns, and bound together as one people by a General Government, possessing
certain enumerated and restricted powers, delegated to it by the people of the
several States, and exercising supreme authority within the scope of the powers
granted to it, throughout the dominion of the United States. A power, therefore,
in the General Government to obtain and hold colonies and dependent
territories, over which they might legislate without restriction, would be
inconsistent with its own existence in its [**128] present form.
Whatever it acquires, it acquires for the benefit of the people of the several
states who created it. It is their trustee acting for them, and charged with
the duty of promoting the interests of the whole people of the Union in the
exercise of the powers specifically granted.
At the time when the Territory in question was obtained by cession from France,
it contained no population fit to be associated together and admitted as a
State; and it therefore was absolutely necessary to hold possession of it, as a
Territory belonging to the United States, until it was settled and inhabited by
a civilized community capable of self-government, and in a condition to be
admitted to equal terms with the other States as a member of the Union. But, as
we have before said, it was acquired by the General Government, as the
representative and trustee of the people of the United States, and it must
therefore be held in that character for their common and equal benefit; for it
was the people of the several States, acting through their agent and
representative, the Federal Government, who in fact acquired the Territory in
question, and the Government holds it for their common use until
[**129] it shall be associated with the other States as a member of
the Union.
But until that time arrives, it is undoubtedly necessary that some Government
should be established, in order to organize society, and to protect the
inhabitants in their persons and property; and as the people of the United
States could act in this matter only through the Government which represented them,
and [***719] through which they spoke and acted when the Territory
was obtained, it was not only within the scope of its powers, but it was its
duty to pass such laws and establish such a Government as would enable those by
whose authority they acted to reap the advantages anticipated from its
acquisition, and to gather there a population which would enable it to assume
the position to which it was destined among the States of the Union. The power
to acquire necessarily carries with it the power to preserve and apply to the
purposes for which it was acquired. The form of government to be established
[*449] necessarily rested in the discretion of Congress.It was
their duty to establish the one that would be best suited for the protection
and security of the citizens of the United States, and other
[**130] inhabitants who might be authorized to take up their abode
there, and that must always depend upon the existing condition of the
Territory, as to the number and character of its inhabitants, and their
situation in the Territory. In some cases a Government, consisting of persons
appointed by the Federal Government, would best subserve the interests of the
Territory, when the inhabitants were few and scattered, and new to one another.
In other instances, it would be more advisable to commit the powers of
self-government to the people who had settled in the Territory, as being the
most competent to determine what was best for their own interests. But some
form of civil authority would be absolutely necessary to organize and preserve
civilized society, and prepare it to become a State; and what is the best form
must always depend on the condition of the Territory at the time, and the
choice of the mode must depend upon the exercise of a discretionary power by
Congress, acting within the scope of its constitutional authority, and not
infringing upon the rights of person or rights of property of the citizen who
might go there to reside, or for any other lawful purpose. It was acquired
[**131] by the exercise of this discretion, and it must be held and
governed in like manner, until it is fitted to be a State.
But the power of Congress over the person or property of a citizen can never be
a mere discretionary power under our Constitution and form of Government. The
powers of the Government and the rights and privileges of the citizen are
regulated and plainly defined by the Constitution itself. And when the
Territory becomes a part of the United States, the Federal Government enters
into possession in the character impressed upon it by those who created it. It
enters upon it with its powers over the citizen strictly defined, and limited
by the Constitution, from which it derives its own existence, and by virtue of
which alone it continues to exist and act as a Government and sovereignty. It
has no power of any kind beyond it; and it cannot, when it enters a Territory
of the United States, put off its character, and assume discretionary or
despotic powers which the Constitution has denied to it. It cannot create for
itself a new character separated from the citizens of the United States, and
the duties it owes them under of the United States, the Government and the
[**132] citizen both enter it under the authority of the
Constitution, with their respective rights defined and marked out; and the
Federal Goveernment [*450] can exercise no power over his person or
property, beyond what that instrument confers, nor lawfully deny any right
which it has reserved.
A reference to a few of the provisions of the Constitution will illustrate this
proposition.
For example, no one, we presume, will contend that Congress can make any law in
a Territory respecting that establishment of religion, or the free exercise
thereof, or abridging the freedom of speech or of the press, or the right of
the people of the Territory peaceably to assemble, and to petition the
Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the
right to trial by jury, nor compel any one to be a witness against himself in a
criminal proceeding.
These powers, and others, in relation to rights of person, which it is not
necessary here to enumerate, are, in express and positive terms, denied to the
Goneral Government; and the rights of private property have been guarded with
equal care. Thus the rights of property are united [**133] with the
rights of person, and placed on the same ground by the fifth amendment to the
Constitution, which provides that no person shall be deprived of life, liberty,
and property, without due process of law. And an act of Congress which deprives
a citizen of the United States of his liberty or property, merely because he
came himself or brought his property into a particular Territory of the United
States, and who had committed no offence against the laws, could hardly be
dignified with the name of due process of law.
So, too, it will hardly be contended that Congress could by law quarter a
soldier in a house in a Territory without the consent of the owner, in time of
peace; nor in time of war, but in a manner prescribed by law. Nor could they by
law forfeit the property of a citizen in a Territory who was convicted of
treason, for a longer period than the life of the person convicted; nor take
private property for public use without just compensation.
The powers over person and property of which we speak are not only not granted
to Congress, but are in express terms denied, and they are forbidden to
exercise them. And this prohibition is not confined to the States, but the
[**134] words are general, and extend to the whole territory over
which the Constitution gives it power to legislate, including those portions of
it remaining under Territorial Government, as well as that covered by States. It
is a total absence of power everywhere within the dominion of the United
States, and places the citizens of a Territory, so far as these rights are
[*451] concerned, on the same footing with citizens of the States,
and guards them as firmly and plainly against any inroads which the General
Government might attempt, under the plea of implied or incidental powers. And
if Congress itself cannot do this -- if it is beyond the powers conferred on
the Federal Government -- it will be admitted, we presume, that it could not
authorize a Territorial Government to exercise them. It could confer no power
on any local Government, established by its authority, to violate the
provisions of the Constitution.
It seems, however, to be supposed, that there is a difference between property
in a slave and [***720] other property, and that different rules
may be applied to it in expounding the Constitution of the United States. And
the laws and usages of nations, and the writing [**135] of eminent
jurists upon the relation of master and slave and their mutual rights and
duties, and the powers which Governments may exercise over it, have been dwelt
upon in the argument.
But in considering the question before us, it must be borne in mind that there
is no law of nations standing between the people of the United States and their
Government, and interfering with their relation to each other. The powers of
the Government, and the rights of the citizen under it, are positive and
practical regulations plainly written down. The people of the United States
have delegated to it certain enumerated powers, and forbidden it to exercise
others. It has no power over the person or property of a citizen but what the
citizens of the United States have granted. And no laws or usages of other
nations, or reasoning of statesmen or jurists upon the relations of master and
slave, can enlarge the powers of the Government, or take from the citizens the
rights they have reserved. And if the Constitution recognizes the right of
property of the master in a slave, and makes no distinction between that
description of property and other property owned by a citizen, no tribunal,
acting under [**136] the authority of the United States, whether it
be legislative, executive, or judicial, has a right to draw such a distinction,
or deny to it the benefit of the provisions and guarantees which have been
provided for the protection of private property against the encroachments of
the Government.
Now, as we have already said in an earlier part of this opinion, upon a different
point, the right of property in a slave is distinctly and expressly affirmed in
the Constitution. The right to traffic in it, like an ordinary article of
merchandise and property, was guarantied to the citizens of the United States,
in every State that might desire it, for twenty years. And the Government in
express terms is pledged to protect [*452] it in all future time,
if the slave escapes from his owner. This is done in plain words -- too plain
to be misunderstood. And no word can be found in the Constitution which gives
Congress a greater power over slave property, or which entitles property of
that kind to less protection than property of any other description. The only
power conferred is the power coupled with the duty of guarding and protecting
the owner in his rights.
Upon these considerations, [**137] it is the opinion of the court
that the act of Congress which prohibited a citizen from holding and owning
property of this kind in the territory of the United States north of the line
therein mentioned, is not warranted by the Constitution, and is therefore void;
and that neither Dred Scott himself, nor any of his family, were made free by
being carried into this territory; even if they had been carried there by the
owner, with the intention of becoming a permanent resident.
We have so far examined the case, as it stands under the Constitution of the
United States, and the powers thereby delegated to the Federal Government.
But there is another point in the case which depends on State power and State
law. And it is contended, on the part of the plaintiff, that he is made free by
being taken to Rock Island, in the State of Illinois, independently of his
residence in the territory of the United States; and being so made free, he was
not again reduced to a state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief; for the principle on
which it depends was decided in this court, upon much consideration, in the
case of Strader et [**138] al. v. Graham, reported in 10th Howard,
82. In that case, the slaves had been taken from Kentucky to Ohio, with the
consent of the owner, and afterwards brought back to Kentucky. And this court
held that their status or condition, as free or slave, depended upon the laws
of Kentucky, when they were brought back into that State, and not of Ohio; and
that this court had no jurisdiction to revise the judgment of a State court
upon its own laws. This was the point directly before the court, and the
decision that this court had not jurisdiction turned upon it, as will be seen
by the report of the case.
So in this case. As Scott was a slave when taken into the State of Illinois by
his owner, and was there held as such, and brought back in that character, his
status, as free or slave, depended on the laws of Missouri, and not of
Illinois.
It has, however, been urged in the argument, that by the laws of Missouri he
was free on his return, and that this case, [*453] therefore,
cannot be governed by the case of Strader et al. v. Graham, where it appeared,
by the laws of Kentucky, that the plaintiffs continued to be slaves on their
return from Ohio. But whatever doubts or opinions [**139] may, at
one time, have been entertained upon this subject, we are satisfied, upon a
careful examination of all the cases decided in the State courts of Missouri
referred to, that it is now firmly settled by the decisions of the highest
court in the State, that Scott and his family upon their return were not free,
but were, by the laws of Missouri, the property of the defendant; and that the
Circuit Court of the United States had no jurisdiction, when, by the laws of
the State, the plaintiff was a slave, and not a citizen.
Moreover, the plaintiff, it appears, brought a similar action against the
defendant in the State court of Missouri, claiming the freedom of himself and
his family upon the same grounds and the same evidence upon which he relies in
the case before the court. The case was carried before the Supreme Court of the
State; was fully argued there; and that court decided that neither the
plaintiff nor his family were entitled to freedom, and were still the slaves of
the defendant; and reversed the judgment of the inferior State court, which had
given a different decision. If the plaintiff supposed that this judgment of the
Supreme Court of the State was erroneous, and [**140] that this
court had jurisdiction to revise and reverse it, the only mode by which he
could legally bring it before this court was by writ of error directed to the
Supreme Court of the State, requiring it to transmit the record to this court.
If this had been done, it is too plain for argument [***721] that
the writ must have been dismissed for want of jurisdiction in this court. The
case of Strader and others v. Graham is directly in point; and, indeed,
independent of any decision, the language of the 25th section of the act of
1789 is too clear and precise to admit of controversy.
But the plaintiff did not pursue the mode prescribed by law for bringing the
judgment of a State court before this court for revision, but suffered the case
to be remanded to the inferior State court, where it is still continued, and
is, by agreement of parties, to await the judgment of this court on the point.
All of this appears on the record before us, and by the printed report of the
case.
And while the case is yet open and pending in the inferior State court, the
plaintiff goes into the Circuit Court of the United States, upon the same case
and the same evidence, and against the same party, [**141] and
proceeds to judgment, and then brings here the same case from the Circuit
Court, which the law would not have permitted him to bring directly from the
[*454] State court. And if this court takes jurisdiction in this
form, the result, so far as the rights of the respective parties are concerned,
is in every respect substantially the same as if it had in open violation of
law entertained jurisdiction over the judgment of the State court upon a writ
of error, and revised and reversed its judgment upon the ground that its
opinion upon the question of law was erroneous. It would ill become this court
to sanction such an attempt to evade the law, or to exercise an appellate power
in this circuitous way, which it is forbidden to exercise in the direct and
regular and invariable forms of judicial proceedings.
Upon the whole, therefore, it is the judgment of this court, that it appears by
the record before us that the plaintiff in error is not a citizen of Missouri,
in the sense in which that word is used in the Constitution; and that the
Circuit Court of the United States, for that reason, had no jurisdiction in the
case, and could give no judgment in it. Its judgment for the
[**142] defendant must, consequently, be reversed, and a mandate
issued, directing the suit to be dismissed for want of jurisdiction.