construing the Constitution in all its bearings, rather than to look
behind that period, into a traffic which is now declared to be piracy,
and punished with death by Christian nations. I do not like to draw
the sources of our domestic relations from so dark a ground. Our
independence was a great epoch in the history of freedom; and while I
admit the Government was not made especially for the colored race, yet
many of them were citizens of the New England States, and exercised
the rights of suffrage when the Constitution was adopted, and it was
not doubted by any intelligent person that its tendencies would
greatly ameliorate their condition.

Many of the States, on the adoption of the Constitution, or shortly
afterward, took measures to abolish slavery within their respective
jurisdictions; and it is a well-known fact that a belief was cherished
by the leading men, South as well as North, that the institution of
slavery would gradually decline, until it would become extinct. The
increased value of slave labor, in the culture of cotton and sugar,
prevented the realization of this expectation. Like all other
communities and States, the South were influenced by what they
considered to be their own interests.

But if we are to turn our attention to the dark ages of the world, why
confine our view to colored slavery? On the same principles, white men
were made slaves. All slavery has its origin in power, and is against
right.

The power of Congress to establish Territorial Governments, and to
prohibit the introduction of slavery therein, is the next point to be
considered.

After the cession of western territory by Virginia and other States,
to the United States, the public attention was directed to the best
mode of disposing of it for the general benefit. While in attendance
on the Federal Convention, Mr. Madison, in a letter to Edmund
Randolph, dated the 22d April, 1787, says: "Congress are deliberating
on the plan most eligible for disposing of the western territory not
yet surveyed. Some alteration will probably be made in the ordinance
on that subject." And in the same letter he says: "The inhabitants of
the Illinois complain of the land jobbers, &c., who are purchasing
titles among them. Those of St. Vincent's complain of the defective
criminal and civil justice among them, as well as of military
protection." And on the next day he writes to Mr. Jefferson: "The
government of the settlements on the Illinois and Wabash is a subject
very perplexing in itself, and rendered more so by our ignorance of
the many circumstances on which a right judgment depends. The
inhabitants at those places claim protection against the savages, and
some provision for both civil and criminal justice."

In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention
certain propositions, as the basis of a Federal Government, among
which was the following:

"_Resolved_, That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and territory or
otherwise, with the consent of a number of voices in the National
Legislature less than the whole."

Afterward, Mr. Madison submitted to the Convention, in order to be
referred to the committee of detail, the following powers, as proper
to be added to those of general legislation:

"To dispose of the unappropriated lands of the United States. To
institute temporary Governments for new States arising therein. To
regulate affairs with the Indians, as well within as without the
limits of the United States."

Other propositions were made in reference to the same subjects, which
it would be tedious to enumerate. Mr. Gouverneur Morris proposed the
following:

"The Legislature shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States; and nothing in this Constitution
contained shall be so construed as to prejudice any claims either of
the United States or of any particular State."

This was adopted as a part of the Constitution, with two verbal
alterations--Congress was substituted for Legislature, and the word
_either_ was stricken out.

In the organization of the new Government, but little revenue for a
series of years was expected from commerce. The public lands were
considered as the principal resource of the country for the payment of
the Revolutionary debt. Direct taxation was the means relied on to pay
the current expenses of the Government. The short period that occurred
between the cession of western lands to the Federal Government by
Virginia and other States, and the adoption of the Constitution, was
sufficient to show the necessity of a proper land system and a
temporary Government. This was clearly seen by propositions and
remarks in the Federal Convention, some of which are above cited, by
the passage of the Ordinance of 1787, and the adoption of that
instrument by Congress, under the Constitution, which gave to it
validity.

It will be recollected that the deed of cession of western territory
was made to the United States by Virginia in 1784, and that it
required the territory ceded to be laid out into States, that the land
should be disposed of for the common benefit of the States, and that
all right, title, and claim, as well of soil as of jurisdiction, were
ceded; and this was the form of cession from other States.

On the 13th of July, the Ordinance of 1787 was passed, "for the
government of the United States territory northwest of the river
Ohio," with but one dissenting vote. This instrument provided there
should be organized in the territory not less than three nor more than
five States, designating their boundaries. It was passed while the
Federal Convention was in session, about two months before the
Constitution was adopted by the Convention. The members of the
Convention must therefore have been well acquainted with the
provisions of the Ordinance. It provided for a temporary Government,
as initiatory to the formation of State Governments. Slavery was
prohibited in the territory.

Can any one suppose that the eminent men of the Federal Convention
could have overlooked or neglected a matter so vitally important to
the country, in the organization of temporary Governments for the vast
territory northwest of the river Ohio? In the 3d section of the 4th
article of the Constitution, they did make provision for the admission
of new States, the sale of the public lands, and the temporary
Government of the territory. Without a temporary Government, new
States could not have been formed, nor could the public lands have
been sold.

If the third section were before us now for consideration for the
first time, under the facts stated, I could not hesitate to say there
was adequate legislative power given in it. The power to make all
needful rules and regulations is a power to legislate. This no one
will controvert, as Congress cannot make "rules and regulations,"
except by legislation. But it is argued that the word territory is
used as synonymous with the word land; and that the rules and
regulations of Congress are limited to the disposition of lands and
other property belonging to the United States. That this is not the
true construction of the section appears from the fact that in the
first line of the section "the power to dispose of the public lands"
is given expressly, and, in addition, to make all needful rules and
regulations. The power to dispose of is complete in itself, and
requires nothing more. It authorizes Congress to use the proper means
within its discretion, and any further provision for this purpose
would be a useless verbiage. As a composition, the Constitution is
remarkably free from such a charge.

In the discussion of the power of Congress to govern a Territory, in
the case of the Atlantic Insurance Company _v._ Canter, (1 Peters,
511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court,
said, in regard to the people of Florida, "they do not, however,
participate in political power; they do not share in the Government
till Florida shall become a State; in the mean time, Florida continues
to be a Territory of the United States, governed by virtue of that
clause in the Constitution which empowers Congress 'to make all
needful rules and regulations respecting the territory or other
property belonging to the United States.'"

And he adds, "perhaps the power of governing a Territory belonging to
the United States, which has not, by becoming a State, acquired the
means of self-government, may result necessarily from the fact that
it is not within the jurisdiction of any particular State, and is
within the power and jurisdiction of the United States. The right to
govern may be the inevitable consequence of the right to acquire
territory; whichever may be the source whence the power is derived,
the possession of it is unquestioned." And in the close of the
opinion, the court say, "in legislating for them [the Territories,]
Congress exercises the combined powers of the General and State
Governments."

Some consider the opinion to be loose and inconclusive; others, that
it is _obiter dicta_; and the last sentence is objected to as
recognising absolute power in Congress over Territories. The learned
and eloquent Wirt, who, in the argument of a cause before the court,
had occasion to cite a few sentences from an opinion of the Chief
Justice, observed, "no one can mistake the style, the words so
completely match the thought."

I can see no want of precision in the language of the Chief Justice;
his meaning cannot be mistaken. He states, first, the third section as
giving power to Congress to govern the Territories, and two other
grounds from which the power may also be implied. The objection seems
to be, that the Chief Justice did not say which of the grounds stated
he considered the source of the power. He did not specifically state
this, but he did say, "whichever may be the source whence the power is
derived, the possession of it is unquestioned." No opinion of the
court could have been expressed with a stronger emphasis; the power in
Congress is unquestioned. But those who have undertaken to criticise
the opinion, consider it without authority, because the Chief Justice
did not designate specially the power. This is a singular objection.
If the power be unquestioned, it can be a matter of no importance on
which ground it is exercised.

The opinion clearly was not _obiter dicta_. The turning point in the
case was, whether Congress had power to authorize the Territorial
Legislature of Florida to pass the law under which the Territorial
court was established, whose decree was brought before this court for
revision. The power of Congress, therefore, was the point in issue.

The word "territory," according to Worcester, "means land, country, a
district of country under a temporary Government." The words
"territory or other property," as used, do imply, from the use of the
pronoun other, that territory was used as descriptive of land; but
does it follow that it was not used also as descriptive of a district
of country? In both of these senses it belonged to the United
States--as land, for the purpose of sale; as territory, for the
purpose of government.

But, if it be admitted that the word territory as used means land, and
nothing but land, the power of Congress to organize a temporary
Government is clear. It has power to make all needful regulations
respecting the public lands, and the extent of those "needful
regulations" depends upon the direction of Congress, where the means
are appropriate to the end, and do not conflict with any of the
prohibitions of the Constitution. If a temporary Government be deemed
needful, necessary, requisite, or is wanted, Congress has power to
establish it. This court says, in McCulloch _v._ The State of
Maryland, (4 Wheat., 316,) "If a certain means to carry into effect
any of the powers expressly given by the Constitution to the
Government of the Union be an appropriate measure, not prohibited by
the Constitution, the degree of its necessity is a question of
legislative discretion, not of judicial cognizance."

The power to establish post offices and post roads gives power to
Congress to make contracts for the transportation of the mail, and to
punish all who commit depredations upon it in its transit, or at its
places of distribution. Congress has power to regulate commerce, and,
in the exercise of its discretion, to lay an embargo, which suspends
commerce; so, under the same power, harbors, lighthouses, breakwaters,
&c., are constructed.

Did Chief Justice Marshall, in saying that Congress governed a
Territory, by exercising the combined powers of the Federal and State
Governments, refer to unlimited discretion? A Government which can
make white men slaves? Surely, such a remark in the argument must have
been inadvertently uttered. On the contrary, there is no power in the
Constitution by which Congress can make either white or black men
slaves. In organizing the Government of a Territory, Congress is
limited to means appropriate to the attainment of the constitutional
object. No powers can be exercised which are prohibited by the
Constitution, or which are contrary to its spirit; so that, whether
the object may be the protection of the persons and property of
purchasers of the public lands, or of communities who have been
annexed to the Union by conquest or purchase, they are initiatory to
the establishment of State Governments, and no more power can be
claimed or exercised than is necessary to the attainment of the end.
This is the limitation of all the Federal powers.

But Congress has no power to regulate the internal concerns of a
State, as of a Territory; consequently, in providing for the
Government of a Territory, to some extent, the combined powers of the
Federal and State Governments are necessarily exercised.

If Congress should deem slaves or free colored persons injurious to
the population of a free Territory, as conducing to lessen the value
of the public lands, or on any other ground connected with the public
interest, they have the power to prohibit them from becoming settlers
in it. This can be sustained on the ground of a sound national policy,
which is so clearly shown in our history by practical results, that it
would seem no considerate individual can question it. And, as regards
any unfairness of such a policy to our Southern brethren, as urged in
the argument, it is only necessary to say that, with one-fourth of the
Federal population of the Union, they have in the slave States a
larger extent of fertile territory than is included in the free
States; and it is submitted, if masters of slaves be restricted from
bringing them into free territory, that the restriction on the free
citizens of non-slaveholding States, by bringing slaves into free
territory, is four times greater than that complained of by the South.
But, not only so; some three or four hundred thousand holders of
slaves, by bringing them into free territory, impose a restriction on
twenty millions of the free States. The repugnancy to slavery would
probably prevent fifty or a hundred freemen from settling in a slave
Territory, where one slaveholder would be prevented from settling in a
free Territory.

This remark is made in answer to the argument urged, that a
prohibition of slavery in the free Territories is inconsistent with
the continuance of the Union. Where a Territorial Government is
established in a slave Territory, it has uniformly remained in that
condition until the people form a State Constitution; the same course
where the Territory is free, both parties acting in good faith, would
be attended with satisfactory results.

The sovereignty of the Federal Government extends to the entire limits
of our territory. Should any foreign power invade our jurisdiction, it
would be repelled. There is a law of Congress to punish our citizens
for crimes committed in districts of country where there is no
organized Government. Criminals are brought to certain Territories or
States, designated in the law, for punishment. Death has been
inflicted in Arkansas and in Missouri, on individuals, for murders
committed beyond the limit of any organized Territory or State; and no
one doubts that such a jurisdiction was rightfully exercised. If there
be a right to acquire territory, there necessarily must be an implied
power to govern it. When the military force of the Union shall conquer
a country, may not Congress provide for the government of such
country? This would be an implied power essential to the acquisition
of new territory. This power has been exercised, without doubt of its
constitutionality, over territory acquired by conquest and purchase.

And when there is a large district of country within the United
States, and not within any State Government, if it be necessary to
establish a temporary Government to carry out a power expressly vested
in Congress--as the disposition of the public lands--may not such
Government be instituted by Congress? How do we read the Constitution?
Is it not a practical instrument?

In such cases, no implication of a power can arise which is inhibited
by the Constitution, or which may be against the theory of its
construction. As my opinion rests on the third section, these remarks
are made as an intimation that the power to establish a temporary
Government may arise, also, on the other two grounds stated in the
opinion of the court in the insurance case, without weakening the
third section.

I would here simply remark, that the Constitution was formed for our
whole country. An expansion or contraction of our territory required
no change in the fundamental law. When we consider the men who laid
the foundation of our Government and carried it into operation, the
men who occupied the bench, who filled the halls of legislation and
the Chief Magistracy, it would seem, if any question could be settled
clear of all doubt, it was the power of Congress to establish
Territorial Governments. Slavery was prohibited in the entire
Northwestern Territory, with the approbation of leading men, South and
North; but this prohibition was not retained when this ordinance was
adopted for the government of Southern Territories, where slavery
existed. In a late republication of a letter of Mr. Madison, dated
November 27, 1819, speaking of this power of Congress to prohibit
slavery in a Territory, he infers there is no such power, from the
fact that it has not been exercised. This is not a very satisfactory
argument against any power, as there are but few, if any, subjects on
which the constitutional powers of Congress are exhausted. It is true,
as Mr. Madison states, that Congress, in the act to establish a
Government in the Mississippi Territory, prohibited the importation of
slaves into it from foreign parts; but it is equally true, that in the
act erecting Louisiana into two Territories, Congress declared, "it
shall not be lawful for any person to bring into Orleans Territory,
from any port or place within the limits of the United States, any
slave which shall have been imported since 1798, or which may
hereafter be imported, except by a citizen of the United States who
settles in the Territory, under the penalty of the freedom of such
slave." The inference of Mr. Madison, therefore, against the power of
Congress, is of no force, as it was founded on a fact supposed, which
did not exist.

It is refreshing to turn to the early incidents of our history, and
learn wisdom from the acts of the great men who have gone to their
account. I refer to a report in the House of Representatives, by John
Randolph, of Roanoke, as chairman of a committee, in March,
1803--fifty-four years ago. From the Convention held at Vincennes, in
Indiana, by their President, and from the people of the Territory, a
petition was presented to Congress, praying the suspension of the
provision which prohibited slavery in that Territory. The report
stated "that the rapid population of the State of Ohio sufficiently
evinces, in the opinion of your committee, that the labor of slaves is
not necessary to promote the growth and settlement of colonies in that
region. That this labor, demonstrably the dearest of any, can only be
employed to advantage in the cultivation of products more valuable
than any known to that quarter of the United States; that the
committee deem it highly dangerous and inexpedient to impair a
provision wisely calculated to promote the happiness and prosperity of
the Northwestern country, and to give strength and security to that
extensive frontier. In the salutary operation of this sagacious and
benevolent restraint, it is believed that the inhabitants will, at no
very distant day, find ample remuneration for a temporary privation of
labor and of emigration." (1 vol. State Papers, Public Lands, 160.)

The judicial mind of this country, State and Federal, has agreed on no
subject, within its legitimate action, with equal unanimity, as on the
power of Congress to establish Territorial Governments. No court,
State or Federal, no judge or statesman, is known to have had any
doubts on this question for nearly sixty years after the power was
exercised. Such Governments have been established from the sources of
the Ohio to the Gulf of Mexico, extending to the Lakes on the north
and the Pacific Ocean on the west, and from the lines of Georgia to
Texas.

Great interests have grown up under the Territorial laws over a
country more than five times greater in extent than the original
thirteen States; and these interests, corporate or otherwise, have
been cherished and consolidated by a benign policy, without any one
supposing the law-making power had united with the Judiciary, under
the universal sanction of the whole country, to usurp a jurisdiction
which did not belong to them. Such a discovery at this late date is
more extraordinary than anything which has occurred in the judicial
history of this or any other country. Texas, under a previous
organization, was admitted as a State; but no State can be admitted
into the Union which has not been organized under some form of
government. Without temporary Governments, our public lands could not
have been sold, nor our wildernesses reduced to cultivation, and the
population protected; nor could our flourishing States, West and
South, have been formed.

What do the lessons of wisdom and experience teach, under such
circumstances, if the new light, which has so suddenly and
unexpectedly burst upon us, be true? Acquiescence; acquiescence under
a settled construction of the Constitution for sixty years, though it
may be erroneous; which has secured to the country an advancement and
prosperity beyond the power of computation.

An act of James Madison, when President, forcibly illustrates this
policy. He had made up his opinion that Congress had no power under
the Constitution to establish a National Bank. In 1815, Congress
passed a bill to establish a bank. He vetoed the bill, on objections
other than constitutional. In his message, he speaks as a wise
statesman and Chief Magistrate, as follows:

"Waiving the question of the constitutional authority of the
Legislature to establish an incorporated bank, as being precluded, in
my judgment, by the repeated recognitions under varied circumstances
of the validity of such an institution, in acts of the Legislative,
Executive, and Judicial branches of the Government, accompanied by
indications, in different modes, of a concurrence of the general will
of the nation."

Has this impressive lesson of practical wisdom become lost to the
present generation?

If the great and fundamental principles of our Government are never to
be settled, there can be no lasting prosperity. The Constitution will
become a floating waif on the billows of popular excitement.

The prohibition of slavery north of thirty-six degrees thirty minutes,
and of the State of Missouri, contained in the act admitting that
State into the Union, was passed by a vote of 134, in the House of
Representatives, to 42. Before Mr. Monroe signed the act, it was
submitted by him to his Cabinet, and they held the restriction of
slavery in a Territory to be within the constitutional powers of
Congress. It would be singular, if in 1804 Congress had power to
prohibit the introduction of slaves in Orleans Territory from any
other part of the Union, under the penalty of freedom to the slave, if
the same power embodied in the Missouri compromise, could not be
exercised in 1820.

But this law of Congress, which prohibits slavery north of Missouri
and of thirty-six degrees thirty minutes, is declared to have been
null and void by my brethren. And this opinion is founded mainly, as I
understand, on the distinction drawn between the ordinance of 1787 and
the Missouri compromise line. In what does the distinction consist?
The ordinance, it is said, was a compact entered into by the
confederated States before the adoption of the Constitution; and that
in the cession of territory authority was given to establish a
Territorial Government.

It is clear that the ordinance did not go into operation by virtue of
the authority of the Confederation, but by reason of its modification
and adoption by Congress under the Constitution. It seems to be
supposed, in the opinion of the court, that the articles of cession
placed it on a different footing from territories subsequently
acquired. I am unable to perceive the force of this distinction. That
the ordinance was intended for the government of the Northwestern
Territory, and was limited to such Territory, is admitted. It was
extended to Southern Territories, with modifications, by acts of
Congress, and to some Northern Territories. But the ordinance was made
valid by the act of Congress, and without such act could have been of
no force. It rested for its validity on the act of Congress, the same,
in my opinion, as the Missouri compromise line.

If Congress may establish a Territorial Government in the exercise of
its discretion, it is a clear principle that a court cannot control
that discretion. This being the case, I do not see on what ground the
act is held to be void. It did not purport to forfeit property, or
take it for public purposes. It only prohibited slavery; in doing
which, it followed the ordinance of 1787.

I will now consider the fourth head, which is: "The effect of taking
slaves into a State or Territory, and so holding them, where slavery
is prohibited."

If the principle laid down in the case of Prigg _v._ The State of
Pennsylvania is to be maintained, and it is certainly to be maintained
until overruled, as the law of this court, there can be no difficulty
on this point. In that case, the court says: "The state of slavery is
deemed to be a mere municipal regulation, founded upon and limited to
the range of the territorial laws." If this be so, slavery can exist
nowhere except under the authority of law, founded on usage having the
force of law, or by statutory recognition. And the court further says:
"It is manifest, from this consideration, that if the Constitution had
not contained the clause requiring the rendition of fugitives from
labor, every non-slaveholding State in the Union would have been at
liberty to have declared free all runaway slaves coming within its
limits, and to have given them entire immunity and protection against
the claims of their masters."

Now, if a slave abscond, he may be reclaimed; but if he accompany his
master into a State or Territory where slavery is prohibited, such
slave cannot be said to have left the service of his master where his
services were legalized. And if slavery be limited to the range of the
territorial laws, how can the slave be coerced to serve in a State or
Territory, not only without the authority of law, but against its
express provisions? What gives the master the right to control the
will of his slave? The local law, which exists in some form. But where
there is no such law, can the master control the will of the slave by
force? Where no slavery exists, the presumption, without regard to
color, is in favor of freedom. Under such a jurisdiction, may the
colored man be levied on as the property of his master by a creditor?
On the decease of the master, does the slave descend to his heirs as
property? Can the master sell him? Any one or all of these acts may be
done to the slave, where he is legally held to service. But where the
law does not confer this power, it cannot be exercised.

Lord Mansfield held that a slave brought into England was free. Lord
Stowell agreed with Lord Mansfield in this respect, and that the slave
could not be coerced in England; but on her voluntary return to
Antigua, the place of her slave domicil, her former status attached.
The law of England did not prohibit slavery, but did not authorize it.
The jurisdiction which prohibits slavery is much stronger in behalf of
the slave within it, than where it only does not authorize it.

By virtue of what law is it, that a master may take his slave into
free territory, and exact from him the duties of a slave? The law of
the Territory does not sanction it. No authority can be claimed under
the Constitution of the United States, or any law of Congress. Will it
be said that the slave is taken as property, the same as other
property which the master may own? To this I answer, that colored
persons are made property by the law of the State, and no such power
has been given to Congress. Does the master carry with him the law of
the State from which he removes into the Territory? and does that
enable him to coerce his slave in the Territory? Let us test this
theory. If this may be done by a master from one slave State, it may
be done by a master from every other slave State. This right is
supposed to be connected with the person of the master, by virtue of
the local law. Is it transferable? May it be negotiated, as a
promissory note or bill of exchange? If it be assigned to a man from a
free State, may he coerce the slave by virtue of it? What shall this
thing be denominated? Is it personal or real property? Or is it an
indefinable fragment of sovereignty, which every person carries with
him from his late domicil? One thing is certain, that its origin has
been very recent, and it is unknown to the laws of any civilized
country.

A slave is brought to England from one of its islands, where slavery
was introduced and maintained by the mother country. Although there is
no law prohibiting slavery in England, yet there is no law authorizing
it; and, for near a century, its courts have declared that the slave
there is free from the coercion of the master. Lords Mansfield and
Stowell agree upon this point, and there is no dissenting authority.

There is no other description of property which was not protected in
England, brought from one of its slave islands. Does not this show
that property in a human being does not arise from nature or from the
common law, but, in the language of this court, "it is a mere
municipal regulation, founded upon and limited to the range of the
territorial laws?" This decision is not a mere argument, but it is the
end of the law, in regard to the extent of slavery. Until it shall be
overturned, it is not a point for argument; it is obligatory on myself
and my brethren, and on all judicial tribunals over which this court
exercises an appellate power.

It is said the Territories are common property of the States, and that
every man has a right to go there with his property. This is not
controverted. But the court say a slave is not property beyond the
operation of the local law which makes him such. Never was a truth
more authoritatively and justly uttered by man. Suppose a master of a
slave in a British island owned a million of property in England;
would that authorize him to take his slaves with him to England? The
Constitution, in express terms, recognises the _status_ of slavery as
founded on the municipal law: "No person held to service or labor in
one State, _under the laws thereof_, escaping into another, shall,"
&c. Now, unless the fugitive escape on a place where, by the municipal
law, he is held to labor, this provision affords no remedy to the
master. What can be more conclusive than this? Suppose a slave escape
from a Territory where slavery is not authorized by law, can he be
reclaimed?

In this case, a majority of the court have said that a slave may be
taken by his master into a Territory of the United States, the same as
a horse, or any other kind of property. It is true, this was said by
the court, as also many other things, which are of no authority.
Nothing that has been said by them, which has not a direct bearing on
the jurisdiction of the court, against which they decided, can be
considered as authority. I shall certainly not regard it as such. The
question of jurisdiction, being before the court, was decided by them
authoritatively, but nothing beyond that question. A slave is not a
mere chattel. He bears the impress of his Maker, and is amenable to
the laws of God and man; and he is destined to an endless existence.

Under this head I shall chiefly rely on the decisions of the Supreme
Courts of the Southern States, and especially of the State of
Missouri.

In the first and second sections of the sixth article of the
Constitution of Illinois, it is declared that neither slavery nor
involuntary servitude shall hereafter be introduced into this State,
otherwise than for the punishment of crimes whereof the party shall
have been duly convicted; and in the second section it is declared
that any violation of this article shall effect the emancipation of
such person from his obligation to service. In Illinois, a right of
transit through the State is given the master with his slaves. This is
a matter which, as I suppose, belongs exclusively to the State.

The Supreme Court of Illinois, in the case of Jarrot _v._ Jarrot, (2
Gilmer, 7,) said:

"After the conquest of this Territory by Virginia, she ceded it to the
United States, and stipulated that the titles and possessions, rights
and liberties, of the French settlers, should be guarantied to them.
This, it has been contended, secured them in the possession of those
negroes as slaves which they held before that time, and that neither
Congress nor the Convention had power to deprive them of it; or, in
other words, that the ordinance and Constitution should not be so
interpreted and understood as applying to such slaves, when it is
therein declared that there shall be neither slavery nor involuntary
servitude in the Northwest Territory, nor in the State of Illinois,
otherwise than in the punishment of crimes. But it was held that those
rights could not be thus protected, but must yield to the ordinance
and Constitution."

The first slave case decided by the Supreme Court of Missouri,
contained in the reports, was Winny _v._ Whitesides, (1 Missouri Rep.,
473,) at October term, 1824. It appeared that, more than twenty-five
years before, the defendant, with her husband, had removed from
Carolina to Illinois, and brought with them the plaintiff; that they
continued to reside in Illinois three or four years, retaining the
plaintiff as a slave; after which, they removed to Missouri, taking
her with them.

The court held, that if a slave be detained in Illinois until he be
entitled to freedom, the right of the owner does not revive when he
finds the negro in a slave State.

That when a slave is taken to Illinois by his owner, who takes up his
residence there, the slave is entitled to freedom.

In the case of Lagrange [Transcriber's Note: La Grange] _v._ Chouteau,
(2 Missouri Rep., 20, at May term, 1828,) it was decided that the
ordinance of 1787 was intended as a fundamental law for those who may
choose to live under it, rather than as a penal statute.

That any sort of residence contrived or permitted by the legal owner
of the slave, upon the faith of secret trusts or contracts, in order
to defeat or evade the ordinance, and thereby introduce slavery _de
facto_, would entitle such slave to freedom.

In Julia _v._ McKinney, (3 Missouri Rep., 279,) it was held, where a
slave was settled in the State of Illinois, but with an intention on
the part of the owner to be removed at some future day, that hiring
said slave to a person to labor for one or two days, and receiving the
pay for the hire, the slave is entitled to her freedom, under the
second section of the sixth article of the Constitution of Illinois.

Rachel _v._ Walker (4 Missouri Rep., 350, June term, 1836) is a case
involving, in every particular, the principles of the case before us.
Rachel sued for her freedom; and it appeared that she had been bought
as a slave in Missouri, by Stockton, an officer of the army, taken to
Fort Snelling, where he was stationed, and she was retained there as a
slave a year; and then Stockton removed to Prairie du Chien, taking
Rachel with him as a slave, where he continued to hold her three
years, and then he took her to the State of Missouri, and sold her as
a slave.

"Fort Snelling was admitted to be on the west side of the Mississippi
river, and north of the State of Missouri, in the territory of the
United States. That Prairie du Chien was in the Michigan Territory, on
the east side of the Mississippi river. Walker, the defendant, held
Rachel under Stockton."

The court said, in this case:

"The officer lived in Missouri Territory, at the time he bought the
slave; he sent to a slaveholding country and procured her; this was
his voluntary act, done without any other reason than that of his
convenience; and he and those claiming under him must be holden to
abide the consequences of introducing slavery both in Missouri
Territory and Michigan, contrary to law; and on that ground Rachel was
declared to be entitled to freedom."

In answer to the argument that, as an officer of the army, the master
had a right to take his slave into free territory, the court said no
authority of law or the Government compelled him to keep the plaintiff
there as a slave.

"Shall it be said, that because an officer of the army owns slaves in
Virginia, that when, as officer and soldier, he is required to take
the command of a fort in the non-slaveholding States or Territories,
he thereby has a right to take with him as many slaves as will suit
his interests or convenience? It surely cannot be law. If this be
true, the court say, then it is also true that the convenience or
supposed convenience of the officer repeals, as to him and others who
have the same character, the ordinance and the act of 1821, admitting
Missouri into the Union, and also the prohibition of the several laws
and Constitutions of the non-slaveholding States."

In Wilson _v._ Melvin, (4 Missouri R., 592,) it appeared the defendant
left Tennessee with an intention of residing in Illinois, taking his
negroes with him. After a month's stay in Illinois, he took his
negroes to St. Louis, and hired them, then returned to Illinois. On
these facts, the inferior court instructed the jury that the defendant
was a sojourner in Illinois. This the Supreme Court held was error,
and the judgment was reversed.

The case of Dred Scott _v._ Emerson (15 Missouri R., 682, March term,
1852) will now be stated. This case involved the identical question
before us, Emerson having, since the hearing, sold the plaintiff to
Sandford, the defendant.

Two of the judges ruled the case, the Chief Justice dissenting. It
cannot be improper to state the grounds of the opinion of the court,
and of the dissent.

The court say: "Cases of this kind are not strangers in our court.
Persons have been frequently here adjudged to be entitled to their
freedom, on the ground that their masters held them in slavery in
Territories or States in which that institution is prohibited. From
the first case decided in our court, it might be inferred that this
result was brought about by a presumed assent of the master, from the
fact of having voluntarily taken his slave to a place where the
relation of master and slave did not exist. But subsequent cases base
the right to 'exact the forfeiture of emancipation,' as they term it,
on the ground, it would seem, that it was the duty of the courts of
this State to carry into effect the Constitution and laws of other
States and Territories, regardless of the rights, the policy, or the
institutions, of the people of this State."

And the court say that the States of the Union, in their municipal
concerns, are regarded as foreign to each other; that the courts of
one State do not take notice of the laws of other States, unless
proved as facts, and that every State has the right to determine how
far its comity to other States shall extend; and it is laid down, that
when there is no act of manumission decreed to the free State, the
courts of the slave States cannot be called to give effect to the law
of the free State. Comity, it alleges, between States, depends upon
the discretion of both, which may be varied by circumstances. And it
is declared by the court, "that times are not as they were when the
former decisions on this subject were made." Since then, not only
individuals but States have been possessed with a dark and fell spirit
in relation to slavery, whose gratification is sought in the pursuit
of measures whose inevitable consequence must be the overthrow and
destruction of our Government. Under such circumstances, it does not
behoove the State of Missouri to show the least countenance to any
measure which might gratify this spirit. She is willing to assume her
full responsibility for the existence of slavery within her limits,
nor does she seek to share or divide it with others.

Chief Justice Gamble dissented from the other two judges. He says:

"In every slaveholding State in the Union, the subject of emancipation
is regulated by statute; and the forms are prescribed in which it
shall be effected. Whenever the forms required by the laws of the
State in which the master and slave are resident are complied with,
the emancipation is complete, and the slave is free. If the right of
the person thus emancipated is subsequently drawn in question in
another State, it will be ascertained and determined by the law of the
State in which the slave and his former master resided; and when it
appears that such law has been complied with, the right to freedom
will be fully sustained in the courts of all the slaveholding States,
although the act of emancipation may not be in the form required by
law in which the court sits.

"In all such cases, courts continually administer the law of the
country where the right was acquired; and when that law becomes known
to the court, it is just as much a matter of course to decide the
rights of the parties according to its requirements, as it is to
settle the title of real estate situated in our State by its own
laws."

This appears to me a most satisfactory answer to the argument of the
court. Chief Justice continues:

"The perfect equality of the different States lies at the foundation
of the Union. As the institution of slavery in the States is one over
which the Constitution of the United States gives no power to the
General Government, it is left to be adopted or rejected by the
several States, as they think best; nor can any one State, or number
of States, claim the right to interfere with any other State upon the
question of admitting or excluding this institution.

"A citizen of Missouri, who removes with his slave to Illinois, has
no right to complain that the fundamental law of that State to which
he removes, and in which he makes his residence, dissolves the
relation between him and his slave. It is as much his own voluntary
act, as if he had executed a deed of emancipation. No one can pretend
ignorance of this constitutional provision, and," he says, "the
decisions which have heretofore been made in this State, and in many
other slaveholding States, give effect to this and other similar
provisions, on the ground that the master, by making the free State
the residence of his slave, has submitted his right to the operation
of the law of such State; and this," he says, "is the same in law as a
regular deed of emancipation."

He adds:

"I regard the question as conclusively settled by repeated
adjudications of this court, and, if I doubted or denied the propriety
of those decisions, I would not feel myself any more at liberty to
overturn them, than I would any other series of decisions by which the
law of any other question was settled. There is with me," he says,
"nothing in the law relating to slavery which distinguishes it from
the law on any other subject, or allows any more accommodation to the
temporary public excitements which are gathered around it."

"In this State," he says, "it has been recognised from the beginning
of the Government as a correct position in law, that a master who
takes his slave to reside in a State or Territory where slavery is
prohibited, thereby emancipates his slave." These decisions, which
come down to the year 1837, seemed to have so fully settled the
question, that since that time there has been no case bringing it
before the court for any reconsideration, until the present. In the
case of Winny _v._ Whitesides, the question was made in the argument,
"whether one nation would execute the penal laws of another," and the
court replied in this language, (Huberus, quoted in 4 Dallas,) which
says, "personal rights or disabilities obtained or communicated by the
laws of any particular place are of a nature which accompany the
person wherever he goes;" and the Chief Justice observed, in the case
of Rachel _v._ Walker, the act of Congress called the Missouri
compromise was held as operative as the ordinance of 1787.

When Dred Scott, his wife and children, were removed from Fort
Snelling to Missouri, in 1838, they were free, as the law was then
settled, and continued for fourteen years afterwards, up to 1852, when
the above decision was made. Prior to this, for nearly thirty years,
as Chief Justice Gamble declares, the residence of a master with his
slave in the State of Illinois, or in the Territory north of Missouri,
where slavery was prohibited by the act called the Missouri
compromise, would manumit the slave as effectually as if he had
executed a deed of emancipation; and that an officer of the army who
takes his slave into that State or Territory, and holds him there as a
slave, liberates him the same as any other citizen--and down to the
above time it was settled by numerous and uniform decisions; and that
on the return of the slave to Missouri, his former condition of
slavery did not attach. Such was the settled law of Missouri until the
decision of Scott and Emerson.

In the case of Sylvia _v._ Kirby, (17 Misso. Rep., 434,) the court
followed the above decision, observing it was similar in all respects
to the case of Scott and Emerson.

This court follows the established construction of the statutes of a
State by its Supreme Court. Such a construction is considered as a
part of the statute, and we follow it to avoid two rules of property
in the same State. But we do not follow the decisions of the Supreme
Court of a State beyond a statutory construction as a rule of decision
for this court. State decisions are always viewed with respect and
treated as authority; but we follow the settled construction of the
statutes, not because it is of binding authority, but in pursuance of
a rule of judicial policy.

But there is no pretence that the case of Dred Scott _v._ Emerson
turned upon the construction of a Missouri statute; nor was there any
established rule of property which could have rightfully influenced
the decision. On the contrary, the decision overruled the settled law
for near thirty years.

This is said by my brethren to be a Missouri question; but there is
nothing which gives it this character, except that it involves the
right to persons claimed as slaves who reside in Missouri, and the
decision was made by the Supreme Court of that State. It involves a
right claimed under an act of Congress and the Constitution of
Illinois, and which cannot be decided without the consideration and
construction of those laws. But the Supreme Court of Missouri held, in
this case, that it will not regard either of those laws, without which
there was no case before it; and Dred Scott, having been a slave,
remains a slave. In this respect it is admitted this is a Missouri
question--a case which has but one side, if the act of Congress and
the Constitution of Illinois are not recognised.

And does such a case constitute a rule of decision for this court--a
case to be followed by this court? The course of decision so long and
so uniformly maintained established a comity or law between Missouri
and the free States and Territories where slavery was prohibited,
which must be somewhat regarded in this case. Rights sanctioned for
twenty-eight years ought not and cannot be repudiated, with any
semblance of justice, by one or two decisions, influenced, as
declared, by a determination to counteract the excitement against
slavery in the free States.

The courts of Louisiana having held, for a series of years, that where
a master took his slave to France, or any free State, he was entitled
to freedom, and that on bringing him back the status of slavery did
not attach, the Legislature of Louisiana declared by an act that the
slave should not be made free under such circumstances. This regulated
the rights of the master from the time the act took effect. But the
decision of the Missouri court, reversing a former decision, affects
all previous decisions, technically, made on the same principles,
unless such decisions are protected by the lapse of time or the
statute of limitations. Dred Scott and his family, beyond all
controversy, were free under the decisions made for twenty-eight
years, before the case of Scott _v._ Emerson. This was the undoubted
law of Missouri for fourteen years after Scott and his family were
brought back to that State. And the grave question arises, whether
this law may be so disregarded as to enslave free persons. I am
strongly inclined to think that a rule of decision so well settled as
not to be questioned, cannot be annulled by a single decision of the
court. Such rights may be inoperative under the decision in future;
but I cannot well perceive how it can have the same effect in prior
cases.

It is admitted, that when a former decision is reversed, the technical
effect of the judgment is to make all previous adjudications on the
same question erroneous. But the case before us was not that the law
had been erroneously construed, but that, under the circumstances
which then existed, that law would not be recognised; and the reason
for this is declared to be the excitement against the institution of
slavery in the free States. While I lament this excitement as much as
any one, I cannot assent that it shall be made a basis of judicial
action.

In 1816, the common law, by statute, was made a part of the law of
Missouri; and that includes the great principles of international law.
These principles cannot be abrogated by judicial decisions. It will
require the same exercise of power to abolish the common law, as to
introduce it. International law is founded in the opinions generally
received and acted on by civilized nations, and enforced by moral
sanctions. It becomes a more authoritative system when it results from
special compacts, founded on modified rules, adapted to the exigencies
of human society; it is in fact an international morality, adapted to
the best interests of nations. And in regard to the States of this
Union, on the subject of slavery, it is eminently fitted for a rule of
action, subject to the Federal Constitution. "The laws of nations are
but the natural rights of man applied to nations." (Vattel.)

If the common law have the force of a statutory enactment in Missouri,
it is clear, as it seems to me, that a slave who, by a residence in
Illinois in the service of his master, becomes entitled to his
freedom, cannot again be reduced to slavery by returning to his former
domicil in a slave State. It is unnecessary to say what legislative
power might do by a general act in such a case, but it would be
singular if a freeman could be made a slave by the exercise of a
judicial discretion. And it would be still more extraordinary if this
could be done, not only in the absence of special legislation, but in
a State where the common law is in force.

It is supposed by some, that the third article in the treaty of
cession of Louisiana to this country, by France, in 1803, may have
some bearing on this question. The article referred to provides, "that
the inhabitants of the ceded territory shall be incorporated into the
Union, and enjoy all the advantages of citizens of the United States,
and in the mean time they shall be maintained and protected in the
free enjoyment of their liberty, property, and the religion they
profess."

As slavery existed in Louisiana at the time of the cession, it is
supposed this is a guaranty that there should be no change in its
condition.

The answer to this is, in the first place, that such a subject does
not belong to the treaty-making power; and any such arrangement would
have been nugatory. And, in the second place, by no admissible
construction can the guaranty be carried further than the protection
of property in slaves at that time in the ceded territory. And this
has been complied with. The organization of the slave States of
Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana
at the time of the cession. This removes every ground of objection
under the treaty. There is therefore no pretence, growing out of the
treaty, that any part of the territory of Louisiana, as ceded, beyond
the organized States, is slave territory.

Under the fifth head, we were to consider whether the status of
slavery attached to the plaintiff and wife, on their return to
Missouri.

This doctrine is not asserted in the late opinion of the Supreme Court
of Missouri, and up to 1852 the contrary doctrine was uniformly
maintained by that court.

In its late decision, the court say that it will not give effect in
Missouri to the laws of Illinois, or the law of Congress called the
Missouri compromise. This was the effect of the decision, though its
terms were, that the court would not take notice, judicially, of those
laws.

In 1851, the Court of Appeals of South Carolina recognised the
principle, that a slave, being taken to a free State, became free.
(Commonwealth _v._ Pleasants, 10 Leigh Rep., 697.) In Betty _v._
Horton, the Court of Appeals held that the freedom of the slave was
acquired by the action of the laws of Massachusetts, by the said slave
being taken there. (5 Leigh Rep., 615.)

The slave States have generally adopted the rule, that where the
master, by a residence with his slave in a State or Territory where
slavery is prohibited, the slave was entitled to his freedom
everywhere. This was the settled doctrine of the Supreme Court of
Missouri. It has been so held in Mississippi, in Virginia, in
Louisiana, formerly in Kentucky, Maryland, and in other States.

The law, where a contract is made and is to be executed, governs it.
This does not depend upon comity, but upon the law of the contract.
And if, in the language of the Supreme Court of Missouri, the master,
by taking his slave to Illinois, and employing him there as a slave,
emancipates him as effectually as by a deed of emancipation, is it
possible that such an act is not matter for adjudication in any slave
State where the master may take him? Does not the master assent to the
law, when he places himself under it in a free State?

The States of Missouri and Illinois are bounded by a common line. The
one prohibits slavery, the other admits it. This has been done by the
exercise of that sovereign power which appertains to each. We are
bound to respect the institutions of each, as emanating from the
voluntary action of the people. Have the people of either any right to
disturb the relations of the other? Each State rests upon the basis of
its own sovereignty, protected by the Constitution. Our Union has been
the foundation of our prosperity and national glory. Shall we not
cherish and maintain it? This can only be done by respecting the legal
rights of each State.

If a citizen of a free State shall entice or enable a slave to escape
from the service of his master, the law holds him responsible, not
only for the loss of the slave, but he is liable to be indicted and
fined for the misdemeanor. And I am bound here to say, that I have
never found a jury in the four States which constitute my circuit,
which have not sustained this law, where the evidence required them to
sustain it. And it is proper that I should also say, that more cases
have arisen in my circuit, by reason of its extent and locality, than
in all other parts of the Union. This has been done to vindicate the
sovereign rights of the Southern States, and protect the legal
interests of our brethren of the South.

Let these facts be contrasted with the case now before the court.
Illinois has declared in the most solemn and impressive form that
there shall be neither slavery nor involuntary servitude in that
State, and that any slave brought into it, with a view of becoming a
resident, shall be emancipated. And effect has been given to this
provision of the Constitution by the decision of the Supreme Court of
that State. With a full knowledge of these facts, a slave is brought
from Missouri to Rock Island, in the State of Illinois, and is
retained there as a slave for two years, and then taken to Fort
Snelling, where slavery is prohibited by the Missouri compromise act,
and there he is detained two years longer in a state of slavery.
Harriet, his wife, was also kept at the same place four years as a
slave, having been purchased in Missouri. They were then removed to
the State of Missouri, and sold as slaves, and in the action before us
they are not only claimed as slaves, but a majority of my brethren
have held that on their being returned to Missouri the status of
slavery attached to them.

I am not able to reconcile this result with the respect due to the
State of Illinois. Having the same rights of sovereignty as the State
of Missouri in adopting a Constitution, I can perceive no reason why
the institutions of Illinois should not receive the same consideration
as those of Missouri. Allowing to my brethren the same right of
judgment that I exercise myself, I must be permitted to say that it
seems to me the principle laid down will enable the people of a slave
State to introduce slavery into a free State, for a longer or shorter
time, as may suit their convenience; and by returning the slave to the
State whence he was brought, by force or otherwise, the status of
slavery attaches, and protects the rights of the master, and defies
the sovereignty of the free State. There is no evidence before us that
Dred Scott and his family returned to Missouri voluntarily. The
contrary is inferable from the agreed case: "In the year 1838, Dr.
Emerson removed the plaintiff and said Harriet, and their daughter
Eliza, from Fort Snelling to the State of Missouri, where they have
ever since resided." This is the agreed case; and can it be inferred
from this that Scott and family returned to Missouri voluntarily? He
was removed; which shows that he was passive, as a slave, having
exercised no volition on the subject. He did not resist the master by
absconding or force. But that was not sufficient to bring him within
Lord Stowell's decision; he must have acted voluntarily. It would be
a mockery of law and an outrage on his rights to coerce his return,
and then claim that it was voluntary, and on that ground that his
former status of slavery attached.

If the decision be placed on this ground, it is a fact for a jury to
decide, whether the return was voluntary, or else the fact should be
distinctly admitted. A presumption against the plaintiff in this
respect, I say with confidence, is not authorized from the facts
admitted.

In coming to the conclusion that a voluntary return by Grace to her
former domicil, slavery attached, Lord Stowell took great pains to
show that England forced slavery upon her colonies, and that it was
maintained by numerous acts of Parliament and public policy, and, in
short, that the system of slavery was not only established by Great
Britain in her West Indian colonies, but that it was popular and
profitable to many of the wealthy and influential people of England,
who were engaged in trade, or owned and cultivated plantations in the
colonies. No one can read his elaborate views, and not be struck with
the great difference between England and her colonies, and the free
and slave States of this Union. While slavery in the colonies of
England is subject to the power of the mother country, our States,
especially in regard to slavery, are independent, resting upon their
own sovereignties, and subject only to international laws, which apply
to independent States.

In the case of Williams, who was a slave in Granada, having run away,
came to England, Lord Stowell said: "The four judges all concur in
this--that he was a slave in Granada, though a free man in England,
and he would have continued a free man in all other parts of the world
except Granada."

Strader _v._ Graham (10 Howard, 82, and 18 Curtis, 305) has been cited
as having a direct bearing in the case before us. In that case the
court say: "It was exclusively in the power of Kentucky to determine,
for itself, whether the employment of slaves in another State should
or should not make them free on their return." No question was before
the court in that case, except that of jurisdiction. And any opinion
given on any other point is _obiter dictum_, and of no authority. In
the conclusion of his opinion, the Chief Justice said: "In every view
of the subject, therefore, this court has no jurisdiction of the case,
and the writ of error must on that ground be dismissed."

In the case of Spencer _v._ Negro Dennis, (8 Gill's Rep., 321,) the
court say: "Once free, and always free, is the maxim of Maryland law
upon the subject. Freedom having once vested, by no compact between
the master and the liberated slave, nor by any condition subsequent,
attached by the master to the gift of freedom, can a state of slavery
be reproduced."

In Hunter _v._ Bulcher [Transcriber's Note: Fulcher], (1 Leigh, 172:)

"By a statute of Maryland of 1796, all slaves brought into that State
to reside are declared free; a Virginian-born slave is carried by his
master to Maryland; the master settled there, and keeps the slave
there in bondage for twelve years, the statute in force all the time;
then he brings him as a slave to Virginia, and sells him there.
Adjudged, in an action brought by the man against the purchaser, that
he is free."

Judge Kerr, in the case, says:

"Agreeing, as I do, with the general view taken in this case by my
brother Green, I would not add a word, but to mark the exact extent to
which I mean to go. The law of Maryland having enacted that slaves
carried into that State for sale or to reside shall be free, and the
owner of the slave here having carried him to Maryland, and
voluntarily submitting himself and the slave to that law, it governs
the case."

In every decision of a slave case prior to that of Dred Scott _v._
Emerson, the Supreme Court of Missouri considered it as turning upon
the Constitution of Illinois, the ordinance of 1787, or the Missouri
compromise act of 1820. The court treated these acts as in force, and
held itself bound to execute them, by declaring the slave to be free
who had acquired a domicil under them with the consent of his master.

The late decision reversed this whole line of adjudication, and held
that neither the Constitution and laws of the States, nor acts of
Congress in relation to Territories, could be judicially noticed by
the Supreme Court of Missouri. This is believed to be in conflict with
the decisions of all the courts in the Southern States, with some
exceptions of recent cases.

In Marie Louise _v._ Morat et al., (9 Louisiana Rep., 475,)
[Transcriber's Note: correct citation is Louise v. Marot, 9 La. 473]
it was held, where a slave having been taken to the kingdom of France
or other country by the owner, where slavery is not tolerated,
operates on the condition of the slave, and produces immediate
emancipation; and that, where a slave thus becomes free, the master
cannot reduce him again to slavery.

Josephine _v._ Poultney, (Louisiana Annual Rep., 329,) "where the
owner removes with a slave into a State in which slavery is
prohibited, with the intention of residing there, the slave will be
thereby emancipated, and their subsequent return to the State of
Louisiana cannot restore the relation of master and slave." To the
same import are the cases of Smith _v._ Smith, (13 Louisiana Rep.,
441; Thomas _v._ Generis, Louisiana Rep., 483; Harry et al. _v._
Decker and Hopkins, Walker's Mississippi Rep., 36.) It was held that,
"slaves within the jurisdiction of the Northwestern Territory became
freemen by virtue of the ordinance of 1787, and can assert their claim
to freedom in the courts of Mississippi." (Griffith _v._ Fanny, 1
Virginia Rep., 143.) It was decided that a negro held in servitude in
Ohio, under a deed executed in Virginia, is entitled to freedom by the
Constitution of Ohio.

The case of Rhodes _v._ Bell (2 Howard, 307; 15 Curtis, 152) involved
the main principle in the case before us. A person residing in
Washington city purchased a slave in Alexandria, and brought him to
Washington. Washington continued under the law of Maryland, Alexandria
under the law of Virginia. The act of Maryland of November, 1796, (2
Maxcy's Laws, 351,) declared any one who shall bring any negro,
mulatto or other slave, into Maryland, such slave should be free. The
above slave, by reason of his being brought into Washington city, was
declared by this court to be free. This, it appears to me, is a much
stronger case against the slave than the facts in the case of Scott.

In Bush _v._ White, (3 Monroe, 104,) the court say:

"That the ordinance was paramount to the Territorial laws, and
restrained the legislative power there as effectually as a
Constitution in an organized State. It was a public act of the
Legislature of the Union, and a part of the supreme law of the land;
and, as such, this court is as much bound to take notice of it as it
can be of any other law."

In the case of Rankin _v._ Lydia, before cited, Judge Mills, speaking
for the Court of Appeals of Kentucky, says:

"If, by the positive provision in our code, we can and must hold our
slaves in the one case, and statutory provisions equally positive
decide against that right in the other, and liberate the slave, he
must, by an authority equally imperious, be declared free. Every
argument which supports the right of the master on one side, based
upon the force of written law, must be equally conclusive in favor of
the slave, when he can point out in the statute the clause which
secures his freedom."

And he further said:

"Free people of color in all the States are, it is believed, quasi
citizens, or, at least, denizens. Although none of the States may
allow them the privilege of office and suffrage, yet all other civil
and conventional rights are secured to them; at least, such rights
were evidently secured to them by the ordinance in question for the
government of Indiana. If these rights are vested in that or any other
portion of the United States, can it be compatible with the spirit of
our confederated Government to deny their existence in any other part?
Is there less comity existing between State and State, or State and
Territory, than exists between the despotic Governments of Europe?"

These are the words of a learned and great judge, born and educated in
a slave State.

I now come to inquire, under the sixth and last head, "whether the
decisions of the Supreme Court of Missouri, on the question before us,
are binding on this court."

While we respect the learning and high intelligence of the State
courts, and consider their decisions, with others, as authority, we
follow them only where they give a construction to the State statutes.
On this head, I consider myself fortunate in being able to turn to the
decision of this court, given by Mr. Justice Grier, in Pease _v._
Peck, a case from the State of Michigan, (18 Howard, 589,) decided in
December term, 1855. Speaking for the court, Judge Grier said:

"We entertain the highest respect for that learned court, (the Supreme
Court of Michigan) and in any question affecting the construction of
their own laws, where we entertain any doubt, would be glad to be
relieved from doubt and responsibility by reposing on their decision.
There are, it is true, many dicta to be found in our decisions,
averring that the courts of the United States are bound to follow the
decisions of the State courts on the construction of their own laws.
But although this may be correct, yet a rather strong expression of a
general rule, it cannot be received as the annunciation of a maxim of
universal application. Accordingly, our reports furnish many cases of
exceptions to it. In all cases where there is a settled construction
of the laws of a State, by its highest judicature established by
admitted precedent, it is the practice of the courts of the United
States to receive and adopt it, without criticism or further inquiry.
When the decisions of the State court are not consistent, we do not
feel bound to follow the last, if it is contrary to our own
convictions; and much more is this the case where, after a long course
of consistent decisions, some new light suddenly springs up, or an
excited public opinion has elicited new doctrines subversive of former
safe precedent."

These words, it appears to me, have a stronger application to the case
before us than they had to the cause in which they were spoken as the
opinion of this court; and I regret that they do not seem to be as
fresh in the recollection of some of my brethren as in my own. For
twenty-eight years, the decisions of the Supreme Court of Missouri
were consistent on all the points made in this case. But this
consistent course was suddenly terminated, whether by some new light
suddenly springing up, or an excited public opinion, or both, it is
not necessary to say. In the case of Scott _v._ Emerson, in 1852,
they were overturned and repudiated.

This, then, is the very case in which seven of my brethren declared
they would not follow the last decision. On this authority I may well
repose. I can desire no other or better basis.

But there is another ground which I deem conclusive, and which I will
re-state.

The Supreme Court of Missouri refused to notice the act of Congress or
the Constitution of Illinois, under which Dred Scott, his wife and
children, claimed that they are entitled to freedom.

This being rejected by the Missouri court, there was no case before
it, or least it was a case with only one side. And this is the case
which, in the opinion of this court, we are bound to follow. The
Missouri court disregards the express provisions of an act of Congress
and the Constitution of a sovereign State, both of which laws for
twenty-eight years it had not only regarded, but carried into effect.

If a State court may do this, on a question involving the liberty of a
human being, what protection do the laws afford? So far from this
being a Missouri question, it is a question, as it would seem, within
the twenty-fifth section of the judiciary act, where a right to
freedom being set up under the act of Congress, and the decision being
against such right, it may be brought for revision before this court,
from the Supreme Court of Missouri.

I think the judgment of the court below should be reversed.

Mr. Justice CURTIS dissenting.

I dissent from the opinion pronounced by the Chief Justice, and from
the judgment which the majority of the court think it proper to render
in this case. The plaintiff alleged, in his declaration, that he was a
citizen of the State of Missouri, and that the defendant was a citizen
of the State of New York. It is not doubted that it was necessary to
make each of these allegations, to sustain the jurisdiction of the
Circuit Court. The defendant denied, by a plea to the jurisdiction,
either sufficient or insufficient, that the plaintiff was a citizen of
the State of Missouri. The plaintiff demurred to that plea. The
Circuit Court adjudged the plea insufficient, and the first question
for our consideration is, whether the sufficiency of that plea is
before this court for judgment, upon this writ of error. The part of
the judicial power of the United States, conferred by Congress on the
Circuit Courts, being limited to certain described cases and
controversies, the question whether a particular case is within the
cognizance of a Circuit Court, may be raised by a plea to the
jurisdiction of such court. When that question has been raised, the
Circuit Court must, in the first instance, pass upon and determine it.
Whether its determination be final, or subject to review by this
appellate court, must depend upon the will of Congress; upon which
body the Constitution has conferred the power, with certain
restrictions, to establish inferior courts, to determine their
jurisdiction, and to regulate the appellate power of this court. The
twenty-second section of the judiciary act of 1789, which allows a
writ of error from final judgments of Circuit Courts, provides that
there shall be no reversal in this court, on such writ of error, for
error in ruling any plea in abatement, _other than a plea to the
jurisdiction of the court_. Accordingly it has been held, from the
origin of the court to the present day, that Circuit Courts have not
been made by Congress the final judges of their own jurisdiction in
civil cases. And that when a record comes here upon a writ of error or
appeal, and, on its inspection, it appears to this court that the
Circuit Court had not jurisdiction, its judgment must be reversed, and
the cause remanded, to be dismissed for want of jurisdiction.

It is alleged by the defendant in error, in this case, that the plea
to the jurisdiction was a sufficient plea; that it shows, on
inspection of its allegations, confessed by the demurrer, that the
plaintiff was not a citizen of the State of Missouri; that upon this
record, it must appear to this court that the case was not within the
judicial power of the United States, as defined and granted by the
Constitution, because it was not a suit by a citizen of one State
against a citizen of another State.

To this it is answered, first, that the defendant, by pleading over,
after the plea to the jurisdiction was adjudged insufficient, finally
waived all benefit of that plea.

When that plea was adjudged insufficient, the defendant was obliged to
answer over. He held no alternative. He could not stop the further
progress of the case in the Circuit Court by a writ of error, on which
the sufficiency of his plea to the jurisdiction could be tried in this
court, because the judgment on that plea was not final, and no writ of
error would lie. He was forced to plead to the merits. It cannot be
true, then, that he waived the benefit of his plea to the jurisdiction
by answering over. Waiver includes consent. Here, there was no
consent. And if the benefit of the plea was finally lost, it must be,
not by any waiver, but because the laws of the United States have not
provided any mode of reviewing the decision of the Circuit Court on
such a plea, when that decision is against the defendant. This is not
the law. Whether the decision of the Circuit Court on a plea to the
jurisdiction be against the plaintiff, or against the defendant, the
losing party may have any alleged error in law, in ruling such a plea,
examined in this court on a writ of error, when the matter in
controversy exceeds the sum or value of two thousand dollars. If the
decision be against the plaintiff, and his suit dismissed for want of
jurisdiction, the judgment is technically final, and he may at once
sue out his writ of error. (Mollan _v._ Torrance, 9 Wheat., 537.) If
the decision be against the defendant, though he must answer over, and
wait for a final judgment in the cause, he may then have his writ of
error, and upon it obtain the judgment of this court on any question
of law apparent on the record, touching the jurisdiction. The fact
that he pleaded over to the merits, under compulsion, can have no
effect on his right to object to the jurisdiction. If this were not
so, the condition of the two parties would be grossly unequal. For if
a plea to the jurisdiction were ruled against the plaintiff, he could
at once take his writ of error, and have the ruling reviewed here;
while, if the same plea were ruled against the defendant, he must not
only wait for a final judgment, but could in no event have the ruling
of the Circuit Court upon the plea reviewed by this court. I know of
no ground for saying that the laws of the United States have thus
discriminated between the parties to a suit in its courts.

It is further objected, that as the judgment of the Circuit Court was
in favor of the defendant, and the writ of error in this cause was
sued out by the plaintiff, the defendant is not in a condition to
assign any error in the record, and therefore this court is precluded
from considering the question whether the Circuit Court had
jurisdiction.

The practice of this court does not require a technical assignment of
errors. (See the rule.) Upon a writ of error, the whole record is open
for inspection; and if any error be found in it, the judgment is
reversed. (Bank of U.S. _v._ Smith, 11 Wheat., 171.)

It is true, as a general rule, that the court will not allow a party
to rely on anything as cause for reversing a judgment, which was for
his advantage. In this, we follow an ancient rule of the common law.
But so careful was that law of the preservation of the course of its
courts, that it made an exception out of that general rule, and
allowed a party to assign for error that which was for his advantage,
if it were a departure by the court itself from its settled course of
procedure. The cases on this subject are collected in Bac. Ab., Error
H. 4. And this court followed this practice in Capron _v._ Van
Noorden, (2 Cranch, 126,) where the plaintiff below procured the
reversal of a judgment for the defendant, on the ground that the
plaintiff's allegations of citizenship had not shown jurisdiction.

But it is not necessary to determine whether the defendant can be
allowed to assign want of jurisdiction as an error in a judgment in
his own favor. The true question is, not what either of the parties
may be allowed to do, but whether this court will affirm or reverse a
judgment of the Circuit Court on the merits, when it appears on the
record, by a plea to the jurisdiction, that it is a case to which the
judicial power of the United States does not extend. The course of the
court is, where no motion is made by either party, on its own motion,
to reverse such a judgment for want of jurisdiction, not only in cases
where it is shown, negatively, by a plea to the jurisdiction, that
jurisdiction does not exist, but even where it does not appear,
affirmatively, that it does exist. (Pequignot _v._ The Pennsylvania
R.R. Co., 16 How., 104.) It acts upon the principle that the judicial
power of the United States must not be exerted in a case to which it
does not extend, even if both parties desire to have it exerted.
(Cutler _v._ Rae, 7 How., 729.) I consider, therefore, that when there
was a plea to the jurisdiction of the Circuit Court in a case brought
here by a writ of error, the first duty of this court is, _sua
sponte_, if not moved to it by either party, to examine the
sufficiency of that plea; and thus to take care that neither the
Circuit Court nor this court shall use the judicial power of the
United States in a case to which the Constitution and laws of the
United States have not extended that power.

I proceed, therefore, to examine the plea to the jurisdiction.

I do not perceive any sound reason why it is not to be judged by the
rules of the common law applicable to such pleas. It is true, where
the jurisdiction of the Circuit Court depends on the citizenship of
the parties, it is incumbent on the plaintiff to allege on the record
the necessary citizenship; but when he has done so, the defendant must
interpose a plea in abatement, the allegations whereof show that the
court has not jurisdiction; and it is incumbent on him to prove the
truth of his plea.

In Sheppard _v._ Graves, (14 How., 27,) the rules on this subject are
thus stated in the opinion of the court: "That although, in the courts
of the United States, it is necessary to set forth the grounds of
their cognizance as courts of limited jurisdiction, yet wherever
jurisdiction shall be averred in the pleadings, in conformity with the
laws creating those courts, it must be taken, _prima facie_, as
existing; and it is incumbent on him who would impeach that
jurisdiction for causes dehors the pleading, to allege and prove such
causes; that the necessity for the allegation, and the burden of
sustaining it by proof, both rest upon the party taking the
exception." These positions are sustained by the authorities there
cited, as well as by Wickliffe _v._ Owings, (17 How., 47.)

When, therefore, as in this case, the necessary averments as to
citizenship are made on the record, and jurisdiction is assumed to
exist, and the defendant comes by a plea to the jurisdiction to
displace that presumption, he occupies, in my judgment, precisely the
position described in Bacon Ab., Abatement: "Abatement, in the general
acceptation of the word, signifies a plea, put in by the defendant, in
which he shows cause to the court why he should not be impleaded; or,
if at all, not in the manner and form he now is."

This being, then, a plea in abatement, to the jurisdiction of the
court, I must judge of its sufficiency by those rules of the common
law applicable to such pleas.

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

The plaintiff demurred, and the judgment of the Circuit Court was,
that the plea was insufficient.

I cannot treat this plea as a general traverse of the citizenship
alleged by the plaintiff. Indeed, if it were so treated, the plea was
clearly bad, for it concludes with a verification, and not to the
country, as a general traverse should. And though this defect in a
plea in bar must be pointed out by a special demurrer, it is never
necessary to demur specially to a plea in abatement; all matters,
though of form only, may be taken advantage of upon a general demurrer
to such a plea. (Chitty on Pl., 465.)

The truth is, that though not drawn with the utmost technical
accuracy, it is a special traverse of the plaintiff's allegation of
citizenship, and was a suitable and proper mode of traverse under the
circumstances. By reference to Mr. Stephen's description of the uses
of such a traverse, contained in his excellent analysis of pleadings,
(Steph. on Pl., 176,) it will be seen how precisely this plea meets
one of his descriptions. No doubt the defendant might have traversed,
by a common or general traverse, the plaintiff's allegation that he
was a citizen of the State of Missouri, concluding to the country. The
issue thus presented being joined, would have involved matter of law,
on which the jury must have passed, under the direction of the court.
But by traversing the plaintiff's citizenship specially--that is,
averring those facts on which the defendant relied to show that in
point of law the plaintiff was not a citizen, and basing the traverse
on those facts as a deduction therefrom--opportunity was given to do,
what was done; that is, to present directly to the court, by a
demurrer, the sufficiency of those facts to negative, in point of law,
the plaintiff's allegation of citizenship. This, then, being a
special, and not a general or common traverse, the rule is settled,
that the facts thus set out in the plea, as the reason or ground of
the traverse must of themselves constitute, in point of law, a
negative of the allegation thus traversed. (Stephen on Pl., 183; Ch.
on Pl., 620.) And upon a demurrer to this plea, the question which
arises is, whether the facts, that the plaintiff is a negro, of
African descent, whose ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, _may all be true,
and yet_ the plaintiff be a citizen of the State of Missouri, within
the meaning of the Constitution and laws of the United States, which
confer on citizens of one State the right to sue citizens of another
State in the Circuit Courts. Undoubtedly, if these facts, taken
together, amount to an allegation that, at the time of action brought,
the plaintiff was himself a slave, the plea is sufficient. It has been
suggested that the plea, in legal effect, does so aver, because, if
his ancestors were sold as slaves, the presumption is they continued
slaves; and if so, the presumption is, the plaintiff was born a slave;
and if so, the presumption is, he continued to be a slave to the time
of action brought.

I cannot think such presumptions can be resorted to, to help out
defective averments in pleading; especially, in pleading in abatement,
where the utmost certainty and precision are required. (Chitty on Pl.,
457.) That the plaintiff himself was a slave at the time of action
brought, is a substantive fact, having no necessary connection with
the fact that his parents were sold as slaves. For they might have
been sold after he was born; or the plaintiff himself, if once a
slave, might have became a freeman before action brought. To aver
that his ancestors were sold as slaves, is not equivalent, in point of
law, to an averment that he was a slave. If it were, he could not even
confess and avoid the averment of the slavery of his ancestors, which
would be monstrous; and if it be not equivalent in point of law, it
cannot be treated as amounting thereto when demurred to; for a
demurrer confesses only those substantive facts which are well
pleaded, and not other distinct substantive facts which might be
inferred therefrom by a jury. To treat an averment that the
plaintiff's ancestors were Africans, brought to this country and sold
as slaves, as amounting to an averment on the record that he was a
slave, because it may lay some foundation for presuming so, is to hold
that the facts actually alleged may be treated as intended as evidence
of another distinct fact not alleged. But it is a cardinal rule of
pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even
earlier authorities therein referred to, "that evidence shall never be
pleaded, for it only tends to prove matter of fact; and therefore the
matter of fact shall be pleaded." Or, as the rule is sometimes stated,
pleadings must not be argumentative. (Stephen on Pleading, 384, and
authorities cited by him.) In Com. Dig., Pleader E. 3, and Bac.
Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this
rule are collected. In trover, for an indenture whereby A granted a
manor, it is no plea that A did not grant the manor, for it does not
answer the declaration except by argument. (Yelv., 223.)

So in trespass for taking and carrying away the plaintiff's goods, the
defendant pleaded that the plaintiff never had any goods. The court
said, "this is an infallible argument that the defendant is not
guilty, but it is no plea." (Dyer, a 43.)

In ejectment, the defendant pleaded a surrender of a copyhold by the
hand of Fosset, the steward. The plaintiff replied, that Fosset was
not steward. The court held this no issue, for it traversed the
surrender only argumentatively. (Cro. Elis., 260.)

In these cases, and many others reported in the books, the inferences
from the facts stated were irresistible. But the court held they did
not, when demurred to, amount to such inferable facts. In the case at
bar, the inference that the defendant was a slave at the time of
action brought, even if it can be made at all, from the fact that his
parents were slaves, is certainly not a necessary inference. This
case, therefore, is like that of Digby _v._ Alexander, (8 Bing., 116.)
In that case, the defendant pleaded many facts strongly tending to
show that he was once Earl of Stirling; but as there was no positive
allegation that he was so at the time of action brought, and as every
fact averred might be true, and yet the defendant not have been Earl
of Stirling at the time of action brought, the plea was held to be
insufficient.

A lawful seizin of land is presumed to continue. But if, in an action
of trespass _quare clausum_, the defendant were to plead that he was
lawfully seized of the _locus in quo_, one month before the time of
the alleged trespass, I should have no doubt it would be a bad plea.
(See Mollan _v._ Torrance, 9 Wheat., 537.) So if a plea to the
jurisdiction, instead of alleging that the plaintiff was a citizen of
the same State as the defendant, were to allege that the plaintiff's
ancestors were citizens of that State, I think the plea could not be
supported. My judgment would be, as it is in this case, that if the
defendant meant to aver a particular substantive fact, as existing at
the time of action brought, he must do it directly and explicitly, and
not by way of inference from certain other averments, which are quite
consistent with the contrary hypothesis. I cannot, therefore, treat
this plea as containing an averment that the plaintiff himself was a
slave at the time of action brought; and the inquiry recurs, whether
the facts, that he is of African descent, and that his parents were
once slaves, are necessarily inconsistent with his own citizenship in
the State of Missouri, within the meaning of the Constitution and laws
of the United States.

In Gassies _v._ Ballon, (6 Pet., 761,) the defendant was described on
the record as a naturalized citizen of the United States, residing in
Louisiana. The court held this equivalent to an averment that the
defendant was a citizen of Louisiana; because a citizen of the United
States, residing in any State of the Union, is, for purposes of
jurisdiction, a citizen of that State. Now, the plea to the
jurisdiction in this case does not controvert the fact that the
plaintiff resided in Missouri at the date of the writ. If he did then
reside there, and was also a citizen of the United States, no
provisions contained in the Constitution or laws of Missouri can
deprive the plaintiff of his right to sue citizens of States other
than Missouri, in the courts of the United States.

So that, under the allegations contained in this plea, and admitted by
the demurrer, the question is, whether any person of African descent,
whose ancestors were sold as slaves in the United States, can be a
citizen of the United States. If any such person can be a citizen,
this plaintiff has the right to the judgment of the court that he is
so; for no cause is shown by the plea why he is not so, except his
descent and the slavery of his ancestors.

The first section of the second article of the Constitution uses the
language, "a citizen of the United States at the time of the adoption
of the Constitution." One mode of approaching this question is, to
inquire who were citizens of the United States at the time of the
adoption of the Constitution.

Citizens of the United States at the time of the adoption of the
Constitution can have been no other than citizens of the United States
under the Confederation. By the Articles of Confederation, a
Government was organized, the style whereof was, "The United States of
America." This Government was in existence when the Constitution was
framed and proposed for adoption, and was to be superseded by the new
Government of the United States of America, organized under the
Constitution. When, therefore, the Constitution speaks of citizenship
of the United States, existing at the time of the adoption of the
Constitution, it must necessarily refer to citizenship under the
Government which existed prior to and at the time of such adoption.

Without going into any question concerning the powers of the
Confederation to govern the territory of the United States out of the
limits of the States, and consequently to sustain the relation of
Government and citizen in respect to the inhabitants of such
territory, it may safely be said that the citizens of the several
States were citizens of the United States under the Confederation.

That Government was simply a confederacy of the several States,
possessing a few defined powers over subjects of general concern, each
State retaining every power, jurisdiction, and right, not expressly
delegated to the United States in Congress assembled. And no power was
thus delegated to the Government of the Confederation, to act on any
question of citizenship, or to make any rules in respect thereto. The
whole matter was left to stand upon the action of the several States,
and to the natural consequence of such action, that the citizens of
each State should be citizens of that Confederacy into which that
State had entered, the style whereof was, "The United States of
America."

To determine whether any free persons, descended from Africans held in
slavery, were citizens of the United States under the Confederation,
and consequently at the time of the adoption of the Constitution of
the United States, it is only necessary to know whether any such
persons were citizens of either of the States under the Confederation,
at the time of the adoption of the Constitution.

Of this there can be no doubt. At the time of the ratification of the
Articles of Confederation, all free native-born inhabitants of the
States of New Hampshire, Massachusetts, New York, New Jersey, and
North Carolina, though descended from African slaves, were not only
citizens of those States, but such of them as had the other necessary
qualifications possessed the franchise of electors, on equal terms
with other citizens.

The Supreme Court of North Carolina, in the case of the State _v._
Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on
this subject, in terms which I believe to be as sound law in the other
States I have enumerated, as it was in North Carolina.

"According to the laws of this State," says Judge Gaston in delivering
the opinion of the court, "all human beings within it, who are not
slaves, fall within one of two classes. Whatever distinctions may have
existed in the Roman laws between citizens and free inhabitants, they
are unknown to our institutions. Before our Revolution, all free
persons born within the dominions of the King of Great Britain,
whatever their color or complexion, were native-born British
subjects--those born out of his allegiance were aliens. Slavery did
not exist in England, but it did in the British colonies. Slaves were
not in legal parlance persons, but property. The moment the
incapacity, the disqualification of slavery, was removed, they became
persons, and were then either British subjects, or not British
subjects, according as they were or were not born within the
allegiance of the British King. Upon the Revolution, no other change
took place in the laws of North Carolina than was consequent on the
transition from a colony dependent on a European King, to a free and
sovereign State. Slaves remained slaves. British subjects in North
Carolina became North Carolina freemen. Foreigners, until made members
of the State, remained aliens. Slaves, manumitted here, became
freemen, and therefore, if born within North Carolina, are citizens of
North Carolina, and all free persons born within the State are born
citizens of the State. The Constitution extended the elective
franchise to every freeman who had arrived at the age of twenty-one,
and paid a public tax; and it is a matter of universal notoriety,
that, under it, free persons, without regard to color, claimed and
exercised the franchise, until it was taken from free men of color a
few years since by our amended Constitution."

In the State _v._ Newcomb, (5 Iredell's R., 253,) decided in 1844, the
same court referred to this case of the State _v._ Manuel, and said:
"That case underwent a very laborious investigation, both by the bar
and the bench. The case was brought here by appeal, and was felt to be
one of great importance in principle. It was considered with an
anxiety and care worthy of the principle involved, and which give it a
controlling influence and authority on all questions of a similar
character."

An argument from speculative premises, however well chosen, that the
then state of opinion in the Commonwealth of Massachusetts was not
consistent with the natural rights of people of color who were born on
that soil, and that they were not, by the Constitution of 1780 of that
State, admitted to the condition of citizens, would be received with
surprise by the people of that State, who know their own political
history. It is true, beyond all controversy, that persons of color,
descended from African slaves, were by that Constitution made citizens
of the State; and such of them as have had the necessary
qualifications, have held and exercised the elective franchise, as
citizens, from that time to the present. (See Com. _v._ Aves, 18 Pick.
R., 210.)

The Constitution of New Hampshire conferred the elective franchise
upon "every inhabitant of the State having the necessary
qualifications," of which color or descent was not one.

The Constitution of New York gave the right to vote to "every male
inhabitant, who shall have resided," &c.; making no discrimination
between free colored persons and others. (See Con. of N.Y., Art. 2,
Rev. Stats. of N.Y., vol. 1, p. 126.)

That of New Jersey, to "all inhabitants of this colony, of full age,
who are worth £50 proclamation money, clear estate."

New York, by its Constitution of 1820, required colored persons to
have some qualifications as prerequisites for voting, which white
persons need not possess. And New Jersey, by its present Constitution,
restricts the right to vote to white male citizens. But these changes
can have no other effect upon the present inquiry, except to show,
that before they were made, no such restrictions existed; and colored
in common with white persons, were not only citizens of those States,
but entitled to the elective franchise on the same qualifications as
white persons, as they now are in New Hampshire and Massachusetts. I
shall not enter into an examination of the existing opinions of that
period respecting the African race, nor into any discussion concerning
the meaning of those who asserted, in the Declaration of Independence,
that all men are created equal; that they are endowed by their Creator
with certain inalienable rights; that among these are life, liberty,
and the pursuit of happiness. My own opinion is, that a calm
comparison of these assertions of universal abstract truths, and of
their own individual opinions and acts, would not leave these men
under any reproach of inconsistency; that the great truths they
asserted on that solemn occasion, they were ready and anxious to make
effectual, wherever a necessary regard to circumstances, which no
statesman can disregard without producing more evil than good, would
allow; and that it would not be just to them, nor true in itself, to
allege that they intended to say that the Creator of all men had
endowed the white race, exclusively, with the great natural rights
which the Declaration of Independence asserts. But this is not the
place to vindicate their memory. As I conceive, we should deal here,
not with such disputes, if there can be a dispute concerning this
subject, but with those substantial facts evinced by the written
Constitutions of States, and by the notorious practice under them. And
they show, in a manner which no argument can obscure, that in some of
the original thirteen States, free colored persons, before and at the
time of the formation of the Constitution, were citizens of those
States.

The fourth of the fundamental articles of the Confederation was as
follows: "The free inhabitants of each of these States, paupers,
vagabonds, and fugitives from justice, excepted, shall be entitled to
all the privileges and immunities of free citizens in the several
States."

The fact that free persons of color were citizens of some of the
several States, and the consequence, that this fourth article of the
Confederation would have the effect to confer on such persons the
privileges and immunities of general citizenship, were not only known
to those who framed and adopted those articles, but the evidence is
decisive, that the fourth article was intended to have that effect,
and that more restricted language, which would have excluded such
persons, was deliberately and purposely rejected.

On the 25th of June, 1778, the Articles of Confederation being under
consideration by the Congress, the delegates from South Carolina moved
to amend this fourth article, by inserting after the word "free," and
before the word "inhabitants," the word "white," so that the
privileges and immunities of general citizenship would be secured only
to white persons. Two States voted for the amendment, eight States
against it, and the vote of one State was divided. The language of the
article stood unchanged, and both by its terms of inclusion, "free
inhabitants," and the strong implication from its terms of exclusion,
"paupers, vagabonds, and fugitives from justice," who alone were
excepted, it is clear, that under the Confederation, and at the time
of the adoption of the Constitution, free colored persons of African
descent might be, and, by reason of their citizenship in certain
States, were entitled to the privileges and immunities of general
citizenship of the United States.

Did the Constitution of the United States deprive them or their
descendants of citizenship?

That Constitution was ordained and established by the people of the
United States, through the action, in each State, of those persons who
were qualified by its laws to act thereon, in behalf of themselves and
all other citizens of that State. In some of the States, as we have
seen, colored persons were among those qualified by law to act on this
subject. These colored persons were not only included in the body of
"the people of the United States," by whom the Constitution was
ordained and established, but in at least five of the States they had
the power to act, and doubtless did act, by their suffrages, upon the
question of its adoption. It would be strange, if we were to find in
that instrument anything which deprived of their citizenship any part
of the people of the United States who were among those by whom it was
established.

I can find nothing in the Constitution which, _proprio vigore_,
deprives of their citizenship any class of persons who were citizens
of the United States at the time of its adoption, or who should be
native-born citizens of any State after its adoption; nor any power
enabling Congress to disfranchise persons born on the soil of any
State, and entitled to citizenship of such State by its Constitution
and laws. And my opinion is, that, under the Constitution of the
United States, every free person born on the soil of a State, who is a
citizen of that State by force of its Constitution or laws, is also a
citizen of the United States.

I will proceed to state the grounds of that opinion.

The first section of the second article of the Constitution uses the
language, "a natural-born citizen." It thus assumes that citizenship
may be acquired by birth. Undoubtedly, this language of the
Constitution was used in reference to that principle of public law,
well understood in this country at the time of the adoption of the
Constitution, which referred citizenship to the place of birth. At the
Declaration of Independence, and ever since, the received general
doctrine has been, in conformity with the common law, that free
persons born within either of the colonies were subjects of the King;
that by the Declaration of Independence, and the consequent
acquisition of sovereignty by the several States, all such persons
ceased to be subjects, and became citizens of the several States,
except so far as some of them were disfranchised by the legislative
power of the States, or availed themselves, seasonably, of the right
to adhere to the British Crown in the civil contest, and thus to
continue British subjects (McIlvain _v._ Coxe's Lessee, 4 Cranch, 209;
Inglis _v._ Sailors' Snug Harbor, 3 Peters, p. 99; Shanks _v._ Dupont,
Ibid, p. 242.)

The Constitution having recognised the rule that persons born within
the several States are citizens of the United States, one of four
things must be true:

_First._ That the Constitution itself has described what native-born
persons shall or shall not be citizens of the United States; or,

_Second._ That it has empowered Congress to do so; or,

_Third._ That all free persons, born within the several States, are
citizens of the United States; or,

_Fourth._ That it is left to each State to determine what free
persons, born within its limits, shall be citizens of such State, and
_thereby_ be citizens of the United States.

If there be such a thing as citizenship of the United States acquired
by birth within the States, which the Constitution expressly
recognises, and no one denies, then these four alternatives embrace
the entire subject, and it only remains to select that one which is
true.

That the Constitution itself has defined citizenship of the United
States by declaring what persons, born within the several States,
shall or shall not be citizens of the United States, will not be
pretended. It contains no such declaration. We may dismiss the first
alternative, as without doubt unfounded.

Has it empowered Congress to enact what free persons, born within the
several States, shall or shall not be citizens of the United States?

Before examining the various provisions of the Constitution which may
relate to this question, it is important to consider for a moment the
substantial nature of this inquiry. It is, in effect, whether the
Constitution has empowered Congress to create privileged classes
within the States, who alone can be entitled to the franchises and
powers of citizenship of the United States. If it be admitted that the
Constitution has enabled Congress to declare what free persons, born
within the several States, shall be citizens of the United States, it
must at the same time be admitted that it is an unlimited power. If
this subject is within the control of Congress, it must depend wholly
on its discretion. For, certainly, no limits of that discretion can be
found in the Constitution, which is wholly silent concerning it; and
the necessary consequence is, that the Federal Government may select
classes of persons within the several States who alone can be entitled
to the political privileges of citizenship of the United States. If
this power exists, what persons born within the States may be
President or Vice President of the United States, or members of
either House of Congress, or hold any office or enjoy any privilege
whereof citizenship of the United States is a necessary qualification,
must depend solely on the will of Congress. By virtue of it, though
Congress can grant no title of nobility, they may create an oligarchy,
in whose hands would be concentrated the entire power of the Federal
Government.

It is a substantive power, distinct in its nature from all others;
capable of affecting not only the relations of the States to the
General Government, but of controlling the political condition of the
people of the United States. Certainly we ought to find this power
granted by the Constitution, at least by some necessary inference,
before we can say it does not remain to the States or the people. I
proceed therefore to examine all the provisions of the Constitution
which may have some bearing on this subject.

Among the powers expressly granted to Congress is "the power to
establish a uniform rule of naturalization." It is not doubted that
this is a power to prescribe a rule for the removal of the
disabilities consequent on foreign birth. To hold that it extends
further than this, would do violence to the meaning of the term
naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2
Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who
concurred in framing and adopting the Constitution. It was in this
sense of conferring on an alien and his issue the rights and powers of
a native-born citizen, that it was employed in the Declaration of
Independence. It was in this sense it was expounded in the Federalist,
(No. 42,) has been understood by Congress, by the Judiciary, (2
Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by
commentators on the Constitution. (3 Story's Com. on Con., 1-3; 1
Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.)

It appears, then, that the only power expressly granted to Congress to
legislate concerning citizenship, is confined to the removal of the
disabilities of foreign birth.

Whether there be anything in the Constitution from which a broader
power may be implied, will best be seen when we come to examine the
two other alternatives, which are, whether all free persons, born on
the soil of the several States, or only such of them as may be
citizens of each State, respectively, are thereby citizens of the
United States. The last of these alternatives, in my judgment,
contains the truth.

Undoubtedly, as has already been said, it is a principle of public
law, recognised by the Constitution itself, that birth on the soil of
a country both creates the duties and confers the rights of
citizenship. But it must be remembered, that though the Constitution
was to form a Government, and under it the United States of America
were to be one united sovereign nation, to which loyalty and obedience
on the one side, and from which protection and privileges on the
other, would be due, yet the several sovereign States, whose people
were then citizens, were not only to continue in existence, but with
powers unimpaired, except so far as they were granted by the people to
the National Government.

Among the powers unquestionably possessed by the several States, was
that of determining what persons should and what persons should not be
citizens. It was practicable to confer on the Government of the Union
this entire power. It embraced what may, well enough for the purpose
now in view, be divided into three parts. _First_: The power to remove
the disabilities of alienage, either by special acts in reference to
each individual case, or by establishing a rule of naturalization to
be administered and applied by the courts. _Second_: Determining what
persons should enjoy the privileges of citizenship, in respect to the
internal affairs of the several States. _Third_: What native-born
persons should be citizens of the United States.

The first-named power, that of establishing a uniform rule of
naturalization, was granted; and here the grant, according to its
terms, stopped. Construing a Constitution containing only limited and
defined powers of government, the argument derived from this definite
and restricted power to establish a rule of naturalization, must be
admitted to be exceedingly strong. I do not say it is necessarily
decisive. It might be controlled by other parts of the Constitution.
But when this particular subject of citizenship was under
consideration, and, in the clause specially intended to define the
extent of power concerning it, we find a particular part of this
entire power separated from the residue, and conferred on the General
Government, there arises a strong presumption that this is all which
is granted, and that the residue is left to the States and to the
people. And this presumption is, in my opinion, converted into a
certainty, by an examination of all such other clauses of the
Constitution as touch this subject.

I will examine each which can have any possible bearing on this
question.

The first clause of the second section of the third article of the
Constitution is, "The judicial power shall extend to controversies
between a State and citizens of another State; between citizens of
different States; between citizens of the same State, claiming lands
under grants of different States; and between States, or the citizens
thereof, and foreign States, citizens, or subjects." I do not think
this clause has any considerable bearing upon the particular inquiry
now under consideration. Its purpose was, to extend the judicial power
to those controversies into which local feelings or interests might so
enter as to disturb the course of justice, or give rise to suspicions
that they had done so, and thus possibly give occasion to jealousy or
ill will between different States, or a particular State and a foreign
nation. At the same time, I would remark, in passing, that it has
never been held, I do not know that it has ever been supposed, that
any citizen of a State could bring himself under this clause and the
eleventh and twelfth sections of the judiciary act of 1789, passed in
pursuance of it, who was not a citizen of the United States. But I
have referred to the clause, only because it is one of the places
where citizenship is mentioned by the Constitution. Whether it is
entitled to any weight in this inquiry or not, it refers only to
citizenship of the several States; it recognises that; but it does not
recognise citizenship of the United States as something distinct
therefrom.

As has been said, the purpose of this clause did not necessarily
connect it with citizenship of the United States, even if that were
something distinct from citizenship of the several States, in the
contemplation of the Constitution. This cannot be said of other
clauses of the Constitution, which I now proceed to refer to.

"The citizens of each State shall be entitled to all the privileges
and immunities of citizens of the several States." Nowhere else in the
Constitution is there anything concerning a general citizenship; but
here, privileges and immunities to be enjoyed throughout the United
States, under and by force of the national compact, are granted and
secured. In selecting those who are to enjoy these national rights of
citizenship, how are they described? As citizens of each State. It is
to them these national rights are secured. The qualification for them
is not to be looked for in any provision of the Constitution or laws
of the United States. They are to be citizens of the several States,
and, as such, the privileges and immunities of general citizenship,
derived from and guarantied by the Constitution, are to be enjoyed by
them. It would seem that if it had been intended to constitute a class
of native-born persons within the States, who should derive their
citizenship of the United States from the action of the Federal
Government, this was an occasion for referring to them. It cannot be
supposed that it was the purpose of this article to confer the
privileges and immunities of citizens in all the States upon persons
not citizens of the United States.

And if it was intended to secure these rights only to citizens of the
United States, how has the Constitution here described such persons?
Simply as citizens of each State.

But, further: though, as I shall presently more fully state, I do not
think the enjoyment of the elective franchise essential to
citizenship, there can be no doubt it is one of the chiefest
attributes of citizenship under the American Constitutions; and the
just and constitutional possession of this right is decisive evidence
of citizenship. The provisions made by a Constitution on this subject
must therefore be looked to as bearing directly on the question what
persons are citizens under that Constitution; and as being decisive,
to this extent, that all such persons as are allowed by the
Constitution to exercise the elective franchise, and thus to
participate in the Government of the United States, must be deemed
citizens of the United States.

Here, again, the consideration presses itself upon us, that if there
was designed to be a particular class of native-born persons within
the States, deriving their citizenship from the Constitution and laws
of the United States, they should at least have been referred to as
those by whom the President and House of Representatives were to be
elected, and to whom they should be responsible.

Instead of that, we again find this subject referred to the laws of
the several States. The electors of President are to be appointed in
such manner as the Legislature of each State may direct, and the
qualifications of electors of members of the House of Representatives
shall be the same as for electors of the most numerous branch of the
State Legislature.

Laying aside, then, the case of aliens, concerning which the
Constitution of the United States has provided, and confining our view
to free persons born within the several States, we find that the
Constitution has recognised the general principle of public law, that
allegiance and citizenship depend on the place of birth; that it has
not attempted practically to apply this principle by designating the
particular classes of persons who should or should not come under it;
that when we turn to the Constitution for an answer to the question,
what free persons, born within the several States, are citizens of the
United States, the only answer we can receive from any of its express
provisions is, the citizens of the several States are to enjoy the
privileges and immunities of citizens in every State, and their
franchise as electors under the Constitution depends on their
citizenship in the several States. Add to this, that the Constitution
was ordained by the citizens of the several States; that they were
"the people of the United States," for whom and whose posterity the
Government was declared in the preamble of the Constitution to be
made; that each of them was "a citizen of the United States at the
time of the adoption of the Constitution," within the meaning of those
words in that instrument; that by them the Government was to be and
was in fact organized; and that no power is conferred on the
Government of the Union to discriminate between them, or to
disfranchise any of them--the necessary conclusion is, that those
persons born within the several States, who, by force of their
respective Constitutions and laws, are citizens of the State, are
thereby citizens of the United States.

It may be proper here to notice some supposed objections to this view
of the subject.

It has been often asserted that the Constitution was made exclusively
by and for the white race. It has already been shown that in five of
the thirteen original States, colored persons then possessed the
elective franchise, and were among those by whom the Constitution was
ordained and established. If so, it is not true, in point of fact,
that the Constitution was made exclusively by the white race. And that
it was made exclusively for the white race is, in my opinion, not only
an assumption not warranted by anything in the Constitution, but
contradicted by its opening declaration, that it was ordained and
established, by the people of the United States, for themselves and
their posterity. And as free colored persons were then citizens of at
least five States, and so in every sense part of the people of the
United States, they were among those for whom and whose posterity the
Constitution was ordained and established.

Again, it has been objected, that if the Constitution has left to the
several States the rightful power to determine who of their
inhabitants shall be citizens of the United States, the States may
make aliens citizens.

The answer is obvious. The Constitution has left to the States the
determination what persons, born within their respective limits, shall
acquire by birth citizenship of the United States; it has not left to
them any power to prescribe any rule for the removal of the
disabilities of alienage. This power is exclusively in Congress.

It has been further objected, that if free colored persons, born
within a particular State, and made citizens of that State by its
Constitution and laws, are thereby made citizens of the United States,
then, under the second section of the fourth article of the
Constitution, such persons would be entitled to all the privileges and
immunities of citizens in the several States; and if so, then colored
persons could vote, and be eligible to not only Federal offices, but
offices even in those States whose Constitutions and laws disqualify
colored persons from voting or being elected to office.

But this position rests upon an assumption which I deem untenable. Its
basis is, that no one can be deemed a citizen of the United States who
is not entitled to enjoy all the privileges and franchises which are
conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is
not true, under the Constitution of the United States, seems to me
clear.

A naturalized citizen cannot be President of the United States, nor a
Senator till after the lapse of nine years, nor a Representative till
after the lapse of seven years, from his naturalization. Yet, as soon
as naturalized, he is certainly a citizen of the United States. Nor is
any inhabitant of the District of Columbia, or of either of the
Territories, eligible to the office of Senator or Representative in
Congress, though they may be citizens of the United States. So, in all
the States, numerous persons, though citizens, cannot vote, or cannot
hold office, either on account of their age, or sex, or the want of
the necessary legal qualifications. The truth is, that citizenship,
under the Constitution of the United States, is not dependent on the
possession of any particular political or even of all civil rights;
and any attempt so to define it must lead to error. To what citizens
the elective franchise shall be confided, is a question to be
determined by each State, in accordance with its own views of the
necessities or expediencies of its condition. What civil rights shall
be enjoyed by its citizens, and whether all shall enjoy the same, or
how they may be gained or lost, are to be determined in the same way.

One may confine the right of suffrage to white male citizens; another
may extend it to colored persons and females; one may allow all
persons above a prescribed age to convey property and transact
business; another may exclude married women. But whether native-born
women, or persons under age, or under guardianship because insane or
spendthrifts, be excluded from voting or holding office, or allowed to
do so, I apprehend no one will deny that they are citizens of the
United States. Besides, this clause of the Constitution does not
confer on the citizens of one State, in all other States, specific and
enumerated privileges and immunities. They are entitled to such as
belong to citizenship, but not to such as belong to particular
citizens attended by other qualifications. Privileges and immunities
which belong to certain citizens of a State, by reason of the
operation of causes other than mere citizenship, are not conferred.
Thus, if the laws of a State require, in addition to citizenship of
the State, some qualification for office, or the exercise of the
elective franchise, citizens of all other States, coming thither to
reside, and not possessing those qualifications, cannot enjoy those
privileges, not because they are not to be deemed entitled to the
privileges of citizens of the State in which they reside, but because
they, in common with the native-born citizens of that State, must have
the qualifications prescribed by law for the enjoyment of such
privileges, under its Constitution and laws. It rests with the States
themselves so to frame their Constitutions and laws as not to attach a
particular privilege or immunity to mere naked citizenship. If one of
the States will not deny to any of its own citizens a particular
privilege or immunity, if it confer it on all of them by reason of
mere naked citizenship, then it may be claimed by every citizen of
each State by force of the Constitution; and it must be borne in mind,
that the difficulties which attend the allowance of the claims of
colored persons to be citizens of the United States are not avoided by
saying that, though each State may make them its citizens, they are
not thereby made citizens of the United States, because the privileges
of general citizenship are secured to the citizens of each State. The
language of the Constitution is, "The citizens of each State shall be
entitled to all privileges and immunities of citizens in the several
States." If each State may make such persons its citizens, they
become, as such, entitled to the benefits of this article, if there be
a native-born citizenship of the United States distinct from a
native-born citizenship of the several States.

There is one view of this article entitled to consideration in this
connection. It is manifestly copied from the fourth of the Articles of
Confederation, with only slight changes of phraseology, which render
its meaning more precise, and dropping the clause which excluded
paupers, vagabonds, and fugitives from justice, probably because these
cases could be dealt with under the police powers of the States, and a
special provision therefor was not necessary. It has been suggested,
that in adopting it into the Constitution, the words "free
inhabitants" were changed for the word "citizens." An examination of
the forms of expression commonly used in the State papers of that day,
and an attention to the substance of this article of the
Confederation, will show that the words "free inhabitants," as then
used, were synonymous with citizens. When the Articles of
Confederation were adopted, we were in the midst of the war of the
Revolution, and there were very few persons then embraced in the words
"free inhabitants," who were not born on our soil. It was not a time
when many, save the children of the soil, were willing to embark
their fortunes in our cause; and though there might be an inaccuracy
in the uses of words to call free inhabitants citizens, it was then a
technical rather than a substantial difference. If we look into the
Constitutions and State papers of that period, we find the inhabitants
or people of these colonies, or the inhabitants of this State, or
Commonwealth, employed to designate those whom we should now