U.S. Supreme Court Scott v. Sandford, 60 U.S. 19 How. 393
393 (1856) Scott v. Sandford 60 U.S. (19 How.) 393 Syllabus I 1. Upon a writ of error to a Circuit Court of the United States,
the transcript of the record of all the proceedings in the case is
brought before the court, and is open to inspection and
revision.

															2. When a plea to the jurisdiction, in abatement, is overruled
by the court upon demurrer, and the defendant pleads in bar, and
upon these pleas the final judgment of the court is in his favor --
if the plaintiff brings a writ of error, the judgment of the court
upon the plea in abatement is before this court, although it was in
favor of the plaintiff -- and if the court erred in overruling it,
the judgment must be reversed, and a mandate issued to the Circuit
Court to dismiss the case for want of jurisdiction.

															3. In the Circuit Courts of the United States, the record must
show that the case is one in which, by the Constitution and laws of
the United States, the court had jurisdiction -- and if this does
not appear, and the judgment must be reversed by this court -- and
the parties cannot be consent waive the objection to the
jurisdiction of the Circuit Court.

															4. A free negro of the African race, whose ancestors were
brought to this country and sold as slaves, is not a "citizen"
within the meaning of the Constitution of the United States.

															5. When the Constitution was adopted, they were not regarded in
any of the States as members of the community which constituted the
State, and were not numbered among its "people or citizens."
Consequently, the special rights and immunities guarantied to
citizens do not apply to them. And not being "citizens" within the
meaning of the Constitution, they are not entitled to sue in that
character in a court of the United States, and the Circuit Court
has not jurisdiction in such a suit.

															6. The only two clauses in the Constitution which point to this
race treat them as persons whom it was morally lawfully to deal in
as articles of property and to hold as slaves.

															7. Since the adoption of the Constitution of the United States,
no State can by any subsequent law make a foreigner or any other
description of persons citizens of Page 60 U. S. 394 the United States, nor entitle them to the rights and privileges
secured to citizens by that instrument.

															8. A State, by its laws passed since the adoption of the
Constitution, may put a foreigner or any other description of
persons upon a footing with its own citizens as to all the rights
and privileges enjoyed by them within its dominion and by its laws.
But that will not make him a citizen of the United States, nor
entitle him to sue in its courts, nor to any of the privileges and
immunities of a citizen in another State.

															9. The change in public opinion and feeling in relation to the
African race which has taken place since the adoption of the
Constitution cannot change its construction and meaning, and it
must be construed and administered now according to its true
meaning and intention when it was formed and adopted.

															10. The plaintiff having admitted, by his demurrer to the plea
in abatement, that his ancestors were imported from Africa and sold
as slaves, he is not a citizen of the State of Missouri according
to the Constitution of the United States, and was not entitled to
sue in that character in the Circuit Court.

															11. This being the case, the judgment of the court below in
favor of the plaintiff on the plea in abatement was erroneous. II 1. But if the plea in abatement is not brought up by this writ
of error, the objection to the citizenship of the plaintiff is
still apparent on the record, as he himself, in making out his
case, states that he is of African descent, was born a slave, and
claims that he and his family became entitled to freedom by being
taken by their owner to reside in a Territory where slavery is
prohibited by act of Congress, and that, in addition to this claim,
he himself became entitled to freedom by being taken to Rock
Island, in the State of Illinois, and being free when he was
brought back to Missouri, he was, by the laws of that State, a
citizen.

															2. If, therefore, the facts he states do not give him or his
family a right to freedom, the plaintiff is still a slave, and not
entitled to sue as a "citizen," and the judgment of the Circuit
Court was erroneous on that ground also, without any reference to
the plea in abatement.

															3. The Circuit Court can give no judgment for plaintiff or
defendant in a case where it has not jurisdiction, no matter
whether there be a plea in abatement or not. And unless it appears
upon the face of the record, when brought here by writ of error,
that the Circuit Court had jurisdiction, the judgment must be
reversed.

															The case of Capron v. Van
Noorden , 2 Cranch 126, examined, and the principles
thereby decided reaffirmed.

															4. When the record, as brought here by writ of error, does not
show that the Circuit Court had jurisdiction, this court has
jurisdiction to review and correct the error like any other error
in the court below. It does not and cannot dismiss the case for
want of jurisdiction here, for that would leave the erroneous
judgment of the court below in full force, and the party injured
without remedy. But it must reverse the judgment and, as in any
other case of reversal, send a mandate to the Circuit Court to
conform its judgment to the opinion of this court.

															5. The difference of the jurisdiction in this court in the cases
of writs of error to State courts and to Circuit Courts of the
United States pointed out, and the mistakes made as to the
jurisdiction of this court in the latter case by confounding it
with its limited jurisdiction in the former.

															6. If the court reverses a judgment upon the ground that it
appears by a particular part of the record that the Circuit Court
had not jurisdiction, it does not take away the jurisdiction of
this court to examine into and correct, by a reversal of the
judgment, any other errors, either as to the jurisdiction or any
other matter, where it appears from other parts of the record that
the Circuit Court had fallen into error. On the contrary, it is the
daily and familiar practice of this court to reverse on several
grounds where more than one error appears to have been committed.
And the error of a Circuit Court in its jurisdiction Page 60 U. S. 395 stands on the same ground, and is to be treated in the same
manner as any other error upon whish its judgment is founded.

															7. The decision, therefore, that the judgment of the Circuit
Court upon the plea in abatement is erroneous is no reason why the
alleged error apparent in the exception should not also be
examined, and the judgment reversed on that ground also, if it
discloses a want of jurisdiction in the Circuit Court.

															8. It is often the duty of this court, after having decided that
a particular decision of the Circuit Court was erroneous, to
examine into other alleged errors and to correct them if they are
found to exist. And this has been uniformly done by this court when
the questions are in any degree connected with the controversy and
the silence of the court might create doubts which would lead to
further useless litigation. III 1. The facts upon which the plaintiff relies did not give him
his freedom and make him a citizen of Missouri.

															2. The clause in the Constitution authorizing Congress to make
all needful rules and regulations for the government of the
territory and other property of the United States applies only to
territory within the chartered limits of some one of the States
when they were colonies of Great Britain, and which was surrendered
by the British Government to the old Confederation of the States in
the treaty of peace. It does not apply to territory acquired by the
present Federal Government by treaty or conquest from a foreign
nation.

															3. The United States, under the present Constitution, cannot
acquire territory to be held as a colony, to be governed at its
will and pleasure. But it may acquire territory which, at the time,
has not a population that fits it to become a State, and may govern
it as a Territory until it has a population which, in the judgment
of Congress, entitled it to be admitted as a State of the
Union.

															4. During the time it remains a Territory, Congress may
legislate over it within the scope of its constitutional powers in
relation to citizens of the United States, and may establish a
Territorial Government, and the form of the local Government must
be regulated by the discretion of Congress, but with powers not
exceeding those which Congress itself, by the Constitution, is
authorized to exercise over citizens of the United States in
respect to the rights of persons or rights of property. IV 1. The territory thus acquired is acquired by the people of the
United States for their common and equal benefit through their
agent and trustee, the Federal Government. Congress can exercise no
power over the rights of persons or property of a citizen in the
Territory which is prohibited by the Constitution. The Government
and the citizen, whenever the Territory is open to settlement, both
enter it with their respective rights defined and limited by the
Constitution.

															2. Congress have no right to prohibit the citizens of any
particular State or States from taking up their home there while it
permits citizens of other States to do so. Nor has it a right to
give privileges to one class of citizens which it refuses to
another. The territory is acquired for their equal and common
benefit, and if open to any, it must be open to all upon equal and
the same terms.

															3. Every citizen has a right to take with him into the Territory
any article of property which the Constitution of the United States
recognises as property.

															4. The Constitution of the United States recognises slaves as
property, and pledges the Federal Government to protect it. And
Congress cannot exercise any more authority over property of that
description than it may constitutionally exercise over property of
any other kind.

															5. The act of Congress, therefore, prohibiting a citizen of the
United States from Page 60 U. S. 396 taking with him his slaves when he removes to the Territory in
question to reside is an exercise of authority over private
property which is not warranted by the Constitution, and the
removal of the plaintiff by his owner to that Territory gave him no
title to freedom. V 1. The plaintiff himself acquired no title to freedom by being
taken by his owner to Rock Island, in Illinois, and brought back to
Missouri. This court has heretofore decided that the status or condition of a person of African descent
depended on the laws of the State in which he resided.

															2. It has been settled by the decisions of the highest court in
Missouri that, by the laws of that State, a slave does not become
entitled to his freedom where the owner takes him to reside in a
State where slavery is not permitted and afterwards brings him back
to Missouri.

															Conclusion. It follows that it is apparent upon the record that
the court below erred in its judgment on the plea in abatement, and
also erred in giving judgment for the defendant, when the exception
shows that the plaintiff was not a citizen of the United States.
And the Circuit Court had no jurisdiction, either in the cases
stated in the plea in abatement or in the one stated in the
exception, its judgment in favor of the defendant is erroneous, and
must be reversed.

															This case was brought up, by writ of error, from the Circuit
Court of the United States for the district of Missouri.

															It was an action of trespass vi et armis instituted in
the Circuit Court by Scott against Sandford.

															Prior to the institution of the present suit, an action was
brought by Scott for his freedom in the Circuit Court of St. Louis
county (State court), where there was a verdict and judgment in his
favor. On a writ of error to the Supreme Court of the State, the
judgment below was reversed and the case remanded to the Circuit
Court, where it was continued to await the decision of the case now
in question.

															The declaration of Scott contained three counts: one, that
Sandford had assaulted the plaintiff; one, that he had assaulted
Harriet Scott, his wife; and one, that he had assaulted Eliza Scott
and Lizzie Scott, his children.

															Sandford appeared, and filed the following plea:

															"DRED SCOTT )"

															"v. ) Plea to the Jurisdiction of the Court."

															"JOHN F. A. SANDFORD )"

															" APRIL TERM, 1854." "And the said John F. A. Sandford, in his own proper person,
comes and says that this court ought not to have or take further
cognizance of the action aforesaid, because he says that said cause
of action and each and every of them (if any such have accrued to
the said Dred Scott) accrued to the said Dred Scott out of the
jurisdiction of this court, and exclusively within the jurisdiction
of the courts of the State of Missouri, for that, to-wit: the said
plaintiff, Dred Scott, is not a citizen of the State of Missouri,
as alleged in his declaration, because Page 60 U. S. 397 he is a negro of African descent; his ancestors were of pure
African blood, and were brought into this country and sold as negro
slaves, and this the said Sandford is ready to verify. Wherefore,
he prays judgment whether this court can or will take further
cognizance of the action aforesaid."

															"JOHN F. A. SANDFORD"

															To this plea there was a demurrer in the usual form, which was
argued in April, 1854, when the court gave judgment that the
demurrer should be sustained.

															In May, 1854, the defendant, in pursuance of an agreement
between counsel, and with the leave of the court, pleaded in bar of
the action:

															1. Not guilty.

															2. That the plaintiff was a negro slave, the lawful property of
the defendant, and, as such, the defendant gently laid his hands
upon him, and thereby had only restrained him, as the defendant had
a right to do.

															3. That with respect to the wife and daughters of the plaintiff,
in the second and third counts of the declaration mentioned, the
defendant had, as to them, only acted in the same manner and in
virtue of the same legal right.

															In the first of these pleas, the plaintiff joined issue, and to
the second and third filed replications alleging that the
defendant, of his own wrong and without the cause in his second and
third pleas alleged, committed the trespasses, &c.

															The counsel then filed the following agreed statement of facts, viz: In the year 1834, the plaintiff was a negro slave belonging to
Dr. Emerson, who was a surgeon in the army of the United States. I
n that year, 1834, said Dr. Emerson took the plaintiff from the
State of Missouri to the military post at Rock Island, in the State
of Illinois, and held him there as a slave until the month of April
or May, 1836. At the time last mentioned, said Dr. Emerson removed
the plaintiff from said military post at Rock Island to the
military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory known as Upper Louisiana,
acquired by the United States of France, and situate north of the
latitude of thirty-six degrees thirty minutes north, and north of
the State of Missouri. Said Dr. Emerson held the plaintiff in
slavery at said Fort Snelling, from said last-mentioned date until
the year 1838.

															In the year 1835, Harriet, who is named in the second count of
the plaintiff's declaration, was the negro slave of Major
Taliaferro, who belonged to the army of the United States. Page 60 U. S. 398 In that year, 1835, said Major Taliaferro took said Harriet to
said Fort Snelling, a military post, situated as hereinbefore
stated, and kept her there as a slave until the year 1836, and then
sold and delivered her as a slave at said Fort Snelling unto the
said Dr. Emerson hereinbefore named. Said Dr. Emerson held said
Harriet in slavery at said Fort Snelling until the year 1838.

															In the year 1836, the plaintiff and said Harriet at said Fort
Snelling, with the consent of said Dr. Emerson, who then claimed to
be their master and owner, intermarried, and took each other for
husband and wife. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri,
and upon the river Mississippi. Lizzie is about seven years old,
and was born in the State of Missouri, at the military post called
Jefferson Barracks.

															In the year 1838, said Dr. Emerson removed the plaintiff and
said Harriet and their said daughter Eliza from said Fort Snelling
to the State of Missouri, where they have ever since resided.

															Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the
defendant, as slaves, and the defendant has ever since claimed to
hold them and each of them as slaves.

															At the times mentioned in the plaintiff's declaration, the
defendant, claiming to be owner as aforesaid, laid his hands upon
said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them,
doing in this respect, however, no more than what he might lawfully
do if they were of right his slaves at such times.

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

															It is agreed that Dred Scott brought suit for his freedom in the
Circuit Court of St. Louis county; that there was a verdict and
judgment in his favor; that, on a writ of error to the Supreme
Court, the judgment below was reversed, and the same remanded to
the Circuit Court, where it has been continued to await the
decision of this case.

															In May, 1854, the cause went before a jury, who found the
following verdict, viz: "As to the first issue joined in this case, we of the jury find
the defendant not guilty; and as to the issue secondly above
joined, we of the jury find that before and at the time when,
&c., in the first count mentioned, the said Dred Scott was a
negro slave, the lawful property of the defendant; and as to the
issue thirdly above joined, we, the jury, find that before and at
the time when, &c., in the second and third counts mentioned,
the said Harriet, wife of Page 60 U. S. 399 said Dred Scott, and Eliza and Lizzie, the daughters of the said
Dred Scott, were negro slaves, the lawful property of the
defendant."

															Whereupon, the court gave judgment for the defendant.

															After an ineffectual motion for a new trial, the plaintiff filed
the following bill of exceptions.

															On the trial of this cause by the jury, the plaintiff, to
maintain the issues on his part, read to the jury the following
agreed statement of facts, ( see agreement above.) No
further testimony was given to the jury by either party. Thereupon
the plaintiff moved the court to give to the jury the following
instruction, viz: "That, upon the facts agreed to by the parties, they ought to
find for the plaintiff. The court refused to give such instruction
to the jury, and the plaintiff, to such refusal, then and there
duly excepted."

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

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

															The plaintiff excepted to this instruction.

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

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

															This case has been twice argued. After the argument at the last
term, differences of opinion were found to exist among the members
of the court, and as the questions in controversy are of the
highest importance, and the court was at that time much pressed by
the ordinary business of the term, it was deemed advisable to
continue the case and direct a re-argument on some of the points in
order that we might have an opportunity of giving to the whole
subject a more deliberate Page 60 U. S. 400 consideration. It has accordingly been again argued by counsel,
and considered by the court; and I now proceed to deliver its
opinion.

															There are two leading questions presented by the record:

															1. Had the Circuit Court of the United States jurisdiction to
hear and determine the case between these parties? And

															2. If it had jurisdiction, is the judgment it has given
erroneous or not?

															The plaintiff in error, who was also the plaintiff in the court
below, was, with his wife and children, held as slaves by the
defendant in the State of Missouri, and he brought this action in
the Circuit Court of the United States for that district to assert
the title of himself and his family to freedom.

															The declaration is in the form usually adopted in that State to
try questions of this description, and contains the averment
necessary to give the court jurisdiction; that he and the defendant
are citizens of different States; that is, that he is a citizen of
Missouri, and the defendant a citizen of New York.

															The defendant pleaded in abatement to the jurisdiction of the
court, that the plaintiff was not a citizen of the State of
Missouri, as alleged in his declaration, being a negro of African
descent, whose ancestors were of pure African blood and who were
brought into this country and sold as slaves.

															To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court overruled the plea, and gave judgment that the
defendant should answer over. And he thereupon put in sundry pleas
in bar, upon which issues were joined, and at the trial the verdict
and judgment were in his favor. Whereupon the plaintiff brought
this writ of error.

															Before we speak of the pleas in bar, it will be proper to
dispose of the questions which have arisen on the plea in
abatement.

															That plea denies the right of the plaintiff to sue in a court of
the United States, for the reasons therein stated.

															If the question raised by it is legally before us, and the court
should be of opinion that the facts stated in it disqualify the
plaintiff from becoming a citizen, in the sense in which that word
is used in the Constitution of the United States, then the judgment
of the Circuit Court is erroneous, and must be reversed.

															It is suggested, however, that this plea is not before us, and
that, as the judgment in the court below on this plea was in favor
of the plaintiff, he does not seek to reverse it, or bring it
before the court for revision by his writ of error, and also that
the defendant waived this defence by pleading over, and thereby
admitted the jurisdiction of the court. Page 60 U. S. 401 But, in making this objection, we think the peculiar and limited
jurisdiction of courts of the United States has not been adverted
to. This peculiar and limited jurisdiction has made it necessary,
in these courts, to adopt different rules and principles of
pleading, so far as jurisdiction is concerned, from those which
regulate courts of common law in England and in the different
States of the Union which have adopted the common law rules.

															In these last-mentioned courts, where their character and rank
are analogous to that of a Circuit Court of the United States -- in
other words, where they are what the law terms courts of general
jurisdiction -- they are presumed to have jurisdiction unless the
contrary appears. No averment in the pleadings of the plaintiff is
necessary, in order to give jurisdiction. If the defendant objects
to it, he must plead it specially, and unless the fact on which he
relies is found to be true by a jury, or admitted to be true by the
plaintiff, the jurisdiction cannot be disputed in an appellate
court.

															Now it is not necessary to inquire whether, in courts of that
description, a party who pleads over in bar when a plea to the
jurisdiction has been ruled against him does or does not waive his
plea, nor whether, upon a judgment in his favor on the pleas in bar
and a writ of error brought by the plaintiff, the question upon the
plea in abatement would be open for revision in the appellate
court. Cases that may have been decided in such courts, or rules
that may have been laid down by common law pleaders, can have no
influence in the decision in this court. Because, under the
Constitution and laws of the United States, the rules which govern
the pleadings in its courts in questions of jurisdiction stand on
different principles, and are regulated by different laws.

															This difference arises, as we have said, from the peculiar
character of the Government of the United States. For although it
is sovereign and supreme in its appropriate sphere of action, yet
it does not possess all the powers which usually belong to the
sovereignty of a nation. Certain specified powers, enumerated in
the Constitution, have been conferred upon it, and neither the
legislative, executive, nor judicial departments of the Government
can lawfully exercise any authority beyond the limits marked out by
the Constitution. And in regulating the judicial department, the
cases in which the courts of the United States shall have
jurisdiction are particularly and specifically enumerated and
defined, and they are not authorized to take cognizance of any case
which does not come within the description therein specified.
Hence, when a plaintiff sues in a court of the United States, it is
necessary that he should Page 60 U. S. 402 show, in his pleading, that the suit he brings is within the
jurisdiction of the court, and that he is entitled to sue there.
And if he omits to do this, and should, by any oversight of the
Circuit Court, obtain a judgment in his favor, the judgment would
be reversed in the appellate court for want of jurisdiction in the
court below. The jurisdiction would not be presumed, as in the case
of a common law English or State court, unless the contrary
appeared. But the record, when it comes before the appellate court,
must show affirmatively that the inferior court had authority under
the Constitution to hear and determine the case. And if the
plaintiff claims a right to sue in a Circuit Court of the United
States under that provision of the Constitution which gives
jurisdiction in controversies between citizens of different States,
he must distinctly aver in his pleading that they are citizens of
different States, and he cannot maintain his suit without showing
that fact in the pleadings.

															This point was decided in the case of Bingham v.
Cabot , in 3 Dall. 382, and ever since adhered to by
the court. And in Jackson v.
Ashton , 8 Pet. 148, it was held that the objection
to which it was open could not be waived by the opposite party,
because consent of parties could not give jurisdiction.

															It is needless to accumulate cases on this subject. Those
already referred to, and the cases of Capron v. Van
Noorden, in 2 Cr. 126, and Montalet v. Murray, 4 Cr.
46, are sufficient to show the rule of which we have spoken. The
case of Capron v. Van Noorden strikingly illustrates the
difference between a common law court and a court of the United
States.

															If, however, the fact of citizenship is averred in the
declaration, and the defendant does not deny it and put it in issue
by plea in abatement, he cannot offer evidence at the trial to
disprove it, and consequently cannot avail himself of the objection
in the appellate court unless the defect should be apparent in some
other part of the record. For if there is no plea in abatement, and
the want of jurisdiction does not appear in any other part of the
transcript brought up by the writ of error, the undisputed averment
of citizenship in the declaration must be taken in this court to be
true. In this case, the citizenship is averred, but it is denied by
the defendant in the manner required by the rules of pleading, and
the fact upon which the denial is based is admitted by the
demurrer. And, if the plea and demurrer, and judgment of the court
below upon it, are before us upon this record, the question to be
decided is whether the facts stated in the plea are sufficient to
show that the plaintiff is not entitled to sue as a citizen in a
court of the United States. Page 60 U. S. 403 We think they are before us. The plea in abatement and the
judgment of the court upon it are a part of the judicial
proceedings in the Circuit Court and are there recorded as such,
and a writ of error always brings up to the superior court the
whole record of the proceedings in the court below. And in the case
of the United States v.
Smith , 11 Wheat. 171, this court said, that the
case being brought up by writ of error, the whole record was under
the consideration of this court. And this being the case in the
present instance, the plea in abatement is necessarily under
consideration, and it becomes, therefore, our duty to decide
whether the facts stated in the plea are or are not sufficient to
show that the plaintiff is not entitled to sue as a citizen in a
court of the United States.

															This is certainly a very serious question, and one that now for
the first time has been brought for decision before this court. But
it is brought here by those who have a right to bring it, and it is
our duty to meet it and decide it.

															The question is simply this: can a negro whose ancestors were
imported into this country and sold as slaves become a member of
the political community formed and brought into existence by the
Constitution of the United States, and as such become entitled to
all the rights, and privileges, and immunities, guarantied by that
instrument to the citizen, one of which rights is the privilege of
suing in a court of the United States in the cases specified in the
Constitution?

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

															The situation of this population was altogether unlike that of
the Indian race. The latter, it is true, formed no part of the
colonial communities, and never amalgamated with them in social
connections or in government. But although they were uncivilized,
they were yet a free and independent people, associated together in
nations or tribes and governed by their own laws. Many of these
political communities were situated in territories to which the
white race claimed the ultimate Page 60 U. S. 404 right of dominion. But that claim was acknowledged to be subject
to the right of the Indians to occupy it as long as they thought
proper, and neither the English nor colonial Governments claimed or
exercised any dominion over the tribe or nation by whom it was
occupied, nor claimed the right to the possession of the territory,
until the tribe or nation consented to cede it. These Indian
Governments were regarded and treated as foreign Governments as
much so as if an ocean had separated the red man from the white,
and their freedom has constantly been acknowledged, from the time
of the first emigration to the English colonies to the present day,
by the different Governments which succeeded each other. Treaties
have been negotiated with them, and their alliance sought for in
war, and the people who compose these Indian political communities
have always been treated as foreigners not living under our
Government. It is true that the course of events has brought the
Indian tribes within the limits of the United States under
subjection to the white race, and it has been found necessary, for
their sake as well as our own, to regard them as in a state of
pupilage, and to legislate to a certain extent over them and the
territory they occupy. But they may, without doubt, like the
subjects of any other foreign Government, be naturalized by the
authority of Congress, and become citizens of a State, and of the
United States, and if an individual should leave his nation or
tribe and take up his abode among the white population, he would be
entitled to all the rights and privileges which would belong to an
emigrant from any other foreign people.

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

															The words "people of the United States" and "citizens" are
synonymous terms, and mean the same thing. They both describe the
political body who, according to our republican institutions, form
the sovereignty and who hold the power and conduct the Government
through their representatives. They are what we familiarly call the
"sovereign people," and every citizen is one of this people, and a
constituent member of this sovereignty. The question before us is
whether the class of persons described in the plea in abatement
compose a portion of this people, and are constituent members of
this sovereignty? We think they are not, and that they are not
included, and were not intended to be included, under the word
"citizens" in the Constitution, and can therefore claim none of the
rights and privileges which that instrument provides for and
secures to citizens of the United States. On the contrary, they
were at that time considered as a subordinate Page 60 U. S. 405 and inferior class of beings who had been subjugated by the
dominant race, and, whether emancipated or not, yet remained
subject to their authority, and had no rights or privileges but
such as those who held the power and the Government might choose to
grant them.

															It is not the province of the court to decide upon the justice
or injustice, the policy or impolicy, of these laws. The decision
of that question belonged to the political or lawmaking power, to
those who formed the sovereignty and framed the Constitution. The
duty of the court is to interpret the instrument they have framed
with the best lights we can obtain on the subject, and to
administer it as we find it, according to its true intent and
meaning when it was adopted.

															In discussing this question, we must not confound the rights of
citizenship which a State may confer within its own limits and the
rights of citizenship as a member of the Union. It does not by any
means follow, because he has all the rights and privileges of a
citizen of a State, that he must be a citizen of the United States.
He may have all of the rights and privileges of the citizen of a
State and yet not be entitled to the rights and privileges of a
citizen in any other State. For, previous to the adoption of the
Constitution of the United States, every State had the undoubted
right to confer on whomsoever it pleased the character of citizen,
and to endow him with all its rights. But this character, of
course, was confined to the boundaries of the State, and gave him
no rights or privileges in other States beyond those secured to him
by the laws of nations and the comity of States. Nor have the
several States surrendered the power of conferring these rights and
privileges by adopting the Constitution of the United States. Each
State may still confer them upon an alien, or anyone it thinks
proper, or upon any class or description of persons, yet he would
not be a citizen in the sense in which that word is used in the
Constitution of the United States, nor entitled to sue as such in
one of its courts, nor to the privileges and immunities of a
citizen in the other States. The rights which he would acquire
would be restricted to the State which gave them. The Constitution
has conferred on Congress the right to establish an uniform rule of
naturalization, and this right is evidently exclusive, and has
always been held by this court to be so. Consequently, no State,
since the adoption of the Constitution, can, by naturalizing an
alien, invest him with the rights and privileges secured to a
citizen of a State under the Federal Government, although, so far
as the State alone was concerned, he would undoubtedly be entitled
to the rights of a citizen and clothed with all the Page 60 U. S. 406 rights and immunities which the Constitution and laws of the
State attached to that character.

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

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

															The court think the affirmative of these propositions cannot be
maintained. And if it cannot, the plaintiff in error could not be a
citizen of the State of Missouri within the meaning of the
Constitution of the United States, and, consequently, was not
entitled to sue in its courts.

															It is true, every person, and every class and description of
persons who were, at the time of the adoption of the Constitution,
recognised as citizens in the several States became also citizens
of this new political body, but none other; it was formed by them,
and for them and their posterity, but for no one else. And the
personal rights and privileges guarantied to citizens of this new
sovereignty were intended to embrace those only who were then
members of the several State communities, or who should afterwards
by birthright or otherwise become members according to the
provisions of the Constitution and the principles on which it was
founded. It was the union of those who were at that time members of
distinct and separate political communities into one political
family, whose power, for certain specified purposes, was to extend
over the whole territory of the United States. And it gave to each
citizen rights and privileges outside of his State Page 60 U. S. 407 which he did not before possess, and placed him in every other
State upon a perfect equality with its own citizens as to rights of
person and rights of property; it made him a citizen of the United
States.

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

															In the opinion of the court, the legislation and histories of
the times, and the language used in the Declaration of
Independence, show that neither the class of persons who had been
imported as slaves nor their descendants, whether they had become
free or not, were then acknowledged as a part of the people, nor
intended to be included in the general words used in that memorable
instrument.

															It is difficult at this day to realize the state of public
opinion in relation to that unfortunate race which prevailed in the
civilized and enlightened portions of the world at the time of the
Declaration of Independence and when the Constitution of the United
States was framed and adopted. But the public history of every
European nation displays it in a manner too plain to be
mistaken.

															They had for more than a century before been regarded as beings
of an inferior order, and altogether unfit to associate with the
white race either in social or political relations, and so far
inferior that they had no rights which the white man was bound to
respect, and that the negro might justly and lawfully be reduced to
slavery for his benefit. He was bought and sold, and treated as an
ordinary article of merchandise and traffic whenever a profit could
be made by it. This opinion was at that time fixed and universal in
the civilized portion of the white race. It was regarded as an
axiom in morals as well as in politics which no one thought of
disputing or supposed to be open to dispute, and men in every grade
and position in society daily and habitually acted upon it in their
private pursuits, as well as in matters of public concern, without
doubting for a moment the correctness of this opinion.

															And in no nation was this opinion more firmly fixed or more Page 60 U. S. 408 uniformly acted upon than by the English Government and English
people. They not only seized them on the coast of Africa and sold
them or held them in slavery for their own use, but they took them
as ordinary articles of merchandise to every country where they
could make a profit on them, and were far more extensively engaged
in this commerce than any other nation in the world.

															The opinion thus entertained and acted upon in England was
naturally impressed upon the colonies they founded on this side of
the Atlantic. And, accordingly, a negro of the African race was
regarded by them as an article of property, and held, and bought
and sold as such, in every one of the thirteen colonies which
united in the Declaration of Independence and afterwards formed the
Constitution of the United States. The slaves were more or less
numerous in the different colonies as slave labor was found more or
less profitable. But no one seems to have doubted the correctness
of the prevailing opinion of the time.

															The legislation of the different colonies furnishes positive and
indisputable proof of this fact.

															It would be tedious, in this opinion, to enumerate the various
laws they passed upon this subject. It will be sufficient, as a
sample of the legislation which then generally prevailed throughout
the British colonies, to give the laws of two of them, one being
still a large slaveholding State and the other the first State in
which slavery ceased to exist.

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

															"that if any free negro or mulatto intermarry with any white
woman, or if any white man shall intermarry with any negro or
mulatto woman, such negro or mulatto shall become a slave during
life, excepting mulattoes born of white women, who, for such
intermarriage, shall only become servants for seven years, to be
disposed of as the justices of the county court where such marriage
so happens shall think fit, to be applied by them towards the
support of a public school within the said county. And any white
man or white woman who shall intermarry as aforesaid with any negro
or mulatto, such white man or white woman shall become servants
during the term of seven years, and shall be disposed of by the
justices as aforesaid, and be applied to the uses aforesaid."

															The other colonial law to which we refer was passed by
Massachusetts in 1705 (chap. 6). It is entitled "An act for the
better preventing of a spurious and mixed issue," &c., and it
provides, that

															"if any negro or mulatto shall presume to smite or strike any
person of the English or other Christian nation, such negro or
mulatto shall be severely whipped, at Page 60 U. S. 409 the discretion of the justices before whom the offender shall be
convicted."

															And

															"that none of her Majesty's English or Scottish subjects, nor of
any other Christian nation, within this province, shall contract
matrimony with any negro or mulatto; nor shall any person, duly
authorized to solemnize marriage, presume to join any such in
marriage, on pain of forfeiting the sum of fifty pounds; one moiety
thereof to her Majesty, for and towards the support of the
Government within this province, and the other moiety to him or
them that shall inform and sue for the same, in any of her
Majesty's courts of record within the province, by bill, plaint, or
information."

															We give both of these laws in the words used by the respective
legislative bodies because the language in which they are framed,
as well as the provisions contained in them, show, too plainly to
be misunderstood the degraded condition of this unhappy race. They
were still in force when the Revolution began, and are a faithful
index to the state of feeling towards the class of persons of whom
they speak, and of the position they occupied throughout the
thirteen colonies, in the eyes and thoughts of the men who framed
the Declaration of Independence and established the State
Constitutions and Governments. They show that a perpetual and
impassable barrier was intended to be erected between the white
race and the one which they had reduced to slavery, and governed as
subjects with absolute and despotic power, and which they then
looked upon as so far below them in the scale of created beings,
that intermarriages between white persons and negroes or mulattoes
were regarded as unnatural and immoral, and punished as crimes, not
only in the parties, but in the person who joined them in marriage.
And no distinction in this respect was made between the free negro
or mulatto and the slave, but this stigma of the deepest
degradation was fixed upon the whole race.

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

															The language of the Declaration of Independence is equally
conclusive:

															It begins by declaring that,

															"[w]hen in the course of human events it becomes necessary for
one people to dissolve the political bands which have connected
them with another, and to Page 60 U. S. 410 assume among the powers of the earth the separate and equal
station to which the laws of nature and nature's God entitle them,
a decent respect for the opinions of mankind requires that they
should declare the causes which impel them to the separation."

															It then proceeds to say:

															"We hold these truths to be self-evident: that all men are
created equal; that they are endowed by their Creator with certain
unalienable rights; that among them is life, liberty, and the
pursuit of happiness; that to secure these rights, Governments are
instituted, deriving their just powers from the consent of the
governed."

															The general words above quoted would seem to embrace the whole
human family, and if they were used in a similar instrument at this
day would be so understood. But it is too clear for dispute that
the enslaved African race were not intended to be included, and
formed no part of the people who framed and adopted this
declaration, for if the language, as understood in that day, would
embrace them, the conduct of the distinguished men who framed the
Declaration of Independence would have been utterly and flagrantly
inconsistent with the principles they asserted, and instead of the
sympathy of mankind to which they so confidently appealed, they
would have deserved and received universal rebuke and
reprobation.

															Yet the men who framed this declaration were great men -- high
in literary acquirements, high in their sense of honor, and
incapable of asserting principles inconsistent with those on which
they were acting. They perfectly understood the meaning of the
language they used, and how it would be understood by others, and
they knew that it would not in any part of the civilized world be
supposed to embrace the negro race, which, by common consent, had
been excluded from civilized Governments and the family of nations,
and doomed to slavery. They spoke and acted according to the then
established doctrines and principles, and in the ordinary language
of the day, and no one misunderstood them. The unhappy black race
were separated from the white by indelible marks, and laws long
before established, and were never thought of or spoken of except
as property, and when the claims of the owner or the profit of the
trader were supposed to need protection.

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

															The brief preamble sets forth by whom it was formed, for what
purposes, and for whose benefit and protection. It declares Page 60 U. S. 411 that it is formed by the people of the United States -- that is
to say, by those who were members of the different political
communities in the several States -- and its great object is
declared to be to secure the blessings of liberty to themselves and
their posterity. It speaks in general terms of the people of the
United States, and of citizens of the several States, when it is
providing for the exercise of the powers granted or the privileges
secured to the citizen. It does not define what description of
persons are intended to be included under these terms, or who shall
be regarded as a citizen and one of the people. It uses them as
terms so well understood that no further description or definition
was necessary.

															But there are two clauses in the Constitution which point
directly and specifically to the negro race as a separate class of
persons, and show clearly that they were not regarded as a portion
of the people or citizens of the Government then formed.

															One of these clauses reserves to each of the thirteen States the
right to import slaves until the year 1808 if it thinks proper. And
the importation which it thus sanctions was unquestionably of
persons of the race of which we are speaking, as the traffic in
slaves in the United States had always been confined to them. And
by the other provision the States pledge themselves to each other
to maintain the right of property of the master by delivering up to
him any slave who may have escaped from his service, and be found
within their respective territories. By the first above-mentioned
clause, therefore, the right to purchase and hold this property is
directly sanctioned and authorized for twenty years by the people
who framed the Constitution. And by the second, they pledge
themselves to maintain and uphold the right of the master in the
manner specified, as long as the Government they then formed should
endure. And these two provisions show conclusively that neither the
description of persons therein referred to nor their descendants
were embraced in any of the other provisions of the Constitution,
for certainly these two clauses were not intended to confer on them
or their posterity the blessings of liberty, or any of the personal
rights so carefully provided for the citizen.

															No one of that race had ever migrated to the United States
voluntarily; all of them had been brought here as articles of
merchandise. The number that had been emancipated at that time were
but few in comparison with those held in slavery, and they were
identified in the public mind with the race to which they belonged,
and regarded as a part of the slave population rather than the
free. It is obvious that they were not Page 60 U. S. 412 even in the minds of the framers of the Constitution when they
were conferring special rights and privileges upon the citizens of
a State in every other part of the Union.

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

															It is very true that, in that portion of the Union where the
labor of the negro race was found to be unsuited to the climate and
unprofitable to the master, but few slaves were held at the time of
the Declaration of Independence, and when the Constitution was
adopted, it had entirely worn out in one of them, and measures had
been taken for its gradual abolition in several others. But this
change had not been produced by any change of opinion in relation
to this race, but because it was discovered from experience that
slave labor was unsuited to the climate and productions of these
States, for some of the States where it had ceased or nearly ceased
to exist were actively engaged in the slave trade, procuring
cargoes on the coast of Africa and transporting them for sale to
those parts of the Union where their labor was found to be
profitable and suited to the climate and productions. And this
traffic was openly carried on, and fortunes accumulated by it,
without reproach from the people of the States where they resided.
And it can hardly be supposed that, in the States where it was then
countenanced in its worst form -- that is, in the seizure and
transportation -- the people could have regarded those who were
emancipated as entitled to equal rights with themselves.

															And we may here again refer in support of this proposition to
the plain and unequivocal language of the laws of the several
States, some passed after the Declaration of Independence and
before the Constitution was adopted and some since the Government
went into operation.

															We need not refer on this point particularly to the laws of the
present slaveholding States. Their statute books are full of
provisions in relation to this class in the same spirit with the
Maryland law which we have before quoted. They have continued to
treat them as an inferior class, and to subject them to strict
police regulations, drawing a broad line of distinction between the
citizen and the slave races, and legislating in relation to them
upon the same principle which prevailed at the time of the
Declaration of Independence. As relates to these States, it is too
plain for argument that they have never been regarded as a part of
the people or citizens of the State, nor supposed to possess any
political rights which the dominant race might not withhold or
grant at their pleasure. Page 60 U. S. 413 And as long ago as 1822, the Court of Appeals of Kentucky
decided that free negroes and mulattoes were not citizens within
the meaning of the Constitution of the United States, and the
correctness of this decision is recognized, and the same doctrine
affirmed, in 1 Meigs's Tenn.Reports, 331.

															And if we turn to the legislation of the States where slavery
had worn out, or measures taken for its speedy abolition, we shall
find the same opinions and principles equally fixed and equally
acted upon.

															Thus, Massachusetts, in 1786, passed a law similar to the
colonial one of which we have spoken. The law of 1786, like the law
of 1705, forbids the marriage of any white person with any negro,
Indian, or mulatto, and inflicts a penalty of fifty pounds upon
anyone who shall join them in marriage, and declares all such
marriage absolutely null and void, and degrades thus the unhappy
issue of the marriage by fixing upon it the stain of bastardy. And
this mark of degradation was renewed, and again impressed upon the
race, in the careful and deliberate preparation of their revised
code published in 1836. This code forbids any person from joining
in marriage any white person with any Indian, negro, or mulatto,
and subjects the party who shall offend in this respect to
imprisonment not exceeding six months in the common jail or to hard
labor, and to a fine of not less than fifty nor more than two
hundred dollars, and, like the law of 1786, it declares the
marriage to be absolutely null and void. It will be seen that the
punishment is increased by the code upon the person who shall marry
them, by adding imprisonment to a pecuniary penalty.

															So, too, in Connecticut. We refer more particularly to the
legislation of this State, because it was not only among the first
to put an end to slavery within its own territory, but was the
first to fix a mark of reprobation upon the African slave trade.
The law last mentioned was passed in October, 1788, about nine
months after the State had ratified and adopted the present
Constitution of the United States, and, by that law, it prohibited
its own citizens, under severe penalties, from engaging in the
trade, and declared all policies of insurance on the vessel or
cargo made in the State to be null and void. But up to the time of
the adoption of the Constitution, there is nothing in the
legislation of the State indicating any change of opinion as to the
relative rights and position of the white and black races in this
country, or indicating that it meant to place the latter, when
free, upon a level with its citizens. And certainly nothing which
would have led the slaveholding States to suppose that Connecticut
designed to claim for them, under Page 60 U. S. 414 the new Constitution, the equal rights and privileges and rank
of citizens in every other State.

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

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

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

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

															"Whereas sound policy requires that the abolition of slavery
should be effected as soon as may be consistent with the rights of
individuals, and the public safety and welfare"

															-- showing that the right of property in the master was to be
protected, and that the measure was one of policy, and to prevent
the injury and inconvenience to the whites of a slave population in
the State.

															And still further pursuing its legislation, we find that, in the
same statute passed in 1774, which prohibited the further
importation of slaves into the State, there is also a provision by
which any negro, Indian, or mulatto servant who was found wandering
out of the town or place to which he belonged without a written
pass such as is therein described was made liable to be seized by
anyone, and taken before the next authority to be examined and
delivered up to his master -- who was required to pay the charge
which had accrued thereby. And a subsequent section of the same law
provides that if any free negro shall travel without such pass, and
shall be stopped, seized, or taken up, he shall pay all charges
arising thereby. And this law was in full operation when the
Constitution of the United States was adopted, and was not repealed
till 1797. So that, up to that time, free negroes and mulattoes
were associated with servants and slaves in the police regulations
established by the laws of the State.

															And again, in 1833, Connecticut passed another law which made it
penal to set up or establish any school in that State for the
instruction of persons of the African race not inhabitants of the
State, or to instruct or teach in any such school or Page 60 U. S. 415 institution, or board or harbor for that purpose, any such
person without the previous consent in writing of the civil
authority of the town in which such school or institution might
be.

															And it appears by the case of Crandall v. The State, reported in 10 Conn. Rep. 340, that upon an information filed
against Prudence Crandall for a violation of this law, one of the
points raised in the defence was that the law was a violation of
the Constitution of the United States, and that the persons
instructed, although of the African race, were citizens of other
States, and therefore entitled to the rights and privileges of
citizens in the State of Connecticut. But Chief Justice Dagget,
before whom the case was tried, held that persons of that
description were not citizens of a State, within the meaning of the
word citizen in the Constitution of the United States, and were not
therefore entitled to the privileges and immunities of citizens in
other States.

															The case was carried up to the Supreme Court of Errors of the
State, and the question fully argued there. But the case went off
upon another point, and no opinion was expressed on this
question.

															We have made this particular examination into the legislative
and judicial action of Connecticut because, from the early
hostility it displayed to the slave trade on the coast of Africa,
we may expect to find the laws of that State as lenient and
favorable to the subject race as those of any other State in the
Union, and if we find that, at the time the Constitution was
adopted, they were not even there raised to the rank of citizens,
but were still held and treated as property, and the laws relating
to them passed with reference altogether to the interest and
convenience of the white race, we shall hardly find them elevated
to a higher rank anywhere else.

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

															By the laws of New Hampshire, collected and finally passed in
1815, no one was permitted to be enrolled in the militia of the
State but free white citizens, and the same provision is found in a
subsequent collection of the laws made in 1855. Nothing could more
strongly mark the entire repudiation of the African race. The alien
is excluded because, being born in a foreign country, he cannot be
a member of the community until he is naturalized. But why are the
African race, born in the State, not permitted to share in one of
the highest duties of the citizen? The answer is obvious; he is
not, by the institutions and laws of the State, numbered among its
people. He forms no part of the sovereignty of the State, and is
not therefore called on to uphold and defend it. Page 60 U. S. 416 Again, in 1822, Rhode Island, in its revised code, passed a law
forbidding persons who were authorized to join persons in marriage
from joining in marriage any white person with any negro, Indian,
or mulatto, under the penalty of two hundred dollars, and declaring
all such marriages absolutely null and void, and the same law was
again reenacted in its revised code of 1844. So that, down to the
last-mentioned period, the strongest mark of inferiority and
degradation was fastened upon the African race in that State.

															It would be impossible to enumerate and compress in the space
usually allotted to an opinion of a court the various laws, marking
the condition of this race which were passed from time to time
after the Revolution and before and since the adoption of the
Constitution of the United States. In addition to those already
referred to, it is sufficient to say that Chancellor Kent, whose
accuracy and research no one will question, states in the sixth
edition of his Commentaries (published in 1848, 2 vol., 258, note
b) that in no part of the country except Maine did the African
race, in point of fact, participate equally with the whites in the
exercise of civil and political rights.

															The legislation of the States therefore shows in a manner not to
be mistaken the inferior and subject condition of that race at the
time the Constitution was adopted and long afterwards, throughout
the thirteen States by which that instrument was framed, and it is
hardly consistent with the respect due to these States to suppose
that they regarded at that time as fellow citizens and members of
the sovereignty, a class of beings whom they had thus stigmatized,
whom, as we are bound out of respect to the State sovereignties to
assume they had deemed it just and necessary thus to stigmatize,
and upon whom they had impressed such deep and enduring marks of
inferiority and degradation, or, that, when they met in convention
to form the Constitution, they looked upon them as a portion of
their constituents or designed to include them in the provisions so
carefully inserted for the security and protection of the liberties
and rights of their citizens. It cannot be supposed that they
intended to secure to them rights and privileges and rank, in the
new political body throughout the Union which every one of them
denied within the limits of its own dominion. More especially, it
cannot be believed that the large slaveholding States regarded them
as included in the word citizens, or would have consented to a
Constitution which might compel them to receive them in that
character from another State. For if they were so received, and
entitled to the privileges and immunities of citizens, it would
exempt them from the operation of the special laws and from the
police Page 60 U. S. 417 regulations which they considered to be necessary for their own
safety. It would give to persons of the negro race, who were
recognised as citizens in any one State of the Union, the right to
enter every other State whenever they pleased, singly or in
companies, without pass or passport, and without obstruction, to
sojourn there as long as they pleased, to go where they pleased at
every hour of the day or night without molestation, unless they
committed some violation of law for which a white man would be
punished; and it would give them the full liberty of speech in
public and in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political affairs, and to
keep and carry arms wherever they went. And all of this would be
done in the face of the subject race of the same color, both free
and slaves, and inevitably producing discontent and insubordination
among them, and endangering the peace and safety of the State.

															It is impossible, it would seem, to believe that the great men
of the slaveholding States, who took so large a share in framing
the Constitution of the United States and exercised so much
influence in procuring its adoption, could have been so forgetful
or regardless of their own safety and the safety of those who
trusted and confided in them.

															Besides, this want of foresight and care would have been utterly
inconsistent with the caution displayed in providing for the
admission of new members into this political family. For, when they
gave to the citizens of each State the privileges and immunities of
citizens in the several States, they at the same time took from the
several States the power of naturalization, and confined that power
exclusively to the Federal Government. No State was willing to
permit another State to determine who should or should not be
admitted as one of its citizens, and entitled to demand equal
rights and privileges with their own people, within their own
territories. The right of naturalization was therefore, with one
accord, surrendered by the States, and confided to the Federal
Government. And this power granted to Congress to establish an
uniform rule of naturalization is, by the well understood meaning
of the word, confined to persons born in a foreign country, under a
foreign Government. It is not a power to raise to the rank of a
citizen anyone born in the United States who, from birth or
parentage, by the laws of the country, belongs to an inferior and
subordinate class. And when we find the States guarding themselves
from the indiscreet or improper admission by other States of
emigrants from other countries by giving the power exclusively to
Congress, we cannot fail to see that they could never have left
with the States a much Page 60 U. S. 418 more important power -- that is, the power of transforming into
citizens a numerous class of persons who, in that character, would
be much more dangerous to the peace and safety of a large portion
of the Union than the few foreigners one of the States might
improperly naturalize. The Constitution upon its adoption obviously
took from the States all power by any subsequent legislation to
introduce as a citizen into the political family of the United
States anyone, no matter where he was born or what might be his
character or condition, and it gave to Congress the power to confer
this character upon those only who were born outside of the
dominions of the United States. And no law of a State, therefore,
passed since the Constitution was adopted, can give any right of
citizenship outside of its own territory.

															A clause similar to the one in the Constitution in relation to
the rights and immunities of citizens of one State in the other
States was contained in the Articles of Confederation. But there is
a difference of language which is worthy of note. The provision in
the Articles of Confederation was

															"that the free inhabitants of each of the States,
paupers, vagabonds, and fugitives from justice, excepted, should be
entitled to all the privileges and immunities of free citizens in
the several States."

															It will be observed that, under this Confederation, each State
had the right to decide for itself, and in its own tribunals, whom
it would acknowledge as a free inhabitant of another State. The
term free inhabitant, in the generality of its terms,
would certainly include one of the African race who had been
manumitted. But no example, we think, can be found of his admission
to all the privileges of citizenship in any State of the Union
after these Articles were formed, and while they continued in
force. And, notwithstanding the generality of the words "free
inhabitants," it is very clear that, according to their accepted
meaning in that day, they did not include the African race, whether
free or not, for the fifth section of the ninth article provides
that Congress should have the power

															"to agree upon the number of land forces to be raised, and to
make requisitions from each State for its quota in proportion to
the number of white inhabitants in such State, which
requisition should be binding."

															Words could hardly have been used which more strongly mark the
line of distinction between the citizen and the subject -- the free
and the subjugated races. The latter were not even counted when the
inhabitants of a State were to be embodied in proportion to its
numbers for the general defence. And it cannot for a moment be
supposed that a class of Page 60 U. S. 419 persons thus separated and rejected from those who formed the
sovereignty of the States, were yet intended to be included under
the words "free inhabitants," in the preceding article, to whom
privileges and immunities were so carefully secured in every
State.

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

															To all this mass of proof we have still to add, that Congress
has repeatedly legislated upon the same construction of the
Constitution that we have given. Three laws, two of which were
passed almost immediately after the Government went into operation,
will be abundantly sufficient to show this. The two first are
particularly worthy of notice, because many of the men who assisted
in framing the Constitution, and took an active part in procuring
its adoption, were then in the halls of legislation, and certainly
understood what they meant when they used the words "people of the
United States" and "citizen" in that well-considered
instrument.

															The first of these acts is the naturalization law, which was
passed at the second session of the first Congress, March 26, 1790,
and confines the right of becoming citizens " to aliens being
free white persons. "

															Now the Constitution does not limit the power of Congress in
this respect to white persons. And they may, if they think proper,
authorize the naturalization of anyone, of any color, who was born
under allegiance to another Government. But the language of the law
above quoted shows that citizenship Page 60 U. S. 420 at that time was perfectly understood to be confined to the
white race; and that they alone constituted the sovereignty in the
Government.

															Congress might, as we before said, have authorized the
naturalization of Indians because they were aliens and foreigners.
But, in their then untutored and savage state, no one would have
thought of admitting them as citizens in a civilized community.
And, moreover, the atrocities they had but recently committed, when
they were the allies of Great Britain in the Revolutionary war,
were yet fresh in the recollection of the people of the United
States, and they were even then guarding themselves against the
threatened renewal of Indian hostilities. No one supposed then that
any Indian would ask for, or was capable of enjoying, the
privileges of an American citizen, and the word white was not used
with any particular reference to them.

															Neither was it used with any reference to the African race
imported into or born in this country; because Congress had no
power to naturalize them, and therefore there was no necessity for
using particular words to exclude them.

															It would seem to have been used merely because it followed out
the line of division which the Constitution has drawn between the
citizen race, who formed and held the Government, and the African
race, which they held in subjection and slavery and governed at
their own pleasure.

															Another of the early laws of which we have spoken is the first
militia law, which was passed in 1792 at the first session of the
second Congress. The language of this law is equally plain and
significant with the one just mentioned. It directs that every
"free able-bodied white male citizen" shall be enrolled in the
militia. The word white is evidently used to exclude the
African race, and the word "citizen" to exclude unnaturalized
foreigners, the latter forming no part of the sovereignty, owing it
no allegiance, and therefore under no obligation to defend it. The
African race, however, born in the country, did owe allegiance to
the Government, whether they were slave or free, but it is
repudiated, and rejected from the duties and obligations of
citizenship in marked language.

															The third act to which we have alluded is even still more
decisive; it was passed as late as 1813, 2 Stat. 809, and it
provides:

															"That from and after the termination of the war in which the
United States are now engaged with Great Britain, it shall not be
lawful to employ, on board of any public or private vessels of the
United States, any person or persons except citizens of the United
States, or persons of color, natives of the United States.
" Page 60 U. S. 421 Here the line of distinction is drawn in express words. Persons
of color, in the judgment of Congress, were not included in the
word citizens, and they are described as another and different
class of persons, and authorized to be employed, if born in the
United States.

															And even as late as 1820, chap. 104, sec. 8, in the charter to
the city of Washington, the corporation is authorized "to restrain
and prohibit the nightly and other disorderly meetings of slaves,
free negroes, and mulattoes," thus associating them together in its
legislation, and, after prescribing the punishment that may be
inflicted on the slaves, proceeds in the following words:

															"And to punish such free negroes and mulattoes by penalties not
exceeding twenty dollars for any one offence; and in case of the
inability of any such free negro or mulatto, to pay any such
penalty and cost thereon, to cause him or her to be confined to
labor for any time not exceeding six calendar months."

															And in a subsequent part of the same section, the act authorizes
the corporation "to prescribe the terms and conditions upon which
free negroes and mulattoes may reside in the city."

															This law, like the laws of the States, shows that this class of
persons were governed by special legislation directed expressly to
them, and always connected with provisions for the government of
slaves, and not with those for the government of free white
citizens. And after such an uniform course of legislation as we
have stated, by the colonies, by the States, and by Congress,
running through a period of more than a century, it would seem that
to call persons thus marked and stigmatized "citizens" of the
United States, "fellow citizens," a constituent part of the
sovereignty, would be an abuse of terms, and not calculated to
exalt the character of an American citizen in the eyes of other
nations.

															The conduct of the Executive Department of the Government has
been in perfect harmony upon this subject with this course of
legislation. The question was brought officially before the late
William Wirt, when he was the Attorney General of the United
States, in 1821, and he decided that the words "citizens of the
United States" were used in the acts of Congress in the same sense
as in the Constitution, and that free persons of color were not
citizens within the meaning of the Constitution and laws; and this
opinion has been confirmed by that of the late Attorney General,
Caleb Cushing, in a recent case, and acted upon by the Secretary of
State, who refused to grant passports to them as "citizens of the
United States."

															But it is said that a person may be a citizen, and entitled
to Page 60 U. S. 422 that character, although he does not possess all the rights
which may belong to other citizens -- as, for example, the right to
vote, or to hold particular offices -- and that yet, when he goes
into another State, he is entitled to be recognised there as a
citizen, although the State may measure his rights by the rights
which it allows to persons of a like character or class resident in
the State, and refuse to him the full rights of citizenship.

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

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

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

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

															But so far as mere rights of person are concerned, the provision
in question is confined to citizens of a State who are temporarily
in another State without taking up their residence there. It gives
them no political rights in the State as to voting or holding
office, or in any other respect. For a citizen of one State has no
right to participate in the government of another. But if he ranks
as a citizen in the State to which he belongs, within the meaning
of the Constitution of the United States, then, whenever he goes
into another State, the Constitution clothes him, as to the rights
of person, will all the privileges and immunities which belong to
citizens of the Page 60 U. S. 423 State. And if persons of the African race are citizens of a
State, and of the United States, they would be entitled to all of
these privileges and immunities in every State, and the State could
not restrict them, for they would hold these privileges and
immunities under the paramount authority of the Federal Government,
and its courts would be bound to maintain and enforce them, the
Constitution and laws of the State to the contrary notwithstanding.
And if the States could limit or restrict them, or place the party
in an inferior grade, this clause of the Constitution would be
unmeaning, and could have no operation, and would give no rights to
the citizen when in another State. He would have none but what the
State itself chose to allow him. This is evidently not the
construction or meaning of the clause in question. It guaranties
rights to the citizen, and the State cannot withhold them. And
these rights are of a character and would lead to consequences
which make it absolutely certain that the African race were not
included under the name of citizens of a State, and were not in the
contemplation of the framers of the Constitution when these
privileges and immunities were provided for the protection of the
citizen in other States.

															The case of Legrand v.
Darnall , 2 Peters 664, has been referred to for the
purpose of showing that this court has decided that the descendant
of a slave may sue as a citizen in a court of the United States,
but the case itself shows that the question did not arise and could
not have arisen in the case.

															It appears from the report that Darnall was born in Maryland,
and was the son of a white man by one of his slaves, and his father
executed certain instruments to manumit him, and devised to him
some landed property in the State. This property Darnall afterwards
sold to Legrand, the appellant, who gave his notes for the purchase
money. But becoming afterwards apprehensive that the appellee had
not been emancipated according to the laws of Maryland, he refused
to pay the notes until he could be better satisfied as to Darnall's
right to convey. Darnall, in the meantime, had taken up his
residence in Pennsylvania, and brought suit on the notes, and
recovered judgment in the Circuit Court for the district of
Maryland.

															The whole proceeding, as appears by the report, was an amicable
one, Legrand being perfectly willing to pay the money, if he could
obtain a title, and Darnall not wishing him to pay unless he could
make him a good one. In point of fact, the whole proceeding was
under the direction of the counsel who argued the case for the
appellee, who was the mutual friend of the parties and confided in
by both of them, and whose only Page 60 U. S. 424 object was to have the rights of both parties established by
judicial decision in the most speedy and least expensive
manner.

															Legrand, therefore, raised no objection to the jurisdiction of
the court in the suit at law, because he was himself anxious to
obtain the judgment of the court upon his title. Consequently,
there was nothing in the record before the court to show that
Darnall was of African descent, and the usual judgment and award of
execution was entered. And Legrand thereupon filed his bill on the
equity side of the Circuit Court, stating that Darnall was born a
slave, and had not been legally emancipated, and could not
therefore take the land devised to him, nor make Legrand a good
title, and praying an injunction to restrain Darnall from
proceeding to execution on the judgment, which was granted. Darnall
answered, averring in his answer that he was a free man, and
capable of conveying a good title. Testimony was taken on this
point, and at the hearing, the Circuit Court was of opinion that
Darnall was a free man and his title good, and dissolved the
injunction and dismissed the bill; and that decree was affirmed
here, upon the appeal of Legrand.

															Now it is difficult to imagine how any question about the
citizenship of Darnall, or his right to sue in that character, can
be supposed to have arisen or been decided in that case. The fact
that he was of African descent was first brought before the court
upon the bill in equity. The suit at law had then passed into
judgment and award of execution, and the Circuit Court, as a court
of law, had no longer any authority over it. It was a valid and
legal judgment, which the court that rendered it had not the power
to reverse or set aside. And unless it had jurisdiction as a court
of equity to restrain him from using its process as a court of law,
Darnall, if he thought proper, would have been at liberty to
proceed on his judgment, and compel the payment of the money,
although the allegations in the bill were true and he was incapable
of making a title. No other court could have enjoined him, for
certainly no State equity court could interfere in that way with
the judgment of a Circuit Court of the United States.

															But the Circuit Court as a court of equity certainly had equity
jurisdiction over its own judgment as a court of law, without
regard to the character of the parties, and had not only the right,
but it was its duty -- no matter who were the parties in the
judgment -- to prevent them from proceeding to enforce it by
execution if the court was satisfied that the money was not justly
and equitably due. The ability of Darnall to convey did not depend
upon his citizenship, but upon his title to freedom. And if he was
free, he could hold and Page 60 U. S. 425 convey property, by the laws of Maryland, although he was not a
citizen. But if he was by law still a slave, he could not. It was
therefore the duty of the court, sitting as a court of equity in
the latter case, to prevent him from using its process as a court
of common law to compel the payment of the purchase money when it
was evident that the purchaser must lose the land. But if he was
free, and could make a title, it was equally the duty of the court
not to suffer Legrand to keep the land and refuse the payment of
the money upon the ground that Darnall was incapable of suing or
being sued as a citizen in a court of the United States. The
character or citizenship of the parties had no connection with the
question of jurisdiction, and the matter in dispute had no relation
to the citizenship of Darnall. Nor is such a question alluded to in
the opinion of the court.

															Besides, we are by no means prepared to say that there are not
many cases, civil as well as criminal, in which a Circuit Court of
the United States may exercise jurisdiction although one of the
African race is a party; that broad question is not before the
court. The question with which we are now dealing is whether a
person of the African race can be a citizen of the United States,
and become thereby entitled to a special privilege by virtue of his
title to that character, and which, under the Constitution, no one
but a citizen can claim. It is manifest that the case of Legrand
and Darnall has no bearing on that question, and can have no
application to the case now before the court.

															This case, however, strikingly illustrates the consequences that
would follow the construction of the Constitution which would give
the power contended for to a State. It would. in effect. give it
also to an individual. For if the father of young Darnall had
manumitted him in his lifetime, and sent him to reside in a State
which recognised him as a citizen, he might have visited and
sojourned in Maryland when he pleased, and as long as he pleased,
as a citizen of the United States, and the State officers and
tribunals would be compelled by the paramount authority of the
Constitution to receive him and treat him as one of its citizens,
exempt from the laws and police of the State in relation to a
person of that description, and allow him to enjoy all the rights
and privileges of citizenship without respect to the laws of
Maryland, although such laws were deemed by it absolutely essential
to its own safety.

															The only two provisions which point to them and include them
treat them as property and make it the duty of the Government to
protect it; no other power, in relation to this race, is to be
found in the Constitution; and as it is a Government Page 60 U. S. 426 of special, delegated, powers, no authority beyond these two
provisions can be constitutionally exercised. The Government of the
United States had no right to interfere for any other purpose but
that of protecting the rights of the owner, leaving it altogether
with the several States to deal with this race, whether emancipated
or not, as each State may think justice, humanity, and the
interests and safety of society, require. The States evidently
intended to reserve this power exclusively to themselves.

															No one, we presume, supposes that any change in public opinion
or feeling, in relation to this unfortunate race, in the civilized
nations of Europe or in this country, should induce the court to
give to the words of the Constitution a more liberal construction
in their favor than they were intended to bear when the instrument
was framed and adopted. Such an argument would be altogether
inadmissible in any tribunal called on to interpret it. If any of
its provisions are deemed unjust, there is a mode prescribed in the
instrument itself by which it may be amended; but while it remains
unaltered, it must be construed now as it was understood at the
time of its adoption. It is not only the same in words, but the
same in meaning, and delegates the same powers to the Government,
and reserves and secures the same rights and privileges to the
citizen; and as long as it continues to exist in its present form,
it speaks not only in the same words, but with the same meaning and
intent with which it spoke when it came from the hands of its
framers and was voted on and adopted by the people of the United
States. Any other rule of construction would abrogate the judicial
character of this court, and make it the mere reflex of the popular
opinion or passion of the day. This court was not created by the
Constitution for such purposes. Higher and graver trusts have been
confided to it, and it must not falter in the path of duty.

															What the construction was at that time we think can hardly admit
of doubt. We have the language of the Declaration of Independence
and of the Articles of Confederation, in addition to the plain
words of the Constitution itself; we have the legislation of the
different States, before, about the time, and since the
Constitution was adopted; we have the legislation of Congress, from
the time of its adoption to a recent period; and we have the
constant and uniform action of the Executive Department, all
concurring together, and leading to the same result. And if
anything in relation to the construction of the Constitution can be
regarded as settled, it is that which we now give to the word
"citizen" and the word "people."

															And, upon a full and careful consideration of the subject, Page 60 U. S. 427 the court is of opinion, that, upon the facts stated in the plea
in abatement, Dred Scott was not a citizen of Missouri within the
meaning of the Constitution of the United States, and not entitled
as such to sue in its courts, and consequently that the Circuit
Court had no jurisdiction of the case, and that the judgment on the
plea in abatement is erroneous.

															We are aware that doubts are entertained by some of the members
of the court, whether the plea in abatement is legally before the
court upon this writ of error; but if that plea is regarded as
waived, or out of the case upon any other ground, yet the question
as to the jurisdiction of the Circuit Court is presented on the
face of the bill of exception itself, taken by the plaintiff at the
trial, for he admits that he and his wife were born slaves, but
endeavors to make out his title to freedom and citizenship by
showing that they were taken by their owner to certain places,
hereinafter mentioned, where slavery could not by law exist, and
that they thereby became free, and, upon their return to Missouri,
became citizens of that State.

															Now if the removal of which he speaks did not give them their
freedom, then, by his own admission, he is still a slave, and
whatever opinions may be entertained in favor of the citizenship of
a free person of the African race, no one supposes that a slave is
a citizen of the State or of the United States. If, therefore, the
acts done by his owner did not make them free persons, he is still
a slave, and certainly incapable of suing in the character of a
citizen.

															The principle of law is too well settled to be disputed that a
court can give no judgment for either party where it has no
jurisdiction; and if, upon the showing of Scott himself, it
appeared that he was still a slave, the case ought to have been
dismissed, and the judgment against him and in favor of the
defendant for costs is, like that on the plea in abatement,
erroneous, and the suit ought to have been dismissed by the Circuit
Court for want of jurisdiction in that court.

															But, before we proceed to examine this part of the case, it may
be proper to notice an objection taken to the judicial authority of
this court to decide it, and it has been said that, as this court
has decided against the jurisdiction of the Circuit Court on the
plea in abatement, it has no right to examine any question
presented by the exception, and that anything it may say upon that
part of the case will be extrajudicial, and mere obiter
dicta. This is a manifest mistake; there can be no doubt as to the
jurisdiction of this court to revise the judgment of a Circuit
Court, and to reverse it for any error apparent on the record, Page 60 U. S. 428 whether it be the error of giving judgment in a case over which
it had no jurisdiction or any other material error, and this too
whether there is a plea in abatement or not.

															The objection appears to have arisen from confounding writs of
error to a State court with writs of error to a Circuit Court of
the United States. Undoubtedly, upon a writ of error to a State
court, unless the record shows a case that gives jurisdiction, the
case must be dismissed for want of jurisdiction in this
court. And if it is dismissed on that ground, we have no right
to examine and decide upon any question presented by the bill of
exceptions, or any other part of the record. But writs of error to
a State court and to a Circuit Court of the United States are
regulated by different laws, and stand upon entirely different
principles. And in a writ of error to a Circuit Court of the United
States, the whole record is before this court for examination and
decision, and if the sum in controversy is large enough to give
jurisdiction, it is not only the right, but it is the judicial duty
of the court to examine the whole case as presented by the record;
and if it appears upon its face that any material error or errors
have been committed by the court below, it is the duty of this
court to reverse the judgment and remand the case. And certainly an
error in passing a judgment upon the merits in favor of either
party, in a case which it was not authorized to try, and over which
it had no jurisdiction, is as grave an error as a court can
commit.

															The plea in abatement is not a plea to the jurisdiction of this
court, but to the jurisdiction of the Circuit Court. And it appears
by the record before us that the Circuit Court committed an error
in deciding that it had jurisdiction upon the facts in the case
admitted by the pleadings. I t is the duty of the appellate
tribunal to correct this error, but that could not be done by
dismissing the case for want of jurisdiction here -- for that would
leave the erroneous judgment in full force, and the injured party
without remedy. And the appellate court therefore exercises the
power for which alone appellate courts are constituted, by
reversing the judgment of the court below for this error. It
exercises its proper and appropriate jurisdiction over the judgment
and proceedings of the Circuit Court, as they appear upon the
record brought up by the writ of error.

															The correction of one error in the court below does not deprive
the appellate court of the power of examining further into the
record, and correcting any other material errors which may have
been committed by the inferior court. There is certainly no rule of
law nor any practice nor any decision of a Page 60 U. S. 429 court which even questions this power in the appellate tribunal.
On the contrary, it is the daily practice of this court, and of all
appellate courts where they reverse the judgment of an inferior
court for error, to correct by its opinions whatever errors may
appear on the record material to the case, and they have always
held it to be their duty to do so where the silence of the court
might lead to misconstruction or future controversy and the point
has been relied on by either side and argued before the court.

															In the case before us, we have already decided that the Circuit
Court erred in deciding that it had jurisdiction upon the facts
admitted by the pleadings. And it appears that, in the further
progress of the case, it acted upon the erroneous principle it had
decided on the pleadings, and gave judgment for the defendant
where, upon the facts admitted in the exception, it had no
jurisdiction.

															We are at a loss to understand upon what principle of law,
applicable to appellate jurisdiction, it can be supposed that this
court has not judicial authority to correct the last-mentioned
error because they had before corrected the former, or by what
process of reasoning it can be made out that the error of an
inferior court in actually pronouncing judgment for one of the
parties in a case in which it had no jurisdiction cannot be looked
into or corrected by this court because we have decided a similar
question presented in the pleadings. The last point is distinctly
presented by the facts contained in the plaintiff's own bill of
exceptions, which he himself brings here by this writ of error. It
was the point which chiefly occupied the attention of the counsel
on both sides in the argument -- and the judgment which this court
must render upon both errors is precisely the same. It must, in
each of them, exercise jurisdiction over the judgment, and reverse
it for the errors committed by the court below; and issue a mandate
to the Circuit Court to conform its judgment to the opinion
pronounced by this court, by dismissing the case for want of
jurisdiction in the Circuit Court. This is the constant and
invariable practice of this court where it reverses a judgment for
want of jurisdiction in the Circuit Court.

															It can scarcely be necessary to pursue such a question further.
The want of jurisdiction in the court below may appear on the
record without any plea in abatement. This is familiarly the case
where a court of chancery has exercised jurisdiction in a case
where the plaintiff had a plain and adequate remedy at law, and it
so appears by the transcript when brought here by appeal. So also
where it appears that a court of admiralty has exercised
jurisdiction in a case belonging exclusively Page 60 U. S. 430 to a court of common law. In these cases, there is no plea in
abatement. And for the same reason, and upon the same principles,
where the defect of jurisdiction is patent on the record, this
court is bound to reverse the judgment although the defendant has
not pleaded in abatement to the jurisdiction of the inferior
court.

															The cases of Jackson v. Ashton and of Capron v. Van
Noorden, to which we have referred in a previous part of this
opinion, are directly in point. In the last-mentioned case, Capron
brought an action against Van Noorden in a Circuit Court of the
United States without showing, by the usual averments of
citizenship, that the court had jurisdiction. There was no plea in
abatement put in, and the parties went to trial upon the merits.
The court gave judgment in favor of the defendant with costs. The
plaintiff thereupon brought his writ of error, and this court
reversed the judgment given in favor of the defendant and remanded
the case with directions to dismiss it because it did not appear by
the transcript that the Circuit Court had jurisdiction.

															The case before us still more strongly imposes upon this court
the duty of examining whether the court below has not committed an
error in taking jurisdiction and giving a judgment for costs in
favor of the defendant, for in Capron v. Van Noorden, the
judgment was reversed, because it did not appear that the
parties were citizens of different States. They might or might not
be . But in this case it does appear that the plaintiff
was born a slave, and if the facts upon which he relies have not
made him free, then it appears affirmatively on the record that he
is not a citizen, and consequently his suit against Sandford was
not a suit between citizens of different States, and the court had
no authority to pass any judgment between the parties. The suit
ought, in this view of it, to have been dismissed by the Circuit
Court, and its judgment in favor of Sandford is erroneous, and must
be reversed.

															It is true that the result either way, by dismissal or by a
judgment for the defendant, makes very little, if any, difference
in a pecuniary or personal point of view to either party. But the
fact that the result would be very nearly the same to the parties
in either form of judgment would not justify this court in
sanctioning an error in the judgment which is patent on the record,
and which, if sanctioned, might be drawn into precedent, and lead
to serious mischief and injustice in some future suit.

															We proceed, therefore, to inquire whether the facts relied on by
the plaintiff entitled him to his freedom. Page 60 U. S. 431 The case, as he himself states it, on the record brought here by
his writ of error, is this:

															The plaintiff was a negro slave, belonging to Dr. Emerson, who
was a surgeon in the army of the United States. In the year 1834,
he took the plaintiff from the State of Missouri to the military
post at Rock Island, in the State of Illinois, and held him there
as a slave until the month of April or May, 1836. At the time last
mentioned, said Dr. Emerson removed the plaintiff from said
military post at Rock Island to the military post at Fort Snelling,
situate on the west bank of the Mississippi river, in the Territory
known as Upper Louisiana, acquired by the United States of France,
and situate north of the latitude of thirty-six degrees thirty
minutes north, and north of the State of Missouri. Said Dr. Emerson
held the plaintiff in slavery at said Fort Snelling from said
last-mentioned date until the year 1838.

															In the year 1835, Harriet, who is named in the second count of
the plaintiff's declaration, was the negro slave of Major
Taliaferro, who belonged to the army of the United States. In that
year, 1835, said Major Taliaferro took said Harriet to said Fort
Snelling, a military post, situated as hereinbefore stated, and
kept her there as a slave until the year 1836, and then sold and
delivered her as a slave, at said Fort Snelling, unto the said Dr.
Emerson hereinbefore named. Said Dr. Emerson held said Harriet in
slavery at said Fort Snelling until the year 1838.

															In the year 1836, the plaintiff and Harriet intermarried, at
Fort Snelling, with the consent of Dr. Emerson, who then claimed to
be their master and owner. Eliza and Lizzie, named in the third
count of the plaintiff's declaration, are the fruit of that
marriage. Eliza is about fourteen years old, and was born on board
the steamboat Gipsey, north of the north line of the State
of Missouri, and upon the river Mississippi. Lizzie is about seven
years old, and was born in the State of Missouri, at the military
post called Jefferson Barracks.

															In the year 1838, said Dr. Emerson removed the plaintiff and
said Harriet and their said daughter Eliza from said Fort Snelling
to the State of Missouri, where they have ever since resided.

															Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the
defendant, as slaves, and the defendant has ever since claimed to
hold them, and each of them, as slaves.

															In considering this part of the controversy, two questions
arise: 1. Was he, together with his family, free in Missouri by
reason of the stay in the territory of the United States
hereinbefore Page 60 U. S. 432 mentioned? And 2. If they were not, is Scott himself free by
reason of his removal to Rock Island, in the State of Illinois, as
stated in the above admissions?

															We proceed to examine the first question.

															The act of Congress upon which the plaintiff relies declares
that slavery and involuntary servitude, except as a punishment for
crime, shall be forever prohibited in all that part of the
territory ceded by France, under the name of Louisiana, which lies
north of thirty-six degrees thirty minutes north latitude, and not
included within the limits of Missouri. And the difficulty which
meets us at the threshold of this part of the inquiry is whether
Congress was authorized to pass this law under any of the powers
granted to it by the Constitution; for if the authority is not
given by that instrument, it is the duty of this court to declare
it void and inoperative, and incapable of conferring freedom upon
anyone who is held as a slave under the have of anyone of the
States.

															The counsel for the plaintiff has laid much stress upon that
article in the Constitution which confers on Congress the power "to
dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States,"
but, in the judgment of the court, that provision has no bearing on
the present controversy, and the power there given, whatever it may
be, is confined, and was intended to be confined, to the territory
which at that time belonged to, or was claimed by, the United
States, and was within their boundaries as settled by the treaty
with Great Britain, and can have no influence upon a territory
afterwards acquired from a foreign Government. It was a special
provision for a known and particular territory, and to meet a
present emergency, and nothing more.

															A brief summary of the history of the times, as well as the
careful and measured terms in which the article is framed will show
the correctness of this proposition.

															It will be remembered that, from the commencement of the
Revolutionary war, serious difficulties existed between the States
in relation to the disposition of large and unsettled territories
which were included in the chartered limits of some of the States.
And some of the other States, and more especially Maryland, which
had no unsettled lands, insisted that as the unoccupied lands, if
wrested from Great Britain, would owe their preservation to the
common purse and the common sword, the money arising from them
ought to be applied in just proportion among the several States to
pay the expenses of the war, and ought not to be appropriated to
the use of the State in whose chartered limits they might
happen Page 60 U. S. 433 to lie, to the exclusion of the other States, by whose combined
efforts and common expense the territory was defended and preserved
against the claim of the British Government.

															These difficulties caused much uneasiness during the war, while
the issue was in some degree doubtful, and the future boundaries of
the United States yet to be defined by treaty, if we achieved our
independence.

															The majority of the Congress of the Confederation obviously
concurred in opinion with the State of Maryland, and desired to
obtain from the States which claimed it a cession of this
territory, in order that Congress might raise money on this
security to carry on the war. This appears by the resolution passed
on the 6th of September, 1780, strongly urging the States to cede
these lands to the United States, both for the sake of peace and
union among themselves, and to maintain the public credit; and this
was followed by the resolution of October 10th, 1780, by which
Congress pledged itself that if the lands were ceded, as
recommended by the resolution above mentioned, they should be
disposed of for the common benefit of the United States, and be
settled and formed into distinct republican States, which should
become members of the Federal Union, and have the same rights of
sovereignty and freedom and independence as other States.

															But these difficulties became much more serious after peace took
place, and the boundaries of the United States were established.
Every State, at that time, felt severely the pressure of its war
debt; but in Virginia and some other States, there were large
territories of unsettled lands, the sale of which would enable them
to discharge their obligations without much inconvenience, while
other States which had no such resource saw before them many years
of heavy and burdensome taxation, and the latter insisted, for the
reasons before stated, that these unsettled lands should be treated
as the common property of the States, and the proceeds applied to
their common benefit.

															The letters from the statesmen of that day will show how much
this controversy occupied their thoughts, and the dangers that were
apprehended from it. It was the disturbing element of the time, and
fears were entertained that it might dissolve the Confederation by
which the States were then united.

															These fears and dangers were, however, at once removed, when the
State of Virginia, in 1784, voluntarily ceded to the United States
the immense tract of country lying northwest of the river Ohio, and
which was within the acknowledged limits of the State. The only
object of the State in making Page 60 U. S. 434 this cession was to put an end to the threatening and exciting
controversy, and to enable the Congress of that time to dispose of
the lands and appropriate the proceeds as a common fund for the
common benefit of the States. It was not ceded because it was
inconvenient to the State to hold and govern it, nor from any
expectation that it could be better or more conveniently governed
by the United States.

															The example of Virginia was soon afterwards followed by other
States, and, at the time of the adoption of the Constitution, all
of the States, similarly situated had ceded their unappropriated
lands, except North Carolina and Georgia. The main object for which
these cessions were desired and made was on account of their money
value, and to put an end to a dangerous controversy as to who was
justly entitled to the proceeds when the lands should be sold. It
is necessary to bring this part of the history of these cessions
thus distinctly into view because it will enable us the better to
comprehend the phraseology of the article in the Constitution so
often referred to in the argument.

															Undoubtedly the powers of sovereignty and the eminent domain
were ceded with the land. This was essential in order to make it
effectual and to accomplish its objects. But it must be remembered
that, at that time, there was no Government of the United States in
existence with enumerated and limited powers; what was then called
the United States were thirteen separate, sovereign, independent
States which had entered into a league or confederation for their
mutual protection and advantage, and the Congress of the United
States was composed of the representatives of these separate
sovereignties, meeting together, as equals, to discuss and decide
on certain measures which the States, by the Articles of
Confederation, had agreed to submit to their decision. But this
Confederation had none of the attributes of sovereignty in
legislative, executive, or judicial power. It was little more than
a congress of ambassadors, authorized to represent separate nations
in matters in which they had a common concern.

															It was this Congress that accepted the cession from Virginia.
They had no power to accept it under the Articles of Confederation.
But they had an undoubted right, as independent sovereignties, to
accept any cession of territory for their common benefit, which all
of them assented to; and it is equally clear that as their common
property, and having no superior to control them, they had the
right to exercise absolute dominion over it, subject only to the
restrictions which Virginia had imposed in her act of cession.
There was, as we have said, no Government of the United States then
in existence Page 60 U. S. 435 with special enumerated and limited powers. The territory
belonged to sovereignties who, subject to the limitations above
mentioned, had a right to establish any form of government they
pleased by compact or treaty among themselves, and to regulate
rights of person and rights of property in the territory as they
might deem proper. It was by a Congress, representing the authority
of these several and separate sovereignties and acting under their
authority and command (but not from any authority derived from the
Articles of Confederation), that the instrument usually called the
Ordinance of 1787 was adopted, regulating in much detail the
principles and the laws by which this territory should be governed;
and, among other provisions, slavery is prohibited in it. We do not
question the power of the States, by agreement among themselves, to
pass this ordinance, nor its obligatory force in the territory
while the confederation or league of the States in their separate
sovereign character continued to exist.

															This was the state of things when the Constitution of the United
States was formed. The territory ceded by Virginia belonged to the
several confederated States as common property, and they had united
in establishing in it a system of government and jurisprudence in
order to prepare it for admission as States according to the terms
of the cession. They were about to dissolve this federative Union,
and to surrender a portion of their independent sovereignty to a
new Government, which, for certain purposes, would make the people
of the several States one people, and which was to be supreme and
controlling within its sphere of action throughout the United
States; but this Government was to be carefully limited in its
powers, and to exercise no authority beyond those expressly granted
by the Constitution or necessarily to be implied from the language
of the instrument and the objects it was intended to accomplish;
and as this league of States would, upon the adoption of the new
Government, cease to have any power over the territory, and the
ordinance they had agreed upon be incapable of execution, and a
mere nullity, it was obvious that some provision was necessary to
give the new Government sufficient power to enable it to carry into
effect the objects for which it was ceded, and the compacts and
agreements which the States had made with each other in the
exercise of their powers of sovereignty. It was necessary that the
lands should be sold to pay the war debt; that a Government and
system of jurisprudence should be maintained in it to protect the
citizens of the United States who should migrate to the territory,
in their rights of person and of property. It was also necessary
that the new Government, about to be Page 60 U. S. 436 adopted should be authorized to maintain the claim of the United
States to the unappropriated lands in North Carolina and Georgia,
which had not then been ceded but the cession of which was
confidently anticipated upon some terms that would be arranged
between the General Government and these two States. And, moreover,
there were many articles of value besides this property in land,
such as arms, military stores, munitions, and ships of war, which
were the common property of the States, when acting in their
independent characters as confederates, which neither the new
Government nor anyone else would have a right to take possession
of, or control, without authority from them; and it was to place
these things under the guardianship and protection of the new
Government, and to clothe it with the necessary powers, that the
clause was inserted in the Constitution which give Congress the
power "to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United
States." It was intended for a specific purpose, to provide for the
things we have mentioned. It was to transfer to the new Government
the property then held in common by the States, and to give to that
Government power to apply it to the objects for which it had been
destined by mutual agreement among the States before their league
was dissolved. It applied only to the property which the States
held in common at that time, and has no reference whatever to any
territory or other property which the new sovereignty might
afterwards itself acquire.

															The language used in the clause, the arrangement and combination
of the powers, and the somewhat unusual phraseology it uses when it
speaks of the political power to be exercised in the government of
the territory, all indicate the design and meaning of the clause to
be such as we have mentioned. It does not speak of any territory,
nor of Territories, but uses language which, according to its
legitimate meaning, points to a particular thing. The power is
given in relation only to the territory of the United States --
that is, to a territory then in existence, and then known or
claimed as the territory of the United States. It begins its
enumeration of powers by that of disposing, in other words, making
sale of the lands, or raising money from them, which, as we have
already said, was the main object of the cession, and which is
accordingly the first thing provided for in the article. It then
gives the power which was necessarily associated with the
disposition and sale of the lands -- that is, the power of making
needful rules and regulations respecting the territory. And
whatever construction may now be given to these words, everyone, we
think, Page 60 U. S. 437 must admit that they are not the words usually employed by
statesmen in giving supreme power of legislation. They are
certainly very unlike the words used in the power granted to
legislate over territory which the new Government might afterwards
itself obtain by cession from a State, either for its seat of
Government or for forts, magazines, arsenals, dockyards, and other
needful buildings.

															And the same power of making needful rules respecting the
territory is, in precisely the same language, applied to the other
property belonging to the United States -- associating the power
over the territory in this respect with the power over movable or
personal property -- that is, the ships, arms, and munitions of
war, which then belonged in common to the State sovereignties. And
it will hardly be said that this power, in relation to the
last-mentioned objects, was deemed necessary to be thus specially
given to the new Government in order to authorize it to make
needful rules and regulations respecting the ships it might itself
build, or arms and munitions of war it might itself manufacture or
provide for the public service.

															No one, it is believed, would think a moment of deriving the
power of Congress to make needful rules and regulations in relation
to property of this kind from this clause of the Constitution. Nor
can it, upon any fair construction, be applied to any property but
that which the new Government was about the receive from the
confederated States. And if this be true as to this property, it
must be equally true and limited as to the territory, which is so
carefully and precisely coupled with it -- and like it referred to
as property in the power granted. The concluding words of the
clause appear to render this construction irresistible, for, after
the provisions we have mentioned, it proceeds to say, "that nothing
in the Constitution shall be so construed as to prejudice any
claims of the United States, or of any particular State."

															Now, as we have before said, all of the States except North
Carolina and Georgia had made the cession before the Constitution
was adopted, according to the resolution of Congress of October 10,
1780. The claims of other States that the unappropriated lands in
these two States should be applied to the common benefit in like
manner was still insisted on, but refused by the States. And this
member of the clause in question evidently applies to them, and can
apply to nothing else. It was to exclude the conclusion that either
party, by adopting the Constitution, would surrender what they
deemed their rights. And when the latter provision relates so
obviously to the unappropriated lands not yet ceded by the States,
and the first clause makes provision for those then actually ceded,
it is Page 60 U. S. 438 impossible, by any just rule of construction, to make the first
provision general, and extend to all territories, which the Federal
Government might in any way afterwards acquire, when the latter is
plainly and unequivocally confined to a particular territory; which
was a part of the same controversy, and involved in the same
dispute, and depended upon the same principles. The union of the
two provisions in the same clause shows that they were kindred
subjects, and that the whole clause is local, and relates only to
lands within the limits of the United States which had been or then
were claimed by a State, and that no other territory was in the
mind of the framers of the Constitution or intended to be embraced
in it. Upon any other construction, it would be impossible to
account for the insertion of the last provision in the place where
it is found, or to comprehend why or for what object it was
associated with the previous provision.

															This view of the subject is confirmed by the manner in which the
present Government of the United States dealt with the subject as
soon as it came into existence. It must be borne in mind that the
same States that formed the Confederation also formed and adopted
the new Government, to which so large a portion of their former
sovereign powers were surrendered. It must also be borne in mind
that all of these same States which had then ratified the new
Constitution were represented in the Congress which passed the
first law for the government of this territory, and many of the
members of that legislative body had been deputies from the States
under the Confederation -- had united in adopting the Ordinance of
1787 and assisted in forming the new Government under which they
were then acting, and whose powers they were then exercising. And
it is obvious from the law they passed to carry into effect the
principles and provisions of the ordinance that they regarded it as
the act of the States done in the exercise of their legitimate
powers at the time. The new Government took the territory as it
found it, and in the condition in which it was transferred, and did
not attempt to undo anything that had been done. And among the
earliest laws passed under the new Government is one reviving the
Ordinance of 1787, which had become inoperative and a nullity upon
the adoption of the Constitution. This law introduces no new form
or principles for its government, but recites, in the preamble,
that it is passed in order that this ordinance may continue to have
full effect, and proceeds to make only those rules and regulations
which were needful to adapt it to the new Government, into whose
hands the power had fallen. It appears, therefore, that this
Congress regarded the purposes Page 60 U. S. 439 to which the land in this Territory was to be applied and the
form of government and principles of jurisprudence which were to
prevail there, while it remained in the Territorial state, as
already determined on by the States when they had full power and
right to make the decision, and that the new Government, having
received it in this condition, ought to carry substantially into
effect the plans and principles which had been previously adopted
by the States, and which no doubt the States anticipated when they
surrendered their power to the new Government. And if we regard
this clause of the Constitution as pointing to this Territory, with
a Territorial Government already established in it, which had been
ceded to the States for the purposes hereinbefore mentioned --
every word in it is perfectly appropriate and easily understood,
and the provisions it contains are in perfect harmony with the
objects for which it was ceded, and with the condition of its
government as a Territory at the time. We can, then, easily account
for the manner in which the first Congress legislated on the
subject -- and can also understand why this power over the
territory was associated in the same clause with the other property
of the United States, and subjected to the like power of making
needful rules and regulations. But if the clause is construed in
the expanded sense contended for, so as to embrace any territory
acquired from a foreign nation by the present Government and to
give it in such territory a despotic and unlimited power over
persons and property such as the confederated States might exercise
in their common property, it would be difficult to account for the
phraseology used when compared with other grants of power -- and
also for its association with the other provisions in the same
clause.

															The Constitution has always been remarkable for the felicity of
its arrangement of different subjects and the perspicuity and
appropriateness of the language it uses. But if this clause is
construed to extend to territory acquired by the present Government
from a foreign nation, outside of the limits of any charter from
the British Government to a colony, it would be difficult to say
why it was deemed necessary to give the Government the power to
sell any vacant lands belonging to the sovereignty which might be
found within it, and, if this was necessary, why the grant of this
power should precede the power to legislate over it and establish a
Government there, and still more difficult to say why it was deemed
necessary so specially and particularly to grant the power to make
needful rules and regulations in relation to any personal or
movable property it might acquire there. For the words other
property necessarily, by every known rule of interpretation,
must mean Page 60 U. S. 440 property of a different description from territory or land. And
the difficulty would perhaps be insurmountable in endeavoring to
account for the last member of the sentence, which provides that
"nothing in this Constitution shall be so construed as to prejudice
any claims of the United States or any particular State," or to say
how any particular State could have claims in or to a territory
ceded by a foreign Government, or to account for associating this
provision with the preceding provisions of the clause, with which
it would appear to have no connection.

															The words "needful rules and regulations" would seem also to
have been cautiously used for some definite object. They are not
the words usually employed by statesmen when they mean to give the
powers of sovereignty, or to establish a Government, or to
authorize its establishment. Thus, in the law to renew and keep
alive the Ordinance of 1787 and to reestablish the Government, the
title of the law is: "An act to provide for the government of the
territory northwest of the river Ohio." And in the Constitution,
when granting the power to legislate over the territory that may be
selected for the seat of Government independently of a State, it
does not say Congress shall have power "to make all needful rules
and regulations respecting the territory," but it declares that

															"Congress shall have power to exercise exclusive legislation in
all cases whatsoever over such District (not exceeding ten miles
square) as may, by cession of particular States and the acceptance
of Congress, become the seat of the Government of the United
States."

															The words "rules and regulations" are usually employed in the
Constitution in speaking of some particular specified power which
it means to confer on the Government, and not, as we have seen,
when granting general powers of legislation. As, for example, in
the particular power to Congress "to make rules for the government
and regulation of the land and naval forces, or the particular and
specific power to regulate commerce;" "to establish an uniform rule of naturalization;" "to coin money and regulate the value thereof." And to construe the words of
which we are speaking as a general and unlimited grant of
sovereignty over territories which the Government might afterwards
acquire is to use them in a sense and for a purpose for which they
were not used in any other part of the instrument. But if confined
to a particular Territory, in which a Government and laws had
already been established but which would require some alterations
to adapt it to the new Government, the words are peculiarly
applicable and appropriate for that purpose. Page 60 U. S. 441 The necessity of this special provision in relation to property
and the rights or property held in common by the confederated
States is illustrated by the first clause of the sixth article.
This clause provides that

															"all debts, contracts, and engagements entered into before the
adoption of this Constitution shall be as valid against the United
States under this Government as under the Confederation."

															This provision, like the one under consideration, was
indispensable if the new Constitution was adopted. The new
Government was not a mere change in a dynasty, or in a form of
government, leaving the nation or sovereignty the same, and clothed
with all the rights, and bound by all the obligations of the
preceding one. But, when the present United States came into
existence under the new Government, it was a new political body, a
new nation, then for the first time taking its place in the family
of nations. It took nothing by succession from the Confederation.
It had no right, as its successor, to any property or rights of
property which it had acquired, and was not liable for any of its
obligations. It was evidently viewed in this light by the framers
of the Constitution. And as the several States would cease to exist
in their former confederated character upon the adoption of the
Constitution, and could not, in that character, again assemble
together, special provisions were indispensable to transfer to the
new Government the property and rights which at that time they held
in common, and at the same time to authorize it to lay taxes and
appropriate money to pay the common debt which they had contracted;
and this power could only be given to it by special provisions in
the Constitution. The clause in relation to the territory and other
property of the United States provided for the first, and the
clause last quoted provided for the other. They have no connection
with the general powers and rights of sovereignty delegated to the
new Government, and can neither enlarge nor diminish them. They
were inserted to meet a present emergency, and not to regulate its
powers as a Government.

															Indeed, a similar provision was deemed necessary in relation to
treaties made by the Confederation; and when, in the clause next
succeeding the one of which we have last spoken, it is declared
that treaties shall be the supreme law of the land, care is taken
to include, by express words, the treaties made by the confederated
States. The language is: "and all treaties made, or which shall be
made, under the authority of the United States, shall be the
supreme law of the land."

															Whether, therefore, we take the particular clause in question,
by itself, or in connection with the other provisions of the
Constitution, we think it clear that it applies only to the
particular Page 60 U. S. 442 territory of which we have spoken, and cannot, by any just rule
of interpretation, be extended to territory which the new
Government might afterwards obtain from a foreign nation.
Consequently, the power which Congress may have lawfully exercised
in this Territory, while it remained under a Territorial
Government, and which may have been sanctioned by judicial
decision, can furnish no justification and no argument to support a
similar exercise of power over territory afterwards acquired by the
Federal Government. We put aside, therefore, any argument, drawn
from precedents, showing the extent of the power which the General
Government exercised over slavery in this Territory, as altogether
inapplicable to the case before us.

															But the case of the American and Ocean Insurance
Companies v. Canter , 1 Pet. 511, has been quoted as
establishing a different construction of this clause of the
Constitution. There is, however, not the slightest conflict between
the opinion now given and the one referred to, and it is only by
taking a single sentence out of the latter and separating it from
the context that even an appearance of conflict can be shown. We
need not comment on such a mode of expounding an opinion of the
court. Indeed, it most commonly misrepresents instead of expounding
it. And this is fully exemplified in the case referred to, where,
if one sentence is taken by itself, the opinion would appear to be
in direct conflict with that now given, but the words which
immediately follow that sentence show that the court did not mean
to decide the point, but merely affirmed the power of Congress to
establish a Government in the Territory, leaving it an open
question whether that power was derived from this clause in the
Constitution, or was to be necessarily inferred from a power to
acquire territory by cession from a foreign Government. The opinion
on this part of the case is short, and we give the whole of it to
show how well the selection of a single sentence is calculated to
mislead.

															The passage referred to is in page 26 U. S. 542 ,
in which the court, in speaking of the power of Congress to
establish a Territorial Government in Florida until it should
become a State, uses the following language:

															"In the meantime, Florida continues to be a Territory of the
United States, governed by that clause of the Constitution which
empowers Congress to make all needful rules and regulations
respecting the territory or other property of the United States.
Perhaps the power of governing a Territory belonging to the United
States which has not, by becoming a State, acquired the means of
self-government may result necessarily from the facts that it is
not within the jurisdiction of any particular Page 60 U. S. 443 State, and is within the power and jurisdiction of the United
States. The right to govern may be the inevitable consequence of
the right to acquire territory. Whichever may be the source
from which the power is derived, the possession of it is
unquestionable. "

															It is thus clear from the whole opinion on this point that the
court did not mean to decide whether the power was derived from the
clause in the Constitution or was the necessary consequence of the
right to acquire. They do decide that the power in Congress is
unquestionable, and in this we entirely concur, and nothing will be
found in this opinion to the contrary. The power stands firmly on
the latter alternative put by the court -- that is, as " the
inevitable consequence of the right to acquire territory. "

															And what still more clearly demonstrates that the court did not
mean to decide the question, but leave it open for future
consideration, is the fact that the case was decided in the Circuit
Court by Mr. Justice Johnson, and his decision was affirmed by the
Supreme Court. His opinion at the circuit is given in full in a
note to the case, and in that opinion he states, in explicit terms,
that the clause of the Constitution applies only to the territory
then within the limits of the United States, and not to Florida,
which had been acquired by cession from Spain. This part of his
opinion will be found in the note in page 517 of the report
[argument of counsel -- omitted]. But he does not dissent from the
opinion of the Supreme Court, thereby showing that, in his judgment
as well as that of the court, the case before them did not call for
a decision on that particular point, and the court abstained from
deciding it. And in a part of its opinion subsequent to the passage
we have quoted, where the court speak of the legislative power of
Congress in Florida, they still speak with the same reserve. And in
page 26 U. S. 546 ,
speaking of the power of Congress to authorize the Territorial
Legislature to establish courts there, the court say:

															"They are legislative courts, created in virtue of the general
right of sovereignty which exists in the Government, or in virtue
of that clause which enables Congress to make all needful rules and
regulations respecting the territory belonging to the United
States."

															It has been said that the construction given to this clause is
new, and now for the first time brought forward. The case of which
we are speaking, and which has been so much discussed, shows that
the fact is otherwise. It shows that precisely the same question
came before Mr. Justice Johnson, at his circuit, thirty years ago
-- was fully considered by him, and the same construction given to
the clause in the Constitution which is now given by this court.
And that upon an appeal Page 60 U. S. 444 from his decision the same question was brought before this
court, but was not decided because a decision upon it was not
required by the case before the court.

															There is another sentence in the opinion which has been
commented on, which even in a still more striking manner shows how
one may mislead or be misled by taking out a single sentence from
the opinion of a court, and leaving out of view what precedes and
follows. It is in page 26 U. S. 546 ,
near the close of the opinion, in which the court say: "In
legislating for them," (the territories of the United States)
"Congress exercises the combined powers of the General and of a
State Government." And it is said that, as a State may
unquestionably prohibit slavery within its territory, this sentence
decides in effect that Congress may do the same in a Territory of
the United States, exercising there the powers of a State as well
as the power of the General Government.

															The examination of this passage in the case referred to would be
more appropriate when we come to consider in another part of this
opinion what power Congress can constitutionally exercise in a
Territory, over the rights of person or rights of property of a
citizen. But, as it is in the same case with the passage we have
before commented on, we dispose of it now, as it will save the
court from the necessity of referring again to the case. And it
will be seen upon reading the page in which this sentence is found
that it has no reference whatever to the power of Congress over
rights of person or rights of property, but relates altogether to
the power of establishing judicial tribunals to administer the laws
constitutionally passed, and defining the jurisdiction they may
exercise.

															The law of Congress establishing a Territorial Government in
Florida provided that the Legislature of the Territory should have
legislative powers over "all rightful objects of legislation, but
no law should be valid which was inconsistent with the laws and
Constitution of the United States."

															Under the power thus conferred, the Legislature of Florida
passed an act erecting a tribunal at Key West to decide cases of
salvage. And in the case of which we are speaking, the question
arose whether the Territorial Legislature could be authorized by
Congress to establish such a tribunal, with such powers, and one of
the parties, among other objections, insisted that Congress could
not under the Constitution authorize the Legislature of the
Territory to establish such a tribunal with such powers, but that
it must be established by Congress itself, and that a sale of cargo
made under its order to pay salvors was void as made without legal
authority, and passed no property to the purchaser. Page 60 U. S. 445 It is in disposing of this objection that the sentence relied on
occurs, and the court begin that part of the opinion by stating
with great precision the point which they are about to decide.

															They say:

															"It has been contended that by the Constitution of the United
States, the judicial power of the United States extends to all
cases of admiralty and maritime jurisdiction, and that the whole of
the judicial power must be vested 'in one Supreme Court, and in
such inferior courts as Congress shall from time to time ordain and
establish.' Hence it has been argued that Congress cannot vest
admiralty jurisdiction in courts created by the Territorial
Legislature."

															And after thus clearly stating the point before them and which
they were about to decide, they proceed to show that these
Territorial tribunals were not constitutional courts, but merely
legislative, and that Congress might therefore delegate the power
to the Territorial Government to establish the court in question,
and they conclude that part of the opinion in the following
words:

															"Although admiralty jurisdiction can be exercised in the States
in those courts only which are established in pursuance of the
third article of the Constitution, the same limitation does not
extend to the Territories. In legislating for them, Congress
exercises the combined powers of the General and State
Governments."

															Thus it will be seen by these quotations from the opinion that
the court, after stating the question it was about to decide in a
manner too plain to be misunderstood, proceeded to decide it, and
announced, as the opinion of the tribunal, that in organizing the
judicial department of the Government in a Territory of the United
States, Congress does not act under, and is not restricted by, the
third article in the Constitution, and is not bound, in a
Territory, to ordain and establish courts in which the judges hold
their offices during good behaviour, but may exercise the
discretionary power which a State exercises in establishing its
judicial department and regulating the jurisdiction of its courts,
and may authorize the Territorial Government to establish, or may
itself establish, courts in which the judges hold their offices for
a term of years only, and may vest in them judicial power upon
subjects confided to the judiciary of the United States. And in
doing this, Congress undoubtedly exercises the combined power of
the General and a State Government. It exercises the discretionary
power of a State Government in authorizing the establishment of a
court in which the judges hold their appointments for a term of
years only, and not during good behaviour, and it exercises the
power of the General Government in investing that Page 60 U. S. 446 court with admiralty jurisdiction, over which the General
Government had exclusive jurisdiction in the Territory.

															No one, we presume, will question the correctness of that
opinion; nor is there anything in conflict with it in the opinion
now given. The point decided in the case cited has no relation to
the question now before the court. That depended on the
construction of the third article of the Constitution, in relation
to the judiciary of the United States, and the power which Congress
might exercise in a Territory in organizing the judicial department
of the Government. The case before us depends upon other and
different provisions of the Constitution altogether separate and
apart from the one above mentioned. The question as to what courts
Congress may ordain or establish in a Territory to administer laws
which the Constitution authorizes it to pass, and what laws it is
or is not authorized by the Constitution to pass, are widely
different -- are regulated by different and separate articles of
the Constitution, and stand upon different principles. And we are
satisfied that no one who reads attentively the page in Peters'
Reports to which we have referred can suppose that the attention of
the court was drawn for a moment to the question now before this
court, or that it meant in that case to say that Congress had a
right to prohibit a citizen of the United States from taking any
property which he lawfully held into a Territory of the United
States.

															This brings us to examine by what provision of the Constitution
the present Federal Government, under its delegated and restricted
powers, is authorized to acquire territory outside of the original
limits of the United States, and what powers it may exercise
therein over the person or property of a citizen of the United
States while it remains a Territory and until it shall be admitted
as one of the States of the Union.

															There is certainly no power given by the Constitution to the
Federal Government to establish or maintain colonies bordering on
the United States or at a distance to be ruled and governed at its
own pleasure, nor to enlarge its territorial limits in any way
except by the admission of new States. That power is plainly given,
and if a new State is admitted, it needs no further legislation by
Congress, because the Constitution itself defines the relative
rights and powers and duties of the State, and the citizens of the
State, and the Federal Government. But no power is given to acquire
a Territory to be held and governed permanently in that
character.

															And indeed the power exercised by Congress to acquire territory
and establish a Government there, according to its own unlimited
discretion, was viewed with great jealousy by the Page 60 U. S. 447 leading statesmen of the day. And in the Federalist No. 38,
written by Mr. Madison, he speaks of the acquisition of the
Northwestern Territory by the confederated States, by the cession
from Virginia, and the establishment of a Government there, as an
exercise of power not warranted by the Articles of Confederation,
and dangerous to the liberties of the people. And he urges the
adoption of the Constitution as a security and safeguard against
such an exercise of power.

															We do not mean, however, to question the power of Congress in
this respect. The power to expand the territory of the United
States by the admission of new States is plainly given, and, in the
construction of this power by all the departments of the
Government, it has been held to authorize the acquisition of
territory not fit for admission at the time, but to be admitted as
soon as its population and situation would entitle it to admission.
It is acquired to become a State, and not to be held as a colony
and governed by Congress with absolute authority, and, as the
propriety of admitting a new State is committed to the sound
discretion of Congress, the power to acquire territory for that
purpose, to be held by the United States until it is in a suitable
condition to become a State upon an equal footing with the other
States, must rest upon the same discretion. It is a question for
the political department of the Government, and not the judicial,
and whatever the political department of the Government shall
recognise as within the limits of the United States, the judicial
department is also bound to recognise and to administer in it the
laws of the United States so far as they apply, and to maintain in
the Territory the authority and rights of the Government and also
the personal rights and rights of property of individual citizens
as secured by the Constitution. All we mean to say on this point is
that, as there is no express regulation in the Constitution
defining the power which the General Government may exercise over
the person or property of a citizen in a Territory thus acquired,
the court must necessarily look to the provisions and principles of
the Constitution and its distribution of powers for the rules and
principles by which its decision must be governed.

															Taking this rule to guide us, it may be safely assumed that
citizens of the United States who migrate to a Territory belonging
to the people of the United States cannot be ruled as mere
colonists, dependent upon the will of the General Government and to
be governed by any laws it may think proper to impose. The
principle upon which our Governments rest and upon which alone they
continue to exist, is the union of States, sovereign and
independent within their own limits in Page 60 U. S. 448 their internal and domestic concerns, and bound together as one
people by a General Government, possessing certain enumerated and
restricted powers delegated to it by the people of the several
States, and exercising supreme authority within the scope of the
powers granted to it throughout the dominion of the United States.
A power, therefore, in the General Government to obtain and hold
colonies and dependent territories over which they might legislate
without restriction would be inconsistent with its own existence in
its present form. Whatever it acquires, it acquires for the benefit
of the people of the several States who created it. It is their
trustee acting for them, and charged with the duty of promoting the
interests of the whole people of the Union in the exercise of the
powers specifically granted.

															At the time when the Territory in question was obtained by
cession from France, it contained no population fit to be
associated together and admitted as a State, and it therefore was
absolutely necessary to hold possession of it, as a Territory
belonging to the United States, until it was settled and inhabited
by a civilized community capable of self-government, and in a
condition to be admitted on equal terms with the other States as a
member of the Union. But, as we have before said, it was acquired
by the General Government as the representative and trustee of the
people of the United States, and it must therefore be held in that
character for their common and equal benefit, for it was the people
of the several States, acting through their agent and
representative, the Federal Government, who in fact acquired the
Territory in question, and the Government holds it for their common
use until it shall be associated with the other States as a member
of the Union.

															But, until that time arrives, it is undoubtedly necessary that
some Government should be established in order to organize society
and to protect the inhabitants in their persons and property, and
as the people of the United States could act in this matter only
through the Government which represented them and the through which
they spoke and acted when the Territory was obtained, it was not
only within the scope of its powers, but it was its duty, to pass
such laws and establish such a Government as would enable those by
whose authority they acted to reap the advantages anticipated from
its acquisition and to gather there a population which would enable
it to assume the position to which it was destined among the States
of the Union. The power to acquire necessarily carries with it the
power to preserve and apply to the purposes for which it was
acquired. The form of government to be established Page 60 U. S. 449 necessarily rested in the discretion of Congress. It was their
duty to establish the one that would be best suited for the
protection and security of the citizens of the United States and
other inhabitants who might be authorized to take up their abode
there, and that must always depend upon the existing condition of
the Territory as to the number and character of its inhabitants and
their situation in the Territory. In some cases, a Government
consisting of persons appointed by the Federal Government would
best subserve the interests of the Territory when the inhabitants
were few and scattered, and new to one another. In other instances,
it would be more advisable to commit the powers of self-government
to the people who had settled in the Territory, as being the most
competent to determine what was best for their own interests. But
some form of civil authority would be absolutely necessary to
organize and preserve civilized society and prepare it to become a
State, and what is the best form must always depend on the
condition of the Territory at the time, and the choice of the mode
must depend upon the exercise of a discretionary power by Congress,
acting within the scope of its constitutional authority, and not
infringing upon the rights of person or rights of property of the
citizen who might go there to reside, or for any other lawful
purpose. It was acquired by the exercise of this discretion, and it
must be held and governed in like manner until it is fitted to be a
State.

															But the power of Congress over the person or property of a
citizen can never be a mere discretionary power under our
Constitution and form of Government. The powers of the Government
and the rights and privileges of the citizen are regulated and
plainly defined by the Constitution itself. And when the Territory
becomes a part of the United States, the Federal Government enters
into possession in the character impressed upon it by those who
created it. It enters upon it with its powers over the citizen
strictly defined, and limited by the Constitution, from which it
derives its own existence and by virtue of which alone it continues
to exist and act as a Government and sovereignty. It has no power
of any kind beyond it, and it cannot, when it enters a Territory of
the United States, put off its character and assume discretionary
or despotic powers which the Constitution has denied to it. It
cannot create for itself a new character separated from the
citizens of the United States and the duties it owes them under the
provisions of the Constitution. The Territory being a part of the
United States, the Government and the citizen both enter it under
the authority of the Constitution, with their respective rights
defined and marked out, and the Federal Government Page 60 U. S. 450 can exercise no power over his person or property beyond what
that instrument confers, nor lawfully deny any right which it has
reserved.

															A reference to a few of the provisions of the Constitution will
illustrate this proposition.

															For example, no one, we presume, will contend that Congress can
make any law in a Territory respecting the establishment of
religion, or the free exercise thereof, or abridging the freedom of
speech or of the press, or the right of the people of the Territory
peaceably to assemble and to petition the Government for the
redress of grievances.

															Nor can Congress deny to the people the right to keep and bear
arms, nor the right to trial by jury, nor compel anyone to be a
witness against himself in a criminal proceeding.

															These powers, and others in relation to rights of person which
it is not necessary here to enumerate, are, in express and positive
terms, denied to the General Government, and the rights of private
property have been guarded with equal care. Thus, the rights of
property are united with the rights of person, and placed on the
same ground by the fifth amendment to the Constitution, which
provides that no person shall be deprived of life, liberty, and
property, without due process of law. And an act of Congress which
deprives a citizen of the United States of his liberty or property
merely because he came himself or brought his property into a
particular Territory of the United States, and who had committed no
offence against the laws, could hardly be dignified with the name
of due process of law.

															So, too, it will hardly be contended that Congress could by law
quarter a soldier in a house in a Territory without the consent of
the owner, in time of peace nor in time of war, but in a manner
prescribed by law. Nor could they by law forfeit the property of a
citizen in a Territory who was convicted of treason, for a longer
period than the life of the person convicted, nor take private
property for public use without just compensation.

															The powers over person and property of which we speak are not
only not granted to Congress, but are in express terms denied, and
they are forbidden to exercise them. And this prohibition is not
confined to the States, but the words are general, and extend to
the whole territory over which the Constitution gives it power to
legislate, including those portions of it remaining under
Territorial Government, as well as that covered by States. It is a
total absence of power everywhere within the dominion of the United
States, and places the citizens of a Territory, so far as these
rights are Page 60 U. S. 451 concerned, on the same footing with citizens of the States, and
guards them as firmly and plainly against any inroads which the
General Government might attempt under the plea of implied or
incidental powers. And if Congress itself cannot do this -- if it
is beyond the powers conferred on the Federal Government -- it will
be admitted, we presume, that it could not authorize a Territorial
Government to exercise them. It could confer no power on any local
Government established by its authority to violate the provisions
of the Constitution.

															It seems, however, to be supposed that there is a difference
between property in a slave and other property and that different
rules may be applied to it in expounding the Constitution of the
United States. And the laws and usages of nations, and the writings
of eminent jurists upon the relation of master and slave and their
mutual rights and duties, and the powers which Governments may
exercise over it have been dwelt upon in the argument.

															But, in considering the question before us, it must be borne in
mind that there is no law of nations standing between the people of
the United States and their Government and interfering with their
relation to each other. The powers of the Government and the rights
of the citizen under it are positive and practical regulations
plainly written down. The people of the United States have
delegated to it certain enumerated powers and forbidden it to
exercise others. It has no power over the person or property of a
citizen but what the citizens of the United States have granted.
And no laws or usages of other nations, or reasoning of statesmen
or jurists upon the relations of master and slave, can enlarge the
powers of the Government or take from the citizens the rights they
have reserved. And if the Constitution recognises the right of
property of the master in a slave, and makes no distinction between
that description of property and other property owned by a citizen,
no tribunal, acting under the authority of the United States,
whether it be legislative, executive, or judicial, has a right to
draw such a distinction or deny to it the benefit of the provisions
and guarantees which have been provided for the protection of
private property against the encroachments of the Government.

															Now, as we have already said in an earlier part of this opinion
upon a different point, the right of property in a slave is
distinctly and expressly affirmed in the Constitution. The right to
traffic in it, like an ordinary article of merchandise and
property, was guarantied to the citizens of the United States in
every State that might desire it for twenty years. And the
Government in express terms is pledged to protect Page 60 U. S. 452 it in all future time if the slave escapes from his owner. This
is done in plain words -- too plain to be misunderstood. And no
word can be found in the Constitution which gives Congress a
greater power over slave property or which entitles property of
that kind to less protection that property of any other
description. The only power conferred is the power coupled with the
duty of guarding and protecting the owner in his rights.

															Upon these considerations, it is the opinion of the court that
the act of Congress which prohibited a citizen from holding and
owning property of this kind in the territory of the United States
north of the line therein mentioned is not warranted by the
Constitution, and is therefore void, and that neither Dred Scott
himself nor any of his family were made free by being carried into
this territory, even if they had been carried there by the owner
with the intention of becoming a permanent resident.

															We have so far examined the case, as it stands under the
Constitution of the United States, and the powers thereby delegated
to the Federal Government.

															But there is another point in the case which depends on State
power and State law. And it is contended, on the part of the
plaintiff, that he is made free by being taken to Rock Island, in
the State of Illinois, independently of his residence in the
territory of the United States, and being so made free, he was not
again reduced to a state of slavery by being brought back to
Missouri.

															Our notice of this part of the case will be very brief, for the
principle on which it depends was decided in this court, upon much
consideration, in the case of Strader et al. v.
Graham , reported in 10th Howard 82. In that case,
the slaves had been taken from Kentucky to Ohio, with the consent
of the owner, and afterwards brought back to Kentucky. And this
court held that their status or condition as free or slave depended
upon the laws of Kentucky when they were brought back into that
State, and not of Ohio, and that this court had no jurisdiction to
revise the judgment of a State court upon its own laws. This was
the point directly before the court, and the decision that this
court had not jurisdiction turned upon it, as will be seen by the
report of the case.

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

															It has, however, been urged in the argument that, by the laws of
Missouri, he was free on his return, and that this case Page 60 U. S. 453 therefore cannot be governed by the case of Strader et al.
v. Graham, where it appeared, by the laws of Kentucky, that
the plaintiffs continued to be slaves on their return from Ohio.
But whatever doubts or opinions may at one time have been
entertained upon this subject, we are satisfied, upon a careful
examination of all the cases decided in the State courts of
Missouri referred to, that it is now firmly settled by the
decisions of the highest court in the State that Scott and his
family upon their return were not free, but were, by the laws of
Missouri, the property of the defendant, and that the Circuit Court
of the United States had no jurisdiction when, by the laws of the
State, the plaintiff was a slave and not a citizen.

															Moreover, the plaintiff, it appears, brought a similar action
against the defendant in the State court of Missouri, claiming the
freedom of himself and his family upon the same grounds and the
same evidence upon which he relies in the case before the court.
The case was carried before the Supreme Court of the State, was
fully argued there, and that court decided that neither the
plaintiff nor his family were entitled to freedom, and were still
the slaves of the defendant, and reversed the judgment of the
inferior State court, which had given a different decision. If the
plaintiff supposed that this judgment of the Supreme Court of the
State was erroneous, and that this court had jurisdiction to revise
and reverse it, the only mode by which he could legally bring it
before this court was by writ of error directed to the Supreme
Court of the State, requiring it to transmit the record to this
court. If this had been done, it is too plain for argument that the
writ must have been dismissed for want of jurisdiction in this
court. The case of Strader and others v. Graham is
directly in point, and, indeed, independent of any decision, the
language of the 25th section of the act of 1789 is too clear and
precise to admit of controversy.

															But the plaintiff did not pursue the mode prescribed by law for
bringing the judgment of a State court before this court for
revision, but suffered the case to be remanded to the inferior
State court, where it is still continued, and is, by agreement of
parties, to await the judgment of this court on the point. All of
this appears on the record before us, and by the printed report of
the case.

															And while the case is yet open and pending in the inferior State
court, the plaintiff goes into the Circuit Court of the United
States, upon the same case and the same evidence and against the
same party, and proceeds to judgment, and then brings here the same
case from the Circuit Court, which the law would not have permitted
him to bring directly from the Page 60 U. S. 454 State court. And if this court takes jurisdiction in this form,
the result, so far as the rights of the respective parties are
concerned, is in every respect substantially the same as if it had,
in open violation of law, entertained jurisdiction over the
judgment of the State court upon a writ of error, and revised and
reversed its judgment upon the ground that its opinion upon the
question of law was erroneous. It would ill become this court to
sanction such an attempt to evade the law, or to exercise an
appellate power in this circuitous way which it is forbidden to
exercise in the direct and regular and invariable forms of judicial
proceedings.

															Upon the whole, therefore, it is the judgment of this court that
it appears by the record before us that the plaintiff in error is
not a citizen of Missouri in the sense in which that word is used
in the Constitution, and that the Circuit Court of the United
States, for that reason, had no jurisdiction in the case, and could
give no judgment in it. Its judgment for the defendant must,
consequently, be reversed, and a mandate issued directing the suit
to be dismissed for want of jurisdiction.

															Mr. Justice WAYNE.

															Concurring as I do entirely in the opinion of the court as it
has been written and read by the Chief Justice -- without any
qualification of its reasoning or its conclusions -- I shall
neither read nor file an opinion of my own in this case, which I
prepared when I supposed it might be necessary and proper for me to
do so.

															The opinion of the court meets fully and decides every point
which was made in the argument of the case by the counsel on either
side of it. Nothing belonging to the case has been left undecided,
nor has any point been discussed and decided which was not called
for by the record or which was not necessary for the judicial
disposition of it in the way that it has been done, by more than a
majority of the court.

															In doing this, the court neither sought nor made the case. It
was brought to us in the course of that administration of the laws
which Congress has enacted, for the review of cases from the
Circuit Courts by the Supreme Court.

															In our action upon it, we have only discharged our duty as a
distinct and efficient department of the Government, as the framers
of the Constitution meant the judiciary to be and as the States of
the Union and the people of those States intended it should be when
they ratified the Constitution of the United States.

															The case involves private rights of value, and constitutional
principles of the highest importance about which there had Page 60 U. S. 455 become such a difference of opinion, that the peace and harmony
of the country required the settlement of them by judicial
decision.

															It would certainly be a subject of regret that the conclusions
of the court have not been assented to by all of its members if I
did not know from its history and my own experience how rarely it
has happened that the judges have been unanimous upon
constitutional questions of moment and if our decision in this case
had not been made by as large a majority of them as has been
usually had on constitutional questions of importance.

															Two of the judges, Mr. Justices McLean and Curtis, dissent from
the opinion of the court. A third, Mr. Justice Nelson, gives a
separate opinion upon a single point in the case with which I
concur, assuming that the Circuit Court had jurisdiction, but he
abstains altogether from expressing any opinion upon the eighth
section of the act of 1820, known commonly as the Missouri
Compromise law, and six of us declare that it was
unconstitutional.

															But it has been assumed that this court has acted
extrajudicially in giving an opinion upon the eighth section of the
act of 1820 because, as it has decided that the Circuit Court had
no jurisdiction of the case, this court had no jurisdiction to
examine the case upon its merits.

															But the error of such an assertion has arisen in part from a
misapprehension of what has been heretofore decided by the Supreme
Court in cases of a like kind with that before us, in part from a
misapplication to the Circuit Courts of the United States of the
rules of pleading concerning pleas to the jurisdiction which
prevail in common law courts, and from its having been forgotten
that this case was not brought to this court by appeal or writ of
error from a State court, but by a writ of error to the Circuit
Court of the United States.

															The cases cited by the Chief Justice to show that this court has
now only done what it has repeatedly done before in other cases,
without any question of its correctness, speak for themselves. The
differences between the rules concerning pleas to the jurisdiction
in the courts of the United States and common law courts have been
stated and sustained by reasoning and adjudged cases, and it has
been shown that writs of error to a State court and to the Circuit
Courts of the United States are to be determined by different laws
and principles. In the first, it is our duty to ascertain if this
court has jurisdiction, under the twenty-fifth section of the
Judiciary Act, to review the case from the State court, and if it
shall be found that it has not, the case is at end so far as this
court is concerned, for our power Page 60 U. S. 456 to review the case upon its merits has been made, by the
twenty-fifth section, to depend upon its having jurisdiction, when
it has not, this court cannot criticise, controvert, or give any
opinion upon the merits of a case from a State court.

															But in a case brought to this court, by appeal or by writ of
error from a Circuit Court of the United States, we begin
a review of it not by inquiring if this court has jurisdiction, but
if that court has it. If the case has been decided by that court
upon its merits, but the record shows it to be deficient in those
averments which by the law of the United States must be made by the
plaintiff in the action to give the court jurisdiction of his case,
we send it back to the court from which it was brought with
directions to be dismissed though it has been decided there upon
its merits.

															So, in a case containing the averments by the plaintiff which
are necessary to give the Circuit Court jurisdiction, if the
defendant shall file his plea in abatement denying the truth of
them, and the plaintiff shall demur to it, and the court should erroneously sustain the plaintiff's demurrer, or declare the
plea to be insufficient, and by doing so require the defendant to
answer over by a plea to the merits, and shall decide the case upon
such pleading, this court has the same authority to inquire
into the jurisdiction of that court to do so, and to correct its
error in that regard, that it had in the other case to correct its
error, in trying a case in which the plaintiff had not made those
averments which were necessary to give the court jurisdiction. In
both cases, the record is resorted to to determine the point of
jurisdiction, but, as the power of review of cases from a Federal
court by this court is not limited by the law to a part of the
case, this court may correct an error upon the merits, and there is
the same reason for correcting an erroneous judgment of the Circuit
Court where the want of jurisdiction appears from any part of the
record that there is for declaring a want of jurisdiction for a
want of necessary averments. Any attempt to control the court from
doing so by the technical common law rules of pleading in cases of
jurisdiction, when a defendant has been denied his plea to it,
would tend to enlarge the jurisdiction of the Circuit Court by
limiting this court's review of its judgments in that particular.
But I will not argue a point already so fully discussed. I have
every confidence in the opinion of the court upon the point of
jurisdiction, and do not allow myself to doubt that the error of a
contrary conclusion will be fully understood by all who shall read
the argument of the Chief Justice.

															I have already said that the opinion of the court has my
unqualified assent. Page 60 U. S. 457 Mr. Justice NELSON.

															I shall proceed to state the grounds upon which I have arrived
at the conclusion that the judgment of the court below should be
affirmed. The suit was brought in the court below by the plaintiff
for the purpose of asserting his freedom and that of Harriet, his
wife, and two children.

															The defendant plead in abatement to the suit that the cause of
action, if any, accrued to the plaintiff out of the jurisdiction of
the court, and exclusively within the jurisdiction of the courts of
the State of Missouri, for that the said plaintiff is not a citizen
of the State of Missouri, as alleged in the declaration, because he
is a negro of African descent, his ancestors were of pure African
blood, and were brought into this country and sold as negro
slaves.

															To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court below sustained the demurrer, holding that the
plea was insufficient in law to abate the suit.

															The defendant then plead over in bar of the action:

															1. The general issue. 2. That the plaintiff was a negro slave,
the lawful property of the defendant. And 3. That Harriet, the wife
of said plaintiff, and the two children, were the lawful slaves of
the said defendant. Issue was taken upon these pleas, and the cause
went down to trial before the court and jury, and an agreed state
of facts was presented upon which the trial proceeded and resulted
in a verdict for the defendant, under the instructions of the
court.

															The facts agreed upon were substantially as follows:

															That, in the year 1834, the plaintiff, Scott, was a negro slave
of Dr. Emerson, who was a surgeon in the army of the United States,
and in that year he took the plaintiff from the State of Missouri
to the military post at Rock Island, in the State of Illinois, and
held him there as a slave until the month of April or May, 1836. At
this date, Dr. Emerson removed, with the plaintiff, from the Rock
Island post to the military post at Fort Snelling, situate on the
west bank of the Mississippi river, in the Territory of Upper
Louisiana, and north of the latitude thirty-six degrees thirty
minutes, and north of the State of Missouri. That he held the
plaintiff in slavery at Fort Snelling from the last-mentioned date
until the year 1838.

															That, in the year 1835, Harriet, mentioned in the declaration,
was a negro slave of Major Taliaferro, who belonged to the army of
the United States, and in that year he took her to Fort Snelling,
already mentioned, and kept her there as a slave until the year
1836, and then sold and delivered her to Dr. Emerson, who held her
in slavery at Fort Snelling until the year 1838. That, in the year
1836, the plaintiff and Harriet Page 60 U. S. 458 were married at Fort Snelling with the consent of their master.
The two children, Eliza and Lizzie, are the fruit of this marriage.
The first is about fourteen years of age, and was born on board the
steamboat Gipsey, north of the State of Missouri, and upon
the Mississippi river, the other, about seven years of age, was
born in the State of Missouri at the military post called Jefferson
Barracks.

															In 1838, Dr. Emerson removed the plaintiff Harriet and their
daughter Eliza from Fort Snelling to the State of Missouri, where
they have ever since resided. And that, before the commencement of
this suit, they were sold by the Doctor to Sandford, the defendant,
who has claimed and held them as slaves ever since.

															The agreed case also states that the plaintiff brought a suit
for his freedom, in the Circuit Court of the State of Missouri, on
which a judgment was rendered in his favor, but that, on a writ of
error from the Supreme Court of the State, the judgment of the
court below was reversed, and the cause remanded to the circuit for
a new trial.

															On closing the testimony in the court below, the counsel for the
plaintiff prayed the court to instruct the jury, upon the agreed
state of facts, that they ought to find for the plaintiff, when the
court refused, and instructed them that, upon the facts, the law
was with the defendant.

															With respect to the plea in abatement, which went to the
citizenship of the plaintiff and his competency to bring a suit in
the Federal courts, the common law rule of pleading is that, upon a
judgment against the plea on demurrer, and that the defendant
answer over, and the defendant submits to the judgment and pleads
over to the merits, the plea in abatement is deemed to be waived,
and is not afterwards to be regarded as a part of the record in
deciding upon the rights regarded as a part of the record in
deciding upon the rights of the parties. There is some question,
however, whether this rule of pleading applies to the peculiar
system and jurisdiction of the Federal courts. As, in these courts,
if the facts appearing on the record show that the Circuit Court
had no jurisdiction, its judgment will be reversed in the appellate
court for that cause, and the case remanded with directions to be
dismissed.

															In the view we have taken of the case, it will not be necessary
to pass upon this question, and we shall therefore proceed at once
to an examination of the case upon its merits. The question upon
the merits, in general terms, is whether or not the removal of the
plaintiff, who was a slave, with his master from the State of
Missouri to the State of Illinois, with a view to a temporary
residence, and after such residence and Page 60 U. S. 459 return to the slave State, such residence in the free State
works an emancipation.

															As appears from an agreed statement of facts, this question has
been before the highest court of the State of Missouri, and a
judgment rendered that this residence in the free State has no such
effect, but, on the contrary, that his original condition continued
unchanged.

															The court below, the Circuit Court of the United States for
Missouri, in which this suit was afterwards brought, followed the
decision of the State court, and rendered a like judgment against
the plaintiff.

															The argument against these decisions is that the laws of
Illinois forbidding slavery within her territory had the effect to
set the slave free while residing in that State, and to impress
upon him the condition and status of a freeman, and that, by force
of these laws, this status and condition accompanied him on his
return to the slave State, and, of consequence, he could not be
there held as a slave.

															This question has been examined in the courts of several of the
slaveholding States, and different opinions expressed and
conclusions arrived at. We shall hereafter refer to some of them,
and to the principles upon which they are founded. Our opinion is
that the question is one which belongs to each State to decide for
itself, either by its Legislature or courts of justice, and hence,
in respect to the case before us, to the State of Missouri -- a
question exclusively of Missouri law, and which, when determined by
that State, it is the duty of the Federal courts to follow it. In
other words, except in cases where the power is restrained by the
Constitution of the United States, the law of the State is supreme
over the subject of slavery within its jurisdiction.

															As a practical illustration of the principle, we may refer to
the legislation of the free States in abolishing slavery and
prohibiting its introduction into their territories. Confessedly,
except as restrained by the Federal Constitution, they exercised,
and rightfully, complete and absolute power over the subject. Upon
what principle, then, can it be denied to the State of Missouri?
The power flows from the sovereign character of the States of the
Union, sovereign not merely as respects the Federal Government --
except as they have consented to its limitation -- but sovereign as
respects each other. Whether, therefore, the State of Missouri will
recognise or give effect to the laws of Illinois within her
territories on the subject of slavery is a question for her to
determine. Nor is there any constitutional power in this Government
that can rightfully control her. Page 60 U. S. 460 Every State or nation possesses an exclusive sovereignty and
jurisdiction within her own territory, and her laws affect and bind
all property and persons residing within it. It may regulate the
manner and circumstances under which property is held, and the
condition, capacity, and state of all persons therein, and also the
remedy and modes of administering justice. And it is equally true
that no State or nation can affect or bind property out of its
territory, or persons not residing within it. No State therefore
can enact laws to operate beyond its own dominions, and if it
attempts to do so, it may be lawfully refused obedience. Such laws
can have no inherent authority extraterritorially. This is the
necessary result of the independence of distinct and separate
sovereignties.

															Now it follows from these principles that whatever force or
effect the laws of one State or nation may have in the territories
of another must depend solely upon the laws and municipal
regulations of the latter, upon its own jurisprudence and polity,
and upon its own express or tacit consent.

															Judge Story observes in his Conflict of Laws, p. 24,

															"that a State may prohibit the operation of all foreign laws,
and the rights growing out of them, within its territories. . . .
And that, when its code speaks positively on the subject, it must
be obeyed by all persons who are within reach of its sovereignty;
when its customary unwritten or common law speaks directly on the
subject, it is equally to be obeyed."

															Nations, from convenience and comity and from mutual interest
and a sort of moral necessity to do justice, recognise and
administer the laws of other countries. But of the nature, extent,
and utility of them respecting property or the state and condition
of persons within her territories, each nation judges for itself,
and is never bound, even upon the ground of comity, to recognise
them if prejudicial to her own interests. The recognition is purely
from comity, and not from any absolute or paramount obligation.

															Judge Story again observes, p. 398,

															"that the true foundation and extent of the obligation of the
laws of one nation within another is the voluntary consent of the
latter, and is inadmissible when they are contrary to its known
interests."

															And he adds,

															"in the silence of any positive rule affirming or denying or
restraining the operation of the foreign laws, courts of justice
presume the tacit adoption of them by their own Government unless
they are repugnant to its policy or prejudicial to its
interests." See also 2 Kent Com., p. 457, 38 U. S. 13 Peters
519, 38 U. S.
589 .

															These principles fully establish that it belongs to the
sovereign Page 60 U. S. 461 State of Missouri to determine by her laws the question of
slavery within her jurisdiction, subject only to such limitations
as may be found in the Federal Constitution, and further that the
laws of other States of the Confederacy, whether enacted by their
Legislatures or expounded by their courts, can have no operation
within her territory or affect rights growing out of her own laws
on the subject. This is the necessary result of the independent and
sovereign character of the State. The principle is not peculiar to
the State of Missouri, but is equally applicable to each State
belonging to the Confederacy. The laws of each have no
extraterritorial operation within the jurisdiction of another
except such as may be voluntarily conceded by her laws or courts of
justice. To the extent of such concession upon the rule of comity
of nations, the foreign law may operate, as it then becomes a part
of the municipal law of the State. When determined that the foreign
law shall have effect, the municipal law of the State retires and
gives place to the foreign law.

															In view of these principles, let us examine a little more
closely the doctrine of those who maintain that the law of Missouri
is not to govern the status and condition of the plaintiff. They
insist that the removal and temporary residence with his master in
Illinois, where slavery is inhibited, had the effect to set him
free, and that the same effect is to be given to the law of
Illinois, within the State of Missouri, after his return. Why was
he set free in Illinois? Because the law of Missouri, under which
he was held as a slave, had no operation by its own force
extraterritorially, and the State of Illinois refused to recognise
its effect within her limits, upon principles of comity, as a state
of slavery was inconsistent with her laws and contrary to her
policy. But how is the case different on the return of the
plaintiff to the State of Missouri? Is she bound to recognise and
enforce the law of Illinois? For unless she is the status and
condition of the slave upon his return remains the same as
originally existed. Has the law of Illinois any greater force
within the jurisdiction of Missouri than the laws of the latter
within that of the former? Certainly not. They stand upon an equal
footing. Neither has any force extraterritorially except what may
be voluntarily conceded to them.

															It has been supposed by the counsel for the plaintiff that a
rule laid down by Huberus had some bearing upon this question.
Huberus observes that

															"personal qualities, impressed by the laws of any place,
surround and accompany the person wherever he goes, with this
effect: that in every place he enjoys and is subject to the same
law which other persons of his Page 60 U. S. 462 class elsewhere enjoy or are subject to."

															De Confl.Leg., lib. 1, tit. 3, sec. 12, 1 Story Con.Laws, pp.
59, 60.

															The application sought to be given to the rule was this: that as
Dred Scott was free while residing in the State of Illinois, by the
laws of that State, on his return to the State of Missouri, he
carried with him the personal qualities of freedom, and that the
same effect must be given to his status there as in the former
State. But the difficulty in the case is in the total
misapplication of the rule.

															These personal qualities to which Huberus refers are those
impressed upon the individual by the law of the domicil; it is this
that the author claims should be permitted to accompany the person
into whatever country he might go, and should supersede the law of
the place where he had taken up a temporary residence.

															Now as the domicil of Scott was in the State of Missouri, where
he was a slave, and from whence he was taken by his master into
Illinois for a temporary residence, according to the doctrine of
Huberus, the law of his domicil would have accompanied him, and,
during his residence there, he would remain in the same condition
as in the State of Missouri. In order to have given effect to the
rule, as claimed in the argument, it should have been first shown
that a domicil had been acquired in the free State, which cannot be
pretended upon the agreed facts in the case. But the true answer to
the doctrine of Huberus is that the rule, in any aspect in which it
may be viewed, has no bearing upon either side of the question
before us, even if conceded to the extent laid down by the author,
for he admits that foreign Governments give effect to these laws of
the domicil no further than they are consistent with their own laws
and not prejudicial to their own subjects; in other words, their
force and effect depend upon the law of comity of the foreign
Government. We should add also that this general rule of Huberus,
referred to, has not been admitted in the practice of nations, nor
is it sanctioned by the most approved jurists of international law.
Story Con., sec. 91, 96, 103, 104; 2 Kent. Com., p. 457, 458; 1
Burge Con.Laws, pp. 12, 127.

															We come now to the decision of this court in the case of Strader et al. v.
Graham , 10 How. 2. The case came up from the Court
of Appeals, in the State of Kentucky. The question in the case was
whether certain slaves of Graham, a resident of Kentucky, who had
been employed temporarily at several places in the State of Ohio
with their master's consent and had returned to Kentucky into his
service, had thereby Page 60 U. S. 463 become entitled to their freedom. The Court of Appeals held that
they had not. The case was brought to this court under the
twenty-fifth section of the Judiciary Act. This court held that it
had no jurisdiction, for the reason the question was one that
belonged exclusively to the State of Kentucky. The Chief Justice,
in delivering the opinion of the court, observed that

															"every State has an undoubted right to determine the status or
domestic and social condition of the persons domiciled within its
territory, except insofar as the powers of the States in this
respect are restrained, or duties and obligations imposed upon
them, by the Constitution of the United States. There is nothing in
the Constitution of the United States, he observes that can in any
degree control the law of Kentucky upon this subject. And the
condition of the negroes, therefore, as to freedom or slavery after
their return depended altogether upon the laws of that State, and
could not be influenced by the laws of Ohio. It was exclusively in
the power of Kentucky to determine for herself whether their
employment in another State should or should not make them free on
their return."

															It has been supposed, in the argument on the part of the
plaintiff that the eighth section of the act of Congress passed
March 6, 1820, 3 St. at Large, p. 544, which prohibited slavery
north of thirty-six degrees thirty minutes, within which the
plaintiff and his wife temporarily resided at Fort Snelling,
possessed some superior virtue and effect, extraterritorially and
within the State of Missouri, beyond that of the laws of Illinois
or those of Ohio in the case of Strader et al. v. Graham. A similar ground was taken and urged upon the court in the case
just mentioned, under the Ordinance of 1787, which was enacted
during the time of the Confederation and reenacted by Congress
after the adoption of the Constitution with some amendments
adapting it to the new Government. 1 St. at Large p. 50.

															In answer to this ground, the Chief Justice, in delivering the
opinion of the court, observed:

															"The argument assumes that the six articles which that ordinance
declares to be perpetual are still in force in the States since
formed within the territory and admitted into the Union. If this
proposition could be maintained, it would not alter the question,
for the regulations of Congress, under the old Confederation or the
present Constitution, for the government of a particular Territory
could have no force beyond its limits. It certainly could not
restrict the power of the States within their respective
territories, nor in any manner interfere with their laws and
institutions, nor give this court control over them. " Page 60 U. S. 464 "The ordinance in question, he observes, if still in force,
could have no more operation than the laws of Ohio in the State of
Kentucky, and could not influence the decision upon the rights of
the master or the slaves in that State."

															This view, thus authoritatively declared, furnishes a conclusive
answer to the distinction attempted to be set up between the
extraterritorial effect of a State law and the act of Congress in
question.

															It must be admitted that Congress possesses no power to regulate
or abolish slavery within the States, and that, if this act had
attempted any such legislation, it would have been a nullity. And
yet the argument here, if there be any force in it, leads to the
result that effect may be given to such legislation, for it is only
by giving the act of Congress operation within the State of
Missouri that it can have any effect upon the question between the
parties. Having no such effect directly, it will be difficult to
maintain upon any consistent reasoning that it can be made to
operate indirectly upon the subject.

															The argument, we think, in any aspect in which it may be viewed,
is utterly destitute of support upon any principles of
constitutional law, as, according to that, Congress has no power
whatever over the subject of slavery within the State, and is also
subversive of the established doctrine of international
jurisprudence, as, according to that, it is an axiom that the laws
of one Government have no force within the limits of another or
extraterritorially except from the consent of the latter.

															It is perhaps not unfit to notice in this connection that many
of the most eminent statesmen and jurists of the country entertain
the opinion that this provision of the act of Congress, even within
the territory to which it relates, was not authorized by any power
under the Constitution. The doctrine here contended for not only
upholds its validity in the territory, but claims for it effect
beyond and within the limits of a sovereign State -- an effect, as
insisted, that displaces the laws of the State and substitutes its
own provisions in their place.

															The consequences of any such construction are apparent. If
Congress possesses the power under the Constitution to abolish
slavery in a Territory, it must necessarily possess the like power
to establish it. It cannot be a one-sided power, as may suit the
convenience or particular views of the advocates. It is a power, if
it exists at all, over the whole subject, and then, upon the
process of reasoning which seeks to extend its influence beyond the
Territory and within the limits of a State, if Congress should
establish, instead of abolish, slavery, we do Page 60 U. S. 465 not see but that, if a slave should be removed from the
Territory into a free State, his status would accompany him, and
continue notwithstanding its laws against slavery. The laws of the
free State, according to the argument, would be displaced, and the
act of Congress, in its effect, be substituted in their place. We
do not see how this conclusion could be avoided if the construction
against which we are contending should prevail. We are satisfied,
however, it is unsound, and that the true answer to it is that even
conceding, for the purposes of the argument that this provision of
the act of Congress is valid within the Territory for which it was
enacted, it can have no operation or effect beyond its limits or
within the jurisdiction of a State. It can neither displace its
laws nor change the status or condition of its inhabitants.

															Our conclusion therefore is, upon this branch of the case, that
the question involved is one depending solely upon the law of
Missouri, and that the Federal court sitting in the State and
trying the case before us was bound to follow it.

															The remaining question for consideration is what is the law of
the State of Missouri on this subject? And it would be a sufficient
answer to refer to the judgment of the highest court of the State
in the very case were it not due to that tribunal to state somewhat
at large the course of decision and the principles involved on
account of some diversity of opinion in the cases. As we have
already stated, this case was originally brought in the Circuit
Court of the State, which resulted in a judgment for the plaintiff.
The case was carried up to the Supreme Court for revision. That
court reversed the judgment below and remanded the cause to the
circuit for a new trial. In that state of the proceeding, a new
suit was brought by the plaintiff in the Circuit Court of the
United States, and tried upon the issues and agreed case before us,
and a verdict and judgment for the defendant that court following
the decision of the Supreme Court of the State. The judgment of the
Supreme Court is reported in the 15 Misso.R. p. 576. The court
placed the decision upon the temporary residence of the master with
the slaves in the State and Territory to which they removed, and
their return to the slave State, and upon the principles of
international law that foreign laws have no extraterritorial force
except such as the State within which they are sought to be
enforced may see fit to extend to them, upon the doctrine of comity
of nations.

															This is the substance of the grounds of the decision.

															The same question has been twice before that court since, and
the same judgment given, 15 Misso.R. 595, 17 Ib. 434. It
must be admitted, therefore, as the settled law of the State, Page 60 U. S. 466 and, according to the decision in the case of Strader et al. v.
Graham, is conclusive of the case in this court.

															It is said, however that the previous cases and course of
decision in the State of Missouri on this subject were different,
and that the courts had held the slave to be free on his return
from a temporary residence in the free State. We do not see, were
this to be admitted, that the circumstance would show that the
settled course of decision, at the time this case was tried in the
court below, was not to be considered the law of the State.
Certainly it must be unless the first decision of a principle of
law by a State court is to be permanent and irrevocable. The idea
seems to be that the courts of a State are not to change their
opinions, or, if they do, the first decision is to be regarded by
this court as the law of the State. It is certain, if this be so in
the case before us, it is an exception to the rule governing this
court in all other cases. But what court has not changed its
opinions? What judge has not changed his?

															Waiving, however, this view, and turning to the decisions of the
courts of Missouri, it will be found that there is no discrepancy
between the earlier and the present cases upon this subject. There
are some eight of them reported previous to the decision in the
case before us, which was decided in 1852. The last of the earlier
cases was decided in 1836. In each one of these, with two
exceptions, the master or mistress removed into the free State with
the slave, with a view to a permanent residence -- in other words,
to make that his or her domicil. And in several of the cases, this
removal and permanent residence were relied on as the ground of the
decision in favor of the plaintiff. All these cases, therefore, are
not necessarily in conflict with the decision in the case before
us, but consistent with it. In one of the two excepted cases, the
master had hired the slave in the State of Illinois from 1817 to
1825. In the other, the master was an officer in the army, and
removed with his slave to the military post of Fort Snelling, and
at Prairie du Chien, in Michigan, temporarily, while acting under
the orders of his Government. It is conceded the decision in this
case was departed from in the case before us, and in those that
have followed it. But it is to be observed that these subsequent
cases are in conformity with those in all the slave States
bordering on the free -- in Kentucky, 2 Marsh. 476, 5 B. Munroe
176, 9 ib. 565 -- in Virginia, 1 Rand. 15, 1 Leigh 172, 10
Grattan 495 -- in Maryland, 4 Harris and McHenry 295, 322, 325. In
conformity also with the law of England on this subject, Ex
parte Grace, 2 Hagg.Adm.R. 94, and with the opinions of
the Page 60 U. S. 467 most eminent jurists of the country. Story's Confl. 396a, 2 Kent
Com. 258 n., 18 Pick. 193, Chief Justice Shaw. See Corresp. between Lord Stowell and Judge Story, 1 vol. Life of
Story, p. 552, 558.

															Lord Stowell, in communicating his opinion in the case of the
slave Grace to Judge Story, states, in his letter, what the
question was before him, namely:

															"Whether the emancipation of a slave brought to England insured
a complete emancipation to him on his return to his own country, or
whether it only operated as a suspension of slavery in England, and
his original character devolved on him again upon his return."

															He observed, "the question had never been examined since an end
was put to slavery fifty years ago," having reference to the
decision of Lord Mansfield in the Case of Somersett, but
the practice, he observed, "has regularly been that on his return
to his own country, the slave resumed his original character of
slave." And so Lord Stowell held in the case.

															Judge Story, in his letter in reply, observes:

															"I have read with great attention your judgment in the slave
case, &c. Upon the fullest consideration which I have been able
to give the subject, I entirely concur in your views. If I had been
called upon to pronounce a judgment in a like case, I should have
certainly arrived at the same result."

															Again he observes:

															"In my native State (Massachusetts), the state of slavery is not
recognised as legal, and yet, if a slave should come hither and
afterwards return to his own home, we should certainly think that
the local law attached upon him, and that his servile character
would be redintegrated."

															We may remark in this connection that the case before the
Maryland court, already referred to, and which was decided in 1799,
presented the same question as that before Lord Stowell, and
received a similar decision. This was nearly thirty years before
the decision in that case, which was in 1828. The Court of Appeals
observed, in deciding the Maryland case, that

															"however the laws of Great Britain in such instances, operating
upon such persons there, might interfere so as to prevent the
exercise of certain acts by the masters, not permitted, as in the
case of Somersett, yet, upon the bringing Ann Joice into this State
(then the province of Maryland), the relation of master and slave
continued in its extent, as authorized by the laws of this
State."

															And Luther Martin, one of the counsel in that case, stated, on
the argument that the question had been previously decided the same
way in the case of slaves returning from a residence in
Pennsylvania, where they had become free under her laws.

															The State of Louisiana, whose courts had gone further in Page 60 U. S. 468 holding the slave free on his return from a residence in a free
State than the courts of her sister States, has settled the law by
an act of her Legislature in conformity with the law of the court
of Missouri in the case before us. Sess. Law, 1846.

															The case before Lord Stowell presented much stronger features
for giving effect to the law of England in the case of the slave
Grace than exists in the cases that have arisen in this country,
for in that case the slave returned to a colony of England over
which the Imperial Government exercised supreme authority. Yet, on
the return of the slave to the colony, from a temporary residence
in England, he held that the original condition of the slave
attached. The question presented in cases arising here is as to the
effect and operation to be given to the laws of a foreign State on
the return of the slave within an independent sovereignty.

															Upon the whole, it must be admitted that the current of
authority both in England and in this country is in accordance with
the law as declared by the courts of Missouri in the case before
us, and we think the court below was not only right, but bound to
follow it.

															Some question has been made as to the character of the residence
in this case in the free State. But we regard the facts as set
forth in the agreed case as decisive. The removal of Dr. Emerson
from Missouri to the military posts was in the discharge of his
duties as surgeon in the army, and under the orders of his
Government. He was liable at any moment to be recalled, as he was
in 1838, and ordered to another post. The same is also true as it
respects Major Taliaferro. In such a case, the officer goes to his
post for a temporary purpose, to remain there for an uncertain
time, and not for the purpose of fixing his permanent abode. The
question we think too plain to require argument. The case of the Attorney General v. Napier, 6 Welsh, Hurtst. and Gordon
Exch. Rep. 217, illustrates and applies the principle in the case
of an officer of the English army.

															A question has been alluded to, on the argument, namely, the
right of the master with his slave of transit into or through a
free State, on business or commercial pursuits, or in the exercise
of a Federal right, or the discharge of a Federal duty, being a
citizen of the United States, which is not before us. This question
depends upon different considerations and principles from the one
in hand, and turns upon the rights and privileges secured to a
common citizen of the republic under the Constitution of the United
States. When that question arises, we shall be prepared to decide
it. Page 60 U. S. 469 Our conclusion is that the judgment of the court below should be
affirmed.

															Mr. Justice GRIER.

															I concur in the opinion delivered by Mr. Justice Nelson on the
questions discussed by him.

															I also concur with the opinion of the court as delivered by the
Chief Justice that the act of Congress of 6th March, 1820, is
unconstitutional and void and that, assuming the facts as stated in
the opinion, the plaintiff cannot sue as a citizen of Missouri in
the courts of the United States. But that the record shows a prima facie case of jurisdiction, requiring the court to
decide all the questions properly arising in it, and as the
decision of the pleas in bar shows that the plaintiff is a slave,
and therefore not entitled to sue in a court of the United States,
the form of the judgment is of little importance, for, whether the
judgment be affirmed or dismissed for want of jurisdiction, it is
justified by the decision of the court, and is the same in effect
between the parties to the suit.

															Mr. Justice DANIEL.

															It may with truth be affirmed that since the establishment of
the several communities now constituting the States of this
Confederacy, there never has been submitted to any tribunal within
its limits questions surpassing in importance those now claiming
the consideration of this court. Indeed it is difficult to imagine,
in connection with the systems of polity peculiar to the United
States, a conjuncture of graver import than that must be, within
which it is aimed to comprise and to control not only the faculties
and practical operation appropriate to the American Confederacy as
such, but also the rights and powers of its separate and
independent members, with reference alike to their internal and
domestic authority and interests and the relations they sustain to
their confederates.

															To my mind it is evident that nothing less than the ambitious
and far-reaching pretension to compass these objects of vital
concern is either directly essayed or necessarily implied in the
positions attempted in the argument for the plaintiff in error.

															How far these positions have any foundation in the nature of the
rights and relations of separate, equal, and independent
Governments, or in the provisions of our own Federal compact, or
the laws enacted under and in pursuance of the authority of that
compact will be presently investigated.

															In order correctly to comprehend the tendency and force of those
positions, it is proper here succinctly to advert to the Page 60 U. S. 470 facts upon which the questions of law propounded in the argument
have arisen.

															This was an action of trespass vi et armis instituted
in the Circuit Court of the United States for the district of
Missouri, in the name of the plaintiff in error, a negro held as a
slave, for the recovery of freedom for himself, his wife, and two
children, also negroes.

															To the declaration in this case the defendant below, who is also
the defendant in error, pleaded in abatement that the court could
not take cognizance of the cause because the plaintiff was not a
citizen of the State of Missouri, as averred in the declaration,
but was a negro of African descent, and that his ancestors were of
pure African blood, and were brought into this country and sold as
negro slaves, and hence it followed, from the second section of the
third article of the Constitution, which creates the judicial power
of the United States with respect to controversies between citizens
of different States that the Circuit Court could not take
cognizance of the action.

															To this plea in abatement, a demurrer having been interposed on
behalf of the plaintiff, it was sustained by the court. After the
decision sustaining the demurrer, the defendant, in pursuance of a
previous agreement between counsel, and with the leave of the
court, pleaded in bar of the action: 1st, not guilty, 2dly that the
plaintiff was a negro slave, the lawful property of the defendant,
and as such the defendant gently laid his hands upon him, and
thereby had only restrained him, as the defendant had a right to
do, 3dly that with respect to the wife and daughters of the
plaintiff, in the second and third counts of the declaration
mentioned, the defendant had, as to them, only acted in the same
manner, and in virtue of the same legal right.

															Issues having been joined upon the above pleas in bar, the
following statement, comprising all the evidence in the cause, was
agreed upon and signed by the counsel of the respective parties, viz: "In the year 1834, the plaintiff was a negro slave belonging to
Doctor Emerson, who was a surgeon in the army of the United States.
In that year, 1834, said Dr. Emerson took the plaintiff from the
State of Missouri to the military post at Rock Island, in the State
of Illinois, and held him there as a slave until the month of April
or May, 1836. At the time last mentioned, said Dr. Emerson removed
the plaintiff from said military post at Rock Island to the
military post at Fort Snelling, situate on the west bank of the
Mississippi river in the Territory known as Upper Louisiana,
acquired by the United States of France, and situate north of the
latitude of thirty-six Page 60 U. S. 471 degrees thirty minutes north, and north of the State of
Missouri. Said Dr. Emerson held the plaintiff in slavery at said
Fort Snelling from said last-mentioned date until the year
1838."

															"In the year 1835, Harriet, who is named in the second count of
the plaintiff's declaration, was the negro slave of Major
Taliaferro, who belonged to the army of the United States. In that
year, 1835, said Major Taliaferro took said Harriet to said Fort
Snelling, a military post situated as hereinbefore stated, and kept
her there as a slave until the year 1836, and then sold and
delivered her as a slave at said Fort Snelling unto the said Dr.
Emerson, hereinbefore named. Said Dr. Emerson held said Harriet in
slavery at said Fort Snelling until the year 1838."

															"In the year 1836, the plaintiff and said Harriet, at said Fort
Snelling, with the consent of said Dr. Emerson, who then claimed to
be their master and owner, intermarried and took each other for
husband and wife. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri,
and upon the river Mississippi. Lizzie is about seven years old,
and was born in the State of Missouri, at a military post called
Jefferson barracks."

															"In the year 1838, said Dr. Emerson removed the plaintiff and
said Harriet, and their said daughter Eliza, from said Fort
Snelling to the State of Missouri, where they have ever since
resided."

															"Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the
defendant, as slaves, and the defendant has ever since claimed to
hold them and each of them as slaves."

															"At the times mentioned in the plaintiff's declaration, the
defendant, claiming to be owner as aforesaid, laid his hands upon
said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them,
doing in this respect, however, no more than what he might lawfully
do if they were of right his slaves at such times."

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

															"R. M. FIELD, for Plaintiff "

															"H. A. GARLAND, for Defendant. "

															"It is agreed that Dred Scott brought suit for his freedom in
the Circuit Court of St. Louis county that there was a verdict and
judgment in his favor that on a writ of error to the Supreme Court,
the judgment below was reversed, and the Page 60 U. S. 472 cause remanded to the Circuit Court, where it has been continued
to await the decision of this case."

															"FIELD, for Plaintiff "

															"GARLAND, for Defendant "

															Upon the aforegoing agreed facts, the plaintiff prayed the court
to instruct the jury that they ought to find for the plaintiff, and
upon the refusal of the instruction thus prayed for, the plaintiff
excepted to the court's opinion. The court then, upon the prayer of
the defendant, instructed the jury that upon the facts of this case
agreed as above, the law was with the defendant. To this opinion
also the plaintiff's counsel excepted, as he did to the opinion of
the court denying to the plaintiff a new trial after the verdict of
the jury in favor of the defendant.

															The question first in order presented by the record in this
cause is that which arises upon the plea in abatement, and the
demurrer to that plea, and upon this question, it is my opinion
that the demurrer should have been overruled, and the plea
sustained.

															On behalf of the plaintiff, it has been urged that by the pleas
interposed in bar of a recovery in the court below (which pleas
both in fact and in law are essentially the same with the
objections averred in abatement), the defence in abatement has been
displaced or waived that it could therefore no longer be relied on
in the Circuit Court, and cannot claim the consideration of this
court in reviewing this cause. This position is regarded as wholly
untenable. On the contrary, it would seem to follow conclusively
from the peculiar character of the courts of the United States, as
organized under the Constitution and the statutes, and as defined
by numerous and unvarying adjudications from this bench, that there
is not one of those courts whose jurisdiction and powers can be
deduced from mere custom or tradition, not one whose jurisdiction
and powers must not be traced palpably to, and invested exclusively
by, the Constitution and statutes of the United States, not one
that is not bound, therefore, at all times, and at all stages of
its proceedings, to look to and to regard the special and declared
extent and bounds of its commission and authority. There is no such
tribunal of the United States as a court of general jurisdiction,
in the sense in which that phrase is applied to the superior courts
under the common law, and even with respect to the courts existing
under that system, it is a well settled principle that consent can never give jurisdiction.

															The principles above stated, and the consequences regularly
deducible from them, have, as already remarked, been repeatedly Page 60 U. S. 473 and unvaryingly propounded from this bench. Beginning with the
earliest decisions of this court, we have the cases of Bingham v. Cabot et
al. , 3 Dallas 382, Turner v.
Eurille , 4 Dallas 7, Abercrombie v.
Dupuis, 1 Cranch 343 [omitted], Wood v.
Wagnon , 2 Cranch 9, The United
States v. The brig Union et al. , 4 Cranch 216, Sullivan v. The Fulton
Steamboat Company , 6 Wheaton 450, Mollan et
al. v. Torrence , 9 Wheaton 537, Brown v.
Keene , 8 Peters 112, and Jackson v.
Ashton , 8 Peters 148, ruling, in uniform and
unbroken current, the doctrine that it is essential to the
jurisdiction of the courts of the United States that the facts upon
which it is founded should appear upon the record. Nay, to such an
extent and so inflexibly has this requisite to the jurisdiction
been enforced that in the case of Capron v.
Van Noorden , 2 Cranch 126, it is declared that the
plaintiff in this court may assign for error his own omission in
the pleadings in the court below where they go to the jurisdiction.
This doctrine has been, if possible, more strikingly illustrated in
a later decision, the case of The State of Rhode Island v. The
State of Massachusetts, in the 12th of Peters.

															In this case, on page 37 U. S. 718 of
the volume, this court, with reference to a motion to dismiss the
cause for want of jurisdiction, have said:

															" However late this objection has been made, or may be made,
in any cause in an inferior or appellate court of the United
States, it must be considered and decided before any court can
move one farther step in the cause, as any movement is necessarily
to exercise the jurisdiction. Jurisdiction is the power to hear and
determine the subject matter in controversy between the parties to
a suit, to adjudicate or exercise any judicial power over them. The
question is whether on the case before the court their action is
judicial or extrajudicial, with or without the authority of law to
render a judgment or decree upon the rights of the litigant
parties. A motion to dismiss a cause pending in the courts of the
United States is not analogous to a plea to the jurisdiction of a
court of common law or equity in England; there, the superior
courts have a general jurisdiction over all persons within the
realm and all causes of action between them. It depends on the
subject matter, whether the jurisdiction shall be exercised by a
court of law or equity, but that court to which it appropriately
belongs can act judicially upon the party and the subject of the
suit unless it shall be made apparent to the court that the
judicial determination of the case has been withdrawn from the
court of general jurisdiction to an inferior and limited one. It is
a necessary presumption that the court of general jurisdiction can
act upon the given case when nothing to the Page 60 U. S. 474 contrary appears; hence has arisen the rule that the party
claiming an exemption from its process must set out the reason by a
special plea in abatement, and show that some inferior court of law
or equity has the exclusive cognizance of the case; otherwise the
superior court must proceed in virtue of its general jurisdiction.
A motion to dismiss therefore cannot be entertained, as it does not
disclose a case of exception, and, if a plea in abatement is put
in, it must not only make out the exception, but point to the
particular court to which the case belongs. There are other classes
of cases where the objection to the jurisdiction is of a different
nature, as on a bill in chancery that the subject matter is
cognizable only by the King in Council, or that the parties
defendant cannot be brought before any municipal court on account
of their sovereign character or the nature of the controversy, or
to the very common cases which present the question, whether the
cause belong to a court of law or equity. To such cases, a plea in
abatement would not be applicable, because the plaintiff could not
sue in an inferior court. The objection goes to a denial of any
jurisdiction of a municipal court in the one class of cases, and to
the jurisdiction of any court of equity or of law in the other, on
which last the court decides according to its discretion."

															"An objection to jurisdiction on the ground of exemption from
the process of the court in which the suit is brought, or the
manner in which a defendant is brought into it, is waived by
appearance and pleading to issue, but when the objection goes to
the power of the court over the parties or the subject matter, the
defendant need not, for he cannot, give the plaintiff a better
writ. Where an inferior court can have no jurisdiction of a case of
law or equity, the ground of objection is not taken by plea in
abatement, as an exception of the given case from the otherwise
general jurisdiction of the court; appearance does not cure the
defect of judicial power, and it may be relied on by plea, answer,
demurrer, or at the trial or hearing. As a denial of
jurisdiction over the subject matter of a suit between parties
within the realm, over which and whom the court has power to act,
cannot be successful in an English court of general jurisdiction, a
motion like the present could not be sustained consistently with
the principles of its constitution. But as this court is one of
limited and special original jurisdiction, its action must be
confined to the particular cases, controversies, and parties over
which the Constitution and laws have authorized it to act, any
proceeding without the limits prescribed is coram non
judice, and its action a nullity. And whether the want or
excess of power is objected by a party or is apparent Page 60 U. S. 475 to the court, it must surcease its action or proceed
extrajudicially."

															In the constructing of pleadings either in abatement or in bar,
every fact or position constituting a portion of the public law, or
of known or general history, is necessarily implied. Such fact or
position need not be specially averred and set forth; it is what
the world at large and every individual are presumed to know --
nay, are bound to know and to be governed by.

															If, on the other hand, there exist facts or circumstances by
which a particular case would be withdrawn or exempted from the
influence of public law or necessary historical knowledge, such
facts and circumstances form an exception to the general principle,
and these must be specially set forth and established by
those who would avail themselves of such exception.

															Now the following are truths which a knowledge of the history of
the world, and particularly of that of our own country, compels us
to know -- that the African negro race never have been acknowledged
as belonging to the family of nations; that, as amongst them, there
never has been known or recognised by the inhabitants of other
countries anything partaking of the character of nationality, or
civil or political polity; that this race has been by all the
nations of Europe regarded as subjects of capture or purchase, as
subjects of commerce or traffic; and that the introduction of that
race into every section of this country was not as members of civil
or political society, but as slaves, as property in the
strictest sense of the term.

															In the plea in abatement, the character or capacity of citizen
on the part of the plaintiff is denied, and the causes which show
the absence of that character or capacity are set forth by
averment. The verity of those causes, according to the settled
rules of pleading, being admitted by the demurrer, it only remained
for the Circuit Court to decide upon their legal sufficiency to
abate the plaintiff's action. And it now becomes the province of
this court to determine whether the plaintiff below (and in error
here), admitted to be a negro of African descent, whose
ancestors were of pure African blood and were brought into this
country and sold as negro slaves -- such being his status, and such
the circumstances surrounding his position -- whether he can, by
correct legal induction from that status and those circumstances,
be clothed with the character and capacities of a citizen of the
State of Missouri?

															It may be assumed as a postulate that to a slave, as such, there
appertains and can appertain no relation, civil or political, with
the State or the Government. He is himself strictly property, to be used in subserviency to the interests, the
convenience, Page 60 U. S. 476 or the will, of his owner, and to suppose, with respect to the
former, the existence of any privilege or discretion, or of any
obligation to others incompatible with the magisterial rights just
defined, would be by implication, if not directly, to deny the
relation of master and slave, since none can possess and enjoy as
his own that which another has a paramount right and power to
withhold. Hence it follows necessarily that a slave, the peculium or property of a master, and possessing within
himself no civil nor political rights or capacities, cannot be a
CITIZEN. For who, it may be asked, is a citizen? What do the
character and status of citizen import? Without fear of
contradiction, it does not import the condition of being private
property, the subject of individual power and ownership. Upon a
principle of etymology alone, the term citizen, as derived
from civitas, conveys the ideas of connection or
identification with the State or Government, and a participation of
its functions. But beyond this, there is not, it is believed, to be
found in the theories of writers on Government or in any actual
experiment heretofore tried, an exposition of the term citizen which has not been understood as conferring the
actual possession and enjoyment, or the perfect right of
acquisition and enjoyment, of an entire equality of privileges,
civil and political.

															Thus Vattel, in the preliminary chapter to his Treatise on the
Law of Nations, says:

															"Nations or States are bodies politic, societies of men united
together for the purpose of promoting their mutual safety and
advantage by the joint efforts of their mutual strength. Such a
society has her affairs and her interests, she deliberates and
takes resolutions in common, thus becoming a moral person
who possesses an understanding and a will peculiar to herself."

															Again, in the first chapter of the first book of the Treatise
just quoted, the same writer, after repeating his definition of a
State, proceeds to remark that,

															"from the very design that induces a number of men to form a
society which has its common interests and which is to act in
concert, it is necessary that there should be established a public
authority to order and direct what is to be done by each in
relation to the end of the association. This political authority is
the sovereignty. "

															Again, this writer remarks: "The authority of all over
each member essentially belongs to the body politic, or the
State."

															By this same writer it is also said:

															"The citizens are the members of the civil society, bound to
this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives or
natural-born citizens are those born in the country of parents who
are citizens. As society Page 60 U. S. 477 cannot perpetuate itself otherwise than by the children of the
citizens, those children naturally follow the condition of their
parents, and succeed to all their rights."

															Again:

															"I say, to be of the country, it is necessary to be
born of a person who is a citizen, for if he be born there
of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished
from citizens, are foreigners who are permitted to settle and stay
in the country."

															Vattel, Book 1, cap. 19, p. 101.

															From the views here expressed, and they seem to be
unexceptionable, it must follow that, with the slave, with
one devoid of rights or capacities, civil or political, there could be no pact that one thus situated could be no party to
or actor in, the association of those possessing free will, power,
discretion. He could form no part of the design, no constituent
ingredient or portion of a society based upon common, that
is, upon equal interests and powers. He could not at the
same time be the sovereign and the slave.

															But it has been insisted in argument that the emancipation of a
slave, effected either by the direct act and assent of the master
or by causes operating in contravention of his will, produces a
change in the status or capacities of the slave such as will
transform him from a mere subject of property into a being
possessing a social, civil, and political equality with a citizen.
In other words, will make him a citizen of the State within which
he was, previously to his emancipation, a slave.

															It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can
alter the essential character of that property with respect to
persons or communities unconnected with such renunciation. Can it
be pretended that an individual in any State, by his single act,
though voluntarily or designedly performed, yet without the
co-operation or warrant of the Government, perhaps in opposition to
its policy or its guaranties, can create a citizen of that State?
Much more emphatically may it be asked how such a result could be
accomplished by means wholly extraneous and entirely foreign to the
Government of the State? The argument thus urged must lead to these
extraordinary conclusions. It is regarded at once as wholly
untenable, and as unsustained by the direct authority or by the
analogies of history.

															The institution of slavery, as it exists and has existed from
the period of its introduction into the United States, though more
humane and mitigated in character than was the same institution
either under the republic or the empire of Rome, bears, both in its
tenure and in the simplicity incident to the Page 60 U. S. 478 mode of its exercise, a closer resemblance to Roman slavery than
it does to the condition of villanage, as it formerly
existed in England. Connected with the latter, there were
peculiarities, from custom or positive regulation, which varied it
materially from the slavery of the Romans or from slavery at any
period within the United States.

															But with regard to slavery amoungst the Romans, it is by no
means true that emancipation, either during the republic or the
empire, conferred, by the act itself, or implied, the status or the
rights of citizenship.

															The proud title of Roman citizen, with the immunities and rights
incident thereto, and as contradistinguished alike from the
condition of conquered subjects or of the lower grades of native
domestic residents, was maintained throughout the duration of the
republic, and until a late period of the eastern empire, and at
last was in effect destroyed less by an elevation of the
inferior classes than by the degradation of the free, and the
previous possessors of rights and immunities civil and political,
to the indiscriminate abasement incident to absolute and simple
despotism.

															By the learned and elegant historian of the Decline and Fall of
the Roman Empire, we are told that,

															"In the decline of the Roman empire, the proud distinctions of
the republic were gradually abolished, and the reason or instinct
of Justinian completed the simple form of an absolute monarchy. The
emperor could not eradicate the popular reverence which always
waits on the possession of hereditary wealth or the memory of
famous ancestors. He delighted to honor with titles and emoluments
his generals, magistrates, and senators, and his precarious
indulgence communicated some rays of their glory to their wives and
children. But, in the eye of the law, all Roman citizens were
equal, and all subjects of the empire were citizens of Rome. That
inestimable character was degraded to an obsolete and
empty name. T he voice of a Roman could no longer enact his laws,
or create the annual ministers of his powers; his constitutional
rights might have checked the arbitrary will of a master, and the
bold adventurer from Germany or Arabia was admitted with equal
favor to the civil and military command which the citizen alone had
been once entitled to assume over the conquests of his fathers. The
first Caesars had scrupulously guarded the distinction of ingenuous and servile birth, which was decided by
the condition of the mother. The slaves who were liberated by a
generous master immediately entered into the middle class of libertini, or freedmen, but they could never be
enfranchised from the duties of obedience and gratitude, whatever
were the fruits of Page 60 U. S. 479 their industry, their patron and his family inherited the third
part, or even the whole, of their fortune, if they died without
children and without a testament. Justinian respected the rights of
patrons, but his indulgence removed the badge of disgrace from the
two inferior orders of freedmen; whoever ceased to be a slave
obtained without reserve or delay the station of a citizen, and at
length the dignity of an ingenuous birth was created or supposed by the omnipotence of the emperor. [ Footnote 1 ]"

															The above account of slavery and its modifications will be found
in strictest conformity with the Institutes of Justinian. Thus, in
book 1st, title 3d, it is said: "The first general division of
persons in respect to their rights is into freemen and slaves." The
same title, sec. 4th: "Slaves are born such, or become so. They are
born such of bondwomen; they become so either by the law of
nations, as by capture, or by the civil law." Section 5th: "In
the condition of slaves there is no diversity, but among free
persons there are many. Thus some are ingenui or freemen,
others libertini or freedmen."

															Tit. 4th. DE INGENUIS. "A freeman is one who is born free by
being born in matrimony, of parents who both are free, or both
freed, or of parents one free and the other freed. But one born of
a free mother, although the father be a slave or unknown, is
free."

															Tit. 5th. DE LIBERTINIS. "Freedmen are those who have been
manumitted from just servitude."

															Section third of the same title states that "freedmen were
formerly distinguished by a threefold division." But the emperor
proceeds to say:

															"Our piety leading us to reduce all things into a
better state, we have amended our laws, and reestablished the
ancient usage, for anciently liberty was simple and undivided --
that is, was conferred upon the slave as his manumittor possessed
it, admitting this single difference that the person manumitted
became only a freed man, although his manumittor was a free man."

															And he further declares:

															"We have made all freed men in general become citizens of Rome,
regarding neither the age of the manumitted, nor the manumittor,
nor the ancient forms of manumission. We have also introduced many
new methods by which slaves may become Roman
citizens."

															By the references above given, it is shown, from the nature and
objects of civil and political associations and upon the direct
authority of history, that citizenship was not conferred Page 60 U. S. 480 by the simple fact of emancipation, but that such a result was
deduced therefrom in violation of the fundamental principles of
free political association, by the exertion of despotic will to
establish, under a false and misapplied denomination, one equal and
universal slavery, and to effect this result required the exertions
of absolute power -- of a power both in theory and practice, being
in its most plenary acceptation the SOVEREIGNTY, THE STATE ITSELF
-- it could not be produced by a less or inferior authority, much
less by the will or the act of one who, with reference to civil and
political rights, was himself a slave. The master might abdicate or
abandon his interest or ownership in his property, but his act
would be a mere abandonment. It seems to involve an absurdity to
impute to it the investiture of rights which the sovereignty alone
had power to impart. There is not perhaps a community in which
slavery is recognised in which the power of emancipation and the
modes of its exercise are not regulated by law -- that is, by the
sovereign authority, and none can fail to comprehend the necessity
for such regulation for the preservation of order and even of
political and social existence.

															By the argument for the plaintiff in error, a power equally
despotic is vested in every member of the association, and the most
obscure or unworthy individual it comprises may arbitrarily invade
and derange its most deliberate and solemn ordinances. At
assumptions anomalous as these, so fraught with mischief and ruin,
the mind at once is revolted, and goes directly to the conclusions
that to change or to abolish a fundamental principle of the society
must be the act of the society itself -- of the sovereignty, and that none other can admit to a
participation of that high attribute. It may further expose the
character of the argument urged for the plaintiff to point out some
of the revolting consequences which it would authorize. If that
argument possesses any integrity, it asserts the power in any
citizen, or quasi citizen, or a resident foreigner of
anyone of the States, from a motive either of corruption or
caprice, not only to infract the inherent and necessary authority
of such State, but also materially to interfere with the
organization of the Federal Government and with the authority of
the separate and independent States. He may emancipate his negro
slave, by which process he first transforms that slave into a
citizen of his own State; he may next, under color of article
fourth, section second, of the Constitution of the United States,
obtrude him, and on terms of civil and political equality, upon any
and every State in this Union, in defiance of all regulations of
necessity or policy, ordained by those States for their internal
happiness or safety. Nay, more: this manumitted slave Page 60 U. S. 481 may, by a proceeding springing from the will or act of his
master alone, be mixed up with the institutions of the Federal
Government, to which he is not a party, and in opposition to the
laws of that Government which, in authorizing the extension by
naturalization of the rights and immunities of citizens of the
United States to those not originally parties to the Federal
compact, have restricted that boon to free white aliens
alone. If the rights and immunities connected with or
practiced under the institutions of the United States can by any
indirection be claimed or deduced from sources or modes other than
the Constitution and laws of the United States, it follows that the
power of naturalization vested in Congress is not exclusive -- that
it has in effect no existence, but is repealed or
abrogated.

															But it has been strangely contended that the jurisdiction of the
Circuit Court might be maintained upon the ground that the
plaintiff was a resident of Missouri, and that, for the
purpose of vesting the court with jurisdiction over the parties,
residence within the State was sufficient.

															The first, and to my mind a conclusive, reply to this singular
argument is presented in the fact that the language of the
Constitution restricts the jurisdiction of the courts to cases in
which the parties shall be citizens, and is entirely
silent with respect to residence. A second answer to this strange
and latitudinous notion is that it so far stultifies the sages by
whom the Constitution was framed as to impute to them ignorance of
the material distinction existing between citizenship and
mere residence or domicil, and of the well known
facts that a person confessedly an alien may be permitted
to reside in a country in which he can possess no civil or
political rights, or of which he is neither a citizen nor subject,
and that, for certain purposes, a man may have a domicil in different countries, in no one of which he is an actual personal
resident.

															The correct conclusions upon the question here considered would
seem to be these:

															That, in the establishment of the several communities now the
States of this Union, and in the formation of the Federal
Government, the African was not deemed politically a person. He was
regarded and owned in every State in the Union as property merely, and as such was not and could not be a party or an actor,
much less a peer in any compact or form of government
established by the States or the United States. That if, since the
adoption of the State Governments, he has been or could have been
elevated to the possession of political rights or powers, this
result could have been effected by no authority less potent than
that of the sovereignty -- the State -- exerted Page 60 U. S. 482 to that end, either in the form of legislation or in some other
mode of operation. It could certainly never have been accomplished
by the will of an individual operating independently of the
sovereign power, and even contravening and controlling that power.
That, so far as rights and immunities appertaining to citizens have
been defined and secured by the Constitution and laws of the United
States, the African race is not and never was recognised either by
the language or purposes of the former, and it has been expressly
excluded by every act of Congress providing for the creation of
citizens by naturalization, these laws, as has already
been remarked, being restricted to free white aliens exclusively.

															But it is evident that, after the formation of the Federal
Government by the adoption of the Constitution, the highest
exertion of State power would be incompetent to bestow a character
or status created by the Constitution or conferred in virtue of its
authority only. Upon those, therefore, who were not originally
parties to the Federal compact, or who are not admitted and adopted
as parties thereto, in the mode prescribed by its paramount
authority, no State could have power to bestow the character or the
rights and privileges exclusively reserved by the States for the
action of the Federal Government by that compact.

															The States, in the exercise of their political power, might,
with reference to their peculiar Government and jurisdiction,
guaranty the rights of person and property, and the enjoyment of
civil and political privileges, to those whom they should be
disposed to make the objects of their bounty, but they could not
reclaim or exert the powers which they had vested exclusively in
the Government of the United States. They could not add to or
change in any respect the class of persons to whom alone the
character of citizen of the United States appertained at the time
of the adoption of the Federal Constitution. They could not create
citizens of the United States by any direct or indirect
proceeding.

															According to the view taken of the law as applicable to the
demurrer to the plea in abatement in this cause, the questions
subsequently raised upon the several pleas in bar might be passed
by as requiring neither a particular examination nor an
adjudication directly upon them. upon them. But as these questions
are intrinsically of primary interest and magnitude, and have been
elaborately discussed in argument, and as with respect to them the
opinions of a majority of the court, including my own, are
perfectly coincident, to me it seems proper that they should here
be fully considered, and, so far as it is practicable for this
court to accomplish such an end, finally put to rest. Page 60 U. S. 483 The questions then to be considered upon the several pleas in
bar, and upon the agreed statement of facts between the counsel,
are: 1st. Whether the admitted master and owner of the plaintiff,
holding him as his slave in the State of Missouri, and in
conformity with his rights guarantied to him by the laws of
Missouri then and still in force, by carrying with him for his own
benefit and accommodation, and as his own slave, the person of the
plaintiff into the State of Illinois, within which State slavery
had been prohibited by the Constitution thereof, and by retaining
the plaintiff during the commorancy of the master within the State
of Illinois, had, upon his return with his slave into the State of
Missouri, forfeited his rights as master by reason of any supposed
operation of the prohibitory provision in the Constitution of
Illinois, beyond the proper territorial jurisdiction of the latter
State? 2d. Whether a similar removal of the plaintiff by his master
from the State of Missouri, and his retention in service at a point
included within no State, but situated north of thirty-six degrees
thirty minutes of north latitude, worked a forfeiture of the right
of property of the master, and the manumission of the
plaintiff?

															In considering the first of these questions, the acts or
declarations of the master, as expressive of his purpose to
emancipate, may be thrown out of view, since none will deny the
right of the owner to relinquish his interest in any subject of
property at any time or in any place. The inquiry here bears no
relation to acts or declarations of the owner as expressive of his
intent or purpose to make such a relinquishment; it is simply a
question whether, irrespective of such purpose and in opposition
thereto, that relinquishment can be enforced against the owner of
property within his own country, in defiance of every guaranty
promised by its laws, and this through the instrumentality of a
claim to power entirely foreign and extraneous with reference to
himself, to the origin and foundation of his title, and to the
independent authority of his country. A conclusive negative answer
to such an inquiry is at once supplied by announcing a few familiar
and settled principles and doctrines of public law.

															Vattel, in his chapter the the general principles of the laws of
nations, section 15th, tells us that

															"nations, being free and independent of each other in the same
manner that men are naturally free and independent, the second
general law of their society is that each nation should be left in
the peaceable enjoyment of that liberty which she inherits from
nature."

															"The natural society of nations," says this writer, "cannot
subsist unless the natural rights of each be respected." In Page 60 U. S. 484 section 16th he says,

															"as a consequence of that liberty and independence, it
exclusively belongs to each nation to form her own judgment of what
her conscience prescribes for her -- of what it is proper or
improper for her to do, and of course it rests solely with her to
examine and determine whether she can perform any office for
another nation without neglecting the duty she owes to herself. In
all cases, therefore, in which a nation has the right of judging
what her duty requires, no other nation can compel her to act in
such or such a particular manner, for any attempt at such
compulsion would be an infringement on the liberty of nations."

															Again, in section 18th of the same chapter,

															"nations composed of men, and considered as so many free persons
living together in a state of nature, are naturally equal, and
inherit from nature the same obligations and rights. Power or
weakness does not produce any difference. A small republic is no
less a sovereign state than the most powerful kingdom."

															So, in section 20:

															"A nation, then, is mistress of her own actions, so long as they
do not affect the proper and perfect rights of any other
nation -- so long as she is only internally bound, and
does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty
of a breach of duty, but other nations are bound to acquiesce in
her conduct, since they have no right to dictate to her. Since
nations are free, independent, and equal, and
since each possesses the right of judging, according to the
dictates of her conscience, what conduct she is to pursue in order
to fulfill her duties, the effect of the whole is to produce, at
least externally, in the eyes of mankind, a perfect equality of
rights between nations in the administration of their affairs and
in the pursuit of their pretensions, without regard to the
intrinsic justice of their conduct, of which others have no right
to form a definitive judgment."

															Chancellor Kent, in the 1st volume of his Commentaries, lecture
2d, after collating the opinions of Grotius, Heineccius, Vattel,
and Rutherford, enunciates the following positions as sanctioned by
these and other learned publicists, viz: that

															"nations are equal in respect to each other, and entitled to
claim equal consideration for their rights, whatever may be their
relative dimensions or strength, or however greatly they may differ
in government, religion, or manners. This perfect equality and
entire independence of all distinct States is a fundamental
principle of public law. It is a necessary consequence of this
equality that each nation has a right to govern itself as it may
think proper, and no one nation is entitled to dictate a form of
government or religion, or a course of internal Page 60 U. S. 485 policy, to another. This writer gives some instances of the
violation of this great national immunity, and amongst them the
constant interference by the ancient Romans, under the pretext of
settling disputes between their neighbors, but with the real
purpose of reducing those neighbors to bondage, the interference of
Russia, Prussia, and Austria for the dismemberment of Poland, the
more recent invasion of Naples by Austria in 1821, and of Spain by
the French Government in 1823, under the excuse of suppressing a
dangerous spirit of internal revolution and reform."

															With reference to this right of self-government in independent
sovereign States, an opinion has been expressed which, whilst it
concedes this right as inseparable from and as a necessary
attribute of sovereignty and independence, asserts nevertheless
some implied and paramount authority of a supposed international
law, to which this right of self-government must be regarded and
exerted as subordinate, and from which independent and sovereign
States can be exempted only by a protest, or by some public and
formal rejection of that authority. With all respect for those by
whom this opinion has been professed, I am constrained to regard it
as utterly untenable, as palpably inconsistent, and as presenting
in argument a complete felo de se. Sovereignty, independence, and a perfect right of
self-government, can signify nothing less than a superiority to and
an exemption from all claims by any extraneous power, however
expressly they may be asserted, and render all attempts to enforce
such claims merely attempts at usurpation. Again, could such claims
from extraneous sources be regarded as legitimate, the effort to
resist or evade them, by protest or denial, would be as irregular
and unmeaning as it would be futile. It could in no wise affect the
question of superior right. For the position here combatted, no
respectable authority has been, and none it is thought can be,
adduced. It is certainly irreconcilable with the doctrines already
cited from the writers upon public law.

															Neither the Case of Lewis Somersett, Howell's State
Trials, vol. 20, so often vaunted as the proud evidence of devotion
to freedom under a Government which has done as much perhaps to
extend the reign of slavery as all the world besides, nor does any
decision founded upon the authority of Somersett's Case, when correctly expounded, assail or impair the principle of
national equality enunciated by each and all of the publicists
already referred to. In the case of Somersett, although
the applicant for the habeas corpus and the individual claiming
property in that applicant were both subjects and residents Page 60 U. S. 486 within the British empire, yet the decision cannot be correctly
understood as ruling absolutely and under all circumstances against
the right of property in the claimant. That decision goes no
farther than to determine that, within the realm of
England, there was no authority to justify the detention of an
individual in private bondage. If the decision in Somersett's
Case had gone beyond this point, it would have presented the
anomaly of a repeal by laws enacted for and limited in their
operation to the realm alone, of other laws and institutions
established for places and subjects without the limits of the realm
of England, laws and institutions at that very time, and long
subsequently, sanctioned and maintained under the authority of the
British Government, and which the full and combined action of the
King and Parliament was required to abrogate.

															But could the decision in Somersett's Case be correctly
interpreted as ruling the doctrine which it has been attempted to
deduce from it, still that doctrine must be considered as having
been overruled by the lucid and able opinion of Lord Stowell in the
more recent case of the slave Grace, reported in the second volume
of Haggard, p. 94, in which opinion, whilst it is conceded by the
learned judge that there existed no power to coerce the slave
whilst in England that yet, upon her return to the island of
Antigua, her status as a slave was revived, or, rather, that the
title of the owner to the slave as property had never been
extinguished, but had always existed in that island. If the
principle of this decision be applicable as between different
portions of one and the same empire, with how much more force does
it apply as between nations or Governments entirely separate, and
absolutely independent of each other? For in this precise attitude
the States of this Union stand with reference to this subject, and
with reference to the tenure of every description of property
vested under their laws and held within their territorial
jurisdiction.

															A strong illustration of the principle ruled by Lord Stowell,
and of the effect of that principle even in a case of express
contract, is seen in the case of Lewis v. Fullerton, decided by the Supreme Court of Virginia and reported in the first
volume of Randolph, p. 15. The case was this: a female slave, the
property of a citizen of Virginia, whilst with her master in the
State of Ohio, was taken from his possession under a writ of habeas
corpus, and set at liberty. Soon, or immediately after, by
agreement between this slave and her master, a deed was executed in
Ohio by the latter containing a stipulation that this slave should
return to Virginia, and after a service of two years in that State,
should there be free. The law of Virginia Page 60 U. S. 487 regulating emancipation required that deeds of emancipation
should, within a given time from their date, be recorded in the
court of the county in which the grantor resided, and declared that
deeds with regard to which this requisite was not complied with
should be void. Lewis, an infant son of this female, under the
rules prescribed in such cases, brought an action in forma
pauperis in one of the courts of Virginia for the recovery of
his freedom, claimed in virtue of the transactions above mentioned.
Upon an appeal to the Supreme Court from a judgment against the
plaintiff, Roane, Justice, in delivering the opinion of the court,
after disposing of other questions discussed in that case,
remarks:

															"As to the deed of emancipation contained in the record that
deed, taken in connection with the evidence offered in support of
it, shows that it had a reference to the State of Virginia, and the
testimony shows that it formed a part of this contract, whereby the
slave Milly was to be brought back (as she was brought back) into
the State of Virginia. Her object was therefore to secure her
freedom by the deed within the State of Virginia after the time
should have expired for which she had indented herself and when she
should be found abiding within the State of Virginia."

															"If, then, this contract had an eye to the State of Virginia for
its operation and effect, the lex loci ceases to operate.
In that case, it must, to have its effect, conform to the laws of
Virginia. It is insufficient under those laws to effectuate an
emancipation, for what of a due recording in the county court, as
was decided in the case of Givens v. Mann in this court.
It is also ineffectual within the Commonwealth of Virginia for
another reason. The lex loci is also to be taken subject
to the exception that it is not to be enforced in another country
when it violates some moral duty or the policy of that country or
is not consistent with a positive right secured to a third person
or party by the laws of that country in which it is sought to be
enforced. In such a case, we are told, ' magis jus nostrum, quam
jus alienum servemus. ' Huberus, tom. 2, lib. 1, tit. 3, 2
Fontblanque, p. 444."

															"That third party in this instance is the Commonwealth of
Virginia, and her policy and interests are also to be attended to.
These turn the scale against the lex loci in the present
instance."

															The second or last-mentioned position assumed for the plaintiff
under the pleas in bar, as it rests mainly if not solely upon the
provision of the act of Congress of March 6, 1820, prohibiting
slavery in Upper Louisiana north of thirty-six degrees thirty
minutes north latitude, popularly called the Missouri
Compromise, that assumption renews the question, formerly
so Page 60 U. S. 488 zealously debated, as to the validity of the provision in the
act of Congress, and upon the constitutional competency of Congress
to establish it.

															Before proceeding, however, to examine the validity of the
prohibitory provision of the law, it may, so far as the rights
involved in this cause are concerned, be remarked that conceding to
that provision the validity of a legitimate exercise of power,
still this concession could by no rational interpretation imply the
slightest authority for its operation beyond the territorial limits
comprised within its terms, much less could there be inferred from
it a power to destroy or in any degree to control rights, either of
person or property, entirely within the bounds of a distinct and
independent sovereignty -- rights invested and fortified by the
guaranty of that sovereignty. These surely would remain in all
their integrity, whatever effect might be ascribed to the
prohibition within the limits defined by its language.

															But, beyond and in defiance of this conclusion, inevitable and
undeniable as it appears, upon every principle of justice or sound
induction, it has been attempted to convert this prohibitory
provision of the act of 1820 not only into a weapon with which to
assail the inherent -- the necessarily inherent -- powers of
independent sovereign Governments, but into a mean of forfeiting
that equality of rights and immunities which are the birthright or
the donative from the Constitution of every citizen of the United
States within the length and breadth of the nation. In this
attempt, there is asserted a power in Congress, whether from
incentives of interest, ignorance, faction, partiality, or
prejudice, to bestow upon a portion of the citizens of this nation
that which is the common property and privilege of all -- the
power, in fine, of confiscation, in retribution for no offence, or,
if for an offence, for that of accidental locality only.

															It may be that, with respect to future cases, like the one now
before the court, there is felt an assurance of the impotence of
such a pretension; still, the fullest conviction of that result can
impart to it no claim to forbearance, nor dispense with the duty of
antipathy and disgust at its sinister aspect, whenever it may be
seen to scowl upon the justice, the order, the tranquillity, and
fraternal feeling which are the surest, nay, the only, means of
promoting or preserving the happiness and prosperity of the nation,
and which were the great and efficient incentives to the formation
of this Government.

															The power of Congress to impose the prohibition in the eighth
section of the act of 1820 has been advocated upon an attempted
construction of the second clause of the third section Page 60 U. S. 489 of the fourth article of the Constitution, which declares
that

															"Congress shall have power to dispose of and to make all needful
rules and regulations respecting the territory and other property belonging to the United States."

															In the discussions in both houses of Congress at the time of
adopting this eighth section of the act of 1820, great weight was
given to the peculiar language of this clause, viz:
territory and other property belonging to the United
States, as going to show that the power of disposing of and
regulating thereby vested in Congress was restricted to a proprietary interest in the territory or land comprised
therein, and did not extend to the personal or political rights of
citizens or settlers, inasmuch as this phrase in the Constitution,
" territory or other property, " identified territory with property, and inasmuch as citizens or persons could not be property, and
especially were not property belonging to the United
States. And upon every principle of reason or necessity, this power
to dispose of and to regulate the territory of the nation
could be designed to extend no farther than to its preservation and
appropriation to the uses of those to whom it belonged, viz., the nation. Scarcely anything more illogical or
extravagant can be imagined than the attempt to deduce from this
provision in the Constitution a power to destroy or in any wise to
impair the civil and political rights of the citizens of the United
States, and much more so the power to establish inequalities
amongst those citizens by creating privileges in one class of those
citizens, and by the disfranchisement of other portions or classes
by degrading them from the position they previously occupied.

															There can exist no rational or natural connection or affinity
between a pretension like this and the power vested by the
Constitution in Congress with regard to the Territories; on the
contrary, there is an absolute incongruity between them.

															But whatever the power vested in Congress, and whatever the
precise subject to which that power extended, it is clear that the
power related to a subject appertaining to the United
States, and one to be disposed of and regulated for the
benefit and under the authority of the United States. Congress was made simply the agent or trustee for the
United States, and could not, without a breach of trust and a
fraud, appropriate the subject of the trust to any other
beneficiary or cestui que trust than the United States, or
to the people of the United States, upon equal grounds, legal or
equitable. Congress could not appropriate that subject to any one
class or portion of the people, to the exclusion of others,
politically and constitutionally equals, but every citizen would,
if any one Page 60 U. S. 490 could claim it, have the like rights of purchase, settlement,
occupation, or any other right, in the national territory.

															Nothing can be more conclusive to show the equality of this with
every other right in all the citizens of the United States, and the
iniquity and absurdity of the pretension to exclude or to
disfranchise a portion of them because they are the owners of
slaves, than the fact that the same instrument which imparts to
Congress its very existence and its every function guaranties to
the slaveholder the title to his property, and gives him the right
to its reclamation throughout the entire extent of the nation, and
farther that the only private property which the Constitution has specifically recognised, and has imposed it as a direct
obligation both on the States and the Federal Government to protect
and enforce, is the property of the master in his slave;
no other right of property is placed by the Constitution upon the
same high ground, nor shielded by a similar guaranty.

															Can there be imputed to the sages and patriots by whom the
Constitution was framed, or can there be detected in the text of
that Constitution, or in any rational construction or implication
deducible therefrom, a contradiction so palpable as would exist
between a pledge to the slaveholder of an equality with his fellow
citizens, and of the formal and solemn assurance for the security
and enjoyment of his property, and a warrant given, as it were uno flatu, to another to rob him of that property, or to
subject him to proscription and disfranchisement for possessing or
for endeavoring to retain it? The injustice and extravagance
necessarily implied in a supposition like this cannot be rationally
imputed to the patriotic or the honest, or to those who were merely
sane.

															A conclusion in favor of the prohibitory power in Congress, as
asserted in the eighth section of the act of 1820, has been
attempted, as deducible from the precedent of the ordinance of the
convention of 1787, concerning the cession by Virginia of the
territory northwest of the Ohio, the provision in which ordinance,
relative to slavery, it has been attempted to impose upon other and
subsequently acquired territory.

															The first circumstance which, in the consideration of this
provision, impresses itself upon my mind is its utter futility and
want of authority. This court has, in repeated instances, ruled
that whatever may have been the force accorded to this Ordinance of
1787 at the period of its enactment, its authority and effect
ceased, and yielded to the paramount authority of the Constitution,
from the period of the adoption of the latter. Such is the
principle ruled in the cases of Pollard's
Lessee v. Hagan , 3 How. 212, Parmoli v.
The First Municipality of Page 60 U. S. 491 New Orleans, 3 How. 589, Strader v.
Graham , 16 How. 82. But apart from the superior
control of the Constitution, and anterior to the adoption of that
instrument, it is obvious that the inhibition in question never had
and never could have any legitimate and binding force. We may seek
in vain for any power in the convention either to require or to
accept a condition or restriction upon the cession like that
insisted on, a condition inconsistent with, and destructive of, the
object of the grant. The cession was, as recommended by the old
Congress in 1780, made originally and completed in terms to the
United States, and for the benefit of the United States, i.e., for the people, all the people, of the
United States. The condition subsequently sought to be annexed in
1787 (declared, too, to be perpetual and immutable), being
contradictory to the terms and destructive of the purposes of the
cession, and after the cession was consummated, and the powers of
the ceding party terminated, and the rights of the grantees, the people of the United States, vested, must necessarily
so far have been ab initio void. With respect to the power
of the convention to impose this inhibition, it seems to be
pertinent in this place to recur to the opinion of one contemporary
with the establishment of the Government, and whose distinguished
services in the formation and adoption of our national charter
point him out as the artifex maximus of our Federal
system. James Madison, in the year 1819, speaking with reference to
the prohibitory power claimed by Congress, then threatening the
very existence of the Union, remarks of the language of the second
clause of the third section of article fourth of the
Constitution

															"that it cannot be well extended beyond a power over the
territory as property, and the power to make provisions
really needful or necessary for the government of settlers, until
ripe for admission into the Union."

															Again, he says,

															"with respect to what has taken place in the Northwest
territory, it may be observed that the ordinance giving it is
distinctive character on the subject of slaveholding proceeded from
the old Congress, acting with the best intentions, but under a
charter which contains no shadow of the authority exercised, and it
remains to be decided how far the States formed within that
territory, and admitted into the Union, are on a different footing
from its other members as to their legislative sovereignty. As to
the power of admitting new States into the Federal compact, the
questions offering themselves are whether Congress can attach
conditions, or the new States concur in conditions, which after
admission would abridge or enlarge the
constitutional rights of legislation common to other States;
whether Congress can, by a compact Page 60 U. S. 492 with a new State, take power either to or from itself, or place
the new member above or below the equal rank and rights possessed
by the others; whether all such stipulations expressed or implied
would not be nullities, and be so pronounced when brought to a
practical test. It falls within the scope of your inquiry to state
the fact that there was a proposition in the convention to
discriminate between the old and the new States by an article in
the Constitution. The proposition, happily, was rejected. The
effect of such a discrimination is sufficiently evident. [ Footnote 2 ]"

															In support of the Ordinance of 1787, there may be adduced the
semblance at least of obligation deductible from compact, the form of assent or agreement between the grantor and
grantee, but this form or similitude, as is justly remarked by Mr.
Madison, is rendered null by the absence of power or authority in
the contracting parties and by the more intrinsic and essential
defect of incompatibility with the rights and avowed purposes of
those parties, and with their relative duties and obligations to
others. If, then, with the attendant formalities of assent
or compact, the restrictive power claimed was void as to the
immediate subject of the ordinance, how much more unfounded must be
the pretension to such a power as derived from that source
( viz., the Ordinance of 1787) with respect to territory
acquired by purchase or conquest under the supreme authority of the
Constitution -- territory not the subject of mere
donation, but obtained in the name of all, by the combined
efforts and resources of all, and with no condition annexed or
pretended.

															In conclusion, my opinion is that the decision of the Circuit
Court upon the law arising upon the several pleas in bar is
correct, but that it is erroneous in having sustained the demurrer
to the plea in abatement of the jurisdiction; that, for this error,
the decision of the Circuit Court should be reversed, and the cause
remanded to that court with instructions to abate the action for
the reason set forth and pleaded in the plea in abatement.

															In the aforegoing examination of this cause, the circumstance
that the questions involved therein had been previously adjudged
between these parties by the court of the State of Missouri has not
been adverted to, for although it has been ruled by this court that
in instances of concurrent jurisdiction, the court first obtaining
possession or cognizance of the controversy should retain and
decide it, yet, as in this case there had Page 60 U. S. 493 been no plea, either of a former judgment or of autre action
pendent, it was thought that the fact of a prior decision,
however conclusive it might have been if regularly pleaded, could
not be incidentally taken into view.

															[ Footnote 1 ] Vide Gibbons's Decline and Fall of the Roman Empire.
London edition of 1825, vol. 3d, chap. 44, p. 183.

															[ Footnote 2 ]

															Letter from James Madison to Robert Walsh, November 27th, 1819,
on the subject of the Missouri Compromise.

															Mr. Justice CAMPBELL.

															I concur in the judgment pronounced by the Chief Justice, but
the importance of the cause, the expectation and interest it has
awakened, and the responsibility involved in its determination,
induce me to file a separate opinion.

															The case shows that the plaintiff, in the year 1834, was a negro
slave in Missouri, the property of Dr. Emerson, a surgeon in the
army of the United States. In 1834, his master took him to the
military station at Rock Island, on the border of Illinois, and in
1836 to Fort Snelling, in the present Minnesota, then Wisconsin,
Territory. While at Fort Snelling, the plaintiff married a slave
who was there with her master, and two children have been born of
this connection, one during the journey of the family in returning
to Missouri, and the other after their return to that State.

															Since 1838, the plaintiff and the members of his family have
been in Missouri in the condition of slaves. The object of this
suit is to establish their freedom. The defendant, who claims the
plaintiff and his family, under the title of Dr. Emerson, denied
the jurisdiction of the Circuit Court by the plea that the
plaintiff was a negro of African blood, the descendant of Africans
who had been imported and sold in this country as slaves, and thus
he had no capacity as a citizen of Missouri to maintain a suit in
the Circuit Court. The court sustained a demurrer to this plea, a
trial was then had upon the general issue, and special pleas to the
effect that the plaintiff and his family were slaves belonging to
the defendant.

															My opinion in this case is not affected by the plea to the
jurisdiction, and I shall not discuss the questions it suggests.
The claim of the plaintiff to freedom depends upon the effect to be
given to his absence from Missouri, in company with his master, in
Illinois and Minnesota, and this effect is to be ascertained by a
reference to the laws of Missouri. For the trespass complained of
was committed upon one claiming to be a freeman and a citizen, in
that State, and who had been living for years under the dominion of
its laws. And the rule is that whatever is a justification where
the thing is done, must be a justification in the forum where the
case is tried. 20 How.St.Tri., 234, Cowp.S.C. 161.

															The Constitution of Missouri recognises slavery as a legal
condition, extends guaranties to the masters of slaves, and
invites Page 60 U. S. 494 immigrants to introduce them, as property, by a promise of
protection. The laws of the State charge the master with the
custody of the slave, and provide for the maintenance and security
of their relation.

															The Federal Constitution and the acts of Congress provide for
the return of escaping slaves within the limits of the Union. No
removal of the slave beyond the limits of the State, against the
consent of the master, nor residence there in another condition,
would be regarded as an effective manumission by the courts of
Missouri, upon his return to the State. " Sicut liberis captis
status restituitur sic servus domino. " Nor can the master
emancipate the slave within the State except through the agency of
a public authority. The inquiry arises whether the manumission of
the slave is effected by his removal, with the consent of the
master, to a community where the law of slavery does not exist, in
a case where neither the master nor slave discloses a purpose to
remain permanently, and where both parties have continued to
maintain their existing relations. What is the law of Missouri in
such a case? Similar inquiries have arisen in a great number of
suits, and the discussions in the State courts have relieved the
subject of much of its difficulty. 12 B.M.Ky.R. 545, Foster v.
Foster, 10 Gratt.Va.R. 485, 4 Har. and McH.Md.R. 295, Scott v. Emerson, 15 Misso. 576, 4 Rich.S.C.R., 186, 17
Misso. 434, 15 Misso. 596, 5 B.M. 173, 8 B.M. 540, 633, 9 B.M. 565,
5 Leigh 614, 1 Raud. 15, 18 Pick. 193.

															The result of these discussions is that, in general, the status
or civil and political capacity of a person is determined in the
first instance by the law of the domicil where he is born; that the
legal effect on persons arising from the operation of the law of
that domicil is not indelible, but that a new capacity or status
may be acquired by a change of domicil. That questions of status
are closely connected with considerations arising out of the social
and political organization of the State where they originate, and
each sovereign power must determine them within its own
territories.

															A large class of cases has been decided upon the second of the
propositions above stated in the Southern and Western courts --
cases in which the law of the actual domicil was adjudged to have
altered the native condition and status of the slave although he
had never actually possessed the status of freedom in that domicil. Rankin v. Lydia, 2 A.K.M., Herny v. Decker, Walk.
36, 4 Mart. 385, 1 Misso. 472, Hunter v. Fulcher, 1
Leigh.

															I do not impugn the authority of these cases. No evidence is
found in the record to establish the existence of a domicil Page 60 U. S. 495 acquired by the master and slave either in Illinois or
Minnesota. The master is described as an officer of the army who
was transferred from one station to another along the Western
frontier in the line of his duty and who, after performing the
usual tours of service, returned to Missouri; these slaves returned
to Missouri with him, and had been there for near fifteen years in
that condition when this suit was instituted. But absence in the
performance of military duty, without more, is a fact of no
importance in determining a question of a change of domicil.
Questions of that kind depend upon acts and intentions, and are
ascertained from motives, pursuits, the condition of the family and
fortune of the party, and no change will be inferred unless
evidence shows that one domicil was abandoned and there was an
intention to acquire another. 11 L. and Eq. 6, 6 Exch. 217, 6 M.
and W. 511, 2 Curt.Ecc.R. 368.

															The cases first cited deny the authority of a foreign law to
dissolve relations which have been legally contracted in the State
where the parties are and have their actual domicil -- relations
which were never questioned during their absence from that State --
relations which are consistent with the native capacity and
condition of the respective parties, and with the policy of the
State where they reside, but which relations were inconsistent with
the policy or laws of the State or Territory within which they had
been for a time, and from which they had returned, with these
relations undisturbed. It is upon the assumption that the law of
Illinois or Minnesota was indelibly impressed upon the slave and
its consequences carried into Missouri that the claim of the
plaintiff depends. The importance of the case entitles the doctrine
on which it rests to a careful examination.

															It will be conceded that, in countries where no law or
regulation prevails opposed to the existence and consequences of
slavery, persons who are born in that condition in a foreign State
would not be liberated by the accident of their introgression. The
relation of domestic slavery is recognised in the law of nations,
and the interference of the authorities of one State with the
rights of a master belonging to another, without a valid cause, is
a violation of that law. Wheat. Law of Na., 724, 5 Stats. at Large
601, Calh.Sp., 378, Reports of the Com. U.S. and G.B. 187, 238,
241.

															The public law of Europe formerly permitted a master to reclaim
his bondsman, within a limited period, wherever he could find him,
and one of the capitularies of Charlemagne abolishes the rule of
prescription. He directs,

															"that wheresoever, within the bounds of Italy, either the
runaway slave of the king, or of Page 60 U. S. 496 the church, or of any other man shall be found by his master, he
shall be restored without any bar or prescription of years, yet
upon the provision that the master be a Frank or German, or of any
other nation (foreign,) but if he be a Lombard or a Roman, he shall
acquire or receive his slaves by that law which has been
established from ancient times among them."

															Without referring for precedents abroad or to the colonial
history for similar instances, the history of the Confederation and
Union affords evidence to attest the existence of this ancient law.
In 1783, Congress directed General Washington to continue his
remonstrances to the commander of the British forces respecting the
permitting negroes belonging to the citizens of these States to
leave New York, and to insist upon the discontinuance of that
measure. In 1788, the resident minister of the United States at
Madrid was instructed to obtain from the Spanish Crown orders to
its Governors in Louisiana and Florida

															"to permit and facilitate the apprehension of fugitive slaves
from the States, promising that the States would observe the like
conduct respecting fugitives from Spanish subjects."

															The committee that made the report of this resolution consisted
of Hamilton, Madison, and Sedgwick, 2 Hamilton's Works, 473, and
the clause in the Federal Constitution providing for the
restoration of fugitive slaves is a recognition of this ancient
right, and of the principle that a change of place does not effect
a change of condition. The diminution of the power of a master to
reclaim his escaping bondsman in Europe commenced in the enactment
of laws of prescription in favor of privileged communes. Bremen,
Spire, Worms, Vienna, and Ratisbon, in Germany, Carcassonne,
Beziers, Toulouse, and Paris, in France, acquired privileges on
this subject at an early period. The ordinance of William the
Conqueror that a residence of any of the servile population of
England, for a year and a day, without being claimed, in any city,
burgh, walled town, or castle of the King, should entitle them to
perpetual liberty is a specimen of these laws.

															The earliest publicist who has discussed this subject is Bodin,
a jurist of the sixteenth century whose work was quoted in the
early discussions of the courts in France and England on this
subject. He says:

															"In France, although there be some remembrance of old servitude,
yet it is not lawful here to make a slave or to buy anyone of
others, insomuch as the slaves of strangers, so soon as they set
their foot within France, become frank and free, as was determined
by an old decree of the court of Paris against an ambassador of
Spain, who had brought a slave with him into France."

															He states another case, which arose in the city of Toulouse, of
a Genoese merchant, who had Page 60 U. S. 497 carried a slave into that city on his voyage from Spain, and
when the matter was brought before the magistrates, the

															"procureur of the city, out of the records, showed certain
ancient privileges given unto them of Tholouse, wherein it was
granted that slaves, so soon as they should come into Tholouse,
should be free."

															These cases were cited with much approbation in the discussion
of the claims of the West India slaves of Verdelin for freedom, in
1738, before the judges in admiralty, 15 Causes Celebres p. 1, 2
Masse Droit Com., sec. 58, and were reproduced before Lord
Mansfield, in the cause of Somersett, in 1772. Of the cases cited
by Bodin, it is to be observed that Charles V of France exempted
all the inhabitants of Paris from serfdom or other feudal
incapacities in 1371, and this was confirmed by several of his
successors, 3 Dulaire Hist. de Par. 546, Broud. Court. de Par. 21,
and the ordinance of Toulouse is preserved as follows:

															" Civitas Tholosana fuit et erit sine fine libera, adeo ut
servi et ancillae, sclavi et sclavae, dominos sive dominas
habentes, cum rebus vel sine rebus suis, ad Tholosam vel infra
terminos extra urbem terminatos accedentes acquirant
libertatem. "

															Hist. de Langue, tome 3, p. 69; ibid. 6, p. 8, Loysel
Inst. b. 1, sec. 6.

															The decisions were made upon special ordinances, or charters,
which contained positive prohibitions of slavery, and where liberty
had been granted as a privilege, and the history of Paris furnishes
but little support for the boast that she was a " sacro sancta
civitas, " where liberty always had an asylum, or for the
"self-complacent rhapsodies" of the French advocates in the case of
Verdelin, which amused the grave lawyers who argued the case of
Somersett. The case of Verdelin was decided upon a special
ordinance, which prescribed the conditions on which West India
slaves might be introduced into France, and which had been
disregarded by the master.

															The Case of Somersett was that of a Virginia slave
carried to England by his master in 1770, and who remained there
two years. For some cause, he was confined on a vessel destined to
Jamaica, where he was to be sold. Lord Mansfield, upon a return to
a habeas corpus, states the question involved. "Here, the person of
the slave himself," he says, "is the immediate subject of inquiry,
can any dominion, authority, or coercion be exercised in this
country, according to the American laws?" He answers:

															"The difficulty of adopting the relation, without adopting it in
all its consequences, is indeed extreme, and yet many of those
consequences are absolutely contrary to the municipal law of
England."

															Again, he says:

															"The return states that the slave departed, and refused to
serve, whereupon he was kept to be sold abroad. . . . So high Page 60 U. S. 498 an act of dominion must be recognised by the law of the country
where it is used. The power of the master over his slave has been
extremely different in different countries. . . . The state of
slavery is of such a nature that it is incapable of being
introduced on any reasons, moral or political, but only by positive
law, which preserves its force long after the reasons, occasion,
and time itself from whence it was created are erased from the
memory. It is so odious that nothing can be suffered to support it
but positive law."

															That there is a difference in the systems of States which
recognise and which do not recognise the institution of slavery
cannot be disguised. Constitutional law, punitive law, police,
domestic economy, industrial pursuits, and amusements, the modes of
thinking and of belief of the population of the respective
communities all show the profound influence exerted upon society by
this single arrangement. This influence was discovered in the
Federal Convention, in the deliberations on the plan of the
Constitution. Mr. Madison observed

															"that the States were divided into different interests not by
their difference of size, but by other different interests, not by
their difference of size, but by other circumstances, the most
material of which resulted from climate, but principally from the
effects of their having or not having slaves. These two causes
concur in forming the great division of interests in the United
States."

															The question to be raised with the opinion of Lord Mansfield,
therefore, is not in respect to the incongruity of the two systems,
but whether slavery was absolutely contrary to the law of England,
for if it was so, clearly, the American laws could not operate
there. Historical research ascertains that, at the date of the
Conquest, the rural population of England were generally in a
servile condition, and under various names denoting noting slight
variances in condition, they were sold with the land like cattle,
and were a part of its living money. Traces of the existence of
African slaves are to be found in the early chronicles. Parliament
in the time of Richard II, and also of Henry VIII, refused to adopt
a general law of emancipation. Acts of emancipation by the
last-named monarch and by Elizabeth are preserved.

															The African slave trade had been carried on, under the unbounded
protection of the Crown, for near two centuries when the case of
Somersett was heard, and no motion for its suppression had ever
been submitted to Parliament, while it was forced upon and
maintained in unwilling colonies by the Parliament and Crown of
England at that moment. Fifteen thousand negro slaves were then
living in that island, where they had been introduced under the
counsel of the most illustrious jurists of the realm, and such
slaves had been publicly Page 60 U. S. 499 sold for near a century in the markets of London. In the
northern part of the kingdom of Great Britain, there existed a
class of from 30,000 to 40,000 persons, of whom the Parliament
said, in 1775, 15 George III, chap. 28,

															"many colliers, coal-heavers, and salters are in a state of
slavery or bondage, bound to the collieries and salt works where
they work for life, transferable with the collieries and salt works
when their original masters have no use for them, and whereas the
emancipating or setting free the colliers, coal-heavers, and
salters in Scotland, who are now in a state of servitude, gradually
and upon reasonable conditions, would be the means of increasing
the number of colliers, coal-heavers, and salters, to the great
benefit of the public, without doing any injury to the present
masters, and would remove the reproach of allowing such a state of
servitude to exist in a free country,"

															&c., and again, in 1799, "they declare that many colliers
and coal-heavers still continue in a state of bondage" No statute,
from the Conquest till the 15 George III, had been passed upon the
subject of personal slavery. These facts have led the most eminent
civilian of England to question the accuracy of this judgment, and
to insinuate that, in this judgment, the offence of ampliare
jurisdictionem by private authority was committed by the
eminent magistrate who pronounced it.

															This sentence is distinguishable from those cited from the
French courts in this: that there positive prohibitions existed
against slavery, and the right to freedom was conferred on the
immigrant slave by positive law, whereas here the consequences of
slavery merely -- that is the public policy -- were found to be
contrary to the law of slavery. The case of the slave Grace, 2
Hagg., with four others, came before Lord Stowell in 1827, by
appeals from the West India vice admiralty courts. They were cases
of slaves who had returned to those islands, after a residence in
Great Britain, and where the claim to freedom was first presented
in the colonial forum. The learned judge in that case said:

															"This suit fails in its foundation. She (Grace) was not a free
person, no injury is done her by her continuance in slavery, and
she has no pretensions to any other station than that which was
enjoyed by every slave of a family. If she depends upon such
freedom conveyed by a mere residence in England, she complains of a
violation of right which she possessed no longer than whilst she
resided in England, but which totally expired when that residence
ceased, and she was imported into Antigua."

															The decision of Lord Mansfield was, "that so high an act of
dominion" as the master exercises over his slave, in sending him
abroad for sale, could not be exercised in England Page 60 U. S. 500 under the American laws, and contrary to the spirit of their
own.

															The decision of Lord Stowell is that the authority of the
English laws terminated when the slave departed from England. That
the laws of England were not imported into Antigua with the slave
upon her return, and that the colonial forum had no warrant for
applying a foreign code to dissolve relations which had existed
between persons belonging to that island, and which were legal
according to its own system. There is no distinguishable difference
between the case before us and that determined in the admiralty of
Great Britain.

															The complaint here, in my opinion, amounts to this: that the
judicial tribunals of Missouri have not denounced as odious the
Constitution and laws under which they are organized, and have not
superseded them on their own private authority for the purpose of
applying the laws of Illinois, or those passed by Congress for
Minnesota, in their stead. The eighth section of the act of
Congress of the 6th of March, 1820, 3 Statutes at Large 545,
entitled, "An act to authorize the people of Missouri to form a
State Government," &c., is referred to as affording the
authority to this court to pronounce the sentence which the Supreme
Court of Missouri felt themselves constrained to refuse. That
section of the act prohibits slavery in the district of country
west of the Mississippi, north of thirty-six degrees thirty minutes
north latitude, which belonged to the ancient province of
Louisiana, not included in Missouri.

															It is a settled doctrine of this court that the Federal
Government can exercise no power over the subject of slavery within
the States, nor control the intermigration of slaves, other than
fugitives, among the States. Nor can that Government affect the
duration of slavery within the States, other than by a legislation
over the foreign slave trade. The power of Congress to adopt the
section of the act above cited must therefore depend upon some
condition of the Territories which distinguishes them from States,
and subjects them to a control more extended. The third section of
the fourth article of the Constitution is referred to as the only
and all-sufficient grant to support this claim. It is that

															"new States may be admitted by the Congress to this Union, but
no new State shall be formed or erected within the jurisdiction of
any other State, nor any State be formed by the junction of two or
more States, or parts of State, without the consent of the
Legislatures of the States concerned, as well as of the Congress.
The Congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or other
property Page 60 U. S. 501 belonging to the United States, and nothing in this Constitution
shall be so construed as to prejudice any claims of the United
States, or of any particular State."

															It is conceded in the decisions of this court that Congress may
secure the rights of the United States in the public domain,
provide for the sale or lease of any part of it, and establish the
validity of the titles of the purchasers, and may organize
Territorial Governments, with powers of legislation. 44 U. S. 3 How.
212, 53 U. S. 12 How. 1, 26 U. S. 1 Pet.
511, 38 U. S. 13 P. 436, 57 U. S. 16 H.
164.

															But the recognition of a plenary power in Congress to dispose of
the public domain or to organize a Government over it does not
imply a corresponding authority to determine the internal polity or
to adjust the domestic relations or the persons who may lawfully
inhabit the territory in which it is situated. A supreme power to
make needful rules respecting the public domain, and a similar
power of framing laws to operate upon persons and things within the
territorial limits where it lies, are distinguished by broad lines
of demarcation in American history. This court has assisted us to
define them. In Johnson v.
McIntosh , 8 Wheat. 595-543, they say:

															"According to the theory of the British Constitution, all vacant
lands are vested in the Crown, and the exclusive power to grant
them is admitted to reside in the Crown, as a branch of the royal
prerogative."

															"All the lands we hold were originally granted by the Crown, and
the establishment of a royal Government has never been considered
as impairing its right to grant lands within the chartered limits
of such colony."

															And the British Parliament did claim a supremacy of legislation
coextensive with the absoluteness of the dominion of the sovereign
over the Crown lands. The American doctrine, to the contrary, is
embodied in two brief resolutions of the people of Pennsylvania in
1774: 1st.

															"That the inhabitants of these colonies are entitled to the same
rights and liberties, within the colonies that the subjects born in
England are entitled within the realm."

															2d.

															"That the power assumed by Parliament to bind the people of
these colonies by statutes, in all cases whatever, is
unconstitutional, and therefore the source of these unhappy
difficulties."

															The Congress of 1774, in their statement of rights and
grievances, affirm "a free and exclusive power of legislation" in
their several Provincial Legislatures,

															"in all cases of taxation and internal polity, subject only to
the negative of their sovereign, in such manner as has been
heretofore used and accustomed."

															1 Jour.Cong. 32.

															The unanimous consent of the people of the colonies, then, Page 60 U. S. 502 to the power of their sovereign, "to dispose of and make all
needful rules and regulations respecting the territory" of the
Crown, in 1774, was deemed by them as entirely consistent with
opposition, remonstrance, the renunciation of allegiance, and
proclamation of civil war, in preference to submission to his claim
of supreme power in the territories.

															I pass now to the evidence afforded during the Revolution and
Confederation. The American Revolution was not a social revolution.
It did not alter the domestic condition or capacity of persons
within the colonies, nor was it designed to disturb the domestic
relations existing among them. It was a political revolution, by
which thirteen dependent colonies became thirteen independent
States. "The Declaration of Independence was not," says Justice
Chase,

															"a declaration that the United Colonies jointly, in a collective
capacity, were independent States, &c., but that each of them
was a sovereign and independent State -- that is, that each of them
had a right to govern itself by its own authority and its own laws,
without any control from any other power on earth." 3 U. S. 3 Dall. 199,
4 Cr. 212.

															These sovereign and independent States, being united as a
Confederation, by various public acts of cession became jointly
interested in territory and concerned to dispose of and make all
needful rules and regulations respecting it. It is a conclusion not
open to discussion in this court

															"that there was no territory within the (original) United States
that was claimed by them in any other right than that of some of
the confederate States." Harcourt v.
Gaillord , 12 Wh. 523. "The question whether the
vacant lands within the United States," says Chief Justice
Marshall,

															"became joint property or belonged to the separate States was a
momentous question which threatened to shake the American
Confederacy to its foundations. This important and dangerous
question has been compromised, and the compromise is not now to be
contested."

															6 C.R. 87.

															The cessions of the States to the Confederation were made on the
condition that the territory ceded should be laid out and formed
into distinct republican States, which should be admitted as
members to the Federal Union having the same rights of sovereignty,
freedom, and independence as the other States. The first effort to
fulfil this trust was made in 1785 by the offer of a charter or
compact to the inhabitants who might come to occupy the land.

															Those inhabitants were to form for themselves temporary State
Governments, founded on the Constitutions of any of the States but
to be alterable at the will of their Legislature, and Page 60 U. S. 503 permanent Governments were to succeed these whenever the
population became sufficiently numerous to authorize the State to
enter the Confederacy, and Congress assumed to obtain powers from
the States to facilitate this object. Neither in the deeds of
cession of the States nor in this compact was a sovereign power for
Congress to govern the Territories asserted. Congress retained
power, by this act, "to dispose of and to make rules and
regulations respecting the public domain," but submitted to the
people to organize a Government harmonious with those of the
confederate States.

															The next stage in the progress of colonial government was the
adoption of the Ordinance of 1787 by eight States, in which the
plan of a Territorial Government, established by act of Congress,
is first seen. This was adopted while the Federal Convention to
form the Constitution was sitting. The plan placed the Government
in that hands of a Governor, Secretary, and Judges, appointed by
Congress, and conferred power on them to select suitable laws from
the codes of the States until the population should equal 5,000. A
Legislative Council, elected by the people, was then to be admitted
to a share of the legislative authority, under the supervision of
Congress, and States were to be formed whenever the number of the
population should authorize the measure.

															This ordinance was addressed to the inhabitants as a fundamental
compact, and six of its articles define the conditions to be
observed in their Constitution and laws. These conditions were
designed to fulfill the trust in the agreements of cession that the
States to be formed of the ceded Territories should be "distinct
republican States." This ordinance was submitted to Virginia in
1788, and the 5th article, embodying as it does a summary of the
entire act, was specifically ratified and confirmed by that State.
This was an incorporation of the ordinance into her act of cession.
It was conceded in the argument that the authority of Congress was
not adequate to the enactment of the ordinance, and that it cannot
be supported upon the Articles of Confederation. To a part of the
engagements, the assent of nine States was required, and for
another portion no provision had been made in those articles. Mr.
Madison said, in a writing nearly contemporary, but before the
confirmatory act of Virginia,

															"Congress have proceeded to form new States, to erect temporary
Governments, to appoint officers for them, and to prescribe the
conditions on which such States shall be admitted into the
Confederacy; all this has been done, and done without the least
color of constitutional authority."

															Federalist No. 38. Richard Henry Lee, one of the committee who
reported the ordinance to Congress, Page 60 U. S. 504 transmitted it to General Washington (15th July, 1787),
saying,

															"It seemed necessary, for the security of property among
uninformed and perhaps licentious people, as the greater part of
those who go there are, that a strong-toned Government should
exist, and the rights of property be clearly defined."

															The consent of all the States represented in Congress, the
consent of the Legislature of Virginia, the consent of the
inhabitants of the Territory, all concur to support the authority
of this enactment. It is apparent in the frame of the Constitution
that the Convention recognised its validity, and adjusted parts of
their work with reference to it. The authority to admit new States
into the Union, the omission to provide distinctly for Territorial
Governments, and the clause limiting the foreign slave trade to
States then existing, which might not prohibit it, show that they
regarded this Territory as provided with Government and organized
permanently with a restriction on the subject of slavery. Justice
Chase, in the opinion already cited, says of the Government before,
and it is in some measure true during the Confederation that

															"the powers of Congress originated from necessity, and arose out
of and were only limited by events, or, in other words, they were
revolutionary in their very nature. Their extent depended upon the
exigencies and necessities of public affairs,"

															and there is only one rule of construction, in regard to the
acts done, which will fully support them, viz., that the
powers actually exercised were rightfully exercised wherever they
were supported by the implied sanction of the State Legislatures
and by the ratifications of the people.

															The clauses in the 3d section of the 4th article of the
Constitution, relative to the admission of new States and the
disposal and regulation of the territory of the United States, were
adopted without debate in the Convention.

															There was a warm discussion on the clauses that relate to the
subdivision of the States, and the reservation of the claims of the
United States and each of the States from any prejudice. The
Maryland members revived the controversy in regard to the Crown
lands of the Southwest. There was nothing to indicate any reference
to a government of Territories not included within the limits of
the Union, and the whole discussion demonstrates that the
Convention was consciously dealing with a Territory whose
condition, as to government, had been arranged by a fundamental and
unalterable compact.

															An examination of this clause of the Constitution, by the light
of the circumstances in which the Convention was placed, will aid
us to determine its significance. The first clause is "that new
States may be admitted by the Congress to this Page 60 U. S. 505 Union." The condition of Kentucky, Vermont, Rhode Island, and
the new States to be formed in the Northwest suggested this as a
necessary addition to the powers of Congress. The next clause,
providing for the subdivision of States and the parties to consent
to such an alteration, was required by the plans on foot for
changes in Massachusetts, New York, Pennsylvania, North Carolina,
and Georgia. The clause which enables Congress to dispose of and
make regulations respecting the public domain was demanded by the
exigencies of an exhausted treasury and a disordered finance, for
relief by sales, and the preparation for sales, of the public
lands, and the last clause that nothing in the Constitution should
prejudice the claims of the United States or a particular State was
to quiet the jealousy and irritation of those who had claimed for
the United States all the unappropriated lands. I look in vain
among the discussions of the time for the assertion of a supreme
sovereignty for Congress over the territory then belonging to the
United States, or that they might thereafter acquire. I seek in
vain for an annunciation that a consolidated power had been
inaugurated, whose subject comprehended an empire, and which had no
restriction but the discretion of Congress. This disturbing element
of the Union entirely escaped the apprehensive previsions of Samuel
Adams, George Clinton, Luther Martin, and Patrick Henry, and in
respect to dangers from power vested in a central Government over
distant settlements, colonies, or provinces, their instincts were
always alive. Not a word escaped them to warn their countrymen that
here was a power to threaten the landmarks of this federative
Union, and, with them, the safeguards of popular and constitutional
liberty, or that, under this article, there might be introduced, on
our soil, a single Government over a vast extent of country -- a
Government foreign to the persons over whom it might be exercised
and capable of binding those not represented, by statutes, in all
cases whatever. I find nothing to authorize these enormous
pretensions, nothing in the expositions of the friends of the
Constitution, nothing in the expressions of alarm by its opponents
-- expressions which have since been developed as prophecies. Every
portion of the United States was then provided with a municipal
Government, which this Constitution was not designed to supersede,
but merely to modify as to its conditions.

															The compacts of cession by North Carolina and Georgia are
subsequent to the Constitution. They adopt the Ordinance of 1787,
except the clause respecting slavery. But the precautionary
repudiation of that article forms an argument quite as satisfactory
to the advocates for Federal power, as its introduction Page 60 U. S. 506 would have done. The refusal of a power to Congress to legislate
in one place seems to justify the seizure of the same power when
another place for its exercise is found.

															This proceeds from a radical error which lies at the foundation
of much of this discussion. It is that the Federal Government may
lawfully do whatever is not directly prohibited by the
Constitution. This would have been a fundamental error if no
amendments to the Constitution had been made. But the final
expression of the will of the people of the States, in the 10th
amendment, is that the powers of the Federal Government are limited
to the grants of the Constitution.

															Before the cession of Georgia was made, Congress asserted
rights, in respect to a part of her territory, which require a
passing notice. In 1798 and 1800, acts for the settlement of limits
with Georgia, and to establish a Government in the Mississippi
Territory, were adopted. A Territorial Government was organized
between the Chattahoochee and Mississippi rivers. This was within
the limits of Georgia. These acts dismembered Georgia. They
established a separate Government upon her soil, while they rather
derisively professed

															"that the establishment of that Government shall in no respects
impair the rights of the State of Georgia, either to the
jurisdiction or soil of the Territory."

															The Constitution provided that the importation of such persons
as any of the existing States shall think proper to admit shall not
be prohibited by Congress before 1808. By these enactments, a
prohibition was placed upon the importation of salves into Georgia,
although her Legislature had made none.

															This court have repeatedly affirmed the paramount claim of
Georgia to this Territory. They have denied the existence of any
title in the United States. 6 C.R. 87, 25 U. S. 12 Wh.
523, 44 U. S. 3 How.
212, 54 U. S. 13 How.
381. Yet these acts were cited in the argument as precedents to
show the power of Congress in the Territories. These statutes were
the occasion of earnest expostulation and bitter remonstrance on
the part of the authorities of the State, and the memory of their
injustice and wrong remained long after the legal settlement of the
controversy by the compact of 1802. A reference to these acts
terminates what I have to say upon the Constitutions of the
Territory within the original limits of the United States. These
Constitutions were framed by the concurrence of the States making
the cessions and Congress, and were tendered to immigrants who
might be attracted to the vacant territory. The legislative powers
of the officers of this Government were limited to the selection of
laws from the States, and provision was made for the introduction
of popular institutions, and their emancipation Page 60 U. S. 507 from Federal control whenever a suitable opportunity occurred.
The limited reservation of legislative power to the officers of the
Federal Government was excused on the plea of necessity, and the probability is that the clauses respecting slavery embody
some compromise among the statesmen of that time; beyond these, the
distinguishing features of the system which the patriots of the
Revolution had claimed as their birthright from Great Britain
predominated in them.

															The acquisition of Louisiana in 1803 introduced another system
into the United States. This vast province was ceded or Spain. To
establish a Government constituted on similar principles, and with
like conditions, was not an unnatural proceeding.

															But there was great difficulty in finding constitutional
authority for the measure. The third section of the fourth article
of the Constitution was introduced into the Constitution on the
motion of Mr. Gouverneur Morris. In 1803, he was appealed to for
information in regard to its meaning. He answers:

															"I am very certain I had it not in contemplation to insert a
decree de coercendo imperio in the Constitution of
America. . . . I knew then as well as I do now that all North
America must at length be annexed to us. Happy indeed, if the lust
of dominion stop here. It would therefore have been perfectly
utopian to oppose a paper restriction to the violence of popular
sentiment in a popular Government."

															3 Mor.Writ. 185. A few days later, he makes another reply to his
correspondent. "I perceive," he says,

															"I mistook the drift of your inquiry, which substantially is
whether Congress can admit, as a new State, territory which did not
belong to the United States when the Constitution was made. In my
opinion, they cannot. I always thought, when we should acquire
Canada and Louisiana, it would be proper to GOVERN THEM AS
PROVINCES, AND ALLOW THEM NO VOICE in our councils. In wording
the third SECTION OF THE fourth article, I went as far as
circumstances would permit to establish the exclusion. CANDOR
OBLIGES ME TO ADD MY BELIEF THAT HAD IT BEEN MORE POINTEDLY
EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE."

															3 Mor.Writ. 192. The first Territorial Government of Louisiana
was an Imperial one, founded upon a French or Spanish model. For a
time, the Governor, Judges, Legislative Council, Marshal,
Secretary, and officers of the militia were appointed by the
President. [ Footnote 2/1 ] Page 60 U. S. 508 Besides these anomalous arrangements, the acquisition gave rise
to jealous inquiries as to the influence it would exert in
determining the men and States that were to be "the arbiters and
rulers" of the destinies of the Union, and unconstitutional
opinions, having for their aim to promote sectional divisions, were
announced and developed. "Something," said an eminent
statesman,

															"something has suggested to the members of Congress the policy
of acquiring geographical majorities. This is a very direct step
towards disunion, for it must foster the geographical enmities by
which alone it can be effected. This something must be a
contemplation of particular advantages to be derived from such
majorities, and is it not notorious that they consist of nothing
else but usurpations over persons and property, by which they can
regulate the internal wealth and prosperity of States and
individuals? "

															The most dangerous of the efforts to employ a geographical
political power to perpetuate a geographical preponderance in the
Union is to be found in the deliberations upon the act of the 6th
of March, 1820, before cited. The attempt consisted of a proposal
to exclude Missouri from a place in the Union unless her people
would adopt a Constitution containing a prohibition upon the
subject of slavery according to a prescription of Congress. The
sentiment is now general, if not universal, that Congress had no
constitutional power to impose the restriction. This was frankly
admitted at the bar in the course of this argument. The principles
which this court have pronounced condemn the pretension then made
on behalf of the legislative department. In Groves v.
Slaughter, 15 Pet., the Chief Justice said:

															"The power over this subject is exclusively with the several
States, and each of them has a right to decide for itself whether
it will or will not allow persons of this description to be brought
within its limits."

															Justice McLean said:

															"The Constitution of the United States operates alike in all the
States, and one State has the same power over the subject of
slavery as every other State."

															In Pollard's Lessee v.
Hagan , 3 How. 212, the court said:

															"The United States have no constitutional capacity to exercise
municipal Page 60 U. S. 509 jurisdiction, sovereignty, or eminent domain within the limits
of a State or elsewhere except in cases where it is delegated, and
the court denies the faculty of the Federal Government to add to
its powers by treaty or compact."

															This is a necessary consequence resulting from the nature of the
Federal Constitution, which is a federal compact among the States
establishing a limited Government, with powers delegated by the
people of distinct and independent communities, who reserved to
their State Governments, and to themselves, the powers they did not
grant. This claim to impose a restriction upon the people of
Missouri involved a denial of the constitutional relations between
the people of the States and Congress, and affirmed a concurrent
right for the latter, with their people, to constitute the social
and political system of the new States. A successful maintenance of
this claim would have altered the basis of the Constitution. The
new States would have become members of a Union defined in part by
the Constitution and in part by Congress. They would not have been
admitted to "this Union." Their sovereignty would have been
restricted by Congress, as well as the Constitution. The demand was
unconstitutional and subversive, but was prosecuted with an energy
and aroused such animosities among the people that patriots whose
confidence had not failed during the Revolution began to despair
for the Constitution. [ Footnote
2/2 ] Amid the utmost violence of this extraordinary contest,
the expedient contained in the eighth section of this act was
proposed to moderate it, and to avert the catastrophe it menaced.
It was not seriously debated, nor were its constitutional aspects
severely scrutinized by Congress. For the first time in the history
of the country has its operation been embodied in a case at law and
been presented to this court for their judgment. The inquiry is
whether there are conditions in the Constitutions of the
Territories which subject the capacity and status of persons within
their limits to the direct action of Congress. Can Congress
determine the condition and status of persons who inhabit the
Territories?

															The Constitution permits Congress to dispose of and to make all
needful rules and regulations respecting the territory or other
property belonging to the United States. This power applies as well
to territory belonging to the United States within the States as
beyond them. It comprehends all the public domain, wherever it may
be. The argument is that Page 60 U. S. 510 the power to make "ALL needful rules and regulations" "is a
power of legislation," "a full legislative power," "that it
includes all subjects of legislation in the territory," and is
without any limitations, except the positive prohibitions which
affect all the powers of Congress. Congress may then regulate or
prohibit slavery upon the public domain within the new States, and
such a prohibition would permanently affect the capacity of a slave
whose master might carry him to it. And why not? Because no power
has been conferred on Congress. This is a conclusion universally
admitted. But the power to "make rules and regulations respecting
the territory" is not restrained by State lines, nor are there any
constitutional prohibitions upon its exercise in the domain of the
United States within the States, and whatever rules and regulations
respecting territory Congress may constitutionally make are
supreme, and are not dependent on the situs of "the territory."

															The author of the Farmer's Letters, so famous in the
ante-revolutionary history, thus states the argument made by the
American loyalists in favor of the claim of the British Parliament
to legislate in all cases whatever over the colonies: "It has been
urged with great vehemence against us," he says,

															"and it seems to be thought their FORT by our adversaries that a
power of regulation is a power of legislation, and a power of
legislation, if constitutional, must be universal and supreme, in
the utmost sense of the word. It is therefore concluded that the
colonies, by acknowledging the power of regulation, acknowledged
every other power."

															This sophism imposed upon a portion of the patriots of that day.
Chief Justice Marshall, in his life of Washington, says

															"that many of the best-informed men in Massachusetts had perhaps
adopted the opinion of the parliamentary right of internal
government over the colonies; . . . that the English statute book
furnishes many instances of its exercise; . . . that in no case
recollected was their authority openly controverted;"

															and "that the General Court of Massachusetts, on a late
occasion, openly recognised the principle." Marsh.Wash., v. 2, p.
75, 76.

															But the more eminent men of Massachusetts rejected it, and
another patriot of the time employs the instance to warn us of "the
stealth with which oppression approaches," and "the enormities
towards which precedents travel." And the people of the United
States, as we have seen, appealed to the last argument, rather than
acquiesce in their authority. Could it have been the purpose of
Washington and his illustrious associates, by the use of ambiguous,
equivocal, and expansive Page 60 U. S. 511 words, such as "rules," "regulations," "territory," to
reestablish in the Constitution of their country that fort which
had been prostrated amid the toils and with the sufferings and
sacrifices of seven years of war? Are these words to be understood
as the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and
Dunmores -- in a word, as George III would have understood them --
or are we to look for their interpretation to Patrick Henry or
Samuel Adams, to Jefferson, and Jay, and Dickinson, to the sage
Franklin, or to Hamilton, who, from his early manhood, was engaged
in combating British constructions of such words? We know that the
resolution of Congress of 1780 contemplated that the new States to
be formed under their recommendation were to have the same rights
of sovereignty, freedom, and independence, as the old. That every
resolution, cession, compact, and ordinance of the States observed
the same liberal principle. That the Union of the Constitution is a
union formed of equal States, and that new States, when admitted,
were to enter "this Union." Had another union been proposed in "any
pointed manner," it would have encountered not only "strong," but
successful, opposition. The disunion between Great Britain and her
colonies originated in the antipathy of the latter to "rules and
regulations" made by a remote power respecting their internal
policy. In forming the Constitution, this fact was ever present in
the minds of its authors. The people were assured by their most
trusted statesmen "that the jurisdiction of the Federal Government
is limited to certain enumerated objects, which concern all members
of the republic," and

															"that the local or municipal authorities form distinct portions
of supremacy, no more subject within their respective spheres to
the general authority than the general authority is subject to them
within its own sphere."

															Still this did not content them. Under the lead of Hancock and
Samuel Adams, of Patrick Henry and George Mason, they demanded an
explicit declaration that no more power was to be exercised than
they had delegated. And the Ninth and Tenth Amendments to the
Constitution were designed to include the reserved rights of the
States, and the people, within all the sanctions of that
instrument, and to bind the authorities, State and Federal, by the
judicial oath it prescribes, to their recognition and observance.
Is it probable, therefore that the supreme and irresponsible power,
which is now claimed for Congress over boundless territories, the
use of which cannot fail to react upon the political system of the
States, to its subversion, was ever within the contemplation of the
statesmen who conducted the counsels of the people in the formation
of this Constitution? When Page 60 U. S. 512 the questions that came to the surface upon the acquisition of
Louisiana were presented to the mind of Jefferson, he wrote:

															"I had rather ask an enlargement of power from the nation, where
it is found necessary, than to assume it by a construction which
would make our powers boundless. Our peculiar security is in the
possession of a written Constitution. Let us not make it blank
paper by construction. I say the same as to the opinion of those
who consider the grant of the treaty-making power as boundless. If
it is, then we have no Constitution. If it has bounds, they can be
no others than the definitions of the powers which that instrument
gives. It specifies and delineates the operations permitted to the
Federal Government, and gives the powers necessary to carry them
into execution."

															The publication of the journals of the Federal Convention in
1819, of the debates reported by Mr. Madison in 1840, and the mass
of private correspondence of the early statesmen before and since,
enable us to approach the discussion of the aims of those who made
the Constitution with some insight and confidence.

															I have endeavored, with the assistance of these, to find a
solution for the grave and difficult question involved in this
inquiry. My opinion is that the claim for Congress of supreme power
in the Territories, under the grant to "dispose of and make all
needful rules and regulations respecting territory," is not
supported by the historical evidence drawn from the Revolution, the
Confederation, or the deliberations which preceded the ratification
of the Federal Constitution. The Ordinance of 1787 depended upon
the action of the Congress of the Confederation, the assent of the
State of Virginia, and the acquiescence of the people who
recognised the validity of that plea of necessity which supported
so many of the acts of the Governments of that time, and the
Federal Government accepted the ordinance as a recognised and valid
engagement of the Confederation.

															In referring to the precedents of 1798 and 1800, I find the
Constitution was plainly violated by the invasion of the rights of
a sovereign State, both of soil and jurisdiction, and in reference
to that of 1804, the wisest statesmen protested against it, and the
President more than doubted its policy and the power of the
Government.

															Mr. John Quincy Adams, at a later period, says of the last
act

															"that the President found Congress mounted to the pitch of
passing those acts without inquiring where they acquired the
authority, and he conquered his own scruples as they had done
theirs."

															But this court cannot undertake for themselves the same
conquest. They acknowledge that our peculiar security Page 60 U. S. 513 is in the possession of a written Constitution, and they cannot
make it blank paper by construction.

															They look to its delineation of the operations of the Federal
Government, and they must not exceed the limits it marks out, in
their administration. The court have said

															"that Congress cannot exercise municipal jurisdiction,
sovereignty, or eminent domain, within the limits of a State or
elsewhere, beyond what has been delegated."

															We are then to find the authority for supreme power in the
Territories in the Constitution. What are the limits upon the
operations of a Government invested with legislative, executive,
and judiciary powers, and charged with the power to dispose of and
to make all needful rules and regulations respecting a vast public
domain? The feudal system would have recognised the claim made on
behalf of the Federal Government for supreme power over persons and
things in the Territories as an incident to this title -- that is
the title to dispose of and make rules and regulations respecting
it.

															The Norman lawyers of William the Conqueror would have yielded
an implicit assent to the doctrine that a supreme sovereignty is an
inseparable incident to a grant to dispose of and to make all
needful rules and regulations respecting the public domain. But an
American patriot, in contrasting the European and American systems,
may affirm

															"that European sovereigns give lands to their colonists, but
reserve to themselves a power to control their property, liberty,
and privileges, but the American Government sells the lands
belonging to the people of the several States ( i.e., United States) to their citizens, who are already in the possession
of personal and political rights which the Government did not give
and cannot take away."

															And the advocates for Government sovereignty in the Territories
have been compelled to abate a portion of the pretensions
originally made in its behalf, and to admit that the constitutional
prohibitions upon Congress operate in the Territories. But a
constitutional prohibition is not requisite to ascertain a
limitation upon the authority of of the several departments of the
Federal Government. Nor are the States or people restrained by any
enumeration or definition of their rights or liberties.

															To impair or diminish either, the department must produce an
authority from the people themselves, in their Constitution, and,
as we have seen, a power to make rules and regulations respecting
the public domain does not confer a municipal sovereignty over
persons and things upon it. But as this is "thought their fort" by
our adversaries, I propose a more definite examination of it. We
have seen, Congress does not Page 60 U. S. 514 dispose of or make rules and regulations respecting domain
belonging to themselves, but belonging to the United States.

															These conferred on their mandatory, Congress, authority to
dispose of the territory which belonged to them in common, and to
accomplish that object beneficially and effectually, they gave an
authority to make suitable rules and regulations respecting it.
When the power of disposition is fulfilled, the authority to make
rules and regulations terminates, for it attaches only upon
territory "belonging to the United States."

															Consequently, the power to make rules and regulations, from the
nature of the subject, is restricted to such administrative and
conservatory acts as are needful for the preservation of the public
domain and its preparation for sale or disposition. The system of
land surveys, the reservations for schools, internal improvements,
military sites, and public buildings, the preemption claims of
settlers, the establishment of land offices and boards of inquiry
to determine the validity of land titles, the modes of entry and
sale, and of conferring titles, the protection of the lands from
trespass and waste, the partition of the public domain into
municipal subdivisions, having reference to the erection of
Territorial Governments and States, and perhaps the selection,
under their authority, of suitable laws for the protection of the
settlers until there may be a sufficient number of them to form a
self-sustaining municipal Government -- these important rules and
regulations will sufficiently illustrate the scope and operation of
the 3d section of the 4th article of the Constitution. But this
clause in the Constitution does not exhaust the powers of Congress
within the territorial subdivisions, or over the persons who
inhabit them. Congress may exercise there all the powers of
Government which belong to them as the Legislature of the United
States, of which these Territories make a part. Loughborough v.
Blake , 5 Wheat. 317. Thus, the laws of taxation,
for the regulation of foreign, Federal, and Indian commerce, and so
for the abolition of the slave trade, for the protection of
copyrights and inventions, for the establishment of postal
communication and courts of justice, and for the punishment of
crimes are as operative there as within the States. I admit that to
mark the bounds for the jurisdiction of the Government of the
United States within the Territory, and of its power in respect to
persons and things within the municipal subdivisions it has
created, is a work of delicacy and difficulty, and in a great
measure is beyond the cognizance of the judiciary department of
that Government. How much municipal power may be exercised by the
people of the Territory before their admission to the Union, the
courts of justice cannot decide. This must depend, for Page 60 U. S. 515 the most part, on political considerations, which cannot enter
into the determination of a case of law or equity. I do not feel
called upon to define the jurisdiction of Congress. It is
sufficient for the decision of this case to ascertain whether the
residuary sovereignty of the States or people has been invaded by
the 8th section of the act of 6th March, 1820, I have cited,
insofar as it concerns the capacity and status of persons in the
condition and circumstances of the plaintiff and his family.

															These States, at the adoption of the Federal Constitution, were
organized communities, having distinct systems of municipal law,
which, though derived from a common source and recognising in the
main similar principles, yet in some respects had become unlike,
and, on a particular subject, promised to be antagonistic.

															Their systems provided protection for life, liberty, and
property among their citizens, and for the determination of the
condition and capacity of the persons domiciled within their
limits. These institutions, for the most part, were placed beyond
the control of the Federal Government. The Constitution allows
Congress to coin money, and regulate its value, to regulate foreign
and Federal commerce, to secure, for a limited period, to authors
and inventors a property in their writings and discoveries, and to
make rules concerning captures in war, and, within the limits of
these powers, it has exercised, rightly, to a greater or less
extent, the power to determine what shall and what shall not be
property.

															But the great powers of war and negotiation, finance, postal
communication, and commerce, in general, when employed in respect
to the property of a citizen, refer to and depend upon the
municipal laws of the States to ascertain and determine what is
property, and the rights of the owner, and the tenure by which it
is held.

															Whatever these Constitutions and laws validly determine to be
property, it is the duty of the Federal Government, through the
domain of jurisdiction merely Federal, to recognise to be
property.

															And this principle follows from the structure of the respective
Governments, State and Federal, and their reciprocal relations.
They are different agents and trustees of the people of the several
States, appointed with different powers and with distinct purposes,
but whose acts, within the scope of their respective jurisdictions,
are mutually obligatory. They are, respectively, the depositories
of such powers of legislation as the people were willing to
surrender, and their duty is to cooperate within their several
jurisdictions to maintain the rights of the same citizens under
both Governments unimpaired. Page 60 U. S. 516 A proscription, therefore, of the Constitution and laws of one
or more States, determining property, on the part of the Federal
Government, by which the stability of its social system may be
endangered is plainly repugnant to the conditions on which the
Federal Constitution was adopted, or which that Government was
designed to accomplish. Each of the States surrendered its powers
of war and negotiation, to raise armies and to support a navy, and
all of these powers are sometimes required to preserve a State from
disaster and ruin. The Federal Government was constituted to
exercise these powers for the preservation of the States,
respectively, and to secure to all their citizens the enjoyment of
the rights which were not surrendered to the Federal Government.
The provident care of the statesmen who projected the Constitution
was signalized by such a distribution of the powers of Government
as to exclude many of the motives and opportunities for promoting
provocations and spreading discord among the States, and for
guarding against those partial combinations, so destructive of the
community of interest, sentiment, and feeling, which are so
essential to the support of the Union. The distinguishing features
of their system consist in the exclusion of the Federal Government
from the local and internal concerns of, and in the establishment
of an independent internal Government within, the States. And it is
a significant fact in the history of the United States that those
controversies which have been productive of the greatest animosity,
and have occasioned most peril to the peace of the Union, have had
their origin in the well sustained opinion of a minority among the
people that the Federal Government had overstepped its
constitutional limits to grant some exclusive privilege, or to
disturb the legitimate distribution of property or power among the
States or individuals. Nor can a more signal instance of this be
found than is furnished by the act before us. No candid or rational
man can hesitate to believe that if the subject of the eighth
section of the act of March, 1820, had never been introduced into
Congress and made the basis of legislation, no interest common to
the Union would have been seriously affected. And certainly the
creation within this Union of large confederacies of unfriendly and
frowning States, which has been the tendency and, to an alarming
extent, the result produced by the agitation arising from it does
not commend it to the patriot or statesman. This court have
determined that the intermigration of slaves was not committed to
the jurisdiction or control of Congress. Wherever a master is
entitled to go within the United States, his slave may accompany
him without any impediment from or fear of Congressional Page 60 U. S. 517 legislation or interference. The question then arises whether
Congress, which can exercise no jurisdiction over the relations of
master and slave within the limits of the Union, and is bound to
recognise and respect the rights and relations that validly exist
under the Constitutions and laws of the States, can deny the
exercise of those rights, and prohibit the continuance of those
relations, within the Territories.

															And the citation of State statutes prohibiting the immigration
of slaves, and of the decisions of State courts enforcing the
forfeiture of the master's title in accordance with their rule,
only darkens the discussion. For the question is have Congress the
municipal sovereignty in the Territories which the State
Legislatures have derived from the authority of the people, and
exercise in the States?

															And this depends upon the construction of the article in the
Constitution before referred to.

															And, in my opinion that clause confers no power upon Congress to
dissolve the relations of the master and slave on the domain of the
United States, either within or without any of the States.

															The eighth section of the act of Congress of the 6th of March,
1820, did not, in my opinion, operate to determine the domestic
condition and status of the plaintiff and his family during their
sojourn in Minnesota Territory, or after their return to
Missouri.

															The question occurs as to the judgment to be given in this case.
It appeared upon the trial that the plaintiff, in 1834, was in a
state of slavery in Missouri, and he had been in Missouri for near
fifteen years in that condition when this suit was brought. Nor
does it appear that he at any time possessed another state or
condition de facto. His claim to freedom depends upon his
temporary relocation, from the domicil of his origin, in company
with his master, to communities where the law of slavery did not
prevail. My examination is confined to the case as it was submitted
upon uncontested evidence, upon appropriate issues to the jury, and
upon the instructions given and refused by the court upon that
evidence. My opinion is that the opinion of the Circuit Court was
correct upon all the claims involved in those issues, and that the
verdict of the jury was justified by the evidence and
instructions.

															The jury have returned that the plaintiff and his family are
slaves.

															Upon this record, it is apparent that this is not a controversy
between citizens of different States, and that the plaintiff, at no
period of the life which has been submitted to the view of the
court, has had a capacity to maintain a suit in the courts Page 60 U. S. 518 of the United States. And in so far as the argument of the Chief
Justice upon the plea in abatement has a reference to the plaintiff
or his family in any of the conditions or circumstances of their
lives as presented in the evidence, I concur in that portion of his
opinion. I concur in the judgment which expresses the conclusion
that the Circuit Court should not have rendered a general
judgment.

															The capacity of the plaintiff to sue is involved in the pleas in
bar, and the verdict of the jury discloses an incapacity under the
Constitution. Under the Constitution of the United States, his is
an incapacity to sue in their courts, while, by the laws of
Missouri, the operation of the verdict would be more extensive. I
think it a safe conclusion to enforce the lesser disability imposed
by the Constitution of the United States, and leave to the
plaintiff all his rights in Missouri. I think the judgment should
be affirmed, on the ground that the Circuit Court had no
jurisdiction, or that the case should be reversed and remanded that
the suit may be dismissed.

															[ Footnote 2/1 ]

															Mr. Varnum said: "The bill provided such a Government as had
never been known in the United States." Mr. Eustis: "The Government
laid down in this bill is certainly a new thing in the United
States." Mr. Lucas: "It has been remarked that this bill
establishes elementary principles never previously introduced in
the Government of any Territory of the United States. Granting the
truth of this observation," &c. Mr. Macon: "My first objection
to the principle contained in this section is that it establishes a
species of government unknown to the United States." Mr. Boyle:
"Were the President an angel instead of a man, I would not clothe
him with this power." Mr. G. W. Campbell: "On examining the
section, it will appear that it really establishes a complete
despotism." Mr. Sloan: "Can anything be more repugnant to the
principles of just government? Can anything be more despotic?" --
Annals of Congress, 1803-1804

															[ Footnote 2/2 ]

															Mr. Jefferson wrote:

															"The Missouri question is the most portentous one that ever
threatened our Union. In the gloomiest moments of the revolutionary
war, I never had any apprehension equal to that I feel from this
source."

															Mr. Justice CATRON.

															The defendant pleaded to the jurisdiction of the Circuit Court
that the plaintiff was a negro of African blood, the descendant of
Africans, who had been imported and sold in this country as slaves,
and thus had no capacity as a citizen of Missouri to maintain a
suit in the Circuit Court. The court sustained a demurrer to this
plea, and a trial was had upon the pleas, of the general issue, and
also that the plaintiff and his family were slaves, belonging to
the defendant. In this trial, a verdict was given for the
defendant.

															The judgment of the Circuit Court upon the plea in abatement is
not open, in my opinion, to examination in this court upon the
plaintiff's writ.

															The judgment was given for him conformably to the prayer of his
demurrer. He cannot assign an error in such a judgment. Tidd's Pr.
1163, 2 Williams's Saund. 46a, 2 Iredell N.C. 87, 2 W. and S. 391.
Nor does the fact that the judgment was given on a plea to the
jurisdiction avoid the application of this rule. Capron v. Van
Noorden, 2 Cr. 126, 6 Wend. 465, 7 Met. 598, 5 Pike 1005.

															The declaration discloses a case within the jurisdiction of the
court -- a controversy between citizens of different States. The
plea in abatement, impugning these jurisdictional averments, was
waived when the defendant answered to the declaration by pleas to
the merits. The proceedings on that plea remain a part of the
technical record, to show the history of the case, but are not open
to the review of this court by a writ Page 60 U. S. 519 of error. The authorities are very conclusive on this point. Shepherd v.
Graves , 14 How. 505, Bailey v.
Dozier , 6 How. 23, 1 Stewart (Alabama) 46, 10 Ben.
Monroe (Kentucky) 555, 2 Stewart (Alabama) 370, 443, 2 Scammon
(Illinois) 78. Nor can the court assume as admitted facts the
averments of the plea from the confession of the demurrer. That
confession was for a single object, and cannot be used for any
other purpose than to test the validity of the plea. Tompkins
v. Ashley, 1 Moody and Mackin 32, 33 Maine 96, 100.

															There being nothing in controversy here but the merits, I will
proceed to discuss them.

															The plaintiff claims to have acquired property in himself, and
became free, by being kept in Illinois during two years.

															The Constitution, laws, and policy, of Illinois are somewhat
peculiar respecting slavery. Unless the master becomes an
inhabitant of that State, the slaves he takes there do not acquire
their freedom, and if they return with their master to the slave
State of his domicil, they cannot assert their freedom after their
return. For the reasons and authorities on this point, I refer to
the opinion of my brother Nelson, with which I not only concur, but
think his opinion is the most conclusive argument on the subject
within my knowledge.

															It is next insisted for the plaintiff that his freedom (and that
of his wife and eldest child) was obtained by force of the act of
Congress of 1820, usually known as the Missouri Compromise Act,
which declares:

															"That in all that territory ceded by France to the United
States, which lies north of thirty-six degrees thirty minutes north
latitude, slavery and involuntary servitude shall be, and are
hereby, forever prohibited. "

															From this prohibition, the territory now constituting the State
of Missouri was excepted, which exception to the stipulation gave
it the designation of a compromise.

															The first question presented on this act is whether Congress had
power to make such compromise. For if power was wanting, then no
freedom could be acquired by the defendant under the act.

															That Congress has no authority to pass laws and bind men's
rights beyond the powers conferred by the Constitution is not open
to controversy. But it is insisted that, by the Constitution,
Congress has power to legislate for and govern the Territories of
the United States, and that, by force of the power to govern, laws
could be enacted prohibiting slavery in any portion of the
Louisiana Territory, and, of course, to abolish slavery in
all parts of it whilst it was or is governed as a
Territory.

															My opinion is that Congress is vested with power to govern Page 60 U. S. 520 the Territories of the United States by force of the third
section of the fourth article of the Constitution. And I will state
my reasons for this opinion.

															Almost every provision in that instrument has a history that
must be understood before the brief and sententious language
employed can be comprehended in the relations its authors intended.
We must bring before us the state of things presented to the
Convention, and in regard to which it acted, when the compound
provision was made, declaring: 1st. That "new States may be
admitted by the Congress into this Union." 2d.

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

															Having ascertained the historical facts giving rise to these
provisions, the difficulty of arriving at the true meaning of the
language employed will be greatly lessened.

															The history of these facts is substantially as follows:

															The King of Great Britain, by his proclamation of 1763,
virtually claimed that the country west of the mountains had been
conquered from France, and ceded to the Crown of Great Britain by
the treaty of Paris of that year, and he says: "We reserve it under
our sovereignty, protection, and dominion, for the use of the
Indians."

															This country was conquered from the Crown of Great Britain, and
surrendered to the United States by the treaty of peace of 1783.
The colonial charters of Virginia, North Carolina, and Georgia
included it. Other States set up pretensions of claim to some
portions of the territory north of the Ohio, but they were of no
value, as I suppose. 18 U. S. 5 Wheat. 375.

															As this vacant country had been won by the blood and treasure of
all the States, those whose charters did not reach it insisted that
the country belonged to the States united, and that the lands
should be disposed of for the benefit of the whole, and to which
end the western territory should be ceded to the States united. The
contest was stringent and angry long before the Convention
convened, and deeply agitated that body. As a matter of justice,
and to quiet the controversy, Virginia consented to cede the
country north of the Ohio as early as 1783, and, in 1784, the deed
of cession was executed by her delegates in the Congress of the
Confederation conveying to the United States in Congress assembled,
for the benefit of said States,

															"all right, title, and claim, as well of soil as of
jurisdiction, which this Commonwealth hath to the territory or
tract of country within the limits of the Virginia Page 60 U. S. 521 charter, situate, lying, and being to the northwest of the river
Ohio."

															In 1787 (July 13), the ordinance was passed by the old Congress
to govern the Territory.

															Massachusetts had ceded her pretension of claim to western
territory in 1785, Connecticut hers in 1786, and New York had ceded
hers. In August, 1787, South Carolina ceded to the Confederation
her pretension of claim to territory west of that State. And North
Carolina was expected to cede hers, which she did do in April,
1790. And so Georgia was confidently expected to cede her large
domain, now constituting the territory of the States of Alabama and
Mississippi.

															At the time the Constitution was under consideration, there had
been ceded to the United States, or was shortly expected to be
ceded, all the western country from the British Canada line to
Florida and from the head of the Mississippi almost to its mouth,
except that portion which now constitutes the State of
Kentucky.

															Although Virginia had conferred on the Congress of the
Confederation power to govern the Territory north of the Ohio,
still it cannot be denied, as I think, that power was wanting to
admit a new State under the Articles of Confederation.

															With these facts prominently before the Convention, they
proposed to accomplish these ends:

															1st. To give power to admit new States.

															2d. To dispose of the public lands in the Territories, and such
as might remain undisposed of in the new States after they were
admitted.

															And, thirdly, to give power to govern the different Territories
as incipient States not of the Union, and fit them for admission.
No one in the Convention seems to have doubted that these powers
were necessary. As early as the third day of its session (May
29th), Edmund Randolph brought forward a set of resolutions
containing nearly all the germs of the Constitution, the tenth of
which is as follows:

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

															August 18th, Mr. Madison submitted, in order to be referred to
the committee of detail, the following powers as proper to be added
to those of the General Legislature:

															"To dispose of the unappropriated lands of the United States. .
. . To institute temporary Governments for new States arising
therein."

															3 Madison Papers 1353. Page 60 U. S. 522 These, with the resolution that a district for the location of
the seat of Government should be provided, and some others, were
referred, without a dissent, to the committee of detail to arrange
and put them into satisfactory language.

															Gouverneur Morris constructed the clauses, and combined the
views of a majority on the two provisions, to admit new States, and
secondly, to dispose of the public lands and to govern the
Territories in the meantime, between the cessions of the States and
the admission into the Union of new States arising in the ceded
territory. 3 Madison Papers 1456 to 1466.

															It was hardly possible to separate the power "to make all
needful rules and regulations" respecting the government of the
territory and the disposition of the public lands.

															North of the Ohio, Virginia conveyed the lands, and vested the
jurisdiction in the thirteen original States, before the
Constitution was formed. She had the sole title and sole
sovereignty, and the same power to cede, on any terms she saw
proper that the King of England had to grant the Virginia colonial
charter of 1609, or to grant the charter of Pennsylvania to William
Penn. The thirteen States, through their representatives and
deputed ministers in the old Congress, had the same right to govern
that Virginia had before the cession. Baldwin's Constitutional
Views 90. And the sixth article of the Constitution adopted all
engagements entered into by the Congress of the Confederation as
valid against the United States, and that the laws made in
pursuance of the new Constitution to carry out this engagement
should be the supreme law of the land, and the judges bound
thereby. To give the compact and the ordinance which was part of it
full effect under the new Government, the Act of August 7th, 1789,
was passed, which declares,

															"Whereas, in order that the ordinance of the United States in
Congress assembled, for the government of the Territory northwest
of the river Ohio, may have full effect, it is requisite that
certain provisions should be made so as to adapt the same to the
present Constitution of the United States."

															It is then provided that the Governor and other officers should
be appointed by the President, with the consent of the Senate, and
be subject to removal, &c., in like manner that they were by
the old Congress, whose functions had ceased.

															By the powers to govern given by the Constitution, those
amendments to the ordinance could be made, but Congress guardedly
abstained from touching the compact of Virginia further than to
adapt it to the new Constitution.

															It is due to myself to say that it is asking much of a judge Page 60 U. S. 523 who has for nearly twenty years been exercising jurisdiction
from the western Missouri line to the Rocky Mountains and, on this
understanding of the Constitution, inflicting the extreme penalty
of death for crimes committed where the direct legislation of
Congress was the only rule, to agree that he had been all the while
acting in mistake, and as an usurper.

															More than sixty years have passed away since Congress has
exercised power to govern the Territories by its legislation
directly or by Territorial charters, subject to repeal at all
times, and it is now too late to call that power into question, if
this court could disregard its own decisions, which it cannot do,
as I think. It was held in the case of Cross
v. Harrison , 16 How. 193-194, that the sovereignty
of California was in the United States in virtue of the
Constitution, by which power had been given to Congress to dispose
of and make all needful rules and regulations respecting the
territory or other property belonging to the United States, with
the power to admit new States into the Union. That decision
followed preceding ones, there cited. The question was then
presented, how it was possible for the judicial mind to conceive
that the United States Government, created solely by the
Constitution, could, by a lawful treaty, acquire territory over
which the acquiring power had no jurisdiction to hold and govern
it, by force of the instrument under whose authority the country
was acquired, and the foregoing was the conclusion of this court on
the proposition. What was there announced was most deliberately
done, and with a purpose. The only question here is, as I think,
how far the power of Congress is limited.

															As to the Northwest Territory, Virginia had the right to abolish
slavery there, and she did so agree in 1787, with the other States
in the Congress of the Confederation, by assenting to and adopting
the Ordinance of 1787 for the government of the Northwest
Territory. She did this also by an act of her Legislature, passed
afterwards, which was a treaty in fact.

															Before the new Constitution was adopted, she had as much right
to treat and agree as any European Government had. And, having
excluded slavery, the new Government was bound by that engagement
by article six of the new Constitution. This only meant that
slavery should not exist whilst the United States exercised the
power of government, in the Territorial form, for, when a new State
came in, it might do so with or without slavery.

															My opinion is that Congress had no power, in face of the compact
between Virginia and the twelve other States, to force slavery into
the Northwest Territory, because there it was bound to that
"engagement," and could not break it. Page 60 U. S. 524 In 1790, North Carolina ceded her western territory, now the
State of Tennessee, and stipulated that the inhabitants thereof
should enjoy all the privileges and advantages of the ordinance for
governing the territory north of the Ohio river, and that Congress
should assume the government, and accept the cession, under the
express conditions contained in the ordinance: Provided, "That no regulation made, or to be made, by Congress, shall tend to
emancipate slaves."

															In 1802, Georgia ceded her western territory to the United
States, with the provision that the Ordinance of 1787 should in all
its parts extend to the territory ceded, "that article only
excepted which forbids slavery." Congress had no more power to
legislate slavery out from the North Carolina and Georgia cessions
than it had power to legislate slavery in, north of the Ohio. No
power existed in Congress to legislate at all, affecting slavery,
in either case. The inhabitants, as respected this description of
property, stood protected whilst they were governed by Congress, in
like manner that they were protected before the cession was made,
and when they were, respectively, parts of North Carolina and
Georgia.

															And how does the power of Congress stand west of the Mississippi
river? The country there was acquired from France by treaty in
1803. It declares that the First Consul, in the name of the French
Republic, doth hereby cede to the United States, in full
sovereignty, the colony or province of Louisiana, with all the
rights and appurtenances of the said territory. And, by article
third, that

															"the inhabitants of the ceded territory shall be incorporated in
the Union of the United States, and admitted as soon as possible,
according to the principles of the Federal Constitution, to the
enjoyment of all the rights, advantages, and immunities, of
citizens of the United States, and in the meantime, they shall be
maintained and protected in the free enjoyment of their liberty,
property, and the religion which they profess."

															Louisiana was a province where slavery was not only lawful, but
where property in slaves was the most valuable of all personal
property. The province was ceded as a unit, with an equal right
pertaining to all its inhabitants, in every part thereof, to own
slaves. It was, to a great extent, a vacant country, having in it
few civilized inhabitants. No one portion of the colony of a proper
size for a State of the Union had a sufficient number of
inhabitants to claim admission into the Union. To enable the United
States to fulfil the treaty, additional population was
indispensable, and obviously desired with anxiety by both sides so
that the whole country should, as soon as possible, become States
of the Union. And for this Page 60 U. S. 525 contemplated future population, the treaty as expressly provided
as it did for the inhabitants residing in the province when the
treaty was made. All these were to be protected " in the
meantime, " that is to say, at all times, between the date of
the treaty and the time when the portion of the Territory where the
inhabitants resided was admitted into the Union as a State.

															At the date of the treaty, each inhabitant had the right to the
free enjoyment of his property, alike with his liberty and his
religion, in every part of Louisiana; the province then being one
country, he might go everywhere in it and carry his liberty,
property, and religion with him, and in which he was to be
maintained and protected until he became a citizen of a State of
the Union of the United States. This cannot be denied to the
original inhabitants and their descendants. And, if it be true that
immigrants were equally protected, it must follow that they can
also stand on the treaty.

															The settled doctrine in the State courts of Louisiana is that a
French subject coming to the Orleans Territory, after the treaty of
1803 was made and before Louisiana was admitted into the Union, and
being an inhabitant at the time of the admission, became a citizen
of the United States by that act that he was one of the inhabitants
contemplated by the third article of the treaty, which referred to
all the inhabitants embraced within the new State on its
admission.

															That this is the true construction I have no doubt.

															If power existed to draw a line at thirty-six degrees thirty
minutes north, so Congress had equal power to draw the line on the
thirtieth degree -- that is due west from the city of New Orleans
-- and to declare that, north of that line, slavery should never
exist. Suppose this had been done before 1812, when Louisiana came
into the Union, and the question of infraction of the treaty had
then been presented on the present assumption of power to prohibit
slavery; who doubts what the decision of this court would have been
on such an act of Congress, yet the difference between the supposed
line and that on thirty-six degrees thirty minutes north is only in
the degree of grossness presented by the lower line.

															The Missouri Compromise line of 1820 was very aggressive; it
declared that slavery was abolished forever throughout a country
reaching from the Mississippi river to the Pacific ocean,
stretching over thirty-two degrees of longitude and twelve and a
half degrees of latitude on its eastern side, sweeping over
four-fifths, to say no more, of the original province of
Louisiana.

															That the United States Government stipulated in favor of Page 60 U. S. 526 the inhabitants to the extent here contended for has not been
seriously denied, as far as I know, but the argument is that
Congress had authority to repeal the third article of the
treaty of 1803, insofar as it secured the right to hold slave
property in a portion of the ceded territory, leaving the right to
exist in other parts. In other words, that Congress could repeal
the third article entirely, at its pleasure. This I deny.

															The compacts with North Carolina and Georgia were treaties also,
and stood on the same footing of the Louisiana treaty, on the
assumption of power to repeal the one, it must have extended to
all, and Congress could have excluded the slaveholder of North
Carolina from the enjoyment of his lands in the Territory now the
State of Tennessee, where the citizens of the mother State were the
principal proprietors.

															And so in the case of Georgia. Her citizens could have been
refused the right to emigrate to the Mississippi or Alabama
Territory unless they left their most valuable and cherished
property behind them.

															The Constitution was framed in reference to facts then existing
or likely to arise; the instrument looked to no theories of
Government. In the vigorous debates in the Convention, as reported
by Mr. Madison and others, surrounding facts and the condition and
necessities of the country gave rise to almost every provision; and
among those facts, it was prominently true that Congress dare not
be intrusted with power to provide that, if North Carolina or
Georgia ceded her western territory, the citizens of the State (in
either case) could be prohibited, at the pleasure of Congress, from
removing to their lands, then granted to a large extent, in the
country likely to be ceded unless they left their slaves behind.
That such an attempt, in the face of a population fresh from the
war of the Revolution and then engaged in war with the great
confederacy of Indians extending from the mouth of the Ohio to the
Gulf of Mexico, would end in open revolt all intelligent men
knew.

															In view of these facts, let us inquire how the question stands
by the terms of the Constitution, aside from the treaty? How it
stood in public opinion when the Georgia cession was made, in 1802,
is apparent from the fact that no guaranty was required by Georgia
of the United States for the protection of slave property. The
Federal Constitution was relied on to secure the rights of Georgia
and her citizens during the Territorial condition of the country.
She relied on the indisputable truths that the States were by the
Constitution made equals in political rights, and equals in the
right to participate in the common property of all the States
united, and held in trust for Page 60 U. S. 527 them. The Constitution having provided that "The citizens of
each State shall be entitled to all privileges and immunities of
citizens of the several States," the right to enjoy the territory
as equals was reserved to the States, and to the citizens of the
States, respectively. The cited clause is not that citizens of the
United States shall have equal privileges in the Territories, but
the citizen of each State shall come there in right of his State,
and enjoy the common property. He secures his equality through the
equality of his State by virtue of that great fundamental condition
of the Union -- the equality of the States.

															Congress cannot do indirectly what the Constitution prohibits
directly. If the slaveholder is prohibited from going to the
Territory with his slaves, who are parts of his family in name and
in fact, it will follow that men owning lawful property in their
own States, carrying with them the equality of their State to enjoy
the common property, may be told, you cannot come here with your
slaves, and he will be held out at the border. By this subterfuge,
owners of slave property, to the amount of thousand of millions,
might be almost as effectually excluded from removing into the
Territory of Louisiana north of thirty-six degrees thirty minutes,
as if the law declared that owners of slaves, as a class, should be
excluded, even if their slaves were left behind.

															Just as well might Congress have said to those of the North, you
shall not introduce into the territory south of said line your
cattle or horses, as the country is already overstocked, nor can
you introduce your tools of trade, or machines, as the policy of
Congress is to encourage the culture of sugar and cotton south of
the line, and so to provide that the Northern people shall
manufacture for those of the South, and barter for the staple
articles slave labor produces. And thus the Northern farmer and
mechanic would be held out, as the slaveholder was for thirty
years, by the Missouri restriction.

															If Congress could prohibit one species of property, lawful
throughout Louisiana when it was acquired, and lawful in the State
from whence it was brought, so Congress might exclude any or all
property.

															The case before us will illustrate the construction contended
for. Dr. Emerson was a citizen of Missouri; he had an equal right
to go to the Territory with every citizen of other States. This is
undeniable, as I suppose. Scott was Dr. Emerson's lawful property
in Missouri; he carried his Missouri title with him, and the
precise question here is whether Congress had the power to annul
that title. It is idle to say that, if Congress could not defeat
the title directly, that it might be done Page 60 U. S. 528 indirectly, by drawing a narrow circle around the slave
population of Upper Louisiana and declaring that, if the slave went
beyond it, he should be free. Such assumption is mere evasion, and
entitled to no consideration. And it is equally idle to contend
that, because Congress has express power to regulate commerce among
the Indian tribes and to prohibit intercourse with the Indians,
that therefore Dr. Emerson's title might be defeated within the
country ceded by the Indians to the United States as early as 1805,
and which embraces Fort Snelling. Am.State Papers, vol. 1, p. 734.
We must meet the question whether Congress had the power
to declare that a citizen of a State, carrying with him his equal
rights secured to him through his State, could be stripped of his
goods and slaves and be deprived of any participation in the common
property? If this be the true meaning of the Constitution, equality
of rights to enjoy a common country (equal to a thousand miles
square) may be cut off by a geographical line, and a great portion
of our citizens excluded from it.

															Ingenious indirect evasions of the Constitution have been
attempted and defeated heretofore. In the Passenger Cases, 7 How.R., the attempt was made to impose a tax on the masters,
crews, and passengers of vessels, the Constitution having
prohibited a tax on the vessel itself, but this Court held the
attempt to be a mere evasion, and pronounced the tax illegal.

															I admit that Virginia could, and lawfully did, prohibit slavery
northwest of the Ohio by her charter of cession, and that the
territory was taken by the United States with this condition
imposed. I also admit that France could, by the treaty of 1803,
have prohibited slavery in any part of the ceded territory, and
imposed it on the United States as a fundamental condition of the
cession, in the meantime, till new States were admitted in the
Union.

															I concur with Judge Baldwin that Federal power is exercised over
all the territory within the United States, pursuant to the
Constitution and the conditions of the cession, whether it
was a part of the original territory of a State of the Union or of
a foreign State, ceded by deed or treaty, the right of the United
States in or over it depends on the contract of cession, which
operates to incorporate as well the Territory as its inhabitants
into the Union. Baldwin's Constitutional Views 84.

															My opinion is that the third article of the treaty of 1803,
ceding Louisiana to the United States, stands protected by the
Constitution, and cannot be repealed by Congress.

															And, secondly that the Act of 1820, known as the Missouri Page 60 U. S. 529 Compromise, violates the most leading feature of the
Constitution -- a feature on which the Union depends and which
secures to the respective States and their citizens and entire
EQUALITY of rights, privileges, and immunities.

															On these grounds, I hold the compromise act to have been void,
and consequently that the plaintiff, Scott, can claim no benefit
under it.

															For the reasons above stated, I concur with my brother judges
that the plaintiff Scott is a slave, and was so when this suit was
brought.

															Mr. Justice McLEAN and Mr. Justice CURTIS dissented.

															Mr. Justice McLEAN dissenting.

															This case is before us on a writ of error from the Circuit Court
for the district of Missouri.

															An action of trespass was brought which charges the defendant
with an assault and imprisonment of the plaintiff, and also of
Harriet Scott, his wife, Eliza and Lizzie, his two children, on the
ground that they were his slaves, which was without right on his
part and against law.

															The defendant filed a plea in abatement,

															"that said causes of action, and each and every of them, if any
such accrued to the said Dred Scott, accrued out of the
jurisdiction of this court, and exclusively within the jurisdiction
of the courts of the State of Missouri, for that, to-wit, said
plaintiff, Dred Scott, is not a citizen of the State of Missouri,
as alleged in his declaration, because he is a negro of African
descent, his ancestors were of pure African blood, and were brought
into this country and sold as negro slaves, and this the said
Sandford is ready to verify, wherefore he prays judgment whether
the court can or will take further cognizance of the action
aforesaid."

															To this a demurrer was filed which, on argument, was sustained
by the court, the plea in abatement being held insufficient; the
defendant was ruled to plead over. Under this rule, he pleaded: 1.
Not guilty, 2. That Dred Scott was a negro slave, the property of
the defendant, and 3. That Harriet, the wife, and Eliza and Lizzie,
the daughters of the plaintiff, were the lawful slaves of the
defendant.

															Issue was joined on the first plea, and replications of de
injuria were filed to the other pleas.

															The parties agreed to the following facts: In the year 1834, the
plaintiff was a negro slave belonging to Dr. Emerson, who was a
surgeon in the army of the United States. In that year, Dr. Emerson
took the plaintiff from the State of Missouri to Page 60 U. S. 530 the post of Rock Island, in the State of Illinois, and held him
there as a slave until the month of April or May, 1836. At the time
last mentioned, Dr. Emerson removed the plaintiff from Rock Island
to the military post at Fort Snelling, situate on the west bank of
the Mississippi river, in the territory Known as Upper Louisiana,
acquired by the United States of France, and situate north of
latitude thirty-six degrees thirty minutes north, and north of the
State of Missouri. Dr. Emerson held the plaintiff in slavery, at
Fort Snelling from the last-mentioned date until the year 1838.

															In the year 1835, Harriet, who is named in the second count of
the plaintiff's declaration, was the negro slave of Major
Taliaferro, who belonged to the army of the United States. In that
year, Major Taliaferro took Harriet to Fort Snelling, a military
post situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave, at
Fort Snelling, unto Dr. Emerson, who held her in slavery at that
place until the year 1838.

															In the year 1836, the plaintiff and Harriet were married at Fort
Snelling, with the consent of Dr. Emerson, who claimed to be their
master and owner. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri,
and upon the river Mississippi. Lizzie is about seven years old,
and was born in the State of Missouri at the military post called
Jefferson Barracks.

															In the year 1838, Dr. Emerson removed the plaintiff and said
Harriet and their daughter Eliza from Fort Snelling to the State of
Missouri, where they have ever since resided.

															Before the commencement of the suit, Dr. Emerson sold and
conveyed the plaintiff, Harriet, Eliza, and Lizzie, to the
defendant as slaves, and he has ever since claimed to hold them as
slaves.

															At the times mentioned in the plaintiff's declaration, the
defendant, claiming to be the owner, laid his hands upon said
plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing
in this respect, however, no more than he might lawfully do if they
were of right his slaves at such times.

															In the first place, the plea to the jurisdiction is not before
us on this writ of error. A demurrer to the plea was sustained,
which ruled the plea bad, and the defendant, on leave, pleaded
over.

															The decision on the demurrer was in favor of the plaintiff, and,
as the plaintiff prosecutes this writ of error, he does not
complain of the decision on the demurrer. The defendant Page 60 U. S. 531 might have complained of this decision, as against him, and have
prosecuted a writ of error to reverse it. But as the case, under
the instruction of the court to the jury, was decided in his favor,
of course he had no ground of complaint.

															But it is said, if the court, on looking at the record, shall
clearly perceive that the Circuit Court had no jurisdiction, it is
a ground for the dismissal of the case. This may be characterized
as rather a sharp practice, and one which seldom, if ever, occurs.
No case was cited in the argument as authority, and not a single
case precisely in point is recollected in our reports. The
pleadings do not show a want of jurisdiction. This want of
jurisdiction can only be ascertained by a judgment on the demurrer
to the special plea. No such case, it is believed, can be cited.
But if this rule of practice is to be applied in this case, and the
plaintiff in error is required to answer and maintain as well the
points ruled in his favor, as to show the error of those ruled
against him, he has more than an ordinary duty to perform. Under
such circumstances, the want of jurisdiction in the Circuit Court
must be so clear as not to admit of doubt. Now the plea which
raises the question of jurisdiction, in my judgment, is radically
defective. The gravamen of the plea is this:

															"That the plaintiff is a negro of African descent, his ancestors
being of pure African blood, and were brought into this country and
sold as negro slaves."

															There is no averment in this plea which shows or conduces to
show an inability in the plaintiff to sue in the Circuit Court. It
does not allege that the plaintiff had his domicil in any other
State, nor that he is not a free man in Missouri. He is averred to
have had a negro ancestry, but this does not show that he is not a
citizen of Missouri within the meaning of the act of Congress
authorizing him to sue in the Circuit Court. It has never been held
necessary, to constitute a citizen within the act, that he should
have the qualifications of an elector. Females and minors may sue
in the Federal courts, and so may any individual who has a
permanent domicil in the State under whose laws his rights are
protected, and to which he owes allegiance.

															Being born under our Constitution and laws, no naturalization is
required, as one of foreign birth, to make him a citizen. The most
general and appropriate definition of the term citizen is "a
freeman." Being a freeman, and having his domicil in a State
different from that of the defendant, he is a citizen within the
act of Congress, and the courts of the Union are open to him.

															It has often been held that the jurisdiction, as regards
parties, can only be exercised between citizens of different
States, Page 60 U. S. 532 and that a mere residence is not sufficient, but this has been
said to distinguish a temporary from a permanent residence.

															To constitute a good plea to the jurisdiction, it must negative
those qualities and rights which enable an individual to sue in the
Federal courts. This has not been done, and on this ground the plea
was defective, and the demurrer was properly sustained. No
implication can aid a plea in abatement or in bar; it must be
complete in itself; the facts stated, if true, must abate or bar
the right of the plaintiff to sue. This is not the character of the
above plea. The facts stated, if admitted, are not inconsistent
with other facts which may be presumed and which bring the
plaintiff within the act of Congress.

															The pleader has not the boldness to allege that the plaintiff is
a slave, as that would assume against him the matter in
controversy, and embrace the entire merits of the case in a plea to
the jurisdiction. But beyond the facts set out in the plea, the
court, to sustain it, must assume the plaintiff to be a slave,
which is decisive on the merits. This is a short and an effectual
mode of deciding the cause, but I am yet to learn that it is
sanctioned by any known rule of pleading.

															The defendant's counsel complain that, if the court take
jurisdiction on the ground that the plaintiff is free, the
assumption is against the right of the master. This argument is
easily answered. In the first place, the plea does not show him to
be a slave; it does not follow that a man is not free whose
ancestors were slaves. The reports of the Supreme Court of Missouri
show that this assumption has many exceptions, and there is no
averment in the plea that the plaintiff is not within them.

															By all the rules of pleading, this is a fatal defect in the
plea. If there be doubt, what rule of construction has been
established in the slave States? In Jacob v. Sharp, Meigs's Rep., Tennessee 114, the court held, when there was doubt
as to the construction of a will which emancipated a slave, "it
must be construed to be subordinate to the higher and more
important right of freedom."

															No injustice can result to the master from an exercise of
jurisdiction in this cause. Such a decision does not in any degree
affect the merits of the case; it only enables the plaintiff to
assert his claims to freedom before this tribunal. If the
jurisdiction be ruled against him on the ground that he is a slave,
it is decisive of his fate.

															It has been argued that, if a colored person be made a citizen
of a State, he cannot sue in the Federal court. The Constitution
declares that Federal jurisdiction "may be exercised between
citizens of different States," and the same is provided Page 60 U. S. 533 in the act of 1789. The above argument is properly met by saying
that the Constitution was intended to be a practical instrument,
and where its language is too plain to be misunderstood, the
argument ends.

															In Chirae v.
Chirae , 2 Wheat. 261, 4 Curtis 99, this court says:
"That the power of naturalization is exclusively in Congress does
not seem to be, and certainly ought not to be, controverted." No
person can legally be made a citizen of a State, and consequently a
citizen of the United States, of foreign birth, unless he be
naturalized under the acts of Congress. Congress has power "to
establish a uniform rule of naturalization."

															It is a power which belongs exclusively to Congress, as
intimately connected with our Federal relations. A State may
authorize foreigners to hold real estate within its jurisdiction,
but it has no power to naturalize foreigners, and give them the
rights of citizens. Such a right is opposed to the acts of Congress
on the subject of naturalization, and subversive of the Federal
powers. I regret that any countenance should be given from this
bench to a practice like this in some of the States, which has no
warrant in the Constitution.

															In the argument, it was said that a colored citizen would not be
an agreeable member of society. This is more a matter of taste than
of law. Several of the States have admitted persons of color to the
right of suffrage, and, in this view, have recognised them as
citizens, and this has been done in the slave as well as the free
States. On the question of citizenship, it must be admitted that we
have not been very fastidious. Under the late treaty with Mexico,
we have made citizens of all grades, combinations, and colors. The
same was done in the admission of Louisiana and Florida. No one
ever doubted, and no court ever held that the people of these
Territories did not become citizens under the treaty. They have
exercised all the rights of citizens, without being naturalized
under the acts of Congress.

															There are several important principles involved in this case
which have been argued, and which may be considered under the
following heads:

															1. The locality of slavery, as settled by this court and the
courts of the States.

															2. The relation which the Federal Government bears to slavery in
the States.

															3. The power of Congress to establish Territorial Governments
and to prohibit the introduction of slavery therein.

															4. The effect of taking slaves into a new State or Territory,
and so holding them, where slavery is prohibited.

															5. Whether the return of a slave under the control of his Page 60 U. S. 534 master, after being entitled to his freedom, reduces him to his
former condition.

															6. Are the decisions of the Supreme Court of Missouri on the
questions before us binding on this court within the rule
adopted.

															In the course of my judicial duties, I have had occasion to
consider and decide several of the above points.

															1. As to the locality of slavery. The civil law throughout the
Continent of Europe, it is believed, without an exception, is that
slavery can exist only within the territory where it is
established, and that, if a slave escapes or is carried beyond such
territory, his master cannot reclaim him, unless by virtue of some
express stipulation. Grotius, lib. 2, chap. 15, 5, 1, lib. 10,
chap. 10, 2, 1, Wicqueposts Ambassador, lib. 1, p. 418, 4 Martin
385, Case of the Creole in the House of Lords, 1842, 1 Phillimore
on International Law 316, 335.

															There is no nation in Europe which considers itself bound to
return to his master a fugitive slave under the civil law or the
law of nations. On the contrary, the slave is held to be free where
there is no treaty obligation, or compact in some other form, to
return him to his master. The Roman law did now allow freedom to be
sold. An ambassador or any other public functionary could not take
a slave to France, Spain, or any other country of Europe without
emancipating him. A number of slaves escaped from a Florida
plantation, and were received on board of ship by Admiral Cochrane;
by the King's Bench, they were held to be free. 2 Barn. and Cres.
440.

															In the great and leading case of Prigg v.
The State of Pennsylvania , 16 Pet. 539, 14 Curtis
421, this court said that, by the general law of nations, no nation
is bound to recognise the state of slavery, as found within its
territorial dominions, where it is in opposition to its own policy
and institutions, in favor of the subjects of other nations where
slavery is organized. If it does it, it is as a matter of comity,
and not as a matter of international right. The state of slavery is
deemed to be a mere municipal regulation, founded upon and limited
to the range of the territorial laws. This was fully recognised in Somersett's Case, Lafft's Rep. 1, 20 Howell's State
Trials, 79, which was decided before the American Revolution.

															There was some contrariety of opinion among the judges on
certain points ruled in Prigg's Case, but there was none
in regard to the great principle that slavery is limited to the
range of the laws under which it is sanctioned.

															No case in England appears to have been more thoroughly examined
than that of Somersett. The judgment pronounced Page 60 U. S. 535 by Lord Mansfield was the judgment of the Court of King's Bench.
The cause was argued at great length, and with great ability, by
Hargrave and others, who stood among the most eminent counsel in
England. It was held under advisement from term to term, and a due
sense of its importance was felt and expressed by the Bench.

															In giving the opinion of the court, Lord Mansfield said:

															"The state of slavery is of such a nature that it is incapable
of being introduced on any reasons, moral or political, but only by
positive law, which preserves its force long after the reasons,
occasion, and time itself from whence it was created is erased from
the memory; it is of a nature that nothing can be suffered to
support it but positive law."

															He referred to the contrary opinion of Lord Hardwicke, in
October, 1749, as Chancellor: "That he and Lord Talbot, when
Attorney and Solicitor General, were of opinion that no such claim
as here presented, for freedom, was valid."

															The weight of this decision is sought to be impaired from the
terms in which it was described by the exuberant imagination of
Curran. The words of Lord Mansfield, in giving the opinion of the
court, were such as were fit to be used by a great judge in a most
important case. It is a sufficient answer to all objections to that
judgment that it was pronounced before the Revolution, and that it
was considered by this court as the highest authority. For near a
century, the decision in Somersett's Case has remained the
law of England. The Case of the Slave Grace, decided by
Lord Stowell in 1827, does not, as has been supposed, overrule the
judgment of Lord Mansfield. Lord Stowell held that, during the
residence of the slave in England, "No dominion, authority, or
coercion, can be exercised over him." Under another head, I shall
have occasion to examine the opinion in the Case of
Grace. To the position that slavery can only exist except under the
authority of law, it is objected that in few if in any instances
has it been established by statutory enactment. This is no answer
to the doctrine laid down by the court. Almost all the principles
of the common law had their foundation in usage. Slavery was
introduced into the colonies of this country by Great Britain at an
early period of their history, and it was protected and cherished
until it became incorporated into the colonial policy. It is
immaterial whether a system of slavery was introduced by express
law or otherwise, if it have the authority of law. There is no
slave State where the institution is not recognised and protected
by statutory enactments and judicial decisions. Slaves are made
property by the laws of the slave States, and as such are liable to
the claims of creditors; Page 60 U. S. 536 they descend to heirs, are taxed, and, in the South, they are a
subject of commerce.

															In the case of Rankin v. Lydia, 2 A. K. Marshall's
Rep., Judge Mills, speaking for the Court of Appeals of Kentucky,
says:

															"In deciding the question [of slavery], we disclaim the
influence of the general principles of liberty which we all admire,
and conceive it ought to be decided by the law as it is, and not as
it ought to be. Slavery is sanctioned by the laws of this State,
and the right to hold slaves under our municipal regulations is
unquestionable. But we view this as a right existing by positive
law of a municipal character, without foundation in the law of
nature or the unwritten and common law."

															I will now consider the relation which the Federal Government
bears to slavery in the States:

															Slavery is emphatically a State institution. In the ninth
section of the first article of the Constitution, it is
provided

															"that the migration or importation of such persons as any of the
States now existing shall think proper to admit shall not be
prohibited by the Congress prior to the year 1808, but a tax or
duty may be imposed on such importation not exceeding ten dollars
for each person."

															In the Convention, it was proposed by a committee of eleven to
limit the importation of slaves to the year 1800, when Mr. Pinckney
moved to extend the time to the year 1808. This motion was carried
-- New Hampshire, Massachusetts, Connecticut, Maryland, North
Carolina, South Carolina, and Georgia, voting in the affirmative,
and New Jersey, Pennsylvania, and Virginia, in the negative. In
opposition to the motion, Mr. Madison said:

															"Twenty years will produce all the mischief that can be
apprehended from the liberty to import slaves, so long a term will
be more dishonorable to the American character than to say nothing
about it in the Constitution."

															Madison Papers.

															The provision in regard to the slave trade shows clearly that
Congress considered slavery a State institution, to be continued
and regulated by its individual sovereignty; and to conciliate that
interest, the slave trade was continued twenty years not as a
general measure, but for the "benefit of such States as shall think
proper to encourage it."

															In the case of Groves v.
Slaughter , 15 Peters 499, 14 Curtis 137, Messrs.
Clay and Webster contended that, under the commercial power,
Congress had a right to regulate the slave trade among the several
States, but the court held that Congress had no power to interfere
with slavery as it exists in the States, or to regulate what is
called the slave trade among Page 60 U. S. 537 them. If this trade were subject to the commercial power, it
would follow that Congress could abolish or establish slavery in
every State of the Union.

															The only connection which the Federal Government holds with
slaves in a State arises from that provision of the Constitution
which declares that

															"No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service or
labor may be due."

															This being a fundamental law of the Federal Government, it rests
mainly for its execution, as has been held, on the judicial power
of the Union, and so far as the rendition of fugitives from labor
has become a subject of judicial action, the Federal obligation has
been faithfully discharged.

															In the formation of the Federal Constitution, care was taken to
confer no power on the Federal Government to interfere with this
institution in the States. In the provision respecting the slave
trade, in fixing the ratio of representation, and providing for the
reclamation of fugitives from labor, slaves were referred to as
persons, and in no other respect are they considered in the
Constitution.

															We need not refer to the mercenary spirit which introduced the
infamous traffic in slaves to show the degradation of negro slavery
in our country. This system was imposed upon our colonial
settlements by the mother country, and it is due to truth to say
that the commercial colonies and States were chiefly engaged in the
traffic. But we know as a historical fact that James Madison, that
great and good man, a leading member in the Federal Convention, was
solicitous to guard the language of that instrument so as not to
convey the idea that there could be property in man.

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

															Many of the States, on the adoption of the Constitution, or Page 60 U. S. 538 shortly afterward, took measures to abolish slavery within their
respective jurisdictions, and it is a well known fact that a belief
was cherished by the leading men, South as well as North, that the
institution of slavery would gradually decline until it would
become extinct. The increased value of slave labor, in the culture
of cotton and sugar, prevented the realization of this expectation.
Like all other communities and States, the South were influenced by
what they considered to be their own interests.

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

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

															After the cession of western territory by Virginia and other
States to the United States, the public attention was directed to
the best mode of disposing of it for the general benefit. While in
attendance on the Federal Convention, Mr. Madison, in a letter to
Edmund Randolph dated the 22d April, 1787, says:

															"Congress are deliberating on the plan most eligible for
disposing of the western territory not yet surveyed. Some
alteration will probably be made in the ordinance on that
subject."

															And in the same letter he says:

															"The inhabitants of the Illinois complain of the land jobbers,
&c., who are purchasing titles among them. Those of St.
Vincent's complain of the defective criminal and civil justice
among them, as well as of military protection."

															And on the next day, he writes to Mr. Jefferson:

															"The government of the settlements on the Illinois and Wabash is
a subject very perplexing in itself, and rendered more so by our
ignorance of the many circumstances on which a right judgment
depends. The inhabitants at those places claim protection against
the savages, and some provision for both civil and criminal
justice."

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

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

															Afterward, Mr. Madison submitted to the Convention, in order to
be referred to the committee of detail, the following powers, as
proper to be added to those of general legislation: Page 60 U. S. 539 "To dispose of the unappropriated lands of the United States. To
institute temporary Governments for new States arising therein. To
regulate affairs with the Indians, as well within as without the
limits of the United States."

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

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

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

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

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

															On the 13th of July, the Ordinance of 1787 was passed, "for the
government of the United States territory northwest of the river
Ohio," with but one dissenting vote. This instrument provided there
should be organized in the territory not less than three nor more
than five States, designating their boundaries. It passed while the
Federal Convention was in session, about two months before the
Constitution was adopted by the Convention. The members of the
Convention must therefore have been well acquainted with the
provisions of the Page 60 U. S. 540 Ordinance. It provided for a temporary Government, as initiatory
to the formation of State Governments. Slavery was prohibited in
the territory.

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

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

															In the discussion of the power of Congress to govern a
Territory, in the case of the Atlantic Insurance Company v.
Canter , 1 Peters 511, 7 Curtis 685, Chief Justice
Marshall, speaking for the court, said, in regard to the people of
Florida,

															"they do not, however, participate in political power, they do
not share in the Government till Florida shall become a State; in
the meantime, Florida continues to be a Territory of the United
States, governed by virtue of that clause in the Constitution which
empowers Congress 'to make all needful rules and regulations
respecting the territory or other property belonging to the United
States.'"

															And he adds,

															"perhaps the power of governing a Territory belonging to the
United States, which has not, by becoming a State, acquired the
means of self-government, may result Page 60 U. S. 541 necessarily from the fact that it is not within the jurisdiction
of any particular State, and is within the power and jurisdiction
of the United States. The right to govern may be the inevitable
consequence of the right to acquire territory, whichever may be the
source whence the power is derived, the possession of it is
unquestioned."

															And, in the close of the opinion, the court says, "in
legislating for them [the Territories], Congress exercises the
combined powers of the General and State Governments."

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

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

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

															The word "territory," according to Worcester, "means land,
country, a district of country under a temporary Government." The
words "territory or other property," as used, do imply, from the
use of the pronoun "other" that territory was used as descriptive
of land, but does it follow that it was not used also as
descriptive of a district of country? In both of these senses, it
belonged to the United States -- as land for the purpose of sale,
as territory for the purpose of government. Page 60 U. S. 542 But if it be admitted that the word territory, as used, means
land, and nothing but land, the power of Congress to organize a
temporary Government is clear. It has power to make all needful
regulations respecting the public lands, and the extent of those
"needful regulations" depends upon the direction of Congress, where
the means are appropriate to the end, and do not conflict with any
of the prohibitions of the Constitution. If a temporary Government
be deemed needful, necessary, requisite, or is wanted, Congress has
power to establish it. This court says, in McCulloch
v. The State of Maryland , 4 Wheat. 316,

															"If a certain means to carry into effect any of the powers
expressly given by the Constitution to the Government of the Union
be an appropriate measure, not prohibited by the Constitution, the
degree of its necessity is a question of legislative discretion,
not of judicial cognizance."

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

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

															But Congress has no power to regulate the internal concerns of a
State, as of a Territory; consequently, in providing for the
Government of a Territory, to some extent the combined powers of
the Federal and State Governments are necessarily exercised. Page 60 U. S. 543 If Congress should deem slaves or free colored persons injurious
to the population of a free Territory, as conducing to lessen the
value of the public lands, or on any other ground connected with
the public interest, they have the power to prohibit them from
becoming settlers in it. This can be sustained on the ground of a
sound national policy, which is so clearly shown in our history by
practical results that it would seem no considerate individual can
question it. And, as regards any unfairness of such a policy to our
Southern brethren, as urged in the argument, it is only necessary
to say that, with one-fourth of the Federal population of the
Union, they have in the slave States a larger extent of fertile
territory than is included in the free States, and it is submitted,
if masters of slaves be restricted from bringing them into free
territory, that the restriction on the free citizens of
non-slaveholding States, by bringing slaves into free territory, is
four times greater than that complained of by the South. But not
only so; some three or four hundred thousand holders of slaves, by
bringing them into free territory, impose a restriction on twenty
millions of the free States. The repugnancy to slavery would
probably prevent fifty or a hundred freemen from settling in a
slave Territory, where one slaveholder would be prevented from
settling in a free Territory.

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

															The sovereignty of the Federal Government extends to the entire
limits of our territory. Should any foreign power invade our
jurisdiction, it would be repelled. There is a law of Congress to
punish our citizens for crimes committed in districts of country
where there is no organized Government. Criminals are brought to
certain Territories or States, designated in the law, for
punishment. Death has been inflicted in Arkansas and in Missouri on
individuals, for murders committed beyond the limit of any
organized Territory or State, and no one doubts that such a
jurisdiction was rightfully exercised. If there be a right to
acquire territory, there necessarily must be an implied power to
govern it. When the military force of the Union shall conquer a
country, may not Congress provide for the government of such
country? This would be an implied power essential to the
acquisition of new territory. Page 60 U. S. 544 This power has been exercised, without doubt of its
constitutionality, over territory acquired by conquest and
purchase.

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

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

															I would here simply remark that the Constitution was formed for
our whole country. An expansion or contraction of our territory
required no change in the fundamental law. When we consider the men
who laid the foundation of our Government and carried it into
operation, the men who occupied the bench, who filled the halls of
legislation and the Chief Magistracy, it would seem, if any
question could be settled clear of all doubt, it was the power of
Congress to establish Territorial Governments. Slavery was
prohibited in the entire Northwestern Territory, with the
approbation of leading men, South and North, but this prohibition
was not retained when this ordinance was adopted for the government
of Southern Territories, where slavery existed. In a late
republication of a letter of Mr. Madison, dated November 27, 1819,
speaking of this power of Congress to prohibit slavery in a
Territory, he infers there is no such power from the fact that it
has not been exercised. This is not a very satisfactory argument
against any power, as there are but few, if any, subjects on which
the constitutional powers of Congress are exhausted. It is true, as
Mr. Madison states that Congress, in the act to establish a
Government in the Mississippi Territory, prohibited the importation
of slaves into it from foreign parts, but it is equally true that,
in the act erecting Louisiana into two Territories, Congress
declared,

															"it shall not be lawful for any person to bring into Orleans
Territory, from any port or place within the limits of the United
States, any slave which shall have been imported since 1798, or
which may hereafter be imported, except by a citizen of the United
States who settles in the Territory, under the penalty of the
freedom of such slave."

															The inference of Mr. Madison, therefore, against the power
of Page 60 U. S. 545 Congress, is of no force, as it was founded on a fact supposed,
which did not exist.

															It is refreshing to turn to the early incidents of our history
and learn wisdom from the acts of the great men who have gone to
their account. I refer to a report in the House of Representatives,
by John Randolph, of Roanoke, as chairman of a committee, in March,
1803 -- fifty-four years ago. From the Convention held at
Vincennes, in Indiana, by their President, and from the people of
the Territory, a petition was presented to Congress praying the
suspension of the provision which prohibited slavery in that
Territory. The report stated

															"that the rapid population of the State of Ohio sufficiently
evinces, in the opinion of your committee, that the labor of slaves
is not necessary to promote the growth and settlement of colonies
in that region. That this labor, demonstrably the dearest of any,
can only be employed to advantage in the cultivation of products
more valuable than any known to that quarter of the United States;
that the committee deem it highly dangerous and inexpedient to
impair a provision wisely calculated to promote the happiness and
prosperity of the Northwestern country, and to give strength and
security to that extensive frontier. In the salutary operation of
this sagacious and benevolent restraint, it is believed that the
inhabitants will, at no very distant day, find ample remuneration
for a temporary privation of labor and of emigration."

															1 vol. State Papers, Public Lands 160.

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

															Great interests have grown up under the Territorial laws over a
country more than five times greater in extent than the original
thirteen States, and these interests, corporate or otherwise, have
been cherished and consolidated by a benign policy without anyone
supposing the law-making power had united with the Judiciary, under
the universal sanction of the whole country, to usurp a
jurisdiction which did not belong to them. Such a discovery at this
late date is more extraordinary than anything which has occurred in
the judicial history of this or any other country. Texas, under a
previous organization, Page 60 U. S. 546 was admitted as a State, but no State can be admitted into the
Union which has not been organized under some form of government.
Without temporary Governments, our public lands could not have been
sold, nor our wildernesses reduced to cultivation and the
population protected, nor could our flourishing States, West and
South, have been formed.

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

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

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

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

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

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

															But this law of Congress, which prohibits slavery north of Page 60 U. S. 547 Missouri and of thirty-six degrees thirty minutes, is declared
to have been null and void by my brethren. And this opinion is
founded mainly, as I understand, on the distinction drawn between
the Ordinance of 1787 and the Missouri Compromise line. In what
does the distinction consist? The ordinance, it is said, was a
compact entered into by the confederated States before the adoption
of the Constitution, and that, in the cession of territory,
authority was given to establish a Territorial Government.

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

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

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

															If the principle laid down in the case of Prigg v. The State
of Pennsylvania is to be maintained, and it is certainly to be
maintained until overruled, as the law of this Court, there can be
no difficulty on this point. In that case, the court says: "The
state of slavery is deemed to be a mere municipal regulation,
founded upon and limited to the range of the territorial laws." If
this be so, slavery can exist nowhere except under the authority of
law, founded on usage having the force of law, or by statutory
recognition. And the court further says:

															"It is manifest from this consideration that, if the
Constitution had not contained the clause requiring the rendition
of fugitives from labor, every non-slaveholding State in the Union
would have been at liberty to have declared free all runaway
slaves Page 60 U. S. 548 coming within its limits, and to have given them entire immunity
and protection against the claims of their masters."

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

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

															By virtue of what law is it that a master may take his slave
into free territory and exact from him the duties of a slave? The
law of the Territory does not sanction it. No authority can be
claimed under the Constitution of the United States, or any law of
Congress. Will it be said that the slave is taken as property, the
same as other property which the master may own? To this I answer
that colored persons are made property by the law of the State, and
no such power has been given to Congress. Does the master carry
with him the law of the State from which he removes into the
Territory?, and does that enable him to coerce his slave in the
Territory? Let us test this theory. If this may be done by a master
from one slave State, it may be done by a master from every other
slave State. This right is supposed to be connected with the person
of the master, by virtue of the local law. Is it transferable? May
it be negotiated, as a promissory note or bill of exchange? If it
be assigned to a man from a free State, may he coerce the slave by
virtue of it? What shall this thing be Page 60 U. S. 549 denominated? Is it personal or real property? Or is it an
indefinable fragment of sovereignty which every person carries with
him from his late domicil? One thing is certain -- that its origin
has been very recent, and it is unknown to the laws of any
civilized country.

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

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

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

															In this case, a majority of the court have said that a slave may
be taken by his master into a Territory of the United States the
same as a horse, or any other kind of property. It is true this was
said by the court, as also many other things which are of no
authority. Nothing that has been said by them, which has not a
direct bearing on the jurisdiction of the court, against which they
decided, can be considered as Page 60 U. S. 550 authority. I shall certainly not regard it as such. The question
of jurisdiction, being before the court, was decided by them
authoritatively, but nothing beyond that question. A slave is not a
mere chattel. He bears the impress of his Maker, and is amenable to
the laws of God and man, and he is destined to an endless
existence.

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

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

															The Supreme Court of Illinois, in the case of Jarrot v.
Jarrot, 2 Gilmer 7, said:

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

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

															The court held that if a slave be detained in Illinois until he
be entitled to freedom, the right of the owner does not revive when
he finds the negro in a slave State. Page 60 U. S. 551 That when a slave is taken to Illinois by his owner, who takes
up his residence there, the slave is entitled to freedom.

															In the case of Lagrange v. Chouteau, 2 Missouri Rep.
20, at May Term, 1828, it was decided that the Ordinance of 1787
was intended as a fundamental law for those who may choose to live
under it, rather than as a penal statute.

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

															In Julia v. McKinney, 3 Missouri Rep. 279, it was held,
where a slave was settled in the State of Illinois, but with an
intention on the part of the owner to be removed at some future
day, that hiring said slave to a person to labor for one or two
days, and receiving the pay for the hire, the slave is entitled to
her freedom, under the second section of the sixth article of the
Constitution of Illinois. Rachel v. Walker, 4 Missouri Rep. 350, June Term, 1836,
is a case involving, in every particular, the principles of the
case before us. Rachel sued for her freedom, and it appeared that
she had been bought as a slave in Missouri by Stockton, an officer
of the army, taken to Fort Snelling, where he was stationed, and
she was retained there as a slave a year, and then Stockton removed
to Prairie du Chien, taking Rachel with him as a slave, where he
continued to hold her three years, and then he took her to the
State of Missouri, and sold her as a slave.

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

															The court said, in this case:

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

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

															"Shall it be said that, because an officer of the army owns Page 60 U. S. 552 slaves in Virginia, that when, as officer and soldier, he is
required to take the command of a fort in the non-slaveholding
States or Territories, he thereby has a right to take with him as
many slaves as will suit his interests or convenience? It surely
cannot be law. If this be true, the court say, then it is also true
that the convenience or supposed convenience of the officer
repeals, as to him and others who have the same character, the
ordinance and the act of 1821 admitting Missouri into the Union,
and also the prohibition of the several laws and Constitutions of
the non-slaveholding States."

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

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

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

															The court say:

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

															And the court say that the States of the Union, in their
municipal concerns, are regarded as foreign to each other; that the
courts of one State do not take notice of the laws of other States,
unless proved as facts; and that every State has the right to
determine how far its comity to other States shall extend; and it
is laid down that when there is no act of manumission decreed to
the free State, the courts of the slave States Page 60 U. S. 553 cannot be called to give effect to the law of the free State.
Comity, it alleges, between States depends upon the discretion of
both, which may be varied by circumstances. And it is declared by
the court "that times are not as they were when the former
decisions on this subject were made." Since then, not only
individuals but States have been possession with a dark and fell
spirit in relation to slavery, whose gratification is sought in the
pursuit of measures whose inevitable consequence must be the
overthrow and destruction of our Government. Under such
circumstances, it does not behoove the State of Missouri to show
the least countenance to any measure which might gratify this
spirit. She is willing to assume her full responsibility for the
existence of slavery within her limits, nor does she seek to share
or divide it with others.

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

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

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

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

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

															"A citizen of Missouri who removes with his slave to
Illinois Page 60 U. S. 554 has no right to complain that the fundamental law of that State
to which he removes, and in which he makes his residence, dissolves
the relation between him and his slave. It is as much his own
voluntary act as if he had executed a deed of emancipation. No one
can pretend ignorance of this constitutional provision, and,"

															he says,

															"the decisions which have heretofore been made in this State and
in many other slaveholding States give effect to this and other
similar provisions on the ground that the master, by making the
free State the residence of his slave, has submitted his right to
the operation of the law of such State, and this,"

															he says, "is the same in law as a regular deed of
emancipation."

															He adds:

															"I regard the question as conclusively settled by repeated
adjudications of this court, and if I doubted or denied the
propriety of those decisions, I would not feel myself any more at
liberty to overturn them than I would any other series of decisions
by which the law of any other question was settled. There is with
me,"

															he says,

															"nothing in the law relating to slavery which distinguishes it
from the law on any other subject or allows any more accommodation
to the temporary public excitements which are gathered around
it."

															"In this State," he says,

															"it has been recognised from the beginning of the Government as
a correct position in law that a master who takes his slave to
reside in a State or Territory where slavery is prohibited thereby
emancipates his slave."

															These decisions, which come down to the year 1837, seemed to
have so fully settled the question that, since that time, there has
been no case bringing it before the court for any reconsideration
until the present. In the case of Winny v. Whitesides, the
question was made in the argument "whether one nation would execute
the penal laws of another," and the court replied in this language,
Huberus, quoted in 4 Dallas, which says,

															"personal rights or disabilities obtained or communicated by the
laws of any particular place are of a nature which accompany the
person wherever he goes,"

															and the Chief Justice observed, in the case of Rachel v.
Walker, the act of Congress called the Missouri Compromise was
held as operative as the Ordinance of 1787.

															When Dred Scott, his wife and children, were removed from Fort
Snelling to Missouri in 1838, they were free, as the law was then
settled, and continued for fourteen years afterwards, up to 1852,
when the above decision was made. Prior to this, for nearly thirty
years, as Chief Justice Gamble declares, the residence of a master
with his slave in the State of Illinois, or in the Territory north
of Missouri, where slavery was prohibited Page 60 U. S. 555 by the act called the Missouri Compromise, would manumit the
slave as effectually as if he had executed a deed of emancipation,
and that an officer of the army who takes his slave into that State
or Territory and holds him there as a slave liberates him the same
as any other citizen -- and, down to the above time, it was settled
by numerous and uniform decisions; and that, on the return of the
slave to Missouri, his former condition of slavery did not attach.
Such was the settled law of Missouri until the decision of Scott and Emerson. In the case of Sylvia v. Kirby, 17 Misso.Rep. 434, the
court followed the above decision, observing it was similar in all
respects to the case of Scott and Emerson. This court follows the established construction of the statutes
of a State by its Supreme Court. Such a construction is considered
as a part of the statute, and we follow it to avoid two rules of
property in the same State. But we do not follow the decisions of
the Supreme Court of a State beyond a statutory construction as a
rule of decision for this court. State decisions are always viewed
with respect and treated as authority, but we follow the settled
construction of the statutes not because it is of binding
authority, but in pursuance of a rule of judicial policy.

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

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

															And does such a case constitute a rule of decision for this
court -- a case to be followed by this court? The course of
decision so long and so uniformly maintained established a comity
or law between Missouri and the free States and Territories where
slavery was prohibited, which must be somewhat regarded in this
case. Rights sanctioned for twenty-eight years Page 60 U. S. 556 ought not and cannot be repudiated, with any semblance of
justice, by one or two decisions, influenced, as declared, by a
determination to counteract the excitement against slavery in the
free States.

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

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

															In 1816, the common law, by statute, was made a part of the law
of Missouri, and that includes the great principles of
international law. These principles cannot be abrogated by judicial
decisions. It will require the same exercise of power to abolish
the common law as to introduce it. International law is founded in
the opinions generally received and acted on by civilized nations,
and enforced by moral sanctions. It becomes a more authoritative
system when it results from special compacts, founded on modified
rules, adapted to the exigencies of human society; it is, in fact,
an international morality, adapted to the best interests of
nations. And in regard to the States Page 60 U. S. 557 of this Union, on the subject of slavery, it is eminently fitted
for a rule of action subject to the Federal Constitution. "The laws
of nations are but the natural rights of man applied to nations."
Vattel.

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

															It is supposed by some that the third article in the treaty of
cession of Louisiana to this country by France in 1803 may have
some bearing on this question. The article referred to provides

															"that the inhabitants of the ceded territory shall be
incorporated into the Union, and enjoy all the advantages of
citizens of the United States, and in the meantime they shall be
maintained and protected in the free enjoyment of their liberty,
property, and the religion they profess."

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

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

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

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

															In its late decision, the court say that it will not give effect
in Missouri to the laws of Illinois, or the law of Congress Page 60 U. S. 558 called the Missouri Compromise. This was the effect of the
decision, though its terms were that the court would not take
notice, judicially, of those laws.

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

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

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

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

															If a citizen of a free State shall entice or enable a slave to
escape from the service of his master, the law holds him
responsible not only for the loss of the slave, but he is liable to
be indicted and fined for the misdemeanor. And I am bound here to
say that I have never found a jury in the four States which
constitute my circuit which have not sustained this law where the
evidence required them to sustain it. And it is proper that I
should also say that more cases have arisen in my circuit, by
reason of its extent and locality, than in all Page 60 U. S. 559 other parts of the Union. This has been done to vindicate the
sovereign rights of the Southern States and protect the legal
interests of our brethren of the South.

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

															I am not able to reconcile this result with the respect due to
the State of Illinois. Having the same rights of sovereignty as the
State of Missouri in adopting a Constitution, I can perceive no
reason why the institutions of Illinois should not receive the same
consideration as those of Missouri. Allowing to my brethren the
same right of judgment that I exercise myself, I must be permitted
to say that it seems to me the principle laid down will enable the
people of a slave State to introduce slavery into a free State, for
a longer or shorter time, as may suit their convenience, and by
returning the slave to the State whence he was brought, by force or
otherwise, the status of slavery attaches, and protects the rights
of the master, and defies the sovereignty of the free State. There
is no evidence before us that Dred Scott and his family returned to
Missouri voluntarily. The contrary is inferable from the agreed
case:

															"In the year 1838, Dr. Emerson removed the plaintiff and said
Harriet, and their daughter Eliza, from Fort Snelling to the State
of Missouri, where they have ever since resided."

															This is the agreed case, and can it be inferred from this that
Scott and family returned to Missouri voluntarily? He was
"removed," which shows that he was passive, as a slave, having
exercised no volition on the subject. He did not resist the master
by absconding or force. But that was not sufficient to bring him
within Lord Stowell's decision; he must have acted voluntarily. It
would be a Page 60 U. S. 560 mockery of law and an outrage on his rights to coerce his return
and then claim that it was voluntary, and, on that ground, that his
former status of slavery attached.

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

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

															In the case of Williams, who was a slave in Granada, having run
away, came to England, Lord Stowell said:

															"The four judges all concur in this -- that he was a slave in
Granada, though a free man in England, and he would have continued
a free man in all other parts of the world except Granada." Strader v.
Graham , 10 Howard 82 and 18 Curtis 305, has been
cited as having a direct bearing in the case before us. In that
case, the court say:

															"It was exclusively in the power of Kentucky to determine for
itself whether the employment of slaves in another State should or
should not make them free on their return."

															No question was before the court in that case except that of
jurisdiction. And any opinion given on any other point is obiter dictum, and of no authority. In the conclusion of
his opinion, the Chief Justice said: "In every view of the subject,
therefore, this court has no jurisdiction of the case, and the writ
of error must on that ground be dismissed."

															In the case of Spencer v. Negro Dennis, 8 Gill's Rep.
321, the court say:

															"Once free, and always free, is the maxim of Maryland law upon
the subject. Freedom having once vested, by no compact between the
master and the the liberated slave, Page 60 U. S. 561 nor by any condition subsequent attached by the master to the
gift of freedom can a state of slavery be reproduced."

															In Hunter v. Bulcher, 1 Leigh 172:

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

															Judge Kerr, in the case, says:

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

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

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

															In Marie Louise v. Morat et al., 9 Louisiana Rep. 475,
it was held, where a slave having been taken to the kingdom of
France or other country by the owner, where slavery is not
tolerated, operates on the condition of the slave, and produces
immediate emancipation, and that, where a slave thus becomes free,
the master cannot reduce him again to slavery. Josephine v. Poultney, Louisiana Annual Rep. 329,

															"where the owner removes with a slave into a State in which
slavery is prohibited, with the intention of residing there, the
slave will be thereby emancipated, and their subsequent return to
the State of Louisiana cannot restore the relation of master and
slave."

															To the same import are the cases of Smith v. Smith, 13
Louisiana Rep. 441, Thomas v. Generis, Louisiana Rep. 483, Harry et al. v. Decker and Hopkins, Walker's Mississippi
Rep. 36. It was held that

															"slaves within the jurisdiction Page 60 U. S. 562 of the Northwestern Territory became freemen by virtue of the
Ordinance of 1787, and can assert their claim to freedom in the
courts of Mississippi." Griffith v. Fanny, 1 Virginia Rep. 143. It was decided
that a negro held in servitude in Ohio, under a deed executed in
Virginia, is entitled to freedom by the Constitution of Ohio.

															The case of Rhodes v.
Bell , 2 How. 397, 15 Curtis 152, involved the main
principle in the case before us. A person residing in Washington
city purchased a slave in Alexandria, and brought him to
Washington. Washington continued under the law of Maryland,
Alexandria under the law of Virginia. The act of Maryland of
November, 1796, 2 Maxcy's Laws 351, declared anyone who shall bring
any negro, mulatto, or other slave, into Maryland, such slave
should be free. The above slave, by reason of his being brought
into Washington city, was declared by this court to be free. This,
it appears to me, is a much stronger case against the slave than
the facts in the case of Scott.

															In Bush v. White, 3 Monroe 104, the court say:

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

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

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

															And he further said:

															"Free people of color in all the States are, it is believed, quasi citizens, or, at least, denizens. Although none of
the States may allow them the privilege of office and suffrage, yet
all other civil and conventional rights are secured to them, at
least such rights were evidently secured to them by the ordinance
in question for the government of Indiana. If these rights are
vested in that or any other portion of the United States, can it be
compatible with the spirit of our confederated Government to deny
their existence in any other part? Is there less comity existing
between State and State, or State Page 60 U. S. 563 and Territory, than exists between the despotic Governments of
Europe?"

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

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

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

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

															These words, it appears to me, have a stronger application to
the case before us than they had to the cause in which they were
spoken as the opinion of this court, and I regret that they do not
seem to be as fresh in the recollection of some of my brethren as
in my own. For twenty-eight years, the decisions of the Supreme
Court of Missouri were consistent on all the points made in this
case. But this consistent course was suddenly terminated, whether
by some new light suddenly springing up, or an excited public
opinion, or both, it is not Page 60 U. S. 564 necessary to say. In the case of Scott v. Emerson, in
1852, they were overturned and repudiated.

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

															But there is another ground which I deem conclusive, and which I
will restate.

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

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

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

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

															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 Page 60 U. S. 565 case is within the cognizance of a Circuit Court may be raised
by a plea to the jurisdiction of such court. When that question has
been raised, the Circuit Court must, in the first instance, pass
upon and determine it. Whether its determination be final or
subject to review by this appellate court must depend upon the will
of Congress, upon which body the Constitution has conferred the
power, with certain restrictions, to establish inferior courts, to
determine their jurisdiction, and to regulate the appellate power
of this court. The twenty-second section of the Judiciary Act of
1789, which allows a writ of error from final judgments of Circuit
Courts, provides that there shall be no reversal in this court, on
such writ of error, for error in ruling any plea in abatement other
than a plea to the jurisdiction of the court. Accordingly it has
been held from the origin of the court to the present day that
Circuit Courts have not been made by Congress the final judges of
their own jurisdiction in civil cases. And that when a record comes
here upon a writ of error or appeal, and on its inspection, it
appears to this court that the Circuit Court had not jurisdiction,
its judgment must be reversed and the cause remanded to be
dismissed for want of jurisdiction.

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

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

															When that plea was adjudged insufficient, the defendant was
obliged to answer over. He held no alternative. He could not stop
the further progress of the case in the Circuit Court by a writ of
error, on which the sufficiency of his plea to the jurisdiction
could be tried in this court, because the judgment on that plea was
not final, and no writ of error would lie. He was forced to plead
to the merits. It cannot be true, then, that he waived the benefit
of his plea to the jurisdiction by answering over. Waiver includes
consent. Here, there was no consent. And if the benefit of the plea
was finally lost, it must be not by any waiver, but because the
laws of the United States have not provided any mode of reviewing
the decision of the Circuit Court on such a plea when that decision
is against the defendant. This is not the Page 60 U. S. 566 law. Whether the decision of the Circuit Court on a plea to the
jurisdiction be against the plaintiff or against the defendant, the
losing party may have any alleged error in law, in ruling such a
plea, examined in this court on a writ of error when the matter in
controversy exceeds the sum or value of two thousand dollars. If
the decision be against the plaintiff, and his suit dismissed for
want of jurisdiction, the judgment is technically final, and he may
at once sue out his writ of error. Mollan v.
Torrance , 9 Wheat. 537. If the decision be against
the defendant, though he must answer over and wait for a final
judgment in the cause, he may then have his writ of error, and upon
it obtain the judgment of this court on any question of law
apparent on the record touching the jurisdiction. The fact that he
pleaded over to the merits, under compulsion, can have no effect on
his right to object to the jurisdiction. If this were not so, the
condition of the two parties would be grossly unequal. For if a
plea to the jurisdiction were ruled against the plaintiff, he could
at once take his writ of error and have the ruling reviewed here,
while, if the same plea were ruled against the defendant, he must
not only wait for a final judgment, but could in no event have the
ruling of the Circuit Court upon the plea reviewed by this court. I
know of no ground for saying that the laws of the United States
have thus discriminated between the parties to a suit in its
courts.

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

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

															It is true, as a general rule, that the court will not allow a
party to rely on anything as cause for reversing a judgment which
was for his advantage. In this, we follow an ancient rule of the
common law. But so careful was that law of the preservation of the
course of its courts that it made an exception out of that general
rule, and allowed a party to assign for error that which was for
his advantage if it were a departure by the court itself from its
settled course of procedure. The cases on this subject are
collected in Bac.Ab., Error H. 4. And this court followed this
practice in Capron v. Van
Noorden , Page 60 U. S. 567 2 Cranch 126, where the plaintiff below procured the reversal of
a judgment for the defendant on the ground that the plaintiff's
allegations of citizenship had not shown jurisdiction.

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

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

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

															In Sheppard v.
Graves , 14 How. 27, the rules on this subject are
thus stated in the opinion of the court:

															"That although, in the courts of the United States, it is
necessary to set forth the grounds of their cognizance as courts of
limited jurisdiction, yet wherever jurisdiction shall be averred in
the pleadings, in conformity with the laws creating those courts,
it must be taken, prima facie, as existing, and it is
incumbent Page 60 U. S. 568 on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes that
the necessity for the allegation, and the burden of sustaining it
by proof, both rest upon the party taking the exception."

															These positions are sustained by the authorities there cited, as
well as by Wickliffe v.
Owings , 17 How. 47.

															When, therefore, as in this case, the necessary averments as to
citizenship are made on the record, and jurisdiction is assumed to
exist, and the defendant comes by a plea to the jurisdiction to
displace that presumption, he occupies, in my judgment, precisely
the position described in Bacon Ab., Abatement:

															"Abatement, in the general acceptation of the word, signifies a
plea, put in by the defendant, in which he shows cause to the court
why he should not be impleaded, or, if at all, not in the manner
and form he now is."

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

															The plea was as follows:

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

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

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

															The truth is that, though not drawn with the utmost technical
accuracy, it is a special traverse of the plaintiff's
allegation Page 60 U. S. 569 of citizenship, and was a suitable and proper mode of traverse
under the circumstances. By reference to Mr. Stephen's description
of the uses of such a traverse contained in his excellent analysis
of pleadings, Steph. on Pl. 176, it will be seen how precisely this
plea meets one of his descriptions. No doubt the defendant might
have traversed, by a common or general traverse, the plaintiff's
allegation that he was a citizen of the State of Missouri,
concluding to the country. The issue thus presented being joined,
would have involved matter of law on which the jury must have
passed under the direction of the court. But, by traversing the
plaintiff's citizenship specially -- that is, averring those facts
on which the defendant relied to show that, in point of law, the
plaintiff was not a citizen, and basing the traverse on those facts
as a deduction therefrom -- opportunity was given to do what was
done -- that is, to present directly to the court, by a demurrer,
the sufficiency of those facts to negative, in point of law, the
plaintiff's allegation of citizenship. This, then, being a special,
and not a general or common, traverse, the rule is settled that the
facts thus set out in the plea as the reason or ground of the
traverse must of themselves constitute, in point of law, a negative
of the allegation thus traversed. Stephen on Pl. 183, Ch. on Pl.
620. And upon a demurrer to this plea, the question which arises is
whether the facts that the plaintiff is a negro of African descent,
whose ancestors were of pure African blood and were brought into
this country and sold as negro slaves, may all be true, and yet the
plaintiff be a citizen of the State of Missouri within the meaning
of the Constitution and laws of the United States which confer on
citizens of one State the right to sue citizens of another State in
the Circuit Courts. Undoubtedly, if these facts, taken together,
amount to an allegation that, at the time of action brought, the
plaintiff was himself a slave, the plea is sufficient. It has been
suggested that the plea, in legal effect, does so aver, because, if
his ancestors were sold as slaves, the presumption is they
continued slaves, and, if so, the presumption is the plaintiff was
born a slave, and, if so, the presumption is he continued to be a
slave to the time of action brought.

															I cannot think such presumptions can be resorted to to help out
defective averments in pleading, especially in pleading in
abatement, where the utmost certainty and precision are required.
Chitty on Pl. 457. That the plaintiff himself was a slave at the
time of action brought is a substantive fact having no necessary
connection with the fact that his parents were sold as slaves. For
they might have been sold after he was born, or the plaintiff
himself, if once a slave, might have Page 60 U. S. 570 became a freeman before action brought. To aver that his
ancestors were sold as slaves is not equivalent, in point of law,
to an averment that he was a slave. If it were, he could not even
confess and avoid the averment of the slavery of his ancestors,
which would be monstrous, and if it be not equivalent in point of
law, it cannot be treated as amounting thereto when demurred to,
for a demurrer confesses only those substantive facts which are
well pleaded, and not other distinct substantive facts which might
be inferred therefrom by a jury. To treat an averment that the
plaintiff's ancestors were Africans, brought to this country and
sold as slaves, as amounting to an averment on the record that he
was a slave because it may lay some foundation for presuming so is
to hold that the facts actually alleged may be treated as intended
as evidence of another distinct facts not alleged. But it is a
cardinal rule of pleading, laid down in Dowman's Case, 9
Rep. 9b, and in even earlier authorities therein referred to, "that
evidence shall never be pleaded, for it only tends to prove matter
of fact, and therefore the matter of fact shall be pleaded." Or, as
the rule is sometimes stated, pleadings must not be argumentative.
Stephen on Pleading 384, and authorities cited by him. In Com.Dig.,
Pleader E. 3, and Bac. Abridgement, Pleas I, 5, and Stephen on Pl.,
many decisions under this rule are collected. In trover, for an
indenture whereby A granted a manor, it is no plea that A did not
grant the manor, for it does not answer the declaration except by
argument. Yelv. 223.

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

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

															In these cases and many others reported in the books, the
inferences from the facts stated were irresistible. But the court
held they did not, when demurred to, amount to such inferable
facts. In the case at bar, the inference that the defendant was a
slave at the time of action brought, even if it can be made at all
from the fact that his parents were slaves, is certainly not a
necessary inference. This case, therefore, is like that of Digby v. Alexander, 8 Bing. 116. In that case, the
defendant pleaded many facts strongly tending to show that he was
once Earl of Stirling, but as there was no positive allegation Page 60 U. S. 571 that he was so at the time of action brought, and, as every fact
averred might be true and yet the defendant not have been Earl of
Stirling at the time of action brought, the plea was held to be
insufficient.

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

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

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

															The first section of the second article of the Constitution Page 60 U. S. 572 uses the language, "a citizen of the United States at the time
of the adoption of the Constitution." One mode of approaching this
question is to inquire who were citizens of the United States at
the time of the adoption of the Constitution.

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

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

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

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

															Of this there can be no doubt. At the time of the ratification
of the Articles of Confederation, all free native-born inhabitants
of the States of New Hampshire, Massachusetts, New Page 60 U. S. 573 York, New Jersey, and North Carolina, though descended from
African slaves, were not only citizens of those States, but such of
them as had the other necessary qualifications possessed the
franchise of electors, on equal terms with other citizens.

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

															"According to the laws of this State," says Judge Gaston, in
delivering the opinion of the court,

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

															In the State v. Newcomb, 5 Iredell's R. 253, decided in
1844, the same court referred to this case of the State v.
Manuel, and said:

															"That case underwent a very laborious investigation, both by the
bar and the bench. The case was brought here by appeal, and was
felt to be one of great importance in principle. It was considered
with an anxiety and care worthy of the principle involved, and
which give it a controlling Page 60 U. S. 574 influence and authority on all questions of a similar
character."

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

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

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

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

															New York, by its Constitution of 1820, required colored persons
to have some qualifications as prerequisites for voting, which
white persons need not possess. And New Jersey, by its present
Constitution, restricts the right to vote to white male citizens.
But these changes can have no other effect upon the present inquiry
except to show that, before they were made, no such restrictions
existed, and colored, in common with white, persons, were not only
citizens of those States, but entitled to the elective franchise on
the same qualifications as white persons, as they now are in New
Hampshire and Massachusetts. I shall not enter into an examination
of the existing opinions of that period respecting the African
race, nor into any discussion concerning the meaning of those who
asserted, in the Declaration of Independence, that all men are
created equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, and the
pursuit of happiness. My own opinion is that a calm comparison of
these assertions of universal abstract truths and of their own
individual opinions and acts would not leave Page 60 U. S. 575 these men under any reproach of inconsistency; that the great
truths they asserted on that solemn occasion, they were ready and
anxious to make effectual, wherever a necessary regard to
circumstances, which no statesman can disregard without producing
more evil than good, would allow; and that it would not be just to
them nor true in itself to allege that they intended to say that
the Creator of all men had endowed the white race, exclusively,
with the great natural rights which the Declaration of Independence
asserts. But this is not the place of vindicate their memory. As I
conceive, we should deal here not with such disputes, if there can
be a dispute concerning this subject, but with those substantial
facts evinced by the written Constitutions of States and by the
notorious practice under them. And they show, in a manner which no
argument can obscure, that, in some of the original thirteen
States, free colored persons, before and at the time of the
formation of the Constitution, were citizens of those States.

															The fourth of the fundamental articles of the Confederation was
as follows:

															"The free inhabitants of each of these States, paupers,
vagabonds, and fugitives from justice, excepted, shall be entitled
to all the privileges and immunities of free citizens in the
several States."

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

															On the 25th of June, 1778, the Articles of Confederation being
under consideration by the Congress, the delegates from South
Carolina moved to amend this fourth article by inserting after the
word "free," and before the word "inhabitants," the word "white,"
so that the privileges and immunities of general citizenship would
be secured only to white persons. Two States voted for the
amendment, eight States against it, and the vote of one State was
divided. The language of the article stood unchanged, and both by
its terms of inclusion, "free inhabitants," and the strong
implication from its terms of exclusion, "paupers, vagabonds, and
fugitives from justice," who alone were excepted, it is clear that
under the Confederation, and at the time of the adoption of the
Constitution, free colored persons of African descent might be,
and, by reason of their citizenship in certain States, were,
entitled to the Page 60 U. S. 576 privileges and immunities of general citizenship of the United
States.

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

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

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

															I will proceed to state the grounds of that opinion.

															The first section of the second article of the Constitution uses
the language, "a natural-born citizen." It thus assumes that
citizenship may be acquired by birth. Undoubtedly, this language of
the Constitution was used in reference to that principle of public
law, well understood in this country at the time of the adoption of
the Constitution, which referred citizenship to the place of birth.
At the Declaration of Independence, and ever since, the received
general doctrine has been in conformity with the common law that
free persons born within either of the colonies were subjects of
the King that by the Declaration of Independence, and the
consequent acquisition of sovereignty by the several States, all
such persons ceased to be subjects, and became citizens of the
several States, except so far as some of them were disfranchised by
the legislative power of the States, or availed themselves,
seasonably, of the right to adhere to the British Crown in the
civil contest, Page 60 U. S. 577 and thus to continue British subjects. McIlvain v.
Coxe's Lessee , 4 Cranch 209; Inglis v.
Sailors' Snug Harbor , 3 Pet. 99; Shanks v.
Dupont , 3 Pet. 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 Page 60 U. S. 578 of the United States, or members of either House of Congress, or
hold any office or enjoy any privilege whereof citizenship of the
United States is a necessary qualification must depend solely on
the will of Congress. By virtue of it, though Congress can grant no
title of nobility, they may create an oligarchy in whose hands
would be concentrated the entire power of the Federal
Government.

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

															Among the powers expressly granted to Congress is "the power to
establish a uniform rule of naturalization." It is not doubted that
this is a power to prescribe a rule for the removal of the
disabilities consequent on foreign birth. To hold that it extends
further than this would do violence to the meaning of the term
naturalization, fixed in the common law, Co.Lit. 8a, 129a; 2 Ves.
sen. 286; 2 Bl.Com. 293, and in the minds of those who concurred in
framing and adopting the Constitution. It was in this sense of
conferring on an alien and his issue the rights and powers of a
native-born citizen that it was employed in the Declaration of
Independence. It was in this sense it was expounded in the
Federalist No. 42; has been understood by Congress, by the
Judiciary, 15 U. S. 2 Wheat.
259, 15 U. S. 269 , 3
Wash.R. 313, 322, 25 U. S. 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 Page 60 U. S. 579 the Constitution was to form a Government, and under it the
United States of America were to be one united sovereign nation to
which loyalty and obedience, on the one side, and from which
protection and privileges, on the other, would be due, yet the
several sovereign States whose people were then citizens were not
only to continue in existence, but with powers unimpaired except so
far as they were granted by the people to the National
Government.

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

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

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

															The first clause of the second section of the third article of
the Constitution is

															"The judicial power shall extend to controversies between a
State and citizens of another State, between citizens of different
States, between citizens of the same State, claiming lands under
grants of different States, and between States, or the citizens
thereof, and foreign States, Page 60 U. S. 580 citizens, or subjects."

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

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

															"The citizens of each State shall be entitled to all the
privileges and immunities of citizens of the several States."
Nowhere else in the Constitution is there anything concerning a
general citizenship, but here, privileges and immunities to be
enjoyed throughout the United States, under and by force of the
national compact, are granted and secured. In selecting those who
are to enjoy these national rights of citizenship, how are they
described? As citizens of each State. It is to them these national
rights are secured. The qualification for them is not to be looked
for in any provision of the Constitution or laws of the United
States. They are to be citizens of the several States, and as such,
the privileges and immunities of general citizenship, derived from
and guarantied by the Constitution, are to be enjoyed by them. It
would seem that, if it had been intended to constitute a class of
native-born persons within the States who should derive their
citizenship of the United States from the action of the Federal
Government, this was an occasion for referring to them. It cannot
be supposed that it was the purpose of this article to confer the
privileges and immunities of citizens in all the States upon
persons not citizens of the United States. Page 60 U. S. 581 And if it was intended to secure these rights only to citizens
of the United States, how has the Constitution here described such
persons? Simply as citizens of each State.

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

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

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

															Laying aside, then, the case of aliens, concerning which the
Constitution of the United States has provided, and confining our
view to free persons born within the several States, we find that
the Constitution has recognised the general principle of public law
that allegiance and citizenship depend on the place of birth; that
it has not attempted practically to apply this principle by
designating the particular classes of persons who should or should
not come under it; that, when we turn to the Constitution for an
answer to the question what free persons born within the several
States are citizens of the United States, the only answer we can
receive from any of its express provisions is the citizens of the
several States are to enjoy the privileges and immunities of
citizens in every State, and their franchise as electors under the
Constitution depends on their citizenship in the several States.
Add to this that the Constitution was ordained by the citizens of
the several States that they were "the people of the United
States," for whom Page 60 U. S. 582 and whose posterity the Government was declared in the preamble
of the Constitution to be made; that each of them was "a citizen of
the United States at the time of the adoption of the Constitution"
within the meaning of those words in that instrument; that by them
the Government was to be and was in fact organized; and that no
power is conferred on the Government of the Union to discriminate
between them, or to disfranchise any of them -- the necessary
conclusion is that those persons born within the several States
who, by force of their respective Constitutions and laws, are
citizens of the State are thereby citizens of the United
States.

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

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

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

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

															It has been further objected that, if free colored persons, born
within a particular State and made citizens of that State by its
Constitution and laws, are thereby made citizens of the United
States, then, under the second section of the fourth article of the
Constitution, such persons would be entitled to all the privileges
and immunities of citizens in the several States, and, if so, then
colored persons could vote, and be Page 60 U. S. 583 eligible to not only Federal offices, but offices even in those
States whose Constitution and laws disqualify colored persons from
voting or being elected to office.

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

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

															One may confine the right of suffrage to white male citizens;
another may extend it to colored persons and females; one may allow
all persons above a prescribed age to convey property and transact
business; another may exclude married women. But whether
native-born women, or persons under age, or under guardianship
because insane or spendthrifts, be excluded from voting or holding
office, or allowed to do so, I apprehend no one will deny that they
are citizens of the United States. Besides, this clause of the
Constitution does not confer on the citizens of one State, in all
other States, specific and enumerated privileges and immunities.
They are entitled to such as belong to citizenship, but not to such
as belong to particular citizens attended by other qualifications.
Privileges and immunities which belong to certain citizens of a
State by reason of the operation of causes other than mere
citizenship are not conferred. Thus, if the laws of a State
require, in addition to Page 60 U. S. 584 citizenship of the State, some qualification for office or the
exercise of the elective franchise, citizens of all other States
coming thither to reside and not possessing those qualifications
cannot enjoy those privileges, not because they are not to be
deemed entitled to the privileges of citizens of the State in which
they reside, but because they, in common with the native-born
citizens of that State, must have the qualifications prescribed by
law for the enjoyment of such privileges under its Constitution and
laws. It rests with the States themselves so to frame their
Constitutions and laws as not to attach a particular privilege or
immunity to mere naked citizenship. If one of the States will not
deny to any of its own citizens a particular privilege or immunity
-- if it confer it on all of them by reason of mere naked
citizenship -- then it may be claimed by every citizen of each
State by force of the Constitution, and it must be borne in mind
that the difficulties which attend the allowance of the claims of
colored persons to be citizens of the United States are not avoided
by saying that, though each State may make them its citizens, they
are not thereby made citizens of the United States, because the
privileges of general citizenship are secured to the citizens of
each State. The language of the Constitution is "The citizens of
each State shall be entitled to all privileges and immunities of
citizens in the several States." If each State may make such
persons its citizens, they became, as such, entitled to the
benefits of this article if there be a native-born citizenship of
the United States distinct from a native-born citizenship of the
several States.

															There is one view of this article entitled to consideration in
this connection. It is manifestly copied from the fourth of the
Articles of Confederation, with only slight changes of phraseology
which render its meaning more precise, and dropping the clause
which excluded paupers, vagabonds, and fugitives from justice,
probably because these cases could be dealt with under the police
powers of the States, and a special provision therefor was not
necessary. It has been suggested that, in adopting it into the
Constitution, the words "free inhabitants" were changed for the
word "citizens." An examination of the forms of expression commonly
used in the State papers of that day, and an attention to the
substance of this article of the Confederation, will show that the
words "free inhabitants," as then used, were synonymous with
citizens. When the Articles of Confederation were adopted, we were
in the midst of the war of the Revolution, and there were very few
persons then embraced in the words "free inhabitants" who were not
born on our soil. It was not a time when many save the Page 60 U. S. 585 children of the soil were willing to embark their fortunes in
our cause, and though there might be an inaccuracy in the uses of
words to call free inhabitants citizens, it was then a technical,
rather than a substantial, difference. If we look into the
Constitutions and State papers of that period, we find the
inhabitants or people of these colonies, or the inhabitants of this
State or Commonwealth, employed to designate those whom we should
now denominate citizens. The substance and purpose of the article
prove it was in this sense it used these words; it secures to the
free inhabitants of each State the privileges and immunities of
free citizens in every State. It is not conceivable that the States
should have agreed to extend the privileges of citizenship to
persons not entitled to enjoy the privileges of citizens in the
States where they dwelt that, under this article, there was a class
of persons in some of the States, not citizens, to whom were
secured all the privileges and immunities of citizens when they
went into other States; and the just conclusion is that, though the
Constitution cured an inaccuracy of language, it left the substance
of this article in the National Constitution the same as it was in
the Articles of Confederation.

															The history of this fourth article, respecting the attempt to
exclude free persons of color from its operation, has been already
stated. It is reasonable to conclude that this history was known to
those who framed and adopted the Constitution. That, under this
fourth article of the Confederation, free persons of color might be
entitled to the privileges of general citizenship, if otherwise
entitled thereto, is clear. When this article was, in substance,
placed in and made part of the Constitution of the United States,
with no change in its language calculated to exclude free colored
persons from the benefit of its provisions, the presumption is, to
say the least, strong that the practical effect which it was
designed to have, and did have, under the former Government, it was
designed to have, and should have, under the new Government.

															It may be further objected that, if free colored persons may be
citizens of the United States, it depends only on the will of a
master whether he will emancipate his slave and thereby make him a
citizen. Not so. The master is subject to the will of the State.
Whether he shall be allowed to emancipate his slave at all; if so,
on what conditions; and what is to be the political status of the
freed man depend, not on the will of the master, but on the will of
the State, upon which the political status of all its native-born
inhabitants depends. Under the Constitution of the United States,
each State has retained this power of determining the political
status of its native-born Page 60 U. S. 586 inhabitants, and no exception thereto can be found in the
Constitution. And if a master in a slaveholding State should carry
his slave into a free State, and there emancipate him, he would not
thereby make him a native-born citizen of that State, and
consequently no privileges could be claimed by such emancipated
salve as a citizen of the United States. For whatever powers the
States may exercise to confer privileges of citizenship on persons
not born on their soil, the Constitution of the United States does
not recognise such citizens. As has already been said, it
recognises the great principle of public law that allegiance and
citizenship spring from the place of birth. It leaves to the States
the application of that principle to individual cases. It secured
to the citizens of each State the privileges and immunities of
citizens in every other State. But it does not allow to the States
the power to make aliens citizens, or permit one State to take
persons born on the soil of another State, and contrary to the laws
and policy of the State where they were born, make them its
citizens, and so citizens of the United States. No such deviation
from the great rule of public law was contemplated by the
Constitution, and when any such attempt shall be actually made, it
is to be met by applying to it those rules of law and those
principles of good faith which will be sufficient to decide it, and
not, in my judgment, by denying that all the free native-born
inhabitants of a State who are its citizens under its Constitution
and laws are also citizens of the United States.

															It has sometimes been urged that colored persons are shown not
to be citizens of the United States by the fact that the
naturalization laws apply only to white persons. But whether a
person born in the United States be or be not a citizen cannot
depend on laws which refer only to aliens, and do not affect the
status of persons born in the United States. The utmost effect
which can be attributed to them is to show that Congress has not
deemed it expedient generally to apply the rule to colored aliens.
That they might do so, if though fit, is clear. The Constitution
has not excluded them. And since that has conferred the power on
Congress to naturalize colored aliens, it certainly shows color is
not a necessary qualification for citizenship under the
Constitution of the United States. It may be added that the power
to make colored persons citizens of the United States under the
Constitution has been actually exercised in repeated and important
instances. See the Treaties with the Choctaws, of
September 27, 1830, art. 14; with the Cherokees, of May 23, 1836,
art. 12; Treaty of Guadalupe Hidalgo, February 2, 1848, art. 8.

															I do not deem it necessary to review at length the
legislation Page 60 U. S. 587 of Congress having more or less bearing on the citizenship of
colored persons. It does not seem to me to have any considerable
tendency to prove that it has been considered by the legislative
department of the Government that no such persons are citizens of
the United States. Undoubtedly they have been debarred from the
exercise of particular rights or privileges extended to white
persons, but, I believe, always in terms which, by implication,
admit they may be citizens. Thus, the act of May 17, 1792, for the
organization of the militia directs the enrollment of "every free,
able-bodied, white male citizen." An assumption that none but white
persons are citizens would be as inconsistent with the just import
of this language as that all citizens are able-bodied, or
males.

															So the Act of February 28, 1803, 2 Stat. at Large 205, to
prevent the importation of certain persons into States when by the
laws thereof their admission is prohibited, in its first section,
forbids all masters of vessels to import or bring "any negro,
mulatto, or other person of color, not being a native, a
citizen, or registered seaman of the United States,"
&c.

															The Acts of March 3, 1813, section 1, 2 Stat. at Large 809, and
March 1, 1817, section 3, 3 Stat. at Large 351, concerning seamen,
certainly imply there may be persons of color, natives of the
United States who are not citizens of the United States. This
implication is undoubtedly in accordance with the fact. For not
only slaves, but free persons of color, born in some of the States,
are not citizens. But there is nothing in these laws inconsistent
with the citizenship of persons of color in others of the States,
nor with their being citizens of the United States.

															Whether much or little weight should be attached to the
particular phraseology of these and other laws, which were not
passed with any direct reference to this subject, I consider their
tendency to be, as already indicated, to show that, in the
apprehension of their framers, color was not a necessary
qualification of citizenship. It would be strange if laws were
found on our statute book to that effect when, by solemn treaties,
large bodies of Mexican and North American Indians as well as free
colored inhabitants of Louisiana have been admitted to citizenship
of the United States.

															In the legislative debates which preceded the admission of the
State of Missouri into the Union, this question was agitated. Its
result is found in the resolution of Congress of March 5, 1821, for
the admission of that State into the Union. The Constitution of
Missouri, under which that State applied for admission into the
Union, provided that it should be the duty Page 60 U. S. 588 of the Legislature "to pass laws to prevent free negroes and
mulattoes from coming to and settling in the State under any
pretext whatever." One ground of objection to the admission of the
State under this Constitution was that it would require the
Legislature to exclude free persons of color, who would be
entitled, under the second section of the fourth article of the
Constitution, not only to come within the State, but to enjoy there
the privileges and immunities of citizens. The resolution of
Congress admitting the State was upon the fundamental condition

															"that the Constitution of Missouri shall never be construed to
authorize the passage of any law, and that no law shall be passed
in conformity thereto, by which any citizen of either of the States
of this Union shall be excluded from the enjoyment of any of the
privileges and immunities to which such citizen is entitled under
the Constitution of the United States."

															It is true that neither this legislative declaration nor
anything in the Constitution or laws of Missouri could confer or
take away any privilege or immunity granted by the Constitution.
But it is also true that it expresses the then conviction of the
legislative power of the United States that free negroes, as
citizens of some of the States, might be entitled to the privileges
and immunities of citizens in all the States.

															The conclusions at which I have arrived on this part of the case
are: First. That the free native-born citizens of each State
are citizens of the United States. Second. That, as free colored persons born within some
of the States are citizens of those States, such persons are also
citizens of the United States. Third. That every such citizen, residing in any State,
has the right to sue and is liable to be sued in the Federal
courts, as a citizen of that State in which he resides. Fourth. That, as the plea to the jurisdiction in this
case shows no facts, except that the plaintiff was of African
descent, and his ancestors were sold as slaves, and as these facts
are not inconsistent with his citizenship of the United States and
his residence in the State of Missouri, the plea to the
jurisdiction was bad, and the judgment of the Circuit Court
overruling it was correct.

															I dissent, therefore, from that part of the opinion of the
majority of the court in which it is held that a person of African
descent cannot be a citizen of the United States, and I regret I
must go further and dissent both from what I deem their assumption
of authority to examine the constitutionality of the act of
Congress commonly called the Missouri Compromise Page 60 U. S. 589 Act and the grounds and conclusions announced in their
opinion.

															Having first decided that they were bound to consider the
sufficiency of the plea to the jurisdiction of the Circuit Court,
and having decided that this plea showed that the Circuit Court had
not jurisdiction, and consequently that this is a case to which the
judicial power of the United States does not extend, they have gone
on to examine the merits of the case as they appeared on the trial
before the court and jury on the issues joined on the pleas in bar,
and so have reached the question of the power of Congress to pass
the act of 1820. On so grave a subject as this, I feel obliged to
say that, in my opinion, such an exertion of judicial power
transcends the limits of the authority of the court as described by
its repeated decisions, and as I understand, acknowledged in this
opinion of the majority of the court.

															In the course of that opinion, it became necessary to comment on
the case of Legrand v.
Darnall , reported in 2 Peters 664. In that case, a
bill was filed, by one alleged to be a citizen of Maryland against
one alleged to be a citizen of Pennsylvania. The bill stated that
the defendant was the son of a white man by one of his slaves, and
that the defendant's father devised to him certain lands, the title
to which was put in controversy by the bill. These facts were
admitted in the answer, and upon these and other facts, the court
made its decree, founded on the principle that a devise of land by
a master to a slave was, by implication, also a bequest of his
freedom. The facts that the defendant was of African descent and
was born a slave were not only before the court, but entered into
the entire substance of its inquiries. The opinion of the majority
of my brethren in this case disposes of the case of Legrand v.
Darnall by saying, among other things, that as the fact that
the defendant was born a slave only came before this court on the
bill and answer; it was then too late to raise the question of the
personal disability of the party, and therefore that decision is
altogether inapplicable in this case.

															In this I concur. Since the decision of this court in Livingston v.
Story , 11 Pet. 351, the law has been settled that,
when the declaration or bill contains the necessary averments of
citizenship, this court cannot look at the record to see whether
those averments are true except so far as they are put in issue by
a plea to the jurisdiction. In that case, the defendant denied by
his answer that Mr. Livingston was a citizen of New York, as he had
alleged in the bill. Both parties went into proofs. The court
refused to examine those proofs with reference to the personal
disability of the plaintiff. This is the Page 60 U. S. 590 settled law of the court, affirmed so lately as Shepherd
v. Graves , 14 How. 27, and Wickliff
v. Owings , 17 How. 51. See also De Wolf v.
Rabaud , 1 Pet. 476. But I do not understand this to
be a rule which the court may depart from at its pleasure. If it be
a rule, it is as binding on the court as on the suitors. If it
removes from the latter the power to take any objection to the
personal disability of a party alleged by the record to be
competent, which is not shown by a plea to the jurisdiction, it is
because the court are forbidden by law to consider and decide on
objections so taken. I do not consider it to be within the scope of
the judicial power of the majority of the court to pass upon any
question respecting the plaintiff's citizenship in Missouri save
that raised by the plea to the jurisdiction, and I do not hold any
opinion of this Court, or any court, binding, when expressed on a
question not legitimately before it. Carroll v.
Carroll , 16 How. 275. The judgment of this Court is
that the case is to be dismissed for want of jurisdiction because
the plaintiff was not a citizen of Missouri, as he alleged in his
declaration. Into that judgment, according to the settled course of
this Court, nothing appearing after a plea to the merits can enter.
A great question of constitutional law, deeply affecting the peace
and welfare of the country, is not, in my opinion, a fit subject to
be thus reached.

															But as, in my opinion, the Circuit Court had jurisdiction, I am
obliged to consider the question whether its judgment on the merits
of the case should stand or be reversed.

															The residence of the plaintiff in the State of Illinois, and the
residence of himself and his wife in the territory acquired from
France lying north of latitude thirty-six degrees thirty minutes
and north of the State of Missouri, are each relied on by the
plaintiff in error. As the residence in the territory affects the
plaintiff's wife and children as well as himself, I must inquire
what was its effect.

															The general question may be stated to be whether the plaintiff's
status as a slave was so changed by his residence within that
territory that he was not a slave in the State of Missouri at the
time this action was brought.

															In such cases, two inquiries arise which may be confounded, but
should be kept distinct.

															The first is what was the law of the Territory into which the
master and slave went respecting the relation between them?

															The second is whether the State of Missouri recognises and
allows the effect of that law of the Territory on the status of the
slave on his return within its jurisdiction.

															As to the first of these questions, the will of States and
nations, Page 60 U. S. 591 by whose municipal law slavery is not recognised, has been
manifested in three different ways.

															One is absolutely to dissolve the relation, and terminate the
rights of the master existing under the law of the country whence
the parties came. This is said by Lord Stowell, in the Case of
the Slave Grace, 2 Hag.Ad.R. 94, and by the Supreme Court of
Louisiana in the Case of Maria Louise v. Marot, 9 Louis.R.
473, to be the law of France, and it has been the law of several
States of this Union, in respect to slaves introduced under certain
conditions. Wilson v. Isabel, 5 Call's R. 430; Hunter
v. Hulcher, 1 Leigh 172; Stewart v. Oaks, 5 Har. and
John. 107.

															The second is where the municipal law of a country not
recognising slavery, it is the will of the State to refuse the
master all aid to exercise any control over his slave, and if he
attempt to do so, in a manner justifiable only by that relation, to
prevent the exercise of that control. But no law exists designed to
operate directly on the relation of master and slave, and put an
end to that relation. This is said by Lord Stowell, in the case
above mentioned, to be the law of England, and by Mr. Chief Justice
Shaw, in the case of the Commonwealth v. Aves, 18 Pick.
193, to be the law of Massachusetts.

															The third is to make a distinction between the case of a master
and his slave only temporarily in the country, animo non
manendi, and those who are there to reside for permanent or
indefinite purposes. This is said by Mr. Wheaton to be the law of
Prussia, and was formerly the statute law of several States of our
Union. It is necessary in this case to keep in view this
distinction between those countries whose laws are designed to act
directly on the status of a slave, and make him a freeman, and
those where his master can obtain no aid from the laws to enforce
his rights.

															It is to the last case only that the authorities, out of
Missouri, relied on by defendant, apply when the residence in the
nonslaveholding Territory was permanent. In the Commonwealth v.
Aves, 18 Pick. 218, Mr. Chief Justice Shaw said:

															"From the principle above stated, on which a slave brought here
becomes free, to-wit, that he becomes entitled to the protection of
our laws, it would seem to follow as a necessary conclusion that,
if the slave waives the protection of those laws and returns to the
State where he is held as a slave, his condition is not
changed."

															It was upon this ground, as is apparent from his whole
reasoning, that Sir William Scott rests his opinion in the Case
of the Slave Grace. To use one of his expressions, the effect
of the law of England was to put the liberty of the slave into a
parenthesis. If there had been an Page 60 U. S. 592 act of Parliament declaring that a slave coming to England with
his master should thereby be deemed no longer to be a slave, it is
easy to see that the learned judge could not have arrived at the
same conclusion. This distinction is very clearly stated and shown
by President Tucker in his opinion in the case of Betty v.
Horton, 5 Leigh's Virginia R. 615. See also Hunter v.
Fletcher, 1 Leigh's Va.R. 172; Maria Louise v. Marot, 9 Louisiana R.; Smith v. Smith, 13 ib. 441; Thomas v. Genevieve, 16 ib. 483; Rankin v.
Lydia, 2 A. K. Marshall 467; Davies v. Tingle, 8
B.Munroe 539; Griffeth v. Fanny, Gilm.Va.R. 143; Lumford v. Coquillon, 14 Martin's La.R. 405; Josephine
v. Poultney, 1 Louis.Ann.R. 329.

															But if the acts of Congress on this subject are valid, the law
of the Territory of Wisconsin, within whose limits the residence of
the plaintiff and his wife and their marriage and the birth of one
or both of their children took place, falls under the first
category, and is a law operating directly on the status of the
slave. By the eighth section of the Act of March 6, 1820, 3 Stat.
at Large 548, it was enacted that, within this Territory,

															"slavery and involuntary servitude, otherwise than in the
punishment of crimes, whereof the parties shall have been duly
convicted, shall be, and is hereby, forever prohibited: Provided always that any person escaping into the same,
from whom labor or service is lawfully claimed in any State or
Territory of the United States, such fugitive may be lawfully
reclaimed, and conveyed to the person claiming his or her labor or
service, as aforesaid."

															By the Act of April 20, 1836, 4 Stat. at Large 10, passed in the
same month and year of the removal of the plaintiff to Fort
Snelling, this part of the territory ceded by France, where Fort
Snelling is, together with so much of the territory of the United
States east of the Mississippi as now constitutes the State of
Wisconsin, was brought under a Territorial Government under the
name of the Territory of Wisconsin. By the eighteenth section of
this act, it was enacted

															"That the inhabitants of this Territory shall be entitled to and
enjoy all and singular the rights, privileges, and advantages,
granted and secured to the people of the Territory of the United
States northwest of the river Ohio, by the articles of compact
contained in the ordinance for the government of said Territory,
passed on the 13th day of July, 1787, and shall be subject to all
the restrictions and prohibitions in said articles of compact
imposed upon the people of the said Territory."

															The sixth article of that compact is

															"there shall be neither slavery nor involuntary servitude in the
said Territory, otherwise than in Page 60 U. S. 593 the punishment of crimes, whereof the party shall have been duly
convicted. Provided always that any person escaping into
the same, from whom labor or service is lawfully claimed in anyone
of the original States, such fugitive may be lawfully reclaimed,
and conveyed to the person claiming his or her labor or service, as
aforesaid."

															By other provisions of this act establishing the Territory of
Wisconsin, the laws of the United States, and the then existing
laws of the State of Michigan, are extended over the Territory, the
latter being subject to alteration and repeal by the legislative
power of the Territory created by the act.

															Fort Snelling was within the Territory of Wisconsin, and these
laws were extended over it. The Indian title to that site for a
military post had been acquired from the Sioux nation as early as
September 23, 1805, Am.State Papers, Indian Affairs, vol. 1, p.
744, and until the erection of the Territorial Government, the
persons at that post were governed by the rules and articles of
war, and such laws of the United States, including the eighth
section of the Act of March 6, 1820, prohibiting slavery, as were
applicable to their condition; but after the erection of the
Territory, and the extension of the laws of the United States and
the laws of Michigan over the whole of the Territory, including
this military post, the persons residing there were under the
dominion of those laws in all particulars to which the rules and
articles of war did not apply.

															It thus appears that, by these acts of Congress, not only was a
general system of municipal law borrowed from the State of
Michigan, which did not tolerate slavery, but it was positively
enacted that slavery and involuntary servitude, with only one
exception, specifically described, should not exist there. It is
not simply that slavery is not recognised and cannot be aided by
the municipal law. It is recognised for the purpose of being
absolutely prohibited and declared incapable of existing within the
Territory, save in the instance of a fugitive slave.

															It would not be easy for the Legislature to employ more explicit
language to signify its will that the status of slavery should not
exist within the Territory than the words found in the Act of 1820,
and in the Ordinance of 1787, and if any doubt could exist
concerning their application to cases of masters coming into the
Territory with their slaves to reside that doubt must yield to the
inference required by the words of exception. That exception is of
cases of fugitive slaves. An exception from a prohibition marks the
extent of the prohibition, for it would be absurd, as well as
useless, to except from a prohibition Page 60 U. S. 594 a case not contained within it. 22 U. S. 9 Wheat.
200. I must conclude, therefore that it was the will of Congress
that the state of involuntary servitude of a slave coming into the
Territory with his master should cease to exist. The Supreme Court
of Missouri so held in Rachel v. Walker, 4 Misso.R., 350,
which was the case of a military officer going into the Territory
with two slaves.

															But it is a distinct question whether the law of Missouri
recognised and allowed effect to the change wrought in the status
of the plaintiff by force of the laws of the Territory of
Wisconsin.

															I say the law of Missouri because a judicial tribunal in one
State or nation can recognise personal rights acquired by force of
the law of any other State or nation only so far as it is the law
of the former State that those rights should be recognised. But, in
the absence of positive law to the contrary, the will of every
civilized State must be presumed to be to allow such effect to
foreign laws as is in accordance with the settled rules of
international law. And legal tribunals are bound to act on this
presumption. It may be assumed that the motive of the State in
allowing such operation to foreign laws is what has been termed
comity. But, as has justly been said per Chief Justice Taney, 13
Pet. 38 U. S. 589 ,
it is the comity of the State, not of the court. The judges have
nothing to do with the motive of the State. Their duty is simply to
ascertain and give effect to its will. And when it is found by them
that its will to depart from a rule of international law has not
been manifested by the State, they are bound to assume that its
will is to give effect to it. Undoubtedly, every sovereign State
may refuse to recognise a change, wrought by the law of a foreign
State, on the status of a person while within such foreign State,
even in cases where the rules of international law require that
recognition. Its will to refuse such recognition may be manifested
by what we term statute law, or by the customary law of the State.
It is within the province of its judicial tribunals to inquire and
adjudge whether it appears, from the statute or customary law of
the State, to be the will of the State to refuse to recognise such
changes of status by force of foreign law, as the rules of the law
of nations require to be recognised. But, in my opinion, it is not
within the province of any judicial tribunal to refuse such
recognition from any political considerations, or any view it may
take of the exterior political relations between the State and one
or more foreign States, or any impressions it may have that a
change of foreign opinion and action on the subject of slavery may
afford a reason why the State should change its own action. To
understand and give Page 60 U. S. 595 just effect to such considerations, and to change the action of
the State in consequence of them, are functions of diplomatists and
legislators, not of judges.

															The inquiry to be made on this part of the case is therefore
whether the State of Missouri has, by its statute, or its customary
law, manifested its will to displace any rule of international law,
applicable to a change of the status of a slave, by foreign
law.

															I have not heard it suggested that there was any statute of the
State of Missouri bearing on this question. The customary law of
Missouri is the common law, introduced by statute in 1816. 1
Ter.Laws, 436. And the common law, as Blackstone says, 4 Com. 67,
adopts, in its full extent, the law of nations, and holds it to be
a part of the law of the land.

															I know of no sufficient warrant for declaring that any rule of
international law concerning the recognition, in that State, of a
change of status wrought by an extraterritorial law has been
displaced or varied by the will of the State of Missouri.

															I proceed then to inquire what the rules of international law
prescribe concerning the change of status of the plaintiff wrought
by the law of the Territory of Wisconsin.

															It is generally agreed by writers upon international law, and
the rule has been judicially applied in a great number of cases,
that wherever any question may arise concerning the status of a
person, it must be determined according to that law which has next
previously rightfully operated on and fixed that status. And
further, that the laws of a country do not rightfully operate upon
and fix the status of persons who are within its limits in
itinere, or who are abiding there for definite temporary
purposes, as for health, curiosity, or occasional business; that
these laws, known to writers on public and private international
law as personal statutes, operate only on the inhabitants of the
country. Not that it is or can be denied that each independent
nation may, if it thinks fit, apply them to all persons within
their limits. But when this is done not in conformity with the
principles of international law, other States are not understood to
be willing to recognise or allow effect to such applications of
personal statutes.

															It becomes necessary, therefore, to inquire whether the
operation of the laws of the Territory of Wisconsin upon the status
of the plaintiff was or was not such an operation as these
principles of international law require other States to recognise
and allow effect to.

															And this renders it needful to attend to the particular facts
and circumstances of this case. Page 60 U. S. 596 It appears that this case came on for trial before the Circuit
Court and a jury upon an issue, in substance, whether the
plaintiff, together with his wife and children, were the slaves of
the defendant.

															The court instructed the jury that, "upon the facts in this
case, the law is with the defendant." This withdrew from the jury
the consideration and decision of every matter of fact. The
evidence in the case consisted of written admissions, signed by the
counsel of the parties. If the case had been submitted to the
judgment of the court upon an agreed statement of facts, entered of
record, in place of a special verdict, it would have been necessary
for the court below, and for this court, to pronounce its judgment
solely on those facts, thus agreed, without inferring any other
facts therefrom. By the rules of the common law applicable to such
a case, and by force of the seventh article of the amendments of
the Constitution, this court is precluded from finding any fact not
agreed to by the parties on the record. No submission to the court
on a statement of facts was made. It was a trial by jury, in which
certain admissions, made by the parties, were the evidence. The
jury were not only competent, but were bound to draw from that
evidence every inference which, in their judgment, exercised
according to the rules of law, it would warrant. The Circuit Court
took from the jury the power to draw any inferences from the
admissions made by the parties, and decided the case for the
defendant. This course can be justified here, if at all, only by
its appearing that, upon the facts agreed and all such inferences
of fact favorable to the plaintiff's case as the jury might have
been warranted in drawing from those admissions, the law was with
the defendant. Otherwise, the plaintiff would be deprived of the
benefit of his trial by jury, by whom, for aught we can know, those
inferences favorable to his case would have been drawn.

															The material facts agreed bearing on this part of the case are
that Dr. Emerson, the plaintiff's master, resided about two years
at the military post of Fort Snelling, being a surgeon in the army
of the United States, his domicil of origin being unknown, and
what, if anything, he had done to preserve or change his domicil
prior to his residence at Rock Island being also unknown.

															Now it is true that, under some circumstances the residence of a
military officer at a particular place in the discharge of his
official duties does not amount to the acquisition of a technical
domicil. But it cannot be affirmed with correctness that it never
does. There being actual residence, and this being presumptive
evidence of domicil, all the circumstances Page 60 U. S. 597 of the case must be considered before a legal conclusion can be
reached that his place of residence is not his domicil. If a
military officer stationed at a particular post should entertain an
expectation that his residence there would be indefinitely
protracted, and in consequence should remove his family to the
place where his duties were to be discharged, form a permanent
domestic establishment there, exercise there the civil rights and
discharge the civil duties of an inhabitant, while he did not act
and manifested no intent to have a domicil elsewhere, I think no
one would say that the mere fact that he was himself liable to be
called away by the orders of the Government would prevent his
acquisition of a technical domicil at the place of the residence of
himself and his family. In other words, I do not think a military
officer incapable of acquiring a domicil. Bruce v. Bruce, 2 Bos. and Pul. 230; Munroe v. Douglass, 5 Mad.Ch.R. 232.
This being so, this case stands thus: there was evidence before the
jury that Emerson resided about two years at Fort Snelling, in the
Territory of Wisconsin. This may or may not have been with such
intent as to make it his technical domicil. The presumption is that
it was. It is so laid down by this court, in Ennis v.
Smith, 14 How. and the authorities in support of the position
are there referred to. His intent was a question of fact for the
jury. Fitchburg v. Winchendon, 4 Cush. 190.

															The case was taken from the jury. If they had power to find that
the presumption of the necessary intent had not been rebutted, we
cannot say, on this record that Emerson had not his technical
domicil at Fort Snelling. But, for reasons which I shall now
proceed to give, I do not deem it necessary in this case to
determine the question of the technical domicil of Dr. Emerson.

															It must be admitted that the inquiry whether the law of a
particular country has rightfully fixed the status of a person, so
that in accordance with the principles of international law that
status should be recognised in other jurisdictions, ordinarily
depends on the question whether the person was domiciled in the
country whose laws are asserted to have fixed his status. But, in
the United States, questions of this kind may arise where an
attempt to decide solely with reference to technical domicil,
tested by the rules which are applicable to changes of places of
abode from one country to another, would not be consistent with
sound principles. And, in my judgment, this is one of those
cases.

															The residence of the plaintiff, who was taken by his master, Dr.
Emerson, as a slave, from Missouri to the State of Illinois, and
thence to the Territory of Wisconsin, must be deemed to Page 60 U. S. 598 have been for the time being, and until he asserted his own
separate intention, the same as the residence of his master, and
the inquiry whether the personal statutes of the Territory were
rightfully extended over the plaintiff, and ought, in accordance
with the rules of international law, to be allowed to fix his
status, must depend upon the circumstances under which Dr. Emerson
went into that Territory and remained there, and upon the further
question whether anything was there rightfully done by the
plaintiff to cause those personal statutes to operate on him.

															Dr. Emerson was an officer in the army of the United States. He
went into the Territory to discharge his duty to the United States.
The place was out of the jurisdiction of any particular State, and
within the exclusive jurisdiction of the United States. It does not
appear where the domicil of origin of Dr. Emerson was, nor whether
or not he had lost it, and gained another domicil, nor of what
particular State, if any, he was a citizen.

															On what ground can it be denied that all valid laws of the
United States, constitutionally enacted by Congress for the
government of the Territory, rightfully extended over an officer of
the United States and his servant who went into the Territory to
remain there for an indefinite length of time, to take part in its
civil or military affairs? They were not foreigners, coming from
abroad. Dr. Emerson was a citizen of the country which had
exclusive jurisdiction over the Territory, and not only a citizen,
but he went there in a public capacity, in the service of the same
sovereignty which made the laws. Whatever those laws might be,
whether of the kind denominated personal statutes or not, so far as
they were intended by the legislative will, constitutionally
expressed, to operate on him and his servant, and on the relations
between them, they had a rightful operation, and no other State or
country can refuse to allow that those laws might rightfully
operate on the plaintiff and his servant, because such a refusal
would be a denial that the United States could, by laws
constitutionally enacted, govern their own servants, residing on
their own Territory, over which the United States had the exclusive
control, and in respect to which they are an independent sovereign
power. Whether the laws now in question were constitutionally
enacted, I repeat once more, is a separate question. But, assuming
that they were, and that they operated directly on the status of
the plaintiff, I consider that no other State or country could
question the rightful power of the United States so to legislate,
or, consistently with the settled rules of international law, could
refuse to recognise the effects Page 60 U. S. 599 of such legislation upon the status of their officers and
servants, as valid everywhere.

															This alone would, in my apprehension, be sufficient to decide
this question.

															But there are other facts stated on the record which should not
be passed over. It is agreed that, in the year 1836, the plaintiff,
while residing in the Territory, was married, with the consent of
Dr. Emerson, to Harriet, named in the declaration as his wife, and
that Eliza and Lizzie were the children of that marriage, the first
named having been born on the Mississippi river, north of the line
of Missouri, and the other having been born after their return to
Missouri. And the inquiry is whether, after the marriage of the
plaintiff in the Territory, with the consent of Dr. Emerson, any
other State or country can, consistently with the settled rules of
international law, refuse to recognise and treat him as a free man
when suing for the liberty of himself, his wife, and the children
of the marriage. It is in reference to his status as viewed in
other States and countries that the contract of marriage and the
birth of children becomes strictly material. At the same time, it
is proper to observe that the female to whom he was married having
been taken to the same military post of Fort Snelling as a slave,
and Dr. Emerson claiming also to be her master at the time of her
marriage, her status, and that of the children of the marriage, are
also affected by the same considerations.

															If the laws of Congress governing the Territory of Wisconsin
were constitutional and valid laws, there can be no doubt these
parties were capable of contracting a lawful marriage, attended
with all the usual civil rights and obligations of that condition.
In that Territory, they were absolutely free persons, having full
capacity to enter into the civil contract of marriage.

															It is a principle of international law, settled beyond
controversy in England and America, that a marriage, valid by the
law of the place where it was contracted, and not in fraud of the
law of any other place, is valid everywhere, and that no technical
domicil at the place of the contract is necessary to make it so. See Bishop on Mar. and Div. 125-129, where the cases are
collected.

															If, in Missouri, the plaintiff were held to be a slave, the
validity and operation of his contract of marriage must be denied.
He can have no legal rights, of course, not those of a husband and
father. And the same is true of his wife and children. The denial
of his rights is the denial of theirs. So that, though lawfully
married in the Territory, when they came out of it, into the State
of Missouri, they were no longer Page 60 U. S. 600 husband and wife, and a child of that lawful marriage, though
born under the same dominion where its parents contracted a lawful
marriage, is not the fruit of that marriage, nor the child of its
father, but subject to the maxim partus sequitur
ventrem. It must be borne in mind that, in this case, there is no ground
for the inquiry whether it be the will of the State of Missouri not
to recognise the validity of the marriage of a fugitive slave, who
escapes into a State or country where slavery is not allowed and
there contracts a marriage, or the validity of such a marriage
where the master, being a citizen of the State of Missouri,
voluntarily goes with his slave, in itinere, into a State
or country which does not permit slavery to exist, and the slave
there contracts marriage without the consent of his master, for in
this case, it is agreed, Dr. Emerson did consent, and no further
question can arise concerning his rights so far as their assertion
is inconsistent with the validity of the marriage. Nor do I know of
any ground for the assertion that this marriage was in fraud of any
law of Missouri. It has been held by this court that a bequest of
property by a master to his slave by necessary implication entitles
the slave to his freedom, because only as a freeman could he take
and hold the bequest. Legrand v.
Darnall , 2 Pet.R. 664. It has also been held that,
when a master goes with his slave to reside for an indefinite
period in a State where slavery is not tolerated, this operates as
an act of manumission, because it is sufficiently expressive of the
consent of the master that the slave should be free. 2 Marshall's
Ken.R. 470, 14 Martin's Louis.R. 401.

															What, then, shall we say of the consent of the master that the
slave may contract a lawful marriage, attended with all the civil
rights and duties which belong to that relation; that he may enter
into a relation which none but a free man can assume -- a relation
which involves not only the rights and duties of the slave, but
those of the other party to the contract, and of their descendants
to the remotest generation? In my judgment, there can be no more
effectual abandonment of the legal rights of a master over his
slave than by the consent of the master that the slave should enter
into a contract of marriage in a free State, attended by all the
civil rights and obligations which belong to that condition.

															And any claim by Dr. Emerson, or anyone claiming under him the
effect of which is to deny the validity of this marriage and the
lawful paternity of the children born from it, wherever asserted,
is, in my judgment, a claim inconsistent with good faith and sound
reason, as well as with the rules of international law. And I go
further: in my opinion, a law of the State Page 60 U. S. 601 of Missouri which should thus annul a marriage, lawfully
contracted by these parties while resident in Wisconsin, not in
fraud of any law of Missouri, or of any right of Dr. Emerson, who
consented thereto, would be a law impairing the obligation of a
contract, and within the prohibition of the Constitution of the
United States. See 17 U. S. 4 Wheat. 629, 17 U. S. 695 , 17 U. S.
696 .

															To avoid misapprehension on this important and difficult
subject, I will state distinctly the conclusions at which I have
arrived. They are: First. The rules of international law respecting the
emancipation of slaves, by the rightful operation of the laws of
another State or country upon the status of the slave, while
resident in such foreign State or country, are part of the common
law of Missouri, and have not been abrogated by any statute law of
that State. Second. The laws of the United States, constitutionally
enacted, which operated directly on and changed the status of a
slave coming into the Territory of Wisconsin with his master, who
went thither to reside for an indefinite length of time, in the
performance of his duties as an officer of the United States, had a
rightful operation on the status of the slave, and it is in
conformity with the rules of international law that this change of
status should be recognised everywhere. Third. The laws of the United States, in operation in
the Territory of Wisconsin at the time of the plaintiff's residence
there, did act directly on the status of the plaintiff, and change
his status to that of a free man. Fourth. The plaintiff and his wife were capable of
contracting, and, with the consent of Dr. Emerson, did contract a
marriage in that Territory, valid under its laws, and the validity
of this marriage cannot be questioned in Missouri, save by showing
that it was in fraud of the laws of that State or of some right
derived from them, which cannot be shown in this case, because the
master consented to it. Fifth. That the consent of the master that his slave,
residing in a country which does not tolerate slavery, may enter
into a lawful contract of marriage, attended with the civil rights
and duties which being to that condition, is an effectual act of
emancipation. And the law does not enable Dr. Emerson, or anyone
claiming under him, to assert a title to the married persons as
slaves, and thus destroy the obligation of the contract of marriage
and bastardize their issue and reduce them to slavery.

															But it is insisted that the Supreme Court of Missouri has
settled this case by its decision in Scott v. Emerson, 15
Missouri Reports 576, and that this decision is in conformity Page 60 U. S. 602 with the weight of authority elsewhere, and with sound
principles. If the Supreme Court of Missouri had placed its
decision on the ground that it appeared Dr. Emerson never became
domiciled in the Territory, and so its laws could not rightfully
operate on him and his slave, and the facts that he went there to
reside indefinitely as an officer of the United States, and that
the plaintiff was lawfully married there with Dr. Emerson's
consent, were left out of view, the decision would find support in
other cases, and I might not be prepared to deny its correctness.
But the decision is not rested on this ground. The domicil of Dr.
Emerson in that Territory is not questioned in that decision, and
it is placed on a broad denial of the operation, in Missouri, of
the law of any foreign State or country upon the status of a slave,
going with his master from Missouri into such foreign State or
country, even though they went thither to become, and actually
became, permanent inhabitants of such foreign State or country, the
laws whereof acted directly on the status of the slave, and changed
his status to that of a freeman.

															To the correctness of such a decision I cannot assent. In my
judgment, the opinion of the majority of the court in that case is
in conflict with its previous decisions, with a great weight of
judicial authority in other slaveholding States, and with
fundamental principles of private international law. Mr. Chief
Justice Gamble, in his dissenting opinion in that case, said:

															"I regard the question as conclusively settled by repeated
adjudications of this court, and if I doubted or denied the
propriety of those decisions, I would not feel myself any more at
liberty to overturn them than I would any other series of decisions
by which the law upon any other question had been settled. There is
with me nothing in the law of slavery which distinguishes it from
the law on any other subject, or allows any more accommodation to
the temporary excitements which have gathered around it. . . . But,
in the midst of all such excitement, it is proper that the judicial
mind, calm and self-balanced, should adhere to principles
established when there was no feeling to disturb the view of the
legal questions upon which the rights of parties depend."

															"In this State, it has been recognized from the beginning of the
Government as a correct position in law that the master who takes
his slave to reside in a State or Territory where slavery is
prohibited, thereby emancipates his slave." Winney v. Whitesides, 1 Mo. 473; Le Grange v.
Chouteau, 2 Mo. 20; Milley v. Smith, ib. 36; Ralph v. Duncan, 3 Mo. 194; Julia v. McKinney,
ib. 270; Nat v. Ruddle, ib. 400; Rachel v.
Walker, 4 Mo. 350; Wilson v. Melvin, 592. Page 60 U. S. 603 Chief Justice Gamble has also examined the decisions of the
courts of other States in which slavery is established, and finds
them in accordance with these preceding decisions of the Supreme
Court of Missouri, to which he refers.

															It would be a useless parade of learning for me to go over the
ground which he has so fully and ably occupied.

															But it is further insisted we are bound to follow this decision.
I do not think so. In this case, it is to be determined what laws
of the United States were in operation in the Territory of
Wisconsin, and what was their effect on the status of the
plaintiff. Could the plaintiff contract a lawful marriage there?
Does any law of the State of Missouri impair the obligation of that
contract of marriage, destroy his rights as a husband, bastardize
the issue of the marriage, and reduce them to a state of
slavery?

															These questions, which arise exclusively under the Constitution
and laws of the United States, this Court, under the Constitution
and laws of the United States, has the rightful authority finally
to decide. And if we look beyond these questions, we come to the
consideration whether the rules of international law, which are
part of the laws of Missouri until displaced by some statute not
alleged to exist, do or do not require the status of the plaintiff,
as fixed by the laws of the Territory of Wisconsin, to be
recognised in Missouri. Upon such a question, not depending on any
statute or local usage, but on principles of universal
jurisprudence, this court has repeatedly asserted it could not hold
itself bound by the decisions of State courts, however great
respect might be felt for their learning, ability, and
impartiality. See Swift v. Tyson , 16 Peters's R. 1; Carpenter v. The Providence
Ins. Co., ib. 495; Foxcroft
v. Mallet , 4 How. 353; Rowan v.
Runnels , 5 How. 134.

															Some reliance has been placed on the fact that the decision in
the Supreme Court of Missouri was between these parties, and the
suit there was abandoned to obtain another trial in the courts of
the United States.

															In Homer v.
Brown , 16 How. 354, this court made a decision upon
the construction of a devise of lands, in direct opposition to the
unanimous opinion of the Supreme Court of Massachusetts, between
the same parties, respecting the same subject matter -- the
claimant having become nonsuit in the State court in order to bring
his action in the Circuit Court of the United States. I did not sit
in that case, having been of counsel for one of the parties while
at the bar, but, on examining the report of the argument of the
counsel for the plaintiff in error, I find they made the point that
this court ought to give effect to the construction put upon the
will by the State Page 60 U. S. 604 court, to the end that rights respecting lands may be governed
by one law, and that the law of the place where the lands are
situated that they referred to the State decision of the case,
reported in 3 Cushing 390, and to many decisions of this court. But
this court does not seem to have considered the point of sufficient
importance to notice it in their opinions. In Millar v.
Austin , 13 How. 218, an action was brought by the
endorsee of a written promise. The question was whether it was
negotiable under a statute of Ohio. The Supreme Court of that State
having decided it was not negotiable, the plaintiff became nonsuit,
and brought his action in the Circuit Court of the United States.
The decision of the Supreme Court of the State, reported in 4
Ves.L.J. 527, was relied on. This court unanimously held the paper
to be negotiable.

															When the decisions of the highest court of a State are directly
in conflict with each other, it has been repeatedly held here that
the last decision is not necessarily to be taken as the rule. State Bank v.
Knoop , 16 How. 369; Pease
v. Peck , 18 How. 599.

															To these considerations I desire to add that it was not made
known to the Supreme Court of Missouri, so far as appears, that the
plaintiff was married in Wisconsin with the consent of Dr. Emerson,
and it is not made known to us that Dr. Emerson was a citizen of
Missouri, a fact to which that court seem to have attached much
importance.

															Sitting here to administer the law between these parties, I do
not feel at liberty to surrender my own convictions of what the law
requires, to the authority of the decision in 15 Missouri
Reports.

															I have thus far assumed, merely for the purpose of the argument
that the laws of the United States respecting slavery in this
Territory were constitutionally enacted by Congress. It remains to
inquire whether they are constitutional and binding laws.

															In the argument of this part of the case at bar, it was justly
considered by all the counsel to be necessary to ascertain the
source of the power of Congress over the territory belonging to the
United States. Until this is ascertained, it is not possible to
determine the extent of that power. On the one side, it was
maintained that the Constitution contains no express grant of power
to organize and govern what is now known to the laws of the United
States as a Territory. That whatever power of this kind exists is
derived by implication from the capacity of the United States to
hold and acquire territory out of the limits of any State, and the
necessity for its having some government. Page 60 U. S. 605 On the other side, it was insisted that the Constitution has not
failed to make an express provision for this end, and that it is
found in the third section of the fourth article of the
Constitution.

															To determine which of these is the correct view, it is needful
to advert to some facts respecting this subject which existed when
the Constitution was framed and adopted. It will be found that
these facts not only shed much light on the question whether the
framers of the Constitution omitted to make a provision concerning
the power of Congress to organize and govern Territories, but they
will also aid in the construction of any provision which may have
been made respecting this subject.

															Under the Confederation, the unsettled territory within the
limits of the United States had been a subject of deep interest.
Some of the States insisted that these lands were within their
chartered boundaries, and that they had succeeded to the title of
the Crown to the soil. On the other hand, it was argued that the
vacant lands had been acquired by the United States by the war
carried on by them under a common Government and for the common
interest.

															This dispute was further complicated by unsettled questions of
boundary among several States. It not only delayed the accession of
Maryland to the Confederation, but at one time seriously threatened
its existence. 5 Jour. of Cong. 208, 442. Under the pressure of
these circumstances, Congress earnestly recommended to the several
States a cession of their claims and rights to the United States. 5
Jour. of Cong. 442. And before the Constitution was framed, it had
been begun. That by New York had been made on the 1st day of March,
1781; that of Virginia on the 1st day of March, 1784; that of
Massachusetts on the 19th day of April, 1785; that of Connecticut
on the 14th day of September, 1786; that of South Carolina on the
8th day of August, 1787, while the Convention for framing the
Constitution was in session.

															It is very material to observe in this connection that each of
these acts cedes, in terms, to the United States as well the
jurisdiction as the soil.

															It is also equally important to note that, when the Constitution
was framed and adopted, this plan of vesting in the United States,
for the common good, the great tracts of ungranted lands claimed by
the several States, in which so deep an interest was felt, was yet
incomplete. It remained for North Carolina and Georgia to cede
their extensive and valuable claims. These were made by North
Carolina on the 25th day of February, 1790, and by Georgia on the
24th day of April, Page 60 U. S. 606 1802. The terms of these last-mentioned cessions will hereafter
be noticed in another connection, but I observe here that each of
them distinctly shows upon its face that they were not only in
execution of the general plan proposed by the Congress of the
Confederation, but of a formed purpose of each of these States
existing when the assent of their respective people was given to
the Constitution of the United States.

															It appears, then, that when the Federal Constitution was framed
and presented to the people of the several States for their
consideration, the unsettled territory was viewed as justly
applicable to the common benefit so far as it then had or might
attain thereafter a pecuniary value, and so far as it might become
the seat of new States, to be admitted into the Union upon an equal
footing with the original States. And also that the relations of
the United States to that unsettled territory were of different
kinds. The titles of the States of New York, Virginia,
Massachusetts, Connecticut, and South Carolina, as well of soil as
of jurisdiction, had been transferred to the United States. North
Carolina and Georgia had not actually made transfers, but a
confident expectation, founded on their appreciation of the justice
of the general claim and fully justified by the results, was
entertained that these cessions would be made. The Ordinance of
1787 had made provision for the temporary government of so much of
the territory actually ceded as lay northwest of the river
Ohio.

															But it must have been apparent both to the framers of the
Constitution and the people of the several States who were to act
upon it that the Government thus provided for could not continue
unless the Constitution should confer on the United States the
necessary powers to continue it. That temporary Government, under
the ordinance, was to consist of certain officers, to be appointed
by and responsible to the Congress of the Confederation, their
powers had been conferred and defined by the ordinance. So far as
it provided for the temporary government of the Territory, it was
an ordinary act of legislation, deriving its force from the
legislative power of Congress and depending for its vitality upon
the continuance of that legislative power. But the officers to be
appointed for the Northwestern Territory, after the adoption of the
Constitution, must necessarily be officers of the United States,
and not of the Congress of the Confederation, appointed and
commissioned by the President and exercising powers derived from
the United States under the Constitution.

															Such was the relation between the United States and the
Northwestern Territory which all reflecting men must have foreseen
would exist when the Government created by the Page 60 U. S. 607 Constitution should supersede that of the Confederation. That if
the new Government should be without power to govern this
Territory, it could not appoint and commission officers, and send
them into the Territory to exercise there legislative, judicial,
and executive power, and that this Territory, which was even then
foreseen to be so important, both politically and financially, to
all the existing States, must be left not only without the control
of the General Government in respect to its future political
relations to the rest of the States, but absolutely without any
Government, save what its inhabitants, acting in their primary
capacity, might from time to time create for themselves.

															But this Northwestern Territory was not the only territory the
soil and jurisdiction whereof were then understood to have been
ceded to the United States. The cession by South Carolina, made in
August, 1787, was of

															"all the territory included within the river Mississippi, and a
line beginning at that part of the said river which is intersected
by the southern boundary of North Carolina, and continuing along
the said boundary line until it intersects the ridge or chain of
mountains which divides the Eastern from the Western waters, then
to be continued along the top of the said ridge of mountains until
it intersects a line to be drawn due west from the head of the
southern branch of the Tugaloo river, to the said mountains, and
thence to run a due west course to the river Mississippi."

															It is true that, by subsequent explorations, it was ascertained
that the source of the Tugaloo river, upon which the title of South
Carolina depended, was so far to the northward that the transfer
conveyed only a narrow slip of land, about twelve miles wide, lying
on the top of the ridge of mountains, and extending from the
northern boundary of Georgia to the southern boundary of North
Carolina. But this was a discovery made long after the cession, and
there can be no doubt that the State of South Carolina, in making
the cession, and the Congress, in accepting it, viewed it as a
transfer to the United States of the soil and jurisdiction of an
extensive and important part of the unsettled territory ceded by
the Crown of Great Britain by the treaty of peace, though its
quantity or extent then remained to be ascertained. [ Footnote 3/1 ]

															It must be remembered also, as has been already stated that not
only was there a confident expectation entertained by the Page 60 U. S. 608 other States that North Carolina and Georgia would complete the
plan already so far executed by New York, Virginia, Massachusetts,
Connecticut, and South Carolina, but that the opinion was in no
small degree prevalent that the just title to this "back country,"
as it was termed, had vested in the United States by the treaty of
peace, and could not rightfully be claimed by any individual
State.

															There is another consideration applicable to this part of the
subject, and entitled, in my judgment, to great weight.

															The Congress of the Confederation had assumed the power not only
to dispose of the lands ceded, but to institute Governments and
make laws for their inhabitants. In other words, they had proceeded
to act under the cession, which, as we have seen, was as well of
the jurisdiction as of the soil. This ordinance was passed on the
13th of July, 1787. The Convention for framing the Constitution was
then in session at Philadelphia. The proof is direct and decisive
that it was known to the Convention. [ Footnote 3/2 ] It is equally clear that it was admitted
and understood not to be within the legitimate powers of the
Confederation to pass this ordinance. Jefferson's Works, vol. 9,
pp. 251, 276; Federalist, Nos. 38, 43.

															The importance of conferring on the new Government regular
powers commensurate with the objects to be attained, and thus
avoiding the alternative of a failure to execute the trust assumed
by the acceptance of the cessions made and expected, or its
execution by usurpation, could scarcely fail to be perceived. That
it was in fact perceived is clearly shown by the Federalist, No.
38, where this very argument is made use of in commendation of the
Constitution.

															Keeping these facts in view, it may confidently be asserted that
there is very strong reason to believe, before we examine the
Constitution itself, that the necessity for a competent grant of
power to hold, dispose of, and govern territory ceded and expected
to be ceded could not have escaped the attention of those who
framed or adopted the Constitution, and that, if it did not escape
their attention, it could not fail to be adequately provided
for.

															Any other conclusion would involve the assumption that a subject
of the gravest national concern, respecting which the small States
felt so much jealousy that it had been almost an insurmountable
obstacle to the formation of the Confederation, and as to which all
the States had deep pecuniary and political interests, and which
had been so recently and constantly agitated, Page 60 U. S. 609 was nevertheless overlooked, or that such a subject was not
overlooked, but designedly left unprovided for, though it was
manifestly a subject of common concern which belonged to the care
of the General Government, and adequate provision for which could
not fail to be deemed necessary and proper.

															The admission of new States, to be framed out of the ceded
territory, early attracted the attention of the Convention. Among
the resolutions introduced by Mr. Randolph, on the 29th of May, was
one on this subject, Res.No. 10, 5 Elliot 128, which, having been
affirmed in Committee of the Whole, on the 5th of June, 5 Elliot
156, and reported to the Convention on the 13th of June, 5 Elliot
190, was referred to the Committee of Detail, to prepare the
Constitution, on the 26th of July, 5 Elliot 376. This committee
reported an article for the admission of new States "lawfully
constituted or established." Nothing was said concerning the power
of Congress to prepare or form such States. This omission struck
Mr. Madison, who, on the 18th of August, 5 Elliot 439, moved for
the insertion of power to dispose of the unappropriated lands of
the United States, and to institute temporary Governments for new
States arising therein.

															On the 29th of August, 5 Elliot 492, the report of the committee
was taken up, and after debate, which exhibited great diversity of
views concerning the proper mode of providing for the subject,
arising out of the supposed diversity of interests of the large and
small States, and between those which had and those which had not
unsettled territory, but no difference of opinion respecting the
propriety and necessity of some adequate provision for the subject,
Gouverneur Morris moved the clause as it stands in the
Constitution. This met with general approbation, and was at once
adopted. The whole section is as follows:

															"New States may be admitted by the Congress into this Union, but
no new State shall be formed or erected within the jurisdiction of
any other State, nor any State be formed by the junction of two or
more States, or parts of States, without the consent of the
Legislatures of the States concerned, as well as of Congress."

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

															That Congress has some power to institute temporary Governments
over the territory, I believe all agree, and if it be admitted that
the necessity of some power to govern the territory Page 60 U. S. 610 of the United States could not and did not escape the attention
of the Convention and the people, and that the necessity is so
great that, in the absence of any express grant, it is strong
enough to raise an implication of the existence of that power, it
would seem to follow that it is also strong enough to afford
material aid in construing an express grant of power respecting
that territory, and that they who maintain the existence of the
power, without finding any words at all in which it is conveyed,
should be willing to receive a reasonable interpretation of
language of the Constitution, manifestly intended to relate to the
territory, and to convey to Congress some authority concerning
it.

															It would seem, also that when we find the subject matter of the
growth and formation and admission of new States, and the disposal
of the territory for these ends, were under consideration, and that
some provision therefor was expressly made, it is improbable that
it would be, in its terms, a grossly inadequate provision, and that
an indispensably necessary power to institute temporary
Governments, and to legislate for the inhabitants of the territory,
was passed silently by, and left to be deduced from the necessity
of the case.

															In the argument at the bar, great attention has been paid to the
meaning of the word "territory."

															Ordinarily, when the territory of a sovereign power is spoken
of, it refers to that tract of country which is under the political
jurisdiction of that sovereign power. Thus, Chief Justice Marshall,
in United States v.
Bevans , 3 Wheat. 386, says:

															"What, then, is the extent of jurisdiction which a State
possesses? We answer without hesitation the jurisdiction of a State
is coextensive with its territory."

															Examples might easily be multiplied of this use of the word, but
they are unnecessary, because it is familiar. But the word
"territory" is not used in this broad and general sense in this
clause of the Constitution.

															At the time of the adoption of the Constitution, the United
States held a great tract of country northwest of the Ohio, another
tract, then of unknown extent, ceded by South Carolina, and a
confident expectation was then entertained, and afterwards
realized, that they then were or would become the owners of other
great tracts claimed by North Carolina and Georgia. These ceded
tracts lay within the limits of the United States and out of the
limits of any particular State, and the cessions embraced the civil
and political jurisdiction and so much of the soil as had not
previously been granted to individuals.

															These words, "territory belonging to the United States" Page 60 U. S. 611 were not used in the Constitution to describe an abstraction,
but to identify and apply to these actual subjects matter then
existing and belonging to the United States and other similar
subjects which might afterwards be acquired, and, this being so,
all the essential qualities and incidents attending such actual
subjects are embraced within the words "territory belonging to the
United States" as fully as if each of those essential qualities and
incidents had been specifically described.

															I say, the essential qualities and incidents. But in determining
what were the essential qualities and incidents of the subject with
which they were dealing, we must take into consideration not only
all the particular facts which were immediately before them, but
the great consideration, ever present to the minds of those who
framed and adopted the Constitution, that they were making a frame
of government for the people of the United States and their
posterity under which they hoped the United States might be what
they have now become -- a great and powerful nation, possessing the
power to make war and to conclude treaties, and thus to acquire
territory. See Cerre v. Pitot, 6 Cr. 336; Am.
Ins. Co. v. Canter , 1 Pet. 542. With these in view,
I turn to examine the clause of the article now in question.

															It is said this provision has no application to any territory
save that then belonging to the United States. I have already shown
that, when the Constitution was framed, a confident expectation was
entertained, which was speedily realized, that North Carolina and
Georgia would cede their claims to that great territory which lay
west of those States. No doubt has been suggested that the first
clause of this same article which enabled Congress to admit new
States refers to and includes new States to be formed out of this
territory expected to be thereafter ceded by North Carolina and
Georgia, as well as new States to be formed out of territory
northwest of the Ohio, which then had been ceded by Virginia. It
must have been seen, therefore, that the same necessity would exist
for an authority to dispose of and make all needful regulations
respecting this territory, when ceded, as existed for a like
authority respecting territory which had been ceded.

															No reason has been suggested why any reluctance should have been
felt by the framers of the Constitution to apply this provision to
all the territory which might belong to the United States, or why
any distinction should have been made, founded on the accidental
circumstance of the dates of the cessions -- a circumstance in no
way material as respects the necessity for rules and regulations or
the propriety of conferring Page 60 U. S. 612 on the Congress power to make them. And if we look at the course
of the debates in the Convention on this article, we shall find
that the then unceded lands, so far from having been left out of
view in adopting this article, constituted, in the minds of
members, a subject of even paramount importance.

															Again, in what an extraordinary position would the limitation of
this clause to territory then belonging to the United States, place
the territory which lay within the chartered limits of North
Carolina and Georgia. The title to that territory was then claimed
by those States, and by the United States; their respective claims
are purposely left unsettled by the express words of this clause,
and when cessions were made by those States, they were merely of
their claims to this territory, the United States neither admitting
nor denying the validity of those claims, so that it was impossible
then, and has ever since remained impossible, to know whether this
territory did or did not then belong to the United States, and
consequently to know whether it was within or without the authority
conferred by this clause to dispose of and make rules and
regulations respecting the territory of the United States. This
attributes to the eminent men who acted on this subject a want of
ability and forecast, or a want of attention to the known facts
upon which they were acting, in which I cannot concur.

															There is not, in my judgment, anything in the language, the
history, or the subject matter of this article which restricts its
operation to territory owned by the United States when the
Constitution was adopted.

															But it is also insisted that provisions of the Constitution
respecting territory belonging to the United States do not apply to
territory acquired by treaty from a foreign nation. This objection
must rest upon the position that the Constitution did not authorize
the Federal Government to acquire foreign territory, and
consequently has made no provision for its government when
acquired, or that, though the acquisition of foreign territory was
contemplated by the Constitution, its provisions concerning the
admission of new States, and the making of all needful rules and
regulations respecting territory belonging to the United States,
were not designed to be applicable to territory acquired from
foreign nations.

															It is undoubtedly true that, at the date of the treaty of 1803
between the United States and France for the cession of Louisiana,
it was made a question whether the Constitution had conferred on
the executive department of the Government of the United States
power to acquire foreign territory by a treaty. Page 60 U. S. 613 There is evidence that very grave doubts were then entertained
concerning the existence of this power. But that there was then a
settled opinion in the executive and legislative branches of the
Government that this power did not exist cannot be admitted without
at the same time imputing to those who negotiated and ratified the
treaty, and passed the laws necessary to carry it into execution, a
deliberate and known violation of their oaths to support the
Constitution; and whatever doubts may them have existed, the
question must now be taken to have been settled. Four distinct
acquisitions of foreign territory have been made by as many
different treaties, under as many different Administrations. Six
States formed on such territory are now in the Union. Every branch
of this Government, during a period of more than fifty years, has
participated in these transactions. To question their validity now
is vain. As was said by Mr. Chief Justice Marshall in the American Insurance Company
v. Canter , 1 Peters 542,

															"the Constitution confers absolutely on the Government of the
Union the powers of making war and of making treaties;
consequently, that Government possesses the power of acquiring
territory either by conquest or treaty." See Cerre v. Pitot, 6 Cr. 336. And, I add, it also
possesses the power of governing it when acquired, not by resorting
to supposititious powers, nowhere found described in the
Constitution, but expressly granted in the authority to make all
needful rules and regulations respecting the territory of the
United States.

															There was to be established by the Constitution a frame of
government under which the people of the United States and their
posterity were to continue indefinitely. To take one of its
provisions, the language of which is broad enough to extend
throughout the existence of the Government and embrace all
territory belonging to the United States throughout all time, and
the purposes and objects of which apply to all territory of the
United States, and narrow it down to territory belonging to the
United States when the Constitution was framed, while at the same
time it is admitted that the Constitution contemplated and
authorized the acquisition, from time to time, of other and foreign
territory, seems to me to be an interpretation as inconsistent with
the nature and purposes of the instrument as it is with its
language, and I can have no hesitation in rejecting it.

															I construe this clause, therefore, as if it had read

															"Congress shall have power to make all needful rules and
regulations respecting those tracts of country, out of the limits
of the several States, which the United States have acquired, or
may hereafter acquire, by cessions, as well of the jurisdiction as
of the Page 60 U. S. 614 soil, so far as the soil may be the property of the party making
the cession, at the time of making it."

															It has been urged that the words "rules and regulations" are not
appropriate terms in which to convey authority to make laws for the
government of the territory.

															But it must be remembered that this is a grant of power to the
Congress -- that it is therefore necessarily a grant of power to
legislate -- and, certainly, rules and regulations respecting a
particular subject, made by the legislative power of a country, can
be nothing but laws. Nor do the particular terms employed, in my
judgment, tend in any degree to restrict this legislative power.
Power granted to a Legislature to make all needful rules and
regulations respecting the territory is a power to pass all needful
laws respecting it.

															The word "regulate," or "regulation," is several times used in
the Constitution. It is used in the fourth Section of the First
Article to describe those laws of the States which prescribe the
times, places, and manner, of choosing Senators and
Representatives; in the Second Section of the Fourth Article to
designate the legislative action of a State on the subject of
fugitives from service, having a very close relation to the matter
of our present inquiry; in the Second Section of the Third Article,
to empower Congress to fix the extent of the appellate jurisdiction
of this court; and finally in the Eighth Section of the First
Article are the words, "Congress shall have power to regulate
commerce."

															It is unnecessary to describe the body of legislation which has
been enacted under this grant of power; its variety and extent are
well known. But it may be mentioned in passing that, under this
power to regulate commerce, Congress has enacted a great system of
municipal laws, and extended it over the vessels and crews of the
United States on the high seas and in foreign ports, and even over
citizens of the United States resident in China, and has
established judicatures with power to inflict even capital
punishment within that country.

															If, then, this clause does contain a power to legislate
respecting the territory, what are the limits of that power?

															To this I answer that, in common with all the other legislative
powers of Congress, it finds limits in the express prohibitions on
Congress not to do certain things; that, in the exercise of the
legislative power, Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other
prohibitions contained in the Constitution.

															Besides this, the rules and regulations must be needful. But
undoubtedly the question whether a particular rule or regulation be
needful must be finally determined by Congress itself. Whether a
law be needful is a legislative or political, Page 60 U. S. 615 not a judicial, question. Whatever Congress deems needful is so,
under the grant of power.

															Nor am I aware that it has ever been questioned that laws
providing for the temporary government of the settlers on the
public lands are needful not only to prepare them for admission to
the Union as States, but even to enable the United States to
dispose of the lands.

															Without government and social order, there can be no property,
for without law, its ownership, its use, and the power of disposing
of it, cease to exist in the sense in which those words are used
and understood in all civilized States.

															Since, then, this power was manifestly conferred to enable the
United States to dispose of its public lands to settlers, and to
admit them into the Union as States when, in the judgment of
Congress, they should be fitted therefor, since these were the
needs provided for, since it is confessed that Government is
indispensable to provide for those needs, and the power is to make all needful rules and regulations respecting the
territory, I cannot doubt that this is a power to govern the
inhabitants of the territory, by such laws as Congress deems
needful, until they obtain admission as States.

															Whether they should be thus governed solely by laws enacted by
Congress, or partly by laws enacted by legislative power conferred
by Congress, is one of those questions which depend on the judgment
of Congress -- a question which of these is needful.

															But it is insisted that, whatever other powers Congress may have
respecting the territory of the United States, the subject of negro
slavery forms an exception.

															The Constitution declares that Congress shall have power to make
" all needful rules and regulations" respecting the
territory belonging to the United States.

															The assertion is, though the Constitution says "all," it does
not mean all -- though it says "all" without qualification, it
means all except such as allow or prohibit slavery. It cannot be
doubted that it is incumbent on those who would thus introduce an
exception not found in the language of the instrument to exhibit
some solid and satisfactory reason, drawn from the subject matter
or the purposes and objects of the clause, the context, or from
other provisions of the Constitution, showing that the words
employed in this clause are not to be understood according to their
clear, plain, and natural signification.

															The subject matter is the territory of the United States out of
the limits of every State, and consequently under the exclusive
power of the people of the United States. Their Page 60 U. S. 616 will respecting it, manifested in the Constitution, can be
subject to no restriction. The purposes and objects of the clause
were the enactment of laws concerning the disposal of the public
lands, and the temporary government of the settlers thereon until
new States should be formed. It will not be questioned that, when
the Constitution of the United States was framed and adopted, the
allowance and the prohibition of negro slavery were recognised
subjects of municipal legislation; every State had in some measure
acted thereon, and the only legislative act concerning the
territory -- the Ordinance of 1787, which had then so recently been
passed -- contained a prohibition of slavery. The purpose and
object of the clause being to enable Congress to provide a body of
municipal law for the government of the settlers, the allowance or
the prohibition of slavery comes within the known and recognised
scope of that purpose and object.

															There is nothing in the context which qualifies the grant of
power. The regulations must be "respecting the territory." An
enactment that slavery may or may not exist there is a regulation
respecting the territory. Regulations must be needful, but it is
necessarily left to the legislative discretion to determine whether
a law be needful. No other clause of the Constitution has been
referred to at the bar, or has been seen by me, which imposes any
restriction or makes any exception concerning the power of Congress
to allow or prohibit slavery in the territory belonging to the
United States.

															A practical construction, nearly contemporaneous with the
adoption of the Constitution, and continued by repeated instances
through a long series of years, may always influence, and in
doubtful cases should determine, the judicial mind on a question of
the interpretation of the Constitution. Stuart v.
Laird , 1 Cranch 299; Martin v.
Hunter , 1 Wheat. 304; Cohens v.
Virginia , 6 Wheat. 264; Prigg
v. Pennsylvania , 16 Pet. 621; Cooley
v. Port Wardens , 12 How. 315.

															In this view, I proceed briefly to examine the practical
construction placed on the clause now in question so far as it
respects the inclusion therein of power to permit or prohibit
slavery in the Territories.

															It has already been stated that, after the Government of the
United States was organized under the Constitution, the temporary
Government of the Territory northwest of the River Ohio could no
longer exist save under the powers conferred on Congress by the
Constitution. Whatever legislative, judicial, or executive
authority should be exercised therein could be derived only from
the people of the United States under the Constitution. And,
accordingly, an act was passed on the Page 60 U. S. 617 7th day of August, 1789, 1 Stat. at Large 50, which recites:

															"Whereas, in order that the ordinance of the United States in
Congress assembled, for the government of the territory northwest
of the River Ohio, may continue to have full effect, it is required
that certain provisions should be made, so as to adapt the same to
the present Constitution of the United States."

															It then provides for the appointment by the President of all
officers, who, by force of the ordinance, were to have been
appointed by the Congress of the Confederation, and their
commission in the manner required by the Constitution, and empowers
the Secretary of the Territory to exercise the powers of the
Governor in case of the death or necessary absence of the
latter.

															Here is an explicit declaration of the will of the first
Congress, of which fourteen members, including Mr. Madison, had
been members of the Convention which framed the Constitution, that
the ordinance, one article of which prohibited slavery, "should
continue to have full effect." Gen. Washington, who signed this
bill as President, was the President of that Convention.

															It does not appear to me to be important in this connection that
that clause in the ordinance which prohibited slavery was one of a
series of articles of what is therein termed a compact. The
Congress of the Confederation had no power to make such a compact,
nor to act at all on the subject, and after what had been so
recently said by Mr. Madison on this subject, in the thirty-eighth
number of the Federalist, I cannot suppose that he, or any others
who voted for this bill, attributed any intrinsic effect to what
was denominated in the ordinance a compact between "the original
States and the people and States in the new territory," there being
no new States then in existence in the territory with whom a
compact could be made, and the few scattered inhabitants,
unorganized into a political body, not being capable of becoming a
party to a treaty even if the Congress of the Confederation had had
power to make one touching the government of that territory.

															I consider the passage of this law to have been an assertion by
the first Congress of the power of the United States to prohibit
slavery within this part of the territory of the United States, for
it clearly shows that slavery was thereafter to be prohibited
there, and it could be prohibited only by an exertion of the power
of the United States under the Constitution, no other power being
capable of operating within that territory after the Constitution
took effect.

															On the 2d of April, 1790, 1 Stat. at Large 106, the first
Congress passed an act accepting a deed of cession by North Page 60 U. S. 618 Carolina of that territory afterwards erected into the State of
Tennessee. The fourth express condition contained in this deed of
cession, after providing that the inhabitants of the Territory
shall be temporarily governed in the same manner as those beyond
the Ohio, is followed by these words: " Provided always that no regulations made or to be made by Congress shall tend to
emancipate slaves."

															This provision shows that it was then understood Congress might
make a regulation prohibiting slavery, and that Congress might also
allow it to continue to exist in the Territory, and, accordingly,
when, a few days later, Congress passed the Act of May 20th, 1790,
1 Stat. at Large 123, for the government of the Territory south of
the River Ohio, it provided,

															"and the Government of the Territory south of the Ohio shall be
similar to that now exercised in the Territory northwest of the
Ohio except so far as is otherwise provided in the conditions
expressed in an act of Congress of the present session, entitled,
'An act to accept a cession of the claims of the State of North
Carolina to a certain district of western territory.'"

															Under the Government thus established, slavery existed until the
Territory became the State of Tennessee.

															On the 7th of April, 1798, 1 Stat. at Large 649, an act was
passed to establish a Government in the Mississippi Territory in
all respects like that exercised in the Territory northwest of the
Ohio, "excepting and excluding the last article of the ordinance
made for the government thereof by the late Congress, on the 13th
day of July, 1787." When the limits of this Territory had been
amicably settled with Georgia, and the latter ceded all its claim
thereto, it was one stipulation in the compact of cession that the
Ordinance of July 13th, 1787, "shall in all its parts extend to the
Territory contained in the present act of cession, that article
only excepted which forbids slavery." The Government of this
Territory was subsequently established and organized under the act
of May 10th, 1800, but so much of the ordinance as prohibited
slavery was not put in operation there.

															Without going minutely into the details of each case, I will now
give reference to two classes of acts, in one of which Congress has
extended the Ordinance of 1787, including the article prohibiting
slavery, over different Territories, and thus exerted its power to
prohibit it; in the other, Congress has erected Governments over
Territories acquired from France and Spain, in which slavery
already existed, but refused to apply to them that part of the
Government under the ordinance which excluded slavery.

															Of the first class are the Act of May 7th, 1800, 2 Stat. at Page 60 U. S. 619 Large 58, for the government of the Indiana Territory; the Act
of January 11th, 1805, 2 Stat. at Large 309, for the government of
Michigan Territory; the Act of May 3d, 1809, 2 Stat. at Large 514,
for the government of the Illinois Territory; the Act of April
20th, 1836, 5 Stat. at Large 10, for the government of the
Territory of Wisconsin; the Act of June 12th, 1838, for the
government of the Territory of Iowa; the Act of August 14th, 1848,
for the government of the Territory of Oregon. To these instances
should be added the Act of March 6th, 1820, 3 Stat. at Large 548,
prohibiting slavery in the territory acquired from France, being
northwest of Missouri and north of thirty-six degrees thirty
minutes north latitude.

															Of the second class, in which Congress refused to interfere with
slavery already existing under the municipal law of France or
Spain, and established Governments by which slavery was recognised
and allowed, are: the Act of March 26th, 1804, 2 Stat. at Large
283, for the government of Louisiana; the Act of March 2d, 1805, 2
Stat. at Large 322, for the government of the Territory of Orleans;
the Act of June 4th, 1812, 2 Stat. at Large 743, for the government
of the Missouri Territory; the Act of March 30th, 1822, 3 Stat. at
Large 654, for the government of the Territory of Florida. Here are
eight distinct instances, beginning with the first Congress, and
coming down to the year 1848, in which Congress has excluded
slavery from the territory of the United States, and six distinct
instances in which Congress organized Governments of Territories by
which slavery was recognised and continued, beginning also with the
first Congress, and coming down to the year 1822. These acts were
severally signed by seven Presidents of the United States,
beginning with General Washington, and coming regularly down as far
as Mr. John Quincy Adams, thus including all who were in public
life when the Constitution was adopted.

															If the practical construction of the Constitution
contemporaneously with its going into effect, by men intimately
acquainted with its history from their personal participation in
framing and adopting it, and continued by them through a long
series of acts of the gravest importance, be entitled to weight in
the judicial mind on a question of construction, it would seem to
be difficult to resist the force of the acts above adverted to.

															It appears, however, from what has taken place at the bar that,
notwithstanding the language of the Constitution and the long line
of legislative and executive precedents under it, three different
and opposite views are taken of the power of Congress respecting
slavery in the Territories. Page 60 U. S. 620 One is that, though Congress can make a regulation prohibiting
slavery in a Territory, they cannot make a regulation allowing it;
another is that it can neither be established nor prohibited by
Congress, but that the people of a Territory, when organized by
Congress, can establish or prohibit slavery; while the third is
that the Constitution itself secures to every citizen who holds
slaves, under the laws of any State, the indefeasible right to
carry them into any Territory and there hold them as property.

															No particular clause of the Constitution has been referred to at
the bar in support of either of these views. The first seems to be
rested upon general considerations concerning the social and moral
evils of slavery, its relations to republican Governments, its
inconsistency with the Declaration of Independence and with natural
right.

															The second is drawn from considerations equally general
concerning the right of self-government and the nature of the
political institutions which have been established by the people of
the United States.

															While the third is said to rest upon the equal right of all
citizens to go with their property upon the public domain, and the
inequality of a regulation which would admit the property of some
and exclude the property of other citizens, and inasmuch as slaves
are chiefly held by citizens of those particular States where
slavery is established, it is insisted that a regulation excluding
slavery from a Territory operates, practically, to make an unjust
discrimination between citizens of different States in respect to
their use and enjoyment of the territory of the United States.

															With the weight of either of these considerations, when
presented to Congress to influence its action, this court has no
concern. One or the other may be justly entitled to guide or
control the legislative judgment upon what is a needful regulation.
The question here is whether they are sufficient to authorize this
court to insert into this clause of the Constitution an exception
of the exclusion or allowance of slavery not found therein nor in
any other part of that instrument. To engraft on any instrument a
substantive exception not found in it must be admitted to be a
matter attended with great difficulty. And the difficulty increases
with the importance of the instrument and the magnitude and
complexity of the interests involved in its construction. To allow
this to be done with the Constitution, upon reasons purely
political, renders its judicial interpretation impossible --
because judicial tribunals, as such, cannot decide upon political
considerations. Political reasons have not the requisite certainty
to afford rules of juridical Page 60 U. S. 621 interpretation. They are different in different men. They are
different in the same men at different times. And when a strict
interpretation of the Constitution, according to the fixed rules
which govern the interpretation of laws, is abandoned, and the
theoretical opinions of individuals are allowed to control its
meaning, we have no longer a Constitution; we are under the
government of individual men who, for the time being, have power to
declare what the Constitution is according to their own views of
what it ought to mean. When such a method of interpretation of the
Constitution obtains, in place of a republican Government, with
limited and defined powers, we have a Government which is merely an
exponent of the will of Congress, or, what in my opinion would not
be preferable, an exponent of the individual political opinions of
the members of this court.

															If it can be shown by anything in the Constitution itself that,
when it confers on Congress the power to make all needful rules and
regulations respecting the territory belonging to the United
States, the exclusion or the allowance of slavery was excepted, or
if anything in the history of this provision tends to show that
such an exception was intended by those who framed and adopted the
Constitution to be introduced into it, I hold it to be my duty
carefully to consider, and to allow just weight to such
considerations in interpreting the positive text of the
Constitution. But where the Constitution has said all needful rules and regulations, I must find something more than
theoretical reasoning to induce me to say it did not mean all.

															There have been eminent instances in this court closely
analogous to this one in which such an attempt to introduce an
exception not found in the Constitution itself has failed of
success.

															By the eighth section of the first article, Congress has the
power of exclusive legislation in all cases whatsoever within this
District.

															In the case of Loughborough v.
Blake , 5 Whea. 324, the question arose whether
Congress has power to impose direct taxes on persons and property
in this District. It was insisted that, though the grant of power
was in its terms broad enough to include direct taxation, it must
be limited by the principle that taxation and representation are
inseparable. It would not be easy to fix on any political truth
better established or more fully admitted in our country than that
taxation and representation must exist together. We went into the
war of the Revolution to assert it, and it is incorporated as
fundamental into all American Governments. But however true and
important Page 60 U. S. 622 this maxim may be, it is not necessarily of universal
application. It was for the people of the United States, who
ordained the Constitution, to decide whether it should or should
not be permitted to operate within this District. Their decision
was embodied in the words of the Constitution, and as that
contained no such exception as would permit the maxim to operate in
this District, this court, interpreting that language, held that
the exception did not exist.

															Again, the Constitution confers on Congress power to regulate
commerce with foreign nations. Under this, Congress passed an act
on the 22d of December, 1807, unlimited in duration, laying an
embargo on all ships and vessels in the ports or within the limits
and jurisdiction of the United States. No law of the United States
ever pressed so severely upon particular States. Though the
constitutionality of the law was contested with an earnestness and
zeal proportioned to the ruinous effects which were felt from it,
and though, as Mr. Chief Justice Marshall has said, 9 Wheat. 22 U. S. 192 ,

															"a want of acuteness in discovering objections to a measure to
which they felt the most deep-rooted hostility will not be imputed
to those who were arrayed in opposition to this,"

															I am not aware that the fact that it prohibited the use of a
particular species of property, belonging almost exclusively to
citizens of a few States, and this indefinitely, was ever supposed
to show that it was unconstitutional. Something much more stringent
as a ground of legal judgment was relied on -- that the power to
regulate commerce did not include the power to annihilate
commerce.

															But the decision was that, under the power to regulate commerce,
the power of Congress over the subject was restricted only by those
exceptions and limitations contained in the Constitution, and as
neither the clause in question, which was a general grant of power
to regulate commerce, nor any other clause of the Constitution
imposed any restrictions as to the duration of an embargo, an
unlimited prohibition of the use of the shipping of the country was
within the power of Congress. On this subject, Mr. Justice Daniel,
speaking for the court in the case of United
States v. Marigold , 9 How. 560, says:

															"Congress are, by the Constitution, vested with the power to
regulate commerce with foreign nations, and however, at periods of
high excitement, an application of the terms 'to regulate commerce'
such as would embrace absolute prohibition may have been
questioned, yet, since the passage of the embargo and
nonintercourse laws and the repeated judicial sanctions these
statutes have received, it can scarcely at this day be open to
doubt that every subject falling legitimately Page 60 U. S. 623 within the sphere of commercial regulation may be partially or
wholly excluded when either measure shall be demanded by the safety
or the important interests of the entire nation. The power once
conceded, it may operate on any and every subject of commerce to
which the legislative discretion may apply it."

															If power to regulate commerce extends to an indefinite
prohibition of the use of all vessels belonging to citizens of the
several States, and may operate, without exception, upon every
subject of commerce to which the legislative discretion may apply
it, upon what grounds can I say that power to make all needful
rules and regulations respecting the territory of the United States
is subject to an exception of the allowance or prohibition of
slavery therein?

															While the regulation is one "respecting the territory;" while it
is, in the judgment of Congress, "a needful regulation," and is
thus completely within the words of the grant; while no other
clause of the Constitution can be shown which requires the
insertion of an exception respecting slavery; and while the
practical construction for a period of upwards of fifty years
forbids such an exception, it would, in my opinion, violate every
sound rule of interpretation to force that exception into the
Constitution upon the strength of abstract political reasoning,
which we are bound to believe the people of the United States
thought insufficient to induce them to limit the power of Congress,
because what they have said contains no such limitation.

															Before I proceed further to notice some other grounds of
supposed objection to this power of Congress, I desire to say that
if it were not for my anxiety to insist upon what I deem a correct
exposition of the Constitution, if I looked only to the purposes of
the argument, the source of the power of Congress asserted in the
opinion of the majority of the court would answer those purposes
equally well. For they admit that Congress has power to organize
and govern the Territories until they arrive at a suitable
condition for admission to the Union; they admit also that the kind
of Government which shall thus exist should be regulated by the
condition and wants of each Territory, and that it is necessarily
committed to the discretion of Congress to enact such laws for that
purpose as that discretion may dictate, and no limit to that
discretion has been shown, or even suggested, save those positive
prohibitions to legislate which are found in the Constitution.

															I confess myself unable to perceive any difference whatever
between my own opinion of the general extent of the power of
Congress and the opinion of the majority of the court, save Page 60 U. S. 624 that I consider it derivable from the express language of the
Constitution, while they hold it to be silently implied from the
power to acquire territory. Looking at the power of Congress over
the Territories as of the extent just described, what positive
prohibition exists in the Constitution, which restrained Congress
from enacting a law in 1820 to prohibit slavery north of thirty-six
degrees thirty minutes north latitude?

															The only one suggested is that clause in the fifth article of
the amendments of the Constitution which declares that no person
shall be deprived of his life, liberty, or property, without due
process of law. I will now proceed to examine the question whether
this clause is entitled to the effect thus attributed to it. It is
necessary, first, to have a clear view of the nature and incidents
of that particular species of property which is now in
question.

															Slavery, being contrary to natural right, is created only by
municipal law. This is not only plain in itself, and agreed by all
writers on the subject, but is inferable from the Constitution and
has been explicitly declared by this court. The Constitution refers
to slaves as "persons held to service in one State, under the laws
thereof." Nothing can more clearly describe a status created by
municipal law. In Prigg v.
Pennsylvania , 10 Pet. 611, this court said: "The
state of slavery is deemed to be a mere municipal regulation,
founded on and limited to the range of territorial laws." In Rankin v. Lydia, 2 Marsh. 12, 470, the Supreme Court of
Appeals of Kentucky said:

															"Slavery is sanctioned by the laws of this State, and the right
to hold them under our municipal regulations is unquestionable. But
we view this as a right existing by positive law of a municipal
character, without foundation in the law of nature or the unwritten
common law."

															I am not acquainted with any case or writer questioning the
correctness of this doctrine. See also 1 Burge, Col. and
For.Laws 738-741, where the authorities are collected.

															The status of slavery is not necessarily always attended with
the same powers on the part of the master. The master is subject to
the supreme power of the State, whose will controls his action
towards his slave, and this control must be defined and regulated
by the municipal law. In one State, as at one period of the Roman
law, it may put the life of the slave into the hand of the master;
others, as those of the United States, which tolerate slavery, may
treat the slave as a person when the master takes his life; while
in others, the law may recognise a right of the slave to be
protected from cruel treatment. In other words, the status of
slavery embraces every condition from that in which the slave is
known to the law simply as a Page 60 U. S. 625 chattel, with no civil rights, to that in which he is recognised
as a person for all purposes, save the compulsory power of
directing and receiving the fruits of his labor. Which of these
conditions shall attend the status of slavery must depend on the
municipal law which creates and upholds it.

															And not only must the status of slavery be created and measured
by municipal law, but the rights, powers, and obligations which
grow out of that status must be defined, protected, and enforced by
such laws. The liability of the master for the torts and crimes of
his slave, and of third persons for assaulting or injuring or
harboring or kidnapping him, the forms and modes of emancipation
and sale, their subjection to the debts of the master, succession
by death of the master, suits for freedom, the capacity of the
slave to be party to a suit, or to be a witness, with such police
regulations as have existed in all civilized States where slavery
has been tolerated, are among the subjects upon which municipal
legislation becomes necessary when slavery is introduced.

															Is it conceivable that the Constitution has conferred the right
on every citizen to become a resident on the territory of the
United States with his slaves, and there to hold them as such, but
has neither made nor provided for any municipal regulations which
are essential to the existence of slavery?

															Is it not more rational to conclude that they who framed and
adopted the constitution were aware that persons held to service
under the laws of a State are property only to the extent and under
the conditions fixed by those laws that they must cease to be
available as property, when their owners voluntarily place them
permanently within another jurisdiction, where no municipal laws on
the subject of slavery exist, and that, being aware of these
principles, and having said nothing to interfere with or displace
them, or to compel Congress to legislate in any particular manner
on the subject, and having empowered Congress to make all needful
rules and regulations respecting the territory of the United
States, it was their intention to leave to the discretion of
Congress what regulations, if any, should be made concerning
slavery therein? Moreover, if the right exists, what are its
limits, and what are its conditions? If citizens of the United
States have the right to take their slaves to a Territory, and hold
them there as slaves, without regard to the laws of the Territory,
I suppose this right is not to be restricted to the citizens of
slaveholding States. A citizen of a State which does not tolerate
slavery can hardly be denied the power of doing the same thing. And
what law of slavery does either take with him to the Territory? If
it be said to be those laws respecting Page 60 U. S. 626 slavery which existed in the particular State from which each
slave last came, what an anomaly is this? Where else can we find,
under the law of any civilized country, the power to introduce and
permanently continue diverse systems of foreign municipal law, for
holding persons in slavery? I say not merely to introduce, but
permanently to continue, these anomalies. For the offspring of the
female must be governed by the foreign municipal laws to which the
mother was subject, and when any slave is sold or passes by
succession on the death of the owner, there must pass with him, by
a species of subrogation, and as a kind of unknown jus in
re, the foreign municipal laws which constituted, regulated,
and preserved, the status of the slave before his exportation.
Whatever theoretical importance may be now supposed to belong to
the maintenance of such a right, I feel a perfect conviction that
it would, if ever tried, prove to be as impracticable in fact as it
is, in my judgment, monstrous in theory.

															I consider the assumption which lies at the basis of this theory
to be unsound not in its just sense, and when properly understood,
but in the sense which has been attached to it. That assumption is
that the territory ceded by France was acquired for the equal
benefit of all the citizens of the United States. I agree to the
position. But it was acquired for their benefit in their
collective, not their individual, capacities. It was acquired for
their benefit, as an organized political society, subsisting as
"the people of the United States," under the Constitution of the
United States, to be administered justly and impartially, and as
nearly as possible for the equal benefit of every individual
citizen, according to the best judgment and discretion of the
Congress, to whose power, as the Legislature of the nation which
acquired it, the people of the United States have committed its
administration. Whatever individual claims may be founded on local
circumstances or sectional differences of condition cannot, in my
opinion, be recognised in this court without arrogating to the
judicial branch of the Government powers not committed to it, and
which, with all the unaffected respect I feel for it when acting in
its proper sphere, I do not think it fitted to wield.

															Nor, in my judgment, will the position that a prohibition to
bring slaves into a Territory deprives anyone of his property
without due process of law bear examination.

															It must be remembered that this restriction on the legislative
power is not peculiar to the Constitution of the United States; it
was borrowed from Magna Charta, was brought to America by our
ancestors, as part of their inherited liberties, and has existed in
all the States, usually in the very words of Page 60 U. S. 627 the great charter. It existed in every political community in
America in 1787, when the ordinance prohibiting slavery north and
west of the Ohio was passed.

															And if a prohibition of slavery in a Territory in 1820 violated
this principle of Magna Charta, the Ordinance of 1787 also violated
it, and what power had, I do not say the Congress of the
Confederation alone, but the Legislature of Virginia, of the
Legislature of any or all the States of the Confederacy, to consent
to such a violation? The people of the States had conferred no such
power. I think I may at least say, if the Congress did then violate
Magna Charta by the ordinance, no one discovered that violation.
Besides, if the prohibition upon all persons, citizens as well as
others, to bring slaves into a Territory, and a declaration that,
if brought, they shall be free, deprives citizens of their property
without due process of law, what shall we say of the legislation of
many of the slaveholding States which have enacted the same
prohibition? As early as October, 1778, a law was passed in
Virginia that thereafter no slave should be imported into that
Commonwealth by sea or by land, and that every slave who should be
imported should become free. A citizen of Virginia purchased in
Maryland a slave who belonged to another citizen of Virginia, and
removed with the slave to Virginia. The slave sued for her freedom,
and recovered it, as may be seen in Wilson v. Isabel, 5
Call's R. 425. See also Hunter v. Hulsher, 1 Leigh 172,
and a similar law has been recognised as valid in Maryland in Stewart v. Oaks, 5 Har. and John. 107. I am not aware that
such laws, though they exist in many States, were ever supposed to
be in conflict with the principle of Magna Charta incorporated into
the State Constitutions. It was certainly understood by the
Convention which framed the Constitution, and has been so
understood ever since, that, under the power to regulate commerce,
Congress could prohibit the importation of slaves, and the exercise
of the power was restrained till 1808. A citizen of the United
States owns slaves in Cuba, and brings them to the United States,
where they are set free by the legislation of Congress. Does this
legislation deprive him of his property without due process of law?
If so, what becomes of the laws prohibiting the slave trade? If
not, how can similar regulation respecting a Territory violate the
fifth amendment of the Constitution?

															Some reliance was placed by the defendant's counsel upon the
fact that the prohibition of slavery in this territory was in the
words, "that slavery, &c., shall be and is hereby forever prohibited." But the insertion of the word
" forever " can have no legal effect. Every enactment not
expressly limited in its Page 60 U. S. 628 duration continues in force until repealed or abrogated by some
competent power, and the use of the word "forever" can give to the
law no more durable operation. The argument is that Congress cannot
so legislate as to bind the future States formed out of the
territory, and that, in this instance, it has attempted to do so.
Of the political reasons which may have induced the Congress to use
these words, and which caused them to expect that subsequent
Legislatures would conform their action to the then general opinion
of the country that it ought to be permanent, this court can take
no cognizance.

															However fit such considerations are to control the action of
Congress, and however reluctant a statesman may be to disturb what
has been settled, every law made by Congress may be repealed, and,
saving private rights and public rights gained by States, its
repeal is subject to the absolute will of the same power which
enacted it. If Congress had enacted that the crime of murder,
committed in this Indian Territory, north of thirty-six degrees
thirty minutes, by or on any white man, should forever be
punishable with death, it would seem to me an insufficient
objection to an indictment, found while it was a Territory, that,
at some future day, States might exist there, and so the law was
invalid because, by its terms, it was to continue in force forever.
Such an objection rests upon a misapprehension of the province and
power of courts respecting the constitutionality of laws enacted by
the Legislature.

															If the Constitution prescribe one rule, and the law another and
different rule, it is the duty of courts to declare that the
Constitution, and not the law, governs the case before them for
judgment. If the law include no case save those for which the
Constitution has furnished a different rule, or no case which the
Legislature has the power to govern, then the law can have no
operation. If it includes cases which the Legislature has power to
govern, and concerning which the Constitution does not prescribe a
different rule, the law governs those cases, though it may, in its
terms, attempt to include others on which it cannot operate. In
other words, this court cannot declare void an act of Congress
which constitutionally embraces some cases, though other cases
within its terms are beyond the control of Congress or beyond the
reach of that particular law. If, therefore, Congress had power to
make a law excluding slavery from this territory while under the
exclusive power of the United States, the use of the word "forever"
does not invalidate the law so long as Congress has the exclusive
legislative power in the territory. Page 60 U. S. 629 But it is further insisted that the treaty of 1803 between the
United States and France, by which this territory was acquired, has
so restrained the constitutional powers of Congress that it cannot,
by law, prohibit the introduction of slavery into that part of this
territory north and west of Missouri and north of thirty-six
degrees thirty minutes north latitude.

															By a treaty with a foreign nation, the United States may
rightfully stipulate that the Congress will or will not exercise
its legislative power in some particular manner, on some particular
subject. Such promises, when made, should be voluntarily kept with
the most scrupulous good faith. But that a treaty with a foreign
nation can deprive the Congress of any part of the legislative
power conferred by the people, so that it no longer can legislate
as it was empowered by the Constitution to do, I more than
doubt.

															The powers of the Government do and must remain unimpaired. The
responsibility of the Government to a foreign nation for the
exercise of those powers is quite another matter. That
responsibility is to be met, and justified to the foreign nation
according to the requirements of the rules of public law, but never
upon the assumption that the United States had parted with or
restricted any power of acting according to its own free will,
governed solely by its own appreciation of its duty.

															The second section of the fourth article is

															"This Constitution, and the laws of the United States which
shall be made in pursuance thereof, and all treaties made or which
shall be made under the authority of the United States, shall be
the supreme law of the land."

															This has made treaties part of our municipal law, but it has not
assigned to them any particular degree of authority, nor declared
that laws so enacted shall be irrepealable. No supremacy is
assigned to treaties over acts of Congress. That they are not
perpetual, and must be in some way repealable, all will agree.

															If the President and the Senate alone possess the power to
repeal or modify a law found in a treaty, inasmuch as they can
change or abrogate one treaty only by making another inconsistent
with the first, the Government of the United States could not act
at all, to that effect, without the consent of some foreign
Government. I do not consider, I am not aware it has ever been
considered that the Constitution has placed our country in this
helpless condition. The action of Congress in repealing the
treaties with France by the Act of July 7th, 1798, 1 Stat. at Large
578, was in conformity with these views. In the case of Taylor
et al. v. Morton, 2 Curtis' Cir.Ct.R. Page 60 U. S. 630 454, I had occasion to consider this subject, and I adhere to
the views there expressed.

															If, therefore, it were admitted that the treaty between the
United States and France did contain an express stipulation that
the United States would not exclude slavery from so much of the
ceded territory as is now in question, this court could not declare
that an act of Congress excluding it was void by force of the
treaty. Whether or no a case existed sufficient to justify a
refusal to execute such a stipulation would not be a judicial, but
a political and legislative, question, wholly beyond the authority
of this Court to try and determine. It would belong to diplomacy
and legislation, and not to the administration of existing laws.
Such a stipulation in a treaty, to legislate or not to legislate in
a particular way has been repeatedly held in this court to address
itself to the political or the legislative power, by whose action
thereon this court is bound. Foster v.
Nicolson , 2 Peters 314; Garcia
v. Lee , 12 Peters 519.

															But, in my judgment, this treaty contains no stipulation in any
manner affecting the action of the United States respecting the
territory in question. Before examining the language of the treaty,
it is material to bear in mind that the part of the ceded territory
lying north of thirty-six degrees thirty minutes, and west and
north of the present State of Missouri was then a wilderness,
uninhabited save by savages whose possessory title had not then
been extinguished.

															It is impossible for me to conceive on what ground France could
have advanced a claim, or could have desired to advance a claim, to
restrain the United States from making any rules and regulations
respecting this territory which the United States might think fit
to make, and still less can I conceive of any reason which would
have induced the United States to yield to such a claim. It was to
be expected that France would desire to make the change of
sovereignty and jurisdiction as little burdensome as possible to
the then inhabitants of Louisiana, and might well exhibit even an
anxious solicitude to protect their property and persons, and
secure to them and their posterity their religious and political
rights, and the United States, as a just Government, might readily
accede to all proper stipulations respecting those who were about
to have their allegiance transferred. But what interest France
could have in uninhabited territory which, in the language of the
treaty, was to be transferred "forever, and in full sovereignty,"
to the United States, or how the United States could consent to
allow a foreign nation to interfere in its purely internal affairs,
in which that foreign nation had no concern Page 60 U. S. 631 whatever, is difficult for me to conjecture. In my judgment,
this treaty contains nothing of the kind.

															The third article is supposed to have a bearing on the question.
It is as follows:

															"The inhabitants of the ceded territory shall be incorporated in
the Union of the United States, and admitted as soon as possible,
according to the principles of the Federal Constitution, to the
enjoyment of all the rights, advantages, and immunities of citizens
of the United States, and in the meantime they shall be maintained
and protected in the enjoyment of their liberty, property, and the
religion they profess."

															There are two views of this article, each of which, I think,
decisively shows that it was not intended to restrain the Congress
from excluding slavery from that part of the ceded territory then
uninhabited. The first is that, manifestly, its sole object was to
protect individual rights of the then inhabitants of the territory.
They are to be "maintained and protected in the free enjoyment of
their liberty, property, and the religion they profess." But this
article does not secure to them the right to go upon the public
domain ceded by the treaty, either with or without their slaves.
The right or power of doing this did not exist before or at the
time the treaty was made. The French and Spanish Governments, while
they held the country, as well as the United States, when they
acquired it, always exercised the undoubted right of excluding
inhabitants from the Indian country, and of determining when and on
what conditions it should be opened to settlers. And a stipulation
that the then inhabitants of Louisiana should be protected in their
property can have no reference to their use of that property where
they had no right, under the treaty, to go with it save at the will
of the United States. If one who was an inhabitant of Louisiana at
the time of the treaty had afterwards taken property then owned by
him, consisting of firearms, ammunition, and spirits, and had gone
into the Indian country north of thirty-six degrees thirty minutes
to sell them to the Indians, all must agree the third article of
the treaty would not have protected him from indictment under the
Act of Congress of March 30, 1802, 2 Stat. at Large 139, adopted
and extended to this territory by the Act of March 26, 1804, (2
Stat. at Large 283.)

															Besides, whatever rights were secured were individual rights. If
Congress should pass any law which violated such rights of any
individual, and those rights were of such a character as not to be
within the lawful control of Congress under the Constitution, that
individual could complain, and the act of Congress, as to such
rights of his, would be inoperative, but it Page 60 U. S. 632 would be valid and operative as to all other persons, whose
individual rights did not come under the protection of the treaty.
And inasmuch as it does not appear that any inhabitant of Louisiana
whose rights were secured by treaty had been injured, it would be
wholly inadmissible for this court to assume, first, that one or
more such cases may have existed, and second, that if any did
exist, the entire law was void -- not only as to those cases, if
any, in which it could not rightfully operate, but as to all
others, wholly unconnected with the treaty, in which such law could
rightfully operate.

															But it is quite unnecessary, in my opinion, to pursue this
inquiry further, because it clearly appears from the language of
the article, and it has been decided by this court, that the
stipulation was temporary, and ceased to have any effect when the
then inhabitants of the Territory of Louisiana, in whose behalf the
stipulation was made, were incorporated into the Union.

															In the cases of New Orleans v. De Armas et
al. , 9 Peters, 223, the question was whether a
title to property which existed at the date of the treaty continued
to be protected by the treaty after the State of Louisiana was
admitted to the Union. The third article of the treaty was relied
on. Mr. Chief Justice Marshall said:

															"This article obviously contemplates two objects. One, that
Louisiana shall be admitted into the Union as soon as possible on
an equal footing with the other States, and the other that, till
such admission, the inhabitants of the ceded territory shall be
protected in the free enjoyment of their liberty, property, and
religion. Had anyone of these rights been violated while these
stipulations continued in force, the individual supposing himself
to be injured might have brought his case into this Court, under
the twenty-fifth section of the judicial act. But this stipulation
ceased to operate when Louisiana became a member of the Union, and
its inhabitants were 'admitted to the enjoyment of all the rights,
advantages, and immunities, of citizens of the United States.'"

															The cases of Chouteau v.
Marguerita , 12 Peters 507, and Permoli v.
New Orleans , 3 How. 589, are in conformity with
this view of the treaty.

															To convert this temporary stipulation of the treaty in behalf of
French subjects who then inhabited a small portion of Louisiana
into a permanent restriction upon the power of Congress to regulate
territory then uninhabited, and to assert that it not only
restrains Congress from affecting the rights of property of the
then inhabitants, but enabled them and all other citizens of the
United States to go into any part of the Page 60 U. S. 633 ceded territory with their slaves, and hold them there, is a
construction of this treaty so opposed to its natural meaning, and
so far beyond its subject matter and the evident design of the
parties that I cannot assent to it. In my opinion, this treaty has
no bearing on the present question.

															For these reasons, I am of opinion that so much of the several
acts of Congress as prohibited slavery and involuntary servitude
within that part of the Territory of Wisconsin lying north of
thirty-six degrees thirty minutes north latitude and west of the
river Mississippi, were constitutional and valid laws.

															I have expressed my opinion, and the reasons therefor, at far
greater length than I could have wished, upon the different
questions on which I have found it necessary to pass to arrive at a
judgment on the case at bar. These questions are numerous, and the
grave importance of some of them required me to exhibit fully the
grounds of my opinion. I have touched no question which, in the
view I have taken, it was not absolutely necessary for me to pass
upon to ascertain whether the judgment of the Circuit Court should
stand or be reversed. I have avoided no question on which the
validity of that judgment depends. To have done either more or
less, would have been inconsistent with my views of my duty.

															In my opinion, the judgment of the Circuit Court should be
reversed, and the cause remanded for a new trial.

															[ Footnote 3/1 ]

															This statement that some territory did actually pass by this
cession is taken from the opinion of the court, delivered by Mr.
Justice Wayne, in the case of Howard v.
Ingersoll , reported in 13 How. 405. It is an
obscure matter, and, on some examination of it, I have been led to
doubt whether any territory actually passed by this cession. But as
the fact is not important to the argument, I have not thought it
necessary further to investigate it.

															[ Footnote 3/2 ]

															It was published in a newspaper at Philadelphia, in May, and a
copy of it was sent by R. H. Lee to Gen. Washington on the 15th of
July. See p. 261, Cor. of Am.Rev., vol. 4, and Writings of
Washington, vol. 9, p. 174.