Dred Scott v. Sandford Case
Supreme Court Landmark Decision
Dred Scott versus Sandford (1857)
Slave Dred Scott vs. Sandford Transcript
DECEMBER TERM, 1856.
JOHN F. A. SANDFORD.
Dred Scott, Plaintiff In Error, v. John F. A. Sandford.
- 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 this court, and is open to its inspection and
- 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 court gives judgment either for plaintiff or defendant, it is error, and the judgment must be reversed
by this court--and the parties cannot by 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 nut numbered among its "people or citizen."
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 lawful 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 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 construct 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 Slate 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 of the plea in abatement, was erroneous.
- 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 oct his case,
states that he is of African descent, was born a slave, and claims that he and his family became entitled to freed in 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 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 in 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 revise 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 port 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 judgement, any other errors, either as to the jurisdiction or
any other matter, where it appears from other parts of the tenor 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 stands on the same ground, and is to be treated in the
same manner as any other error upon which 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 disclosed a want of jurisdiction in the Circuit Court. 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 cremate doubts which would lead to further
and useless litigation.
- 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 authorising 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.The case of the American and Ocean Insurance
Companies v. Canter (1 Peters, 511) referred to and examined, showing that the decision in this case is not in conflict
with that opinion, and that the court did not, in the case referred to, decide upon the construction of the clause of the
Constitution above mentioned, because the case before them did not make it necessary to decide the question.
- 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 still govern it as a Territory until it has a population which, in
the judgment of Congress, entitles it to be admitted as a State of the Union.
- 4. During the tine it remains a Territory, Congress may legislate
over it within the scope of its constitutional powers in relation to citizens of the United State--and may establish a Territorial
Government--and the form of this 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 their rights of persons or rights of property.
- 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 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.
- 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 as the Circuit Court
had no jurisdiction, either in the case 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 constituted 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. John F. A. Sandford. Plea
to the Jurisdiction of the Court.
April Term, 1854.
And the said John F. A. Sandford, in his own proper person, comes and
says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause
of action, and each and every of them, (if any such have accrued to the said Dred Scott,) accrued to the said Dred Scott out
of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that,
to wit; the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because
he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as
negro slaves, and this the said Sandford is ready to verify. Wherefore he prays judgment whether this court can or will take
farther 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 descendant
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. 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
Lousiana, acquired by the United States of France, and situated 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 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 is 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 said Dred Scott,
and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful properly 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,
"That upon the facts agreed to by the parties, they ought to find for
the plantiff. The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly
The court then gave the following instruction to the jury, on motion of
"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.
It was argued at December term, 1855, and ordered to be reargued at the
It was now argued by Mr. Blair and Mr. G. F. Curtis for
the plaintiff in error, and by Mr. Geyer and Mr. Johnson for the defendant in error.
Mr. Chief Justice TANEY delivered the opinion of the court.
This case has been twice argued. After the argument of 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 reargument on some of the points, in order that we might have an opportunity of giving
to the whole subject a more deliberate consideration. It has accordingly been again argued by counsel, and considered by the
court; and I now proceed to deliver its opinion.
There are two leading questions presented by the record:
- 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
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 therefore 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 defeats by pleading over, and thereby
admitted the jurisdiction of the court.
But in making this objection, we think the peculiar and limited jurisdiction
of courts of the United States has not been adverted to. This peculiar and limited jurisdiction 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 analagous
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
relics is found to be true by a jury, or admitted to be true by the plaintiff, the jurisdiction Cannot be disputed in an appellate
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 show, in his pleadings,
that the suit he briars 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 discreet States, he must distinctly aver in his pleadings that they
are citizens of different States; add 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 illutrates 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 pica 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
We think they are before us. The plea in abatement and the judgment of
the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ
of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of
the United States v Smith (11 Wheat., 172,) this court said, that the case being brought up by writ of error, the whole record
was under the consideration of this court. And this being the case in the present instance, the plea in abatement is necessarily
under consideration; and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient
to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.
This is certainly a very serious question, and one that now for the first
time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it
is our duty to meet it and decide it.
The question is simply this: Can a negro whose ancestors were imported
into this country, and sold as slaves, become a member of the political community formed and brought into existence by the
Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed
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
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, a sociated together in
nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which
the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians
to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion
over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe
or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments, as much so as if
an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the
first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties
have beeen negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities
have always been treated as foreigners not living under our Government. It is true that the course of events has brought the
Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary,
for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them
and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized
by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave
his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges
which would belong to an emigrant from any other foreign people.
We proceed to examine the case as presented by the pleadings.
The words "people of the United States" and "citizens" are synonymous
terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form
the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly
call the "sovereign people," and every citizen is one of this people and a constituent member of this sovereignty. The question
before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent
members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included,
under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument
provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate
and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained
subject to their authority, and had no rights or privileges but such as those who held the power and the government might
choose to grant them.
It is not the province of the court to decide upon the justice or injustice,
the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those
who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed,
with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning
when it was adopted.
In discussing this question, we must not confound the rights of citizenship
which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any
means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United
States. He may have all 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 any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in
the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts,
nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted
to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization,
and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the
adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen
of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled
to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached
to that character.
It is very clear, therefore, that no State can, by any act or law of its
own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution
of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason
it cannot introduce any person or description of persons, who were not intended to be embraced in this new political family,
which the Constitution brought into existence, but were intended to be excluded from it.
The question then arises, whether the provisions of the Constitution,
in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African
race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in
any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the
tall 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 recognized as citizens in the several States, became also citizens
or 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 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 enquire who, at that time, were recognized as the people or citizens of a State, whose
rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers
of Government to defend their rights by force of arms.
In the opinion of the court, the legislation and histories of the times,
and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as
slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended
to be included in the general words used in 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 here firmly fixed or more uniformly
acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them
or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they
could make a profit on them, and were far more extensively engaged in this commerce, than any other nation in the world.
The opinion thus entertained and acted upon in England was naturally impressed
upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by
them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united
in the Declaration of Independence, and afterwards formed the Constitution of the United States. The 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 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
authorised 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 when in the course of human events it becomes
necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers
of the earth the separate and equal station to which the laws of nature and nature's God entitle them, a decent respect for
the opinions of mankind requires that they should declare the causes which impel them to the separation."
It then proceeds to say: "We hold these truths to be self-evident: that
all men are created equal; that they are endowed by their Creator with certain 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
This state of public opinion had undergone no change when the Constitution
was adopted, as is equally evident from its provisions and language.
The brief preamble sets forth by whom it was formed, for what purposes,
and for whose benefit and protection. It declares that it is formed by the people of the United States; that is to
say, by those who were members of the different political communities in the several States; and its great object is declared
to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people
of the United States, 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
farther 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 Slates voluntarily;
all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few
in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged,
and regarded as a part of the slave population rather than the free. It is obvious that they were not even in the minds of
the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a state in every
other part of the Union.
Indeed, when we look to the condition of this race in the several States
at the time, it is impossible to believe that these rights and privileges were intended to be extended to them.
It is very true, that in that portion of the Union where the labor of
the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time
of the Declaration of Independence; and when the Constitution was adopted, it had entirely worn out in one of them, and measures
had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion
in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and
productions of these States: for some of the States, where it had ceased or nearly ceased to exist, were actively engaged
in the slave trade, procuring cargoes on the coast of Africa, and transporting, them for sale to those parts of the Union
where their labor was found to be profitable, and suited to the climate and productions, And this tragic 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 leg slating in relation to them
upon the same principle which prevailed at the time of the Declaration of Independence. As relates to these States, it is
too plain for argument, that they have never been regarded as a part of the people or citizens of the State, nor supposed
to possess any political rights which the dominant race might not withhold or grant at their pleasure. And as long 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, canal 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
Thus, Massachusetts, in 1786. passed a law similar to the colonial one
of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person with any negro, Indian,
or mulatto, and inflicts a penalty of fifty pounds upon any one who shall join them in marriage; and declares all such marriages
absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And
this mark of degradation was renewed and again impressed upon the race, in the careful and deliberate preparation of their
revised code published in 1836. This code forbids any person from joining in marriage any white person with any Indian, negro,
or mulatto, and subjects the party who shall, offend, in this respect, to imprisonment, not exceeding six months in the common
jail, or to hard labor, and to a fine of not less than fifty nor more than two hundred dollars; and like the law of 1786,
it declares the marriage to be absolutely null and void. It will be seen that the punishment is increased by the code upon
the person who shall marry 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, 1758, about nine
months after the State had ratified and adopted the present Constitution of the United States; and by that law it prohibited
its own citizens, under severe penalties, from engaging in the trade, and declared all policies of insurance on the vessel
or cargo made in the State to be null and void. But up to the time of the adoption of the Constitution, there is nothing in
the legislation of the State indicating any change of opinion as to the relative rights and position of the white and black
races in this country, or indicating that it meant to place the latter, when free, upon a level with its citizens. And certainly
nothing which would have led the slaveholding States to suppose that Connecticut designed to claim for them, under the new
Constitution, the equal rights and privileges and rank of citizens in every other State.
The first step taken by Connecticut upon this subject was as early as
1774, when it passed an act forbidding the further importation of slaves Into the State. But the section containing the prohibition
is introduced by the following preamble:
"And whereas the increase of slaves in this State is injurious to the
poor, and inconvenient."
This recital would appear to have been carefully introduced, in order
to prevent any misunderstanding of the motive which induced the Legislature to pass the law, and places it distinctly upon
the interest and convenience of the white population--excluding the inference that it might have been intended in any degree
for the benefit of the other.
And in the act of 1784, by which the issue of slaves, born after the time
therein mentioned, were to be free at a certain age, the section is again introduced by a preamble assigning a similar motive
for the act. It is in these words:
"Whereas sound policy requires that the abolition of slavery should be
effected as soon as may be consistent with the rights of individuals, and the public safety and welfare"--showing that the
right of property 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 any one, and taken before the next authority to be examined
and delivered up to his master--who was required to pay the charge which had accrued thereby. And a subsequent section of
the same law provides, that if any free negro shall travel without such pass, and shall be stopped, seized, or taken up, he
shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted,
and was not repealed till 1797. So that up to that time free negroes and mulattoes were associated with servants and slaves
in the police regulations established by the laws of the State.
And again, in 1833, Connecticut passed another law, which made it penal
to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the
State, or to instruct or teach in any such school or institution, or board or harbor for that purpose, any such person, without
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
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.
Again, in 1822, Rhode Island, in its revised code, passed a law forbidding
persons who were authorized to join persons in marriage, from joining in marriage any white person with any negro, Indian,
or mulatto, under the penalty of two hundred dollars, and declaring all such marriages absolutely null and void; and the same
law was again re enacted in its revised code of 1844. So that, down to the last-montioned 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 vols., 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
The legislation of the States therefore shows, in a manner not to be mistaken,
the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout
the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States,
to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they
had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just
and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation;
or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or
designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights
of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new
political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially,
it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented
to a Constitution which might compel them to receive them in that character from another State. For if they were so received,
and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and
from the police regulations which they considered to be necessary for their own satiety. It would give to persons of the negro
race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased,
singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go
where they pleased at every hour of the day or night without 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 any one born in the
United States, who from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class. And
when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other
countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States
a much more important power--that is, the power of transforming into citizens a numerous class of persons, who in that character
would be much more dangerous to the peace and safety of a large portion of the Union, than the few foreigners one of the States
might improperly naturalize.
The Constitution upon its adoption obviously took from the States all
power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter
where he was born, or what might be his character or condition; and it gave to Congress the power to confer this character
upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since
the Constitution was adopted, can give any right of citizenship outside of its own territory.
A clause similar to the one in the Constitution, in relation to the rights
and immunities of citizens of one State in the other States, was contained in the Articles of Confederation. But there is
a difference of language, 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 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 worn 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 Confess in this respect
to white persons. And they may, if they think proper, authorize the naturalization of any one of any color, who was born trader
allegiance to another Government. But the language of the law above quoted, shows that citizenship at that time was perfectly
understood to be confined to the white race; and that they alone constituted the sovereignty in the government.
Congress might, as we before said, have authorized the naturalization
of Indians, because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought
of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when
they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollect on 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 subject on 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 slaves 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
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 mouths."
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 or 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 quotation was brought officially before the late William
Wirt, when be 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 that character,
although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to
hold particular offices; and that yet, when he goes into another State, he is entitled to be recognized there as a citizen,
although the State may measure his rights by the rights which it allows to persons of a like character or class resident in
the State, and refuse to him the full rights of citizenship.
This argument overlooks the language of the provision in the Constitution
of which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of the community
who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular
office. 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
So, too, a person may be entitled to vote by the law of the State, who
is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to
vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and
still less of the United States. And the provision in the Constitution giving privileges and immunities in other States, does
not apply to them.
Neither does it apply to a person who, being the citizen of a State, migrates
to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of
the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or
condition, and place him among the class of persons who are not recognized as citizens, but belong to an inferior and subject
race; and may deny him the privileges and immunities enjoyed by its citizens.
But so far as mere rights of persons 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, with all the privileges and immunities which belong to citizens of the State. And if persons
of the African race are citizens of a State, and of the United States, they would be entitled to all 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 weald 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
mean time, had taken up his residence in Pennsylvania, and brought suit on the notes, and recovered judgment in the Circuit
Court for the district of Maryland.
The whole proceeding, as appears by the report, was an amicable one; Legrand
being perfectly willing to pay the money, if he could obtain a title, and Darnall not wishing him to pay unless he could make
him a good one. In point of fact, the whole proceeding was under the direction of the counsel who argued the case for the
appellee, who was the mutual friend of the parties, and confided in by both of them, and whose only 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 Darnell, who 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 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 recognized him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he
pleased, as a citizen of the United States; and the 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 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 abregate 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, 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 serried 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 extra-judicial, and mere obiter
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, 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 exception,
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. It is the duty of the
appellate tribunal to correct this error; but that could not be done by dismissing the case for want of jurisdiction here--for
that would leave the erroneous judgment in full force, and the injured party without remedy. And the appellate court therefore
exercises the power for which alone appellate courts are constituted, by reversing the judgment of the court below for this
error. It exercises its proper and appropriate jurisdiction over the judgment and proceedings of the Circuit Court, as they
appear upon the record brought up by the writ 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 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 or 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 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.
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 Shelling, from said last-mentioned date until the year
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 Shelling, 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 comet
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 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 authorised to pass this law under any of the powers granted to it by the Constitution; for if the authority
is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring
freedom upon any one who is held as a slave under the laws of any one of the States.
The counsel for the plaintiff has laid much stress upon that article in
the Constitution which confers on Congress the power "to dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States;" but, in the judgment of the court, that provision has no
hearing 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 Revoluntionary
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
bad 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 to lie, to the exclusion of the other State, 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
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
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 bow 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 this cession, was to pat
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 land
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, authorised 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 bad 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 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 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 any one else would have a right to take possession of, or control. without authority from them; and
it was to place these things under the guardianship and protection of the new Government, and to clothe it with the necessary
powers, that the clause was inserted in the Constitution which gives Congress the power "to dispose of and make all needful
rules and regulations respecting the territory or other property belonging to the United States." It was intended for a specific
purpose, to provide for the things we have mentioned. It was to transfer to the new Government the property then held in common
by the States, and to give to that Government power to apply it to the objects for which it had been destined by mutual agreement
among the States before their 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, every one, we think, 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, dock yards, and other needful buildings.
And the same power of making needful rules respecting the territory is,
in precisely the same language, applied to the other property belonging to the United States--associating the power
over the territory in this respect with the power over movable or personal property--that is, the ships, arms, and munitions
of war, which then belonged in common to the State sovereignties. And it will hardly be said, that this power, in relation
to the last-mentioned objects, was deemed necessary to be thus specially given to the new Government, in order to authorize
it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might
itself manufacture or provide for the public service.
No one, it is believed, would think a moment of deriving the power of
Congress to make needful rules and regulations in relation to property of this kind from this clause of the Constitution.
Nor can it, upon any fair construction, be applied to any property, but that which the new Government was about to receive
from the confederated States. And if this be true as to this property, it must be 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
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 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. Tiffs law introduces no new form
or principles for its government, but recite, 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 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 he 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 the 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 property of a different description from territory or land. And the difficulty
world 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 authorise its establishment. Thus, in the law to renew and keep
alive the ordinance of 1787, and to re-establish 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 same 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.
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 right, 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 provides 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
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 exercises
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 referred item
a power to acquire territory by cession from a foreign Government. The opinion on this part of the case is short, and we give
the whole of it to show how well the selection of a single sentence is calculated to mislead.
The passage referred to is in page 542, in which the court. in speaking
of the power of Congress to establish a Territorial Government in Florida until it should become a State, uses the following
"In the mean time Florida continues to be a Territory of the United States,
governed by that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the
territory or other property of the United States. Perhaps the power of governing a Territory belonging to the United States,
which has not, by becoming a State, acquired the means of self government, may result, necessarily, from the facts that it
is 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 from which
the power is derived, the possession of it is unquestionable."
It is thus clear, from the whole opinion on this point, that the court
did not mean to decide whether the power was derived from the clause in the Constitution, or was the necessary consequence
of the right to acquire, They do decide that the power in Congress is unquestionable, and in this we entirely concur, and
nothing will be found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court--that
is, as "the inevitable consequence of the right to acquire territory."
And what still more clearly demonstrates that the court did not mean to
decide the question, but leave it open for future consideration, is the fact that the case was decided in the Circuit Court
by Mr. Justice Johnson, and his decision was affirmed by the Supreme Court. His opinion at the circuit is given in full in
a note to the case, and in that opinion he states, in explicit terms, that the clause of the Constitution applies only to
the territory then within the limits of the United States. and not to Florida, which had been acquired by cession from Spain.
This part of his opinion will be found in the note in page 517 of the report. But he does not dissent from the opinion of
the Supreme Court; thereby showing that, in his judgment as well as that of the court, the case before them did not call for
a decision on that particular point, and the court abstained from deciding it. And in a part of its opinion subsequent to
the passage we have quoted, where the court speak of the legislative power of Congress in Florida, they still speak with the
same reserve. And in page 546, speaking of the power of Congress to authorise 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 from his decision the same question was brought before this court, but was not decided
because a decision upon it was not required by the case before the court.
There is another sentence in the opinion which has been commented on,
which even in a still more striking manner shows how one may mislead or be misled by taking out a single sentence from the
opinion of a court, and leaving out of view what precedes and follows. It is in page 546, near the close of the opinion, in
which the court say: "In legislating for them," (the territories of the United States,) "Congress exercises the combined powers
of the General and or 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 authorised 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 authorise 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
It is in disposing of this objection that the sentence relied on occurs,
and the court begins 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 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 dot 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's Reports to which we have referred,
can suppose that the attention of the court was drawn to 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 from 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 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 south 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 recognize as within the limits of the United States, the judicial
department is also bound to recognize, and to administer in it the laws of the United States, so far as they apply, and to
maintain in the Territory the authority and rights of the Government, and also the personal rights and rights of property
of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no express
regulation in the Constitution defining the power which the General Government may exercise over the person or property of
a citizen in a Territory thus acquired, the court must 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 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 whole 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 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 us 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 necessarily rested in the discretion of
Congress. It was their duty to establish the one that would behest 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 more 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 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
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 top the
redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor
the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is
not necessary here to enumerate, are, in express and positive terms, denied to the 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 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 authorise 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 add 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
recognizes the right of property of the master in a slave, and makes no distinction between that description of property and
other property owned by a citizen, no tribunal. acting under the authority of the United States, whether it he legislative,
executive, or judicial, has a right to draft 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 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 Confess a greater power over slave property, or which entitles property of that
kind to less protection than property of any other description. The only power conferred is the power coupled with the duty
of guarding and protecting the owner in his rights.
Upon these considerations, 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, 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 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 revered 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.
Source: National Archives
Recommended Reading: Dred Scott
v. Sandford: A Brief History with Documents (The Bedford
Series in History and Culture). Description: The only
book on Dred Scott built around primary documents, this brief text examines the 1857 Supreme Court case - one of the most
controversial and notorious judicial decisions in U.S. history - in which a slave unsuccessfully sued for his freedom. In
addition to excerpts from each justice's opinion, contemporary editorials and newspaper articles, and pertinent excerpts from
the Lincoln-Douglas debates, the book includes a comprehensive introduction that provides background information on the slavery
controversy in antebellum America. Helpful
editorial features include headnotes, maps, illustrations, a chronology, questions for consideration, a selected bibliography,
and an index.
Recommended Reading: The Dred Scott Case: Its Significance in American Law and Politics. Description: Winner of the Pulitzer Prize
in 1979, The Dred Scott Case is a masterful examination of the most famous example of judicial failure--the case
referred to as "the most frequently overturned decision in history." On March 6, 1857, Chief Justice Roger B. Taney delivered
the Supreme Court's decision against Dred Scott, a slave who maintained he had been emancipated as a result of having lived
with his master in the free state of Illinois
and in federal territory where slavery was forbidden by the Missouri Compromise. The decision did much more than resolve the
fate of an elderly black man and his family: Dred Scott v. Sanford
was the first instance in which the Supreme Court invalidated a major piece of federal legislation. Continued below...
declared that Congress had no power to prohibit slavery in the federal territories, thereby striking a severe blow at the
legitimacy of the emerging Republican Party and intensifying the sectional conflict over slavery. This book represents a skillful review of the issues before America
on the eve of the Civil War. One-third of the book deals directly with the case itself and the Court's decision, while the
remainder puts the legal and judicial question of slavery into the broadest possible American context. Fehrenbacher discusses
the legal bases of slavery, the debate over the Constitution, and the dispute over slavery and continental expansion. He also
considers the immediate and long-range consequences of the decision. AWARDED 5 STARS by americancivilwarhistory.org
Recommended Reading: Lincoln and Douglas: The Debates that Defined America (Simon & Schuster) (February 5, 2008) (Hardcover).
Description: In 1858, Abraham Lincoln was known as
a successful Illinois lawyer who had achieved some prominence
in state politics as a leader in the new Republican Party. Two years later, he was elected president and was on his way to
becoming the greatest chief executive in American history. What carried this one-term congressman from obscurity to fame was
the campaign he mounted for the United States Senate against the country's most formidable politician, Stephen A. Douglas,
in the summer and fall of 1858. Continued below...
Douglas directly in one of his greatest speeches -- "A house divided against itself cannot stand" -- and confronted Douglas
on the questions of slavery and the inviolability of the Union in seven fierce debates. As
this brilliant narrative by the prize-winning Lincoln scholar Allen Guelzo dramatizes, Lincoln would emerge a predominant national figure, the leader of his
party, the man who would bear the burden of the national confrontation. Of course, the great issue between Lincoln and Douglas was slavery. Douglas
was the champion of "popular sovereignty," of letting states and territories decide for themselves whether to legalize slavery.
Lincoln drew a moral line, arguing that slavery was a violation
both of natural law and of the principles expressed in the Declaration of Independence. No majority could ever make slavery
right, he argued. Lincoln lost that Senate race to Douglas,
though he came close to toppling the "Little Giant," whom almost everyone thought was unbeatable. Guelzo's Lincoln and Douglas
brings alive their debates and this whole year of campaigns and underscores their centrality in the greatest conflict in American
history. The encounters between Lincoln and Douglas engage a key question in American political life: What is democracy's
purpose? Is it to satisfy the desires of the majority? Or is it to achieve a just and moral public order? These were the real
questions in 1858 that led to the Civil War. They remain questions for Americans today.
Lincoln and Chief Justice Taney: Slavery, Secession,
and the President's War Powers, by James F. Simon (Simon & Schuster). Publishers Weekly: This surprisingly taut and gripping book by NYU law professor Simon
(What Kind of Nation) examines the limits of presidential prerogative during the Civil War. Lincoln and Supreme Court Chief
Justice Roger Taney saw eye to eye on certain matters; both, for example, disliked slavery. But beginning in 1857, when Lincoln criticized Taney's decision in the Dred Scott case, the pair
began to spar. They diverged further once Lincoln became president when Taney insisted that
secession was constitutional and preferable to bloodshed, and blamed the Civil War on Lincoln.
In 1861, Taney argued that Lincoln's suspension of habeas
corpus was illegal. This holding was, Simon argues, "a clarion call for the president to respect the civil liberties of American
citizens." Continued below...
In an 1862
group of cases, Taney joined a minority opinion that Lincoln lacked the authority to order the seizure of Southern
ships. Had Taney had the chance, suggests Simon, he would have declared the Emancipation Proclamation unconstitutional; he
and Lincoln agreed that the Constitution left slavery up to individual states, but Lincoln
argued that the president's war powers trumped states' rights. Simon's focus on Lincoln and Taney makes for a dramatic, charged
narrative—and the focus on presidential war powers makes this historical study extremely timely.
Recommended Reading: Arguing about Slavery: John Quincy Adams and the Great Battle
in the United States Congress.
Description: In the 1830s, slavery was so deeply entrenched
that it could not even be discussed in Congress, which had enacted a "gag rule" to ensure that anti-slavery petitions would
be summarily rejected. This stirring book chronicles the parliamentary battle to bring "the peculiar institution" into the
national debate, a battle that some historians have called "the Pearl Harbor of the slavery
controversy." Continued below...
The campaign to make slavery officially and respectably debatable was waged by John Quincy Adams who spent
nine years defying gags, accusations of treason, and assassination threats. In the end he made his case through a combination
of cunning and sheer endurance. Telling this story with a brilliant command of detail, Arguing About Slavery endows history
with majestic sweep, heroism, and moral weight.
Recommended Reading: What Hath
God Wrought: The Transformation of America, 1815-1848
(Oxford History of the United States)
(Hardcover: 928 pages). Review: The newest volume in
the renowned Oxford History of the United States-- A brilliant portrait of an era that saw dramatic transformations in American
life The Oxford History of the United States
is by far the most respected multi-volume history of our nation. The series includes two Pulitzer Prize winners, two New York
Times bestsellers, and winners of the Bancroft and Parkman Prizes. Now, in What Hath God Wrought, historian Daniel Walker
Howe illuminates the period from the battle of New Orleans to the end of the Mexican-American
War, an era when the United States expanded
to the Pacific and won control over the richest part of the North American continent. Continued below…
narrative portrays revolutionary improvements in transportation and communications that accelerated the extension of the American
empire. Railroads, canals, newspapers, and the telegraph dramatically lowered travel times and spurred the spread of information.
These innovations prompted the emergence of mass political parties and stimulated America's economic development from
an overwhelmingly rural country to a diversified economy in which commerce and industry took their place alongside agriculture.
In his story, the author weaves together political and military events with social, economic, and cultural history. He examines
the rise of Andrew Jackson and his Democratic party, but contends that John Quincy Adams and other Whigs--advocates of public
education and economic integration, defenders of the rights of Indians, women, and African-Americans--were the true prophets
of America's future. He reveals the power
of religion to shape many aspects of American life during this period, including slavery and antislavery, women's rights and
other reform movements, politics, education, and literature. Howe's story of American expansion -- Manifest Destiny -- culminates
in the bitterly controversial but brilliantly executed war waged against Mexico
to gain California and Texas for the United States. By 1848, America
had been transformed. What Hath God Wrought provides a monumental narrative of this formative period in United States history.