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HIGHSMITH 45-220
A REPORT
OP THE
DECISION OF THE SUPREME COURT
OF
THE UNITED STATES,
AND THE
OPINIONS OF iTHE JUDGES THEREOF,
Il^r THE CASE OF
DMjD SCOTT
versus
JOEGST e. a., sandford.
DECEMBER TERM, 1856.
BY BENJAMIN C. HOWARD,
COUNSELLOR AT LAW AND REPORTER OF THE DECISIONS OF THE SUPREME
COURT OF THE UNITED STATES.
NEW YORK:
D. APPLETON & Co., 346 & 348 BROADWAY.
1857.
Entered according to Act of Congress, in the year 1857, by
Benjamin C. Howard,
in the Clerk's Office of the District Court of the District of Columbia.
CONTENTS.
page
[EAD NOTE OF POINTS DECIDED, and")
j-By the Reporter 393
ITATEMENT OF THE CASE J
>PINION OF THE COURT, By Mr. Chief Justice Taney 399
Mr. JUSTICE WAYNE 454
Mr. JUSTICE NELSON 451
»Mr. JUSTICE GRIER 469
Mr. JUSTICE DANIEL 469
Mr. JUSTICE CAMPBELL 493
Mr. JUSTICE CATRON 518
Mr. JUSTICE McLEAN 529
Mr.* JUSTICE CURTIS 564
ADVERTISEMENT.
In consequence of the general desire of the public to have
access to these opinions, in a smaller book than the official
volume of the Reports of the Supreme Court, I have deter¬
mined to print that part of the volume which contains them
in the following separate publication.
BENJAMIN C. HOWARD,
Bep&rter.
Washington, April 1, 185T.
SUPREME COURT OF THE UNITED STATES.
DECEMBER TERM, 1856.
DEED SCOTT
verms
JOHN F. A.. SANDFORD.
Dred Scott, Plaintiff in Error, v. John F. A. Sanhford.
i.
1. Upon a writ of error to a Circuit Court of the United States,, the transcript of
the record of all the proceedings in the case is brought before this court, and is
open to its inspection and revisiop.
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 judg¬
ment of the court is in his favor—if the plaintiff brings a writ of error, the judg¬
ment 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 not num¬
bered among its "people or citizens." Consequently, the special rights and
immunities guarantied to citizens do not apply to them. And not being " citi¬
zens " 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
394
SUPREME COURT.
Dred Scott v. Sandford.
the United States, nor entitle them to the rights and privileges secured to citi¬
zens 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 con¬
struction and meaning, and it must be construed and administered now accord¬
ing to its true meaning and intention when it was formed and adopted.
10. The plaintiff having admitted, by his demurrer to the plea in abatement, that
his ancestors were imported from Africa and sold as slaves, he is not a citizen
of the State of Missouri according to the Constitution of the United States, and
was not entitled to sue in that character in the Circuit Court.
11. This being the case, the judgment of the court below, in favor of the plaintiff
on the plea in abatement, was erroneous.
II.
1. But if the plea in abatement is not brought up by this writ of error, the objec¬
tion to the citizenship of the plaintiff is still apparent on the record, as he him¬
self, in making out J?is case, states that he is of African descent, was born a
6lave, and claims that he and his family became entitled to freedom by being
taken, by their owner, to reside in a Territory where slavery is prohibited by act
of Congress—and that, in addition to this claim, he himself became entitled to
freedom by being taken to Rock Island, in the State of Illinois—and being free
when he was brought back to Missouri, he was by the laws of that State a
citizen.
2. If, therefore, the facts he states do not give him or his family a right to free¬
dom, the plaintiff is still a slave, and not entitled to sue as a "citizen," and the
judgment of the Circuit Court was erroneous on that ground also, without any
reference to the plea ,in abatement.
3. The Circuit Court can give no judgment for plaintiff or defendant in a case
where it has not jurisdiction, no matter whether there be a plea in abatement
or not. And unless it appears upon the face of the record, when brought here
by writ of error, that the Circuit Court had jurisdiction, the judgment must be
reversed.
The case of Capron v. Van Noorden (2 Cranch, 126) examined, and the principles
thereby decided, reaffirmed.
4. When the record, as brought here by writ of error, does not show that the Cir¬
cuit 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 judg¬
ment 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 confound¬
ing it with its limited jurisdiction in the former.
6. If the court reverses a judgment upon the ground that it appears by a particu¬
lar part of the record that the Circuit Court had not jurisdiction, it does not
take away the jurisdiction of this court to examine into and correct, by a re¬
versal of the judgment, any other errors, either as to the jurisdiction or any
other matter, where it appears from other parts of the record that the Circuit
Court had fallen into error. On the contrary, it is the daily and familiar prac¬
tice of this court to reverse on several grounds, where more than one error ap¬
pears to have been committed. And the error of a Circuit Court in its jurisdic-
DECEMBER TERM, 1856.
395
Dred Scott v. Sandford.
tion 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 discloses a want of jurisdiction in the Circuit Court.
8. It is often the duty of this court, after having decided that a particular decision
of the Circuit Court was erroneous, to examine into other alleged errors, and to
correct them if they are found to exist. And this has been uniformly done by
this court, when the questions are in any degree connected with fhe contro¬
versy, and the silence of the court might create doubts which would lead to
further and useless litigation.
m.
1. The facts upon which the plaintiff relies, did not give him his freedom, and
make him a citizen of Missouri.
2. The clause in the Constitution authorizing Congress to make all needful rules
and regulations for the government of the territory and other property of the
United States, applies only to territory within the chartered limits of some one
of the States when they were colonies of Great Britain, and which was surren¬
dered 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 deoide the ques¬
tion.
3. The United States, under the present Constitution, cannot acquire territory to
be held as a colony, to be governed at its will and pleasure. But it may acquire
territory which, at the time,* has „not a population that fits it to become a State,
and may govern it as a Territory until it has a population which, in the judg¬
ment of Congress, entitles it to be admitted as a State of the Union.
4. During the time it remains a Territory, Congress may legislate over it within
the scope of its constitutional powers in relation to citizens of the United
States—and may establish a Territorial Government—and the form of 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.
IV.
1. The territory thus acquired, is acquired by the people of the United States for
their common and equal benefit, through their agent and trustee, the Federal
Government. Congress can exercise no power over the rights of persons or
property of a citizen in the Territory which is prohibited by the Constitution.
The Government and the citizen, whenever the Territory is open to settlement,
both enter it with their respective rights defined and limited by the Constitution.
2. Congress have no right to prohibit the citizens of any particular State or States
from taking up their home there, while it permits citizens of other States to do
so. Nor has it a right to give privileges to one class of citizens which it refuses
to another. The territory is acquired for their equal and common benefit—and
if open to any, it must be open to all upon equal and the same terms.
3. Every citizen has a right to take with him into the Territory any article of
property which the Constitution of the United States recognises as property.
4. The Constitution of the United States recognises slaves as property, and pledges
the Federal Government to protect it. And Congress cannot exercise any more
authority over property of that description than it may constitutionally exercise
over property of any other kind.
5. The act of Congress, therefore, prohibiting a citizen of the United States from
396
SUPREME COURT.
Statement op the Case.] Dred Scott v. Sand/ord.
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 here¬
tofore decided that the status or condition of a person of African descent depend¬
ed 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 judg¬
ment 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 amis instituted in the Cir¬
cuit Court by Scott against Sandford.
Prior to the institution of the present suit, an action was
brought by Scott for his freedom in the Circuit Court of St.
Louis county, (State court,) where there was a verdict and
judgment in his favor. On a writ of error to the Supreme
Court of the State, the judgment below was reversed, and the
case remanded to the Circuit Court, where it was continued to
await the decision of the case now in question.
The declaration of Scott contained three counts: one, that
Sandford had assaulted the plaintiff; one, that he had assaulted
Harriet Scott, his wife; and one, that he had assaulted Eliza
Scott and Lizzie Scott, his children.
Sandford appeared, and filed the following plea:
Deed Scott
And the said John E. A. Sandford, in his own proper per¬
son, 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
v.
V.
John F. A. Sandford.
April Term, 1854.
DECEMBER TERM, 1856.
897
Dred Scott v. Sandford.' [Statement op the Case.
he is a negro of African descent; his ancestors were of pure
African blood, and were brought into this country and sold as
negro slaves, and this the said Sandford is ready to verify.
Wherefore, he prays judgment whether this court can or will
take further cognizance of the action aforesaid.
John F. A. Sandford.
To this plea there was a demurrer in the usual form, which
was argued in April, 1854, when the court gave judgment that
the demurrer should be sustained.
In May, 1854, the defendant, in pursuance of an agreement
between counsel, and with the leave of the court, pleaded in
bar of the action:
1. Hot guilty.
2. That the plaintiff was a negro slave, the lawful property
of the defendant, and, as such, the defendant gently laid his
hands upon him, and thereby had only restrained him, as the
defendant had a right to do.
3. That with respect to the wife and daughters of the plain¬
tiff, in the second and third counts of the declaration men¬
tioned, 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 defend¬
ant, 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 plain¬
tiff from the State of Missouri to the military post at Rock
Island, in the State of Illinois, and held him there as a slave
until the month of April or May, 1836. At the time last
mentioned, said Dr. Emerson removed the plaintiff from said
military post at Rock Island to the military post at Fort
Snelling, situate on the west bank of the Mississippi river, in
the Territory known as Upper Louisiana, acquired by the
United States of France, and situate north of the latitude of
thirty-six degrees thirty minutes north, and north of the State
of Missouri. Said Dr. Emerson held the plaintiff in slavery
at said Fort Snelling, from said last-mentioned date until the
year 1838.
In the year 1835, Harriet, who is named in the second count
of the plaintiff's declaration, was the negro slave of Major
Taliaferro, who belonged to the army of the United States.
398
SUPREME COURT.
Statement op the Case.] Dred Scott v. Sandford.
In that year, 1835, said Major Taliaferro took said Harriet to
said Fort Snelling, a military post, situated as hereinbefore
stated, and kept her there as a slave until the year 1836, and
then sold and delivered her as<a slave at said Fort Snelling
unto the said Dr. Emerson hereinbefore named. Said Dr.
Emerson held said Harriet, in slavery at said Fort Snelling
until the year 1838.
In the year 1836, the plaintiff and said Harriet at said Fort
Snelling, with the consent of said Dr. Emerson, who then
claimed to be their master and owner, intermarried, and took
each other for husband and wife. Eliza and Lizzie, named in
the third count of the plaintiff's declaration, are the fruit of
that marriage. Eliza is about fourteen years old, and was
born on board the steamboat Gipsey, north of the north line
of the State of Missouri, and upon the river Mississippi.
Lizzie is about seven years old, and was born in the State of
Missouri, at the military post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff
and said Harriet and their said daughter Eliza, from said Fort
Snelling to the State of Missouri, where they have ever since
resided.
Before the commencement of this suit, said Dr. Emerson
sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie,
to the defendant, as slaves, and the defendant has ever since
claimed to hold them and each of them as slaves.
At the times mentioned in the plaintiff's declaration, the
defendant, claiming to be owner as aforesaid, laid his hands
upon said plaintiff", Harriet, Eliza, and Lizzie, and imprisoned
them, doing in this respect, however, no more than what he
might lawfully do if they were of right his slaves at such times.
Further proof may be given on the trial for either party.
It is agreed that Dred Scott brought suit for his freedom in
the Circuit Court of St. Louis county; that there was a verdict
and judgment in his favor; that on a writ of error to the
Supreme Court, the judgment below was reversed, and the
same remanded to the Circuit Court, where it has been con¬
tinued 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 be¬
fore 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
DECEMBER TERM, 1856.
399
Dred Scott v. Sandford. [Opinion op tee Court.
said Dred Scott, and Eliza and Lizzie, the daughters of the
said Dred Scott, were negro slaves, the lawful property of the
defendant."
Whereupon, the court gave judgment for the defendant.
After an ineffectual motion for a new trial, the plaintiff filed
the following hill of exceptions.
On the trial of this cause by the jury, the plaintiff, to main¬
tain the issues on his part, read to the jury the following
agreed statement of facts, (see agreement above.) No further
testimony was given to the jury by either party. Thereupon
the plaintiff moved the court to give to the jury the following
instruction, viz:
" That, upon the facts agreed to by the parties, they ought to
find for the plaintiff. The court refused to give such instruc¬
tion to the jury, and the plaintiff, to such refusal, then and
there duly excepted."
The court then gave the following instruction to the jury,
on motion of the defendant :
"The jury are instructed, that upon the facts in this case,
the law is with the defendant." The plaintiff excepted to this
instruction.
Upon these exceptions, the case came up to this court.
It was argued at December term, 1855, and ordered to be
reargued at the present term.
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.
¥•1*0" reporter regrets that want of room will not allow him
to give the arguments of counsel; but he regrets it the less, be¬
cause the subject is thoroughly examined in the opinion of
the court, the opinions of the concurring judges, and the opin¬
ions of the judges who dissented from the judgment of the
court.
Mr. Chief Justice TANEY delivered the opinion of the
court.
This case has been twice argued. After the argument at
the last term, differences of opinion were found to exist among
the members of the court; and as the questions in controversy
are of the highest importance, and the court was at that time
much pressed by the ordinary business of the term, it was
deemed advisable to continue the case, and direct a re-argu¬
ment on some of the points, in order that we might have an
opportunity of giving to the whole subject a more deliberate
400
SUPREME COURT.
Opinion of the Court.] Dred Scott v. Sandford.
consideration. It has accordingly been again argued by coun¬
sel, 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 erro¬
neous or not?
The plaintiff in error, who was also the plaintiff in the court
below, was, with his wife and children, held as slaves by the
defendant, in the State of Missouri; and he brought this
action in the Circuit Court of the United States for that dis¬
trict, 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 de¬
fendant are citizens of different States; that is, that he is a
citizen of Missouri, and the defendant a citizen of Hew York.
The defendant pleaded in abatement to the jurisdiction of
the court, that the plaintiff was not $ 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 judg¬
ment that the defendant should answer over. And he there¬
upon put in sundry pleas in bar, upon which issues were
joined; and at the trial the verdict and judgment were in his
favor. "Whereupon the plaintiff brought this writ of error.
Before we speak of the pleas in bar, it will be proper to
dispose of the questions which have arisen on the plea in
abatement.
That plea denies the right of the plaintiff to sue in a court
of the United States, for the reasons therein stated.
If the question raised by it is legally before us, and the court
should be of opinion that the facts stated in it disqualify the
plaintiff from becoming a citizen, in the sense in which that
word is used in the Constitution of the United States, then
the judgment of the Circuit Court is erroneous, and must be
reversed.
It is suggested, however, that this plea is not before us; and
that as the judgment in the court below on this plea was in
favor of the plaintiff, he does not seek to reverse it, or bring
it before the court for revision by his writ of error; and also
that the defendant waived this defence by pleading over, and
thereby admitted the jurisdiction of the court.
DECEMBER TERM, 1856.
401
Dred Scott v. Sandford. [Opinion op the Court.
But, in making this objection, we think the peculiar and
limited j urisdiction 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 prin¬
ciples of pleading, so far as jurisdiction is concerned, from
those which regulate courts of common law in England, and
in the different States of the Union which have adopted the
common-law rules.
In these last-mentioned courts, where their character and
rank are analogous to that of a Circuit Court of the United
States; in other words, where they are what the law terms
courts of general jurisdiction; they are presumed to have ju¬
risdiction, unless the contrary appears. No averment in the
pleadings of the plaintiff is necessary, in order to give juris¬
diction. If the defendant objects to it, he must plead it special¬
ly, and unless the fact on which he relies is found to be true
by a jury, or admitted to be true by the plaintiff, the jurisdic¬
tion cannot be disputed in an appellate court.
Now, it is not necessary to inquire whether in courts of that
description a party who pleads over in bar, when a plea to the
jurisdiction has been ruled against him, does or does not waive
his plea; nor whether upon a judgment in his favor on the
pleas in bar, and a writ of error brought by the plaintiff, the
question upon the plea in abatement would be open for revis¬
ion in the appellate court. Cases that may have been decided
in such courts, or rules that may have been laid down by com¬
mon-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 al¬
though 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 speci¬
fically enumerated and defined; and they are not authorized
to take cognizance of any case which does not come within
the description therein specified. Hence, when a plaintiff sues
in a court of the United States, it is necessary that he should
402
SUPREME COURT.
Opinion op the Court.] Dred Scott v. Sandford.
show, in his pleading, that the suit he brings is within the ju¬
risdiction 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 judg¬
ment would be reversed in the appellate court for want of ju¬
risdiction 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 con¬
troversies between citizens of different States, he must dis¬
tinctly aver in his pleading that they are citizens of different
States; and he cannot maintain his suit without showing that
fact in the pleadings.
This point was decided in the case of Bingham v. Cabot, (in
3 Dall., 382,) and ever since adhered to by the court. And in
Jackson v. Ashton, (8 Pet., 148,) it was held that the objection
to which it was open could not be waived by the opposite par¬
ty, 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. Yan JSToorden,
(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 Ca¬
pron v. Yan hfoorden strikingly illustrates the difference be¬
tween a common-law court and a court of the United States.
If, however,.the fact of citizenship is averred in the declara¬
tion, and the defendant does not deny it, and put it in issue by
plea in abatement, he cannot offer evidence at the trial to dis¬
prove 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 abate¬
ment, and the want of jurisdiction does not appear in any other
part of the transcript brought up by the writ of error, the un¬
disputed 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 re¬
quired by the rules of pleading, and the fact upon which the
denial is based is admitted by the demurrer. And, if the plea
and demurrer, and judgment of the court below upon it, are
before us upon this record, the question to be decided is,
whether the facts stated in the plea are sufficient to show that
the plaintiff is not entitled to sue as a citizen in a court of the
United States.
DECEMBER TERM, 1856.
408
Dred Scott v. Sandford. [Opinion of the Court.
"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 immuni¬
ties, guarantied by that instrument to the citizen? One of
which rights is the privilege of suing in a court of the United
States in the cases specified in the Constitution.
It will be observed, that the plea applies to that class of per¬
sons 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 emancipa¬
ted, 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 descend¬
ants of Africans who were imported into this country, and sold
as slaves.
The situation of this population was altogether unlike that
of the Indian race. The latter, it is true, formed no part of
the colonial communities, and never amalgamated with them
in social connections or in government. But although they
were uncivilized, they were yet a free and independent people,
associated together in nations or tribes, and governed by their
own laws. Many of these political communities were situated
in territories to which the white race claimed the ultimate
404
SUPREME COURT.
Opinion of the Court.] Dred Scott v. Sandford.
right of dominion. But that claim was acknowledged to he
subject to the right of the Indians to occupy it as long as they
thought proper, and neither the English nor colonial Govern¬
ments 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 emi¬
gration to the English colonies to the present day, by the
different Governments which succeeded each other. Treaties
have been negotiated with them,-and their alliance sought for
in war; and the people who compose these Indian political
communities have always been treated as foreigners not living
under our Government. It is true that the course of events
has brought the Indian tribes within the limits of the United
States under subjection to the white race; and it has been
found necessary, for their sake as well as our own, to regard
them as in a state of pupilage, and to legislate to a certain
extent over them and the territory they occupy. But they
may, without doubt, like the subjects of any other foreign
Government, be naturalized by the authority of Congress, and
become citizens of a State, and of the United States; and if an
individual should leave his nation or tribe, and take up his
abode among the white population, he would be entitled to all
the rights and privileges which would belong to an emigrant
from any other foreign people.
We proceed to examine the case as presented by the plead¬
ings.
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 sover¬
eignty? 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 atJhat time considered as a subordi-
DECEMBER TERM, 1856.
405
Dred Scott v. Sand/ord. [Opinion of the Court.
nate 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 decis¬
ion 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 instru¬
ment they have framed, with the best lights we can obtain on
the subject, and to administer it as we find it, according to its
true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights
of citizenship which a State may confer within its own limits,
and the rights of citizenship as a member of the Union. It
does not by any means follow, because he has all the rights
and privileges of a citizen of a State, that he must be a citizen
of the United States. He may have all of the rights and
privileges of the citizen of a State, and yet not be entitled to
the rights and privileges of a citizen in any other State. For,
previous to the adoption of the Constitution of the United
States, every State had the undoubted right to confer on
whomsoever it pleased the character of citizen, and to endow
him with all its rights. But this character of course was
confined to the boundaries of the State, and gave him no
rights or privileges in other States beyond those secured to
him by the laws of nations and the comity of States. Hor
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 descrip¬
tion 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 naturaliza¬
tion, 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
2
406
SUPREME COURT.
Opinion op the Court.] Drcd Scott v. Sandford.
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~hew member into the political"community created
"by the Constitution of the United"Etates. * Tf 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 he
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 after¬
wards be made free in any State; and to put it in the power
of a single State to make him a citizen of the United States,
and endue him with the full rights of citizenship in every
other State "without their consent? Does the Constitution of
the United States act upon him whenever he shall be made
free under the laws of a State, and raised there to the rank of
a citizen, and immediately clothe him with all the privileges
of a citizen in every other State, and in its own courts ?
The court think the affirmative of these propositions cannot
be maintained. And if it cannot, the plaintiff in error could
not be a citizen of the State of Missouri, wTthTh'tEe~meanmg
of the Constitution of the United States, "and, consequently,
was not entitled to kuUTnUts "coifrTsr
It is true, every person, and~every class and description of
persons, who were at the time of the adoption of the Constitu¬
tion recognised as citizens in the several States, became also
citizens of this new political body; but none other; it was
formed by them, and for them and their posterity, but for no
one else. And the personal rights and privileges guarantied
to citizens of this new sovereignty were intended to embrace
those only who were then members of the several State
communities, or who should afterwards by birthright or other¬
wise 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
DECEMBER TERM, 1856.
407
Dred Scott v. Sandford. [Opinion op the Coitbt.
which, he did not before possess, and placed him in every
other State npon 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 sovereign¬
ties, and took their places in the family of independent nations.
"We must inquire who, at that time, were recognised as the
people or citizens of a State, whose rights and liberties had
been outraged by the English Government; and who declared
their independence, and assumed the powers of Government
to defend their rights by force of arms.
In the opinion of the court, the legislation and histories of
the times, and the language used in the Declaration of Inde¬
pendence, 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 civ¬
ilized 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 con¬
cern, without doubting for a moment the correctness of this
opinion.
And in no nation was this opinion more firmly fixed or more
408
SUPREME COURT.
Opinion op the Coukt.] Dred Scott v. Sandford.
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; hut 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 hy 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 Independ¬
ence, 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. Rut
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 he 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 horn of white
women, who, for such intermarriage, shall only become ser¬
vants 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 jus¬
tices as aforesaid, and be applied to the uses aforesaid."
The other colonial law to which we refer was passed hy
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
DECEMBER TERM, 1856.
409
jDred Scott v. Sandford. [Opinion op thk Court.
the discretion of the justices before whom the offender shall he
convicted."
And "that none of her Majesty's English or Scottish sub¬
jects, nor of any other Christian nation, within this province,
shall contract matrimony with any negro or mulatto; nor shall
any person, duly authorized to solemnize marriage, presume to
join any such in marriage, on pain of forfeiting the sum of
fifty pounds; one moiety thereof to her Majesty, for and to¬
wards 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 respect¬
ive 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 Independ¬
ence 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 intermar¬
riages between white persons and negroes or mulattoes were
regarded as unnatural and immoral, and punished as crime's,
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 states¬
men 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 pro-,
visions.
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 po¬
litical bands which have connected them with another, and to
410
SUPREME COURT.
Opinion op the Court.] Dred Scott v. Sandford.
assume among the powers of tlie 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 tlie
separation."
It then proceeds to say: u"W"e hold these truths to he 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 se¬
cure 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 instru¬
ment at this day would be so understood. Rut it isJtoQ_jelear
for dispute, that the enslaved African race were not intended
"to be included, and formed no part ot the people who iramed
and~addpfsd""this declaration; for "if the language,"as under¬
stood in that day, would "embrace them, the cmtTucT of the
jdistinguislied. men who Iramed the Declaration of EncTepend-
enee"woutd have bedn utterly and flagrantly inconsistent y:ith
the prinhipIesTE^a^^edqaSd" instead of the sympathy of
'mankind,"to' whTcE~Tkey ~so confidently appealed, they would
have deserved and received universal rebuke and reproba¬
tion.
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 un¬
derstood 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 es¬
tablished doctrines and principles, and in the ordinary lan¬
guage of the day, and no one misunderstood them. The un-
happy black race were separated from the white by indelible
marks, and laws long before established, and were never
thought of or spoken of except as property, and when the
claims of the owner or the profit of the trader were supposed
to need protection.
This state of public opinion had undergone no change when
the Constitution was adopted, as is equally evident from its
provisions and language.
The brief preamble sets forth by whom it was formed, for
what purposes, and for whose benefit and protection. It de-
DECEMBER TERM, 1856.
411
Dred Scott v. Sandford. [Opinion op the Court.
clares 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 de¬
clared 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 de¬
scription of persons are intended to be included under these
terms, or who shall be regarded as a citizen and one of the
people. It uses them as terms so well understood, that no
further description or definition was necessary.
But there are two clauses in the Constitution which point
directly and specifically to the negro race as a separate class
of persons, and show clearly that they were not regarded as a
portion of the people or citizens of the Government then
formed.
One of these clauses reserves to each of the thirteen States
the right to import slaves until the year 1808, if it thinks
proper. And the importation which it thus sanctions was un¬
questionably 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 prop¬
erty of the master, by delivering up to him any slave who may
have escaped from his service, and be found within their re¬
spective 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.
hTo one of that race had ever migrated to the United States
voluntarily; all of them had been brought here as articles of
merchandise. The number that had been emancipated at that
time were but few in comparison with those held in slavery;
and they were identified in the public mind with the race to
which they belonged, and regarded as a part of the slave pop¬
ulation rather than the free. It is obvious that they werejiot
412
SUPREME COURT.
Opinion op ths Court.] Dred Scott v. Sandford.
even in tlie minds of the framers of the Con^titntxoa-iv-lien
they were conferring special rights and privileges npon the
citizens ota State in every other part of the Union.
TndeedUwhen 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 Con¬
stitution was adopted, it had entirely worn out in one of them,
and measures had been taken for its gradual abolition in sev¬
eral others. But this change had not been produced by any
change of opinion in relation to this race; but because it was
discovered, from experience, that slave labor was unsuited to
the climate and productions of these States: for some of the
States, where it had ceased or nearly ceased to exist, were
actively engaged in the slave trade, procuring cargoes on the
coast of Africa, and transporting them for sale to those parts
of the Union where their labor was found to be profitable, and
suited to the climate and productions. And this traffic was
openly carried on, and fortunes accumulated by it, without
reproach from the people of the States where they resided.
And it can hardly be supposed that, in the States where it was
then countenanced in its worst form—that is, in the seizure
and transportation—the people could have regarded those
who were emancipated as entitled to equal rights with them¬
selves.
And we may here again refer, in support of this proposition,
to the plain and unequivocal language of the laws of the sev¬
eral 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 sub¬
ject them to strict police regulations, drawing a broad line of
distinction between the citizen and the slave races, and legis¬
lating in relation to them upon the same principle which pre¬
vailed 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 pleas-
DECEMBER TERM, 1856.
413
Dred Scott v. Sandford. [Opinion op the Court.
Tire. And as long ago as 1822, the Court of Appeals of Ken¬
tucky decided that free negroes and mulattoes were not citi¬
zens within the meaning of the Constitution of the United
States; and the correctness of this decision is recognised, and
the same doctrine affirmed, in 1 Meigs's Tenn. Reports, 331.
And if we turn to the legislation of the States where slavery
had worn out, or measures taken for its speedy abolition, we
shall find the same opinions and principles equally fixed and
equally acted upon.
Thus, Massachusetts, in 1786, passed a law similar to the
colonial one of which we -have spoken. The law of 1786, like
the law of 1705, forbids the marriage of any white person with
any negro, Indian, or mulatto, and inflicts a penalty of fifty
pounds upon any one .who shall join them in marriage; and
declares all such marriages absolutely null and void, and de-
.. grades thus the unhappy issue of the marriage by fixing upon
it the stain of bastardy. And this mark of degradation was
renewed, and again impressed upon the race, in the careful and
deliberate preparation of their revised code published in 1836.
This code forbids any person from joining in marriage any
white person with any Indian, negro, or mulatto, and subjects
the party who shall offend in this respect, to imprisonment,
not exceeding six months, in the common jail, or to hard
labor, and to a fine of not less than fifty nor more than two
hundred dollars; and, like the law of 1786, it declares the
marriage to be absolutely null and void. It will be seen that
the punishment is increased by the code upon the. person who
shall marry them, by adding imprisonment to a pecuniary
penalty.
So, too, in Connecticut. "We refer more particularly to the
legislation of this State, because it was not only among the
first to put an end to slavery within its own territory, but was
the first to fix a mark of reprobation upon the African slave
trade. The law last mentioned was passed in October, 1788,
about nine months after the State had ratified and adopted
the present Constitution of the United States; and by that law
it prohibited its own citizens, under severe penalties, from en¬
gaging in the trade, and declared all policies of insurance on
the vessel or cargo made in the State to be null and void. But,
up to the time of the adoption of the Constitution, there is
nothing in the legislation of the State indicating any change
of opinion as to the relative rights and position of the white-
and black races in this country, or indicating that it meant to
place the latter, when free, upon a level with its citizens. And
certainly nothing which would have led the slaveholding States
to suppose, that Connecticut designed to claim for them, under
414
SUPREME COURT.
Opinion op the Court.] Dred Scott v. Sandford.
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. Rut the section contain¬
ing the prohibition is introduced by the following preamble:
"And whereas the increase of slaves in this State is injuri¬
ous 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 distinct¬
ly 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 in¬
jury 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 im¬
portation 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 au¬
thority 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 Con¬
stitution of the United States was adopted, and was not re¬
pealed 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 inhabit¬
ants of the State, or to instruct or teach in any such school or
DECEMBER TERM, 1856.
415
Dred Scott v. Sandford. [Opinion of the Court.
institution, or board or harbor for that purpose, any such per¬
son, without the previous consent in writing of the civil author¬
ity 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 in¬
structed, 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 Dag-
get, 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 immuni¬
ties 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 legisla¬
tive 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 citi¬
zens, but were still held and treated as property, and the laws
relating to them passed with reference altogether to the interest
and convenience of the white race, we shall hardly find them
elevated to a higher rank anywhere else.
A brief notice of the laws of two other States, and we shall
pass on to other considerations.
By the laws of New Hampshire, collected and finally passed
in 1815, no one was permitted to be enrolled in the militia of
the State, but free white citizens; and the same provision is
found in a subsequent collection of the laws, made in 1855.
Nothing could more strongly mark the entire repudiation of
the African race. The alien is excluded, because, being born
in a foreign country, he cannot be a member of the community
until he is naturalized. But why are the African race, born
in the State, not permitted to share in one of the highest du¬
ties 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.
416
SUPEEME COTTET.
Opinion op the Court.] Dred Scott v. Sandford
Again, in 1822, Ehode Island, in its revised code, passed a
law forbidding persons who were authorized to join persons in
marriage, from joining in marriage any white person with any
negro, Indian, or mulatto, under the penalty of two hundred
dollars, and declaring all such marriages absolutely null and
void;' and the same law was again re-enacted in its revised
code of 1844. So that, down to the last-mentioned period, the
strongest mark of inferiority and degradation was fastened
upon the African race in that State.
It would be impossible to enumerate and compress in the
space usually allotted to an opinion of a court, the various laws,
marking the condition of this race, which were passed from
time to time after the Eevolution,'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 Chan¬
cellor Kent, whose accuracy and research no one will question,
states jn the sixth edition of his Commentaries, (published in
1848, 2 vol., 258, note b,) that in no part of the country except
Maine, did the African race, in point of fact, participate equally
with the whites in the exercise of civil and political rights.
The legislation of the States therefore shows, in a manner
not to be mistaken, the inferior and subject condition of that
race at the time the Constitution was adopted, and long after¬
wards, throughout the thirteen States by which that instru¬
ment 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 conven¬
tion 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 protec¬
tion of the liberties and rights of their citizens. If 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 an¬
other 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
DECEMBER TERM, 1856.
417
Dred Scott v. Sand/ord. [Opinion op the Court.
regulations which they considered to he necessary for their
own safety. It would give to persons of the negro race, who
were recognised as citizens in any one State of the Union, the
right to enter every other State whenever they pleased, singly
or in companies, without pass or passport, and without obstruc¬
tion, 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 lib¬
erty 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 inevi-r
tably 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 forget¬
ful 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 naturali¬
zation, and confined that power exclusively to the Federal
Government. Ho 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 Govern¬
ment. And this power granted to Congress to establish an
uniform rule of naturalization is, by the well-understood mean¬
ing 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
418
SUPREME COURT.
Opinion op the Court.] Dred Scott v. Sandford.
more important power—that is, the power of transforming
into citizens a numerous class of persons, who in that charac¬
ter would he 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/natter 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 ivhite 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
DECEMBER TERM, 1856.
419
Dred Scott v. Sandford. [Opinion op the Coukt.
persons thus separated and rejected from those *who formed
the sovereignty of the States, were yet intended to he 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 he con¬
strued to include an emancipated slave, is omitted; and the
privilege is confined to citizens of the State. And this altera¬
tion in words would hardly have been made, unless a different
meaning was intended to he 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 word's expounded by its tribunals, and
all power in relation to it taken from the State and its courts,
it was deemed prudent to describe with precision and caution
the persons to whom this high privilege was given—and the
word citizen was on that account substituted for the words free
inhabitant. The word citizen excluded, and no doubt intended
to exclude, foreigners who had not become citizens of some
one of the States when the Constitution was adopted; and
also every description of persons who were not fully recognised
as citizens in the several States. This, upon any fair construc¬
tion 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
beiufi free white persons."
Row, the Constitution does not limit the power of Congress
in this respect to white persons. And they may, if they think
proper, authorize the naturalization of any one, of any color,
who was born under allegiance to another Government. But
the language of the law above quoted, shows that citizenship
420
SUPREME COURT.
Opinion op the Court.] Dred Scott v. Sandford.
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 nat¬
uralization 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 hut recently committed,
when they were the allies of Great Britain in the Revolutionary
war, were yet fresh in the recollection of the people of the
United States, and they were even then guarding themselves
against the threatened renewal of Indian hostilities. No one
supposed then that any Indian would ask for, or was capable of
enjoying, the privileges of an American citizen, and the word
white was not used with any particular reference to them.
Neither was it used with any reference to the African race
imported into or horn in this country; because Congress had
no power to naturalize them, and therefore there was no ne¬
cessity 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 be¬
tween the citizen race, who formed and held the Government,
and the African race, which they held in subjection and slavery,
and governed at their own pleasure.
Another of the early laws of which we have spoken, is the
first militia law, which was passed in 1792, at the first session
of the second Congress. The language of this law is equally
plain and significant with the one just mentioned. It directs
that every "free able-bodied white male citizen" shall be en¬
rolled in the militia. The word white is evidently used to ex¬
clude the African race, and the word "citizen" to exclude
unnaturalized foreigners; the latter forming no part of the
sovereignty, owing it no allegiance, and therefore under no
obligation to defend it. The African race, however, born in
the country, did owe allegiance to the Government, whether
they were slave or free; but it is repudiated, and rejected
from the duties and obligations of citizenship in marked lan¬
guage.
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 ex¬
cept citizens of the United States, or persons of color, natives
of the United States.
DECEMBER TERM, 1856.
421
Bred Scott v. Sand/ord. [Opinion op the Coukt.
Here the line of distinction is drawn in express words. Per¬
sons 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 meet¬
ings of slaves, free negroes, and mulattoes," thus associating
them together in its legislation; and after prescribing the pun¬
ishment that may be inflicted on the slaves, proceeds in the
following words: "And to punish such free negroes and mu¬
lattoes by penalties not exceeding twenty dollars for any one
offence; and in case of the inability of any such free negro or
mulatto to pay any such penalty and cost thereon, to cause
him or her to be confined to labor for any time not exceeding
six calendar months." And in a subsequent part of the same
section, the act authorizes the corporation "to prescribe the
terms and conditions upon which free negroes and mulattoes
may reside in the city."
This law, like the laws of the States, shows that this class
of persons were governed by special legislation directed ex¬
pressly to them, and always connected with provisions for the
government of slaves, and not with those for the government
of free white citizens. And after such an uniform course of
legislation as we have stated, by the colonies, by the States,
and by Congress, running through a period of more than a
century, it would seem that to call persons thus marked and
stigmatized, "citizens" of the United States, "fellow-citizens,"
a constituent part of the sovereignty, would be an abuse of
terms, and not calculated to exalt the character of an Ameri¬
can citizen in the eyes of other nations.
The conduct of the Executive Department of the Govern¬
ment has been in perfect harmony upon this subject with this
course of legislation. The question was brought officially be¬
fore the late William Wirt, when he was the Attorney Gen¬
eral 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 re¬
cent case, and acted upon by the Secretary of State, who_ re¬
fused 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
3
422
SUPREME COURT.
Opinion op the Court.] Bred Scott v. Sandford.
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 he recognised there
as a citizen, although the State may measure his rights by the
rights which it allows to persons of a like character or class
resident in the State, and refuse to him the full rights of citi¬
zenship.
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 ex¬
ercises no share of the political power, and is incapacitated
from holding particular offices. "Women and minors, who
form a part of the political family, cannot vote; and when a
property qualification is required to vote or hold a particular
office, those who have not the necessary qualification cannot
vote or hold the office, yet they are citizens.
So, too, a person may be entitled to vote by the law of the
State, who is not a citizen even of the State itself. And in
some of the States of the Union foreigners not naturalized are
allowed to vote. And the State may give the right to free
negroes and mulattoes, but that does not make them citizens
of the State, and still less of the United States. And the pro¬
vision 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 sub¬
ject 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, de¬
termine his status or condition, and place him among the class
of persons who are not recognised as citizens, but belong to
an inferior and subject race; and may deny him the privileges
and immunities enjoyed by its citizens.
But so far as mere rights of person are concerned, the pro¬
vision 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 vo¬
ting 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 Consti¬
tution clothes him, as.to the rights of person, with all the
privileges and immunities which belong to citizens of the
DECEMBER TERM, 1856.
423
Dred Scott v. Sandford. [Opinion op the Court.
State. And if persons of the African race are citizens of a
State, and of the United States, they would be entitled to all
of these privileges and immunities in every State, and the
State could not restrict them; for they would hold these priv¬
ileges and immunities under the paramount authority of the
Federal Government, and its courts would he bound to main¬
tain 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. lie would have none hut what the
State itself chose to allow him. This is evidently not the con¬
struction or meaning of the clause in question. It guaranties
rights to the citizen, and the State cannot withhold them.
And these rights are of a character and would lead to conse¬
quences which make it absolutely certain that the African
race were not included under the name of citizeiis of a State,
and were not in the contemplation of the framers of the Con¬
stitution 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 de¬
cided 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 Mary¬
land, 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 prop¬
erty Darnall afterwards sold to Legrand, the appellant, who
gave his notes for the purchase-money. But becoming after¬
wards apprehensive that the appellee had not been eman¬
cipated 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 am¬
icable one; Legrand being perfectly willing to pay the money,
if be could obtain a title, and Darnall not wishing him to pay
unless he could make him a good one. In point of fact, the
whole proceeding was under the direction of the counsel who
argued the case for the appellee, who was the mutual friend of
the parties, and confided in by both of them, and whose only
424
SUPREME COURT.
Opinion of the Court.] Dred Scott v. Sand/ord.
object was to liave the rights of both parties established by ju¬
dicial decision in the most speedy and least expensive manner.
Legrand, therefore, raised no objection to the jurisdiction of
the court in the suit at law, because he was himself anxious to
obtain the judgment of the court upon his title. Consequently,
there was nothing in the record before the court to show that
Darnall was of African descent, and the usual judgment and
award of execution was entered. And Legrand thereupon filed
his bill on the equity side of the Circuit Court, stating that
Darnall was born a slave, and had not been legally emancipa¬
ted, and could not therefore take the land devised to him, nor
make Legrand a good title; and praying an injunction to re¬
strain 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.
Eow, 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 ren¬
dered 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. allega¬
tions in the bill were true, and he was incapable of making a
title. Eo other court could have enjoined him, for certainly
no State equity court could interfere in that way with the judg¬
ment 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 patties; 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 Dar¬
nall to convey did not depend upon his citizenship, but upon
his title to freedom. And if he was free, he could hold and
DECEMBER TERM, 1856.
425
Bred Scott v. Sand,ford. [Opinion of the Court.
convey property, by tbe 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 pur¬
chase-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 citi¬
zenship 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 deal¬
ing 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 ta the case now
before the court.
This case, however, strikingly illustrates the consequences
that would follow the construction of the Constitution which
would give the power contended for to a State. It would in
effect give it also to an individual. For if the father of young
Darnall had manumitted him in his lifetime, and sent him to
reside in a State which recognised him as a citizen, he might
have visited and sojourned in Maryland when he pleased, and
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 $s 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 citizen¬
ship, 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 Govern-
426
SUPREME COURT.
Opinion op the Court.] Bred Scott v. Sandford.
ment of special, delegated, powers, no authority beyond tliese
two provisions can he constitutionally exercised. The Govern¬
ment of the United States had no right to interfere for any
other purpose hut 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.
Ho 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
hear when the instrument was framed and adopted. Sucli an
argument would he 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 he amended; hut while it remains unaltered, it
must he construed now as it was understood at the time of
its adoption. It is not only the same in words, hut the same
in meaning, and delegates the same powers to the Govern¬
ment, 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, hut with
the same meaning and intent with which it spoke when it
came from the hands of its framers, and was voted on and
adopted by the people of the United States. Any other rule
of construction would abrogate the judicial character of tliis
court, and make it the mere reflex of the popular opinion or
passion of the day. This court was not created by the Consti¬
tution 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 tlie
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,
DECEMBER TERM, 1856.
427
Dred Scott v. Sandford. [Opinion op the Court.
tlic 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 nqt
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 free¬
dom andrrhtizeTIsiiip 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 freer
and upon their return to Missouri became citizens of that
State.
hTow, if the removal of which he speaks did not give them
their freedom, then by his own admission he is~FthH—ar-sl&ve;
and whatever opinions may be entertained in favQiL_ot the
citizenship of-adeee-person of the African racfo, iio'one supposes"
that a slave is a citizen of the State or of the United States.
If. Therefore. the-acfs--dong~trvdiis owner did not "make them
free persons--hg is still a slave, and certainly incapable ot suing
in the character ofa'citizen.
The principle of law "IS*too well settled to be disputed, that
a court can give no judgmeut 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 au¬
thority of this court to decide it; and it has been said, that as
this court has decided against the jurisdiction of the Circuit
Court on the plea in abatement, it has no right to examine any
question presented by the exception; and that anything it may
say upon that part of the case will be extra-judicial, and mere
obiter dicta.
This is a manifest mistake; there can be no doubt as to the
jurisdiction of this court to revise the judgment of a Circuit
Court, and to reverse it for any error apparent on the record,
428
SUPREME COURT.
Opinion of the Court.] Dred Scoit v. Sandford.
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 jurisdic¬
tion, the case must be dismissed for want of jurisdiction in this
court. And if it is dismissed on that ground, we have no right
to examine and decide upon any question presented by the bill
of exceptions, or any other part of the record. But writs of
error to a State court, and to a Circuit Court of the United
States, are regulated by different laws, and stand upon entire¬
ly 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 contro¬
versy 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 part}7,
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 com¬
mit.
. 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 com¬
mitted 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 jurisdic¬
tion over the judgment and proceedings of the Circuit Court,
as they appfear upon the record brought up by the Writ of
error.
The correction of one error in the court below does not de¬
prive 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 cer¬
tainly no rule of law—nor any practice—nor any decision of a
DECEMBER TERM, 1856.
429
Dred Scott v. Sandford. [Opinion op the Court.
court—which even questions this power in the appellate tri¬
bunal. 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 jnay 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 contro¬
versy, 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 Cir¬
cuit 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 prin¬
ciple it had decided on the pleadings, and gave judgment for
the defendant, where, upon the facts admitted in the excep¬
tion, 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-men¬
tioned 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 easQ in which it had no jurisdiction, cannot
be looked into or corrected by this court, because we have de¬
cided a similar question presented in the pleadings. The last
point is distinctly presented by the facts contained in the plain¬
tiff'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 juris¬
diction over the judgment, and reverse it for the errors com-'
mitted by the court below; and issue a mandate to the Circuit
Court to conform its j udgment 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 prac¬
tice 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 fur¬
ther. The want of jurisdiction in the court below may appear
on the record without any plea in abatement. This is_ fa¬
miliarly the case where a court of chancery has exercised
jurisdiction in a case where the plaintiff had a plain and ade¬
quate 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 ex-
430
SUPREME COURT.
Opinion of the Court.] Dred Scott v. Sandford.
clusively 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 hound to reverse the judgment, al¬
though 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 Uoor-
den, to which we have referred in a previous part of this opin¬
ion, are directly in point. In the last-mentioned case, Capron
brought an action against Yan Uoorden 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 defend¬
ant 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 dis¬
miss 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 judg¬
ment for costs in favor of the defendant; for in Capron v. Yan
ISToorden the judgment was reversed, because it did not appem
that the parties were citizens of different States. . They might
or might not he. But in this case it does appear that the
plaintiff was horn 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 he
reversed.
It is true that the result either way, by dismissal or by a judg¬
ment for the defendant, makes very little, if any, difference in
a pecui^ary 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.
DECEMBER TERM, 1856.
431
Dred Scott v. Sandford. [Opinion op the Court.
Tlie case, as lie 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 Illi¬
nois, and held him there as a slave until the month of April
or May, 1836. At the time last mentioned, said Dr. Em¬
erson removed the plaintiff from said military post at Rock
Island to the military post at Fort Snelling, situate on the'
west bank of the Mississippi river, in the Territory known as
Upper Louisiana, acquired by the United States of France,
and situate north of the latitude of thirty-six degrees thirty
minutes north, and north of the State of Missouri. Said Dr.
Emerson held the plaintiff' in slavery at said Fort Snelling,
from said last-mentioned date until the year 1838.
In the year 1835, Harriet, who is named in the second count
of the plaintiff's declaration, was the negro slave of Major
Taliaferro, who belonged to the army of the United States.
In that year, 1835, said Major Taliaferro took said Harriet to
said Fort Snelling, a military post, situated as hereinbefore
stated, and kept her there as a slave until the year 1836, and
then sold and delivered her as a slave, at said Fort Snelling,
unto the said Dr. Emerson hereinbefore named. Said Dr. Em¬
erson held said Harriet in slavery at said Fort Snelling until
the year 1838.
In the year 1836, the plaintiff and Harriet intermarried,
at Fort Snelling, with the consent of Dr. Emerson, who then
claimed to be their master and owner. Eliza and Lizzie,
named in the third count of the plaintiff's declaration, are the
fruit of that marriage. Eliza is about fourteen years old, and
was born on board the steamboat Gipsey, north of the north
line of the State of Missouri, and upon the river Mississippi.
Lizzie is about seven years old, and was born in the State of
Missouri, at the military post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff
and said Harriet, and their said daughter Eliza, from said Fort
Snelling to. the State of Missouri, where they have ever since
resided.
Before the commencement of this suit, said Dr. Emerson
sold and conveyed the plaintiff, and Harriet, Eliza, and Lizzie,
to the defendant, as slaves, and the defendant has ever since
claimed to hold them, and each of them, as slaves.
In considering this part of the controversy, two questions
arise: 1. Was he, together with his family, free in Missouri by
reason of the stay in the territory of the United States herein-
432
SUPREME COURT.
Opinion op the Cotjkt.] Bred Scott v. Sandford.
before mentioned ? And 2. If tbey 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 Erance, under the name of Louisiana, which
lies north of thirty-six degrees thirty minutes north latitude,
and not included within the limits of Missouri. And the
difficulty which meets us at the threshold of this part of the
inquiry is, whether Congress_was authorized to pass this law
under any of the powers granted to it by the Constitution;
for if the authority is not given by that instrument, it is the
duty of this court to declare it void and inoperative, and
incapable of conferring freedom upon any one who is held as
a slave under the laws of any one of the States.
The counsel for the plaintiff has laid much stress upon that
article in the Constitution which confers on- Congress the
power "to dispose of and make all needful rules and regula¬
tions respecting the territory or other property belonging to
the United States;" but, in the judgment of the court, that
provision has no bearing on the present controversy, and the
power there given, whatever it may be, is confined, and was
intended to be confined, to the territory which at that time
belonged to, or was claimed by, the United States, and was
within their boundaries as settled by the treaty with Great
Tkdtain, and can have no influence upon a territory afterwTards
acquired from a foreign Government. It was a special provi¬
sion 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
carefal and measured terms in which the article is framed,
will show the correctness of this proposition.
It will be remembered that, from the commencement of the
Revolutionary war, serious difficulties existed between the
States, in relation to the disposition of large and unsettled
territories which were included in the chartered limits of some
of the States. And some of the other States, and more
especially Maryland, which had no unsettled lands, insisted
that as the unoccupied lands, if wrested from Great Britain,
would owe their preservation to the common purse and the
common sword, the money arising from them ought to he
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
DECEMBER TERM, 1856.
483
Dred Scott v. Sandford. [Opinion op the Court.
to lie, to the exclusion of the other States, by whose combined
efforts and common expense the territory was defended and
preserved against the claim of the British Government.
These difficulties caused much uneasiness during the war,
while the issue was in some degree doubtful, and the future
boundaries of the United States yet to be defined by treaty, if
we achieved our independence.
The majority of the Congress of the Confederation obviously
concurred in opinion with the State of Maryland, and desired
to obtain from the States which claimed it a cession of this
territory, in order that Congress might raise money on this
security to- carry on the war. This appears by the resolution
passed on the 6th of September, 1780, strongly urging the
States to cede these lands to the United States, both for the
sake of peace and union among themselves, and to maintain
the public credit; and this was followed by the resolution of
October 10th, 1780, by which Congress pledged itself, that if
the lands were ceded, as recommended by the resolution above
mentioned, they should be disposed of for the common benefit
of the United States, and be settled and formed into distinct
republican States, which should become members of the Fed¬
eral Union, and have the same rights of sovereignty, and free¬
dom, and independence, as other States.
But these difficulties became much more serious after peace
took place, and the boundaries of the United States were estab¬
lished. Every State, at that time, felt severely the pressure
of its war debt; but in Virginia, and some other States, there
were large territories of unsettled lands, the sale of which
would enable them to discharge their obligations without
much inconvenience; while other States, which had no such
resource, saw before them many years of heavy and burden¬
some taxation; and the latter insisted, for the reasons before
stated, that these unsettled lands should be treated as the
common property of the States, and the proceeds applied to
their common benefit.
The letters from the statesmen of that day will show how
much this controversy occupied their thoughts, and the dan¬
gers 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.
Thesc^ 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
SUPREME COURT.
484
Opinion of the Court.] Drcd Scott v. Sandford.
this cession, was to put an end to the threatening and exciting
controversy, and to enable the Congress of that time to dispose
of the lands, and appropriate the proceeds as a common fund
for the common benefit of the States. It was not ceded, lie-
cause it was inconvenient to the State to hold and govern it,
nor from any expectation that it could be better or mors con¬
veniently 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 Constitu¬
tion, all of the States, similarly situated, had ceded their un¬
appropriated lands, except Korth Carolina and Georgia. The
jpain object for which'these cessions were desired and made,
was on account of their money value, and to put an end to a
dangerous controversy, as to who was justly entitled to the
proceeds when the lands should be sold. It is necessary to
bring this part of the history of these cessions thus distinctly
into view, because it will enable us the better to comprehend
the phraseology of the article in the Constitution, so often re¬
ferred 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 Govern¬
ment 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 protec¬
tion and advantage, and the Congress of the United States was
composed of the representatives of these separate sovereign¬
ties, meeting together, as equals, to discuss and decide on
certain measures which the States, by the Articles of Confed¬
eration, had agreed to submit to their decision. But this Con¬
federation had none of the attributes of sovereignty in legist
tive, executive, or judicial power. It was little more than a
congress of ambassadors, authorized to represent separate
nations, in matters in which they had a common concern.
It was this Congress that accepted the cession from Virginia.
They had no power to accept it und,er the Articles of Confed¬
eration. But they had an undoubted right, as independent
sovereignties, to accept any cession of territory for their com¬
mon benefit, which all of them assented to; and it is equally
clear, that as their common property, and having not superior
to control them, they had the right to exercise absolute do¬
minion 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
DECEMBER TERM, 1856.
435
Dred Scott v. Sandford. [Opinion of the Court.
with special enumerated and liipited 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 tliey might deem proper. It was by a Congress, represent¬
ing 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 adopt¬
ed ; 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 sov¬
ereign 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 prop¬
erty, and they had united in establishing in it a system of gov¬
ernment and jurisprudence, in order to prepare it for admis¬
sion 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 Govern¬
ment, which, for certain purposes, would mate 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 limit¬
ed 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 Govern¬
ment 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
43 G
SUPREME COURT.
Opinion of the Court.] Drcd Scott v. Sandford.
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 char¬
acters as confederates, which neither the new Government nor
any one else would have a right to take possession' of, or con¬
trol, without authority from them; and it was to place these
things under the guardianship and protection of the new Gov¬
ernment, 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 reg¬
ulations 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 trans¬
fer 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 com¬
mon at that time, and has no reference whatever to any terri¬
tory or other property which the new sovereignty might aftcr-
' wards itself acquire.
The language used in the clause, the arrangement and' com¬
bination 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 rais¬
ing 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 construc¬
tion may now be given to these words, every one, we think,
DECEMBER TERM, 1856.
487
Bred Scott v. Sandford. [Opinion op the Court.
must admit tliat 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 af¬
terwards 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 sover¬
eignties. And it will hardly be said, that this power, in rela¬
tion to the last-mentioned objects, was deemed necessary to be
thus specially given to the new Government, in order to au¬
thorize 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.
Uo 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. hTor can it, upon any fair construction, be ap¬
plied 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 grant¬
ed. The concluding words of the clause appear to render this
construction irresistible; for, after the provisions we have men¬
tioned, it proceeds to say, "that nothing in the Constitution
shall be so construed as to prejudice any claims of the United
States, or of any particular State."
blow, as we have before said, all of the States, except Uorth
Carolina and Georgia, had made the cession before the Consti¬
tution was adopted, according to the resolution of Congress of
October 10, 1780. The claims of other States, that the unap¬
propriated lands in these two States should be applied to the
common benefit, in like manner, was still insisted on, but re¬
fused by the States. And this member of the clause in ques¬
tion 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
4
438
SUPREME COURT.
Opinion op the Court.] Dred Scott v. Sandford.
impossible, by any just rule of construction, to make the first
'provision general, and extend to all territories, which the Fed¬
eral 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 in¬
volved in the same dispute, and depended upon the same prin¬
ciples. 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 fra-
mers of the Constitution, or intended to be embraced in it.
Upon any other construction it would be impossible to ac¬
count 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 surren¬
dered. It must also be borne in mind that all of these same
States which had then ratified the new Constitution were rep¬
resented 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 ordi¬
nance, 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 con¬
dition 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 ordi¬
nance of 1787, which had become inoperative and a nullity
upon the adoption of the Constitution. This law introduces
no new form or principles for its government, but recites, in
the preamble, that it is passed in order that this ordinance
may continue to have full effect, and proceeds to make only
those rules and regulations which were needful to adapt it to
the new Government, into whose hands the power had fallen.
It appears, therefore, that this Congress regarded the purposes
DECEMBER TERM, 1856.
439
Bred Scott v. Sandford. [Opinion op the Court.
to winch 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 substan¬
tially into effect the plans and principles which had been pre¬
viously 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 Constitu¬
tion as pointing to this Territory, with a Territorial Govern¬
ment 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 govern¬
ment as a Territory at the time. We can, then, easily account
for the manner in which the first Congress legislated 011 the
subject—and can also understand why this power over the ter¬
ritory was associated in the same clause with the other proper¬
ty 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 em¬
brace any territory acquired from a foreign nation by the pres¬
ent Government, and to give it in such territory a despotic and
unlimited power over persons and property, such as the con¬
federated States might exercise in their common property, it
would be difficult to account for the phraseology used, when
compared with other grants of power—and also for its associa¬
tion with the other provisions in the same clause.
The Constitution has always been remarkable for the felicity
of its arrangement of different subjects, and the perspicuity
and appropriateness of the language it uses. But if this clause
is construed to extend to territory acquired by the present
Government from a foreign nation, outside of the limits of any
charter from the British Government to a colony, it would be
difficult to say, why it was deemed necessary to give the Gov¬
ernment 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
440
SUPREME COURT.
Opinion op the Court.] Drcd Scott v. Sandford.
property of a different description from territory or land. And
the difficulty wonld 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 ac¬
count for associating this provision with the preceding pro¬
visions of the clause, with which it would appear to have no
connection.
The words "needful rules and regulations" would seem,
also, to have been cautiously used for some definite object.
They are not the words usually employed by statesmen, when
they mean to give the powers of sovereignty, or to establish a
Government, or to authorize its establishment. Thus, in the
law to renew and keep alive the ordinance of 1787, and to 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 some particular specified power
which it means to confer on the Government, and not, as we
have seen, when granting general powers of legislation. As,
for example, in the particular power to Congress "to make
rules for the government and regulation of the land and naval
forces, or the particular and specific power to regulate com¬
merce;" "to establish an uniform rule of naturalization;"
"to coin money and regulate the value thereof." And to con¬
strue the words of which we are speaking as a general and
hnlimited grant of sovereignty over territories which the Gov¬
ernment 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 Terri¬
tory, in which a Government and laws had already been estab¬
lished, but which would require some alterations to adapt it to
the new Government, the words are peculiarly applicable and
appropriate for that purpose.
DECEMBER TERM, 1856.
441
Bred Scott v. Sandford. [Opinion of the Court.
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, coritracts, and engage¬
ments entered into before the adoption of this Constitution,
shall be as valid against the United States under this Govern¬
ment as under the Confederation." This provision, like the
one under consideration, was indispensable if the new Consti¬
tution was adopted. The new Government was not a mere
change in a dynasty, or in a form of government, leaving the
nation or sovereignty the same, and clothed with all the rights,
and bound by all the obligations of the preceding one. But,
when the present United States came into existence under the
new Government, it was a new political body, a new nation,
then for the first time taking its place in the family of nations.
It took nothing by succession from the Confederation. It had
no right, as its successor, to any property or rights of property
which it had acquired, and was not liable for any of its obliga¬
tions. It was evidently viewed in this light by the framers of
the Constitution. And as the several States would cease to
exist in their former confederated character upon the adoption
of the Constitution, and could not, in that character, again
assemble together, special provisions were indispensable to
transfer to the new Government the property and rights which
at that time they held in common; and at the same time to
authorize it to lay taxes and appropriate money to pay the
common debt which they had contracted; and this power could
only be given to it by special provisions in the Constitution.
The clause in relation to the territory and other property of
the United States provided 'for the first, and the clause last
quoted provided for the other. They have no connection with
the general powers and rights of sovereignty delegated to the
new Government, and can neither enlarge nor diminish them.
They were inserted to meet a present emergency, and not to
regulate its powers as a Government.
Indeed, a similar provision was deemed necessary, in rela¬
tion 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 Uni¬
ted States, shall be the supreme law of the land."
Whether, therefore, we take the particular clause in ques¬
tion, by itself, or in connection with the oth6r provisions of the
Constitution, we think it clear, that it applies only to the par-
442
SUPREME COURT.
Opinion op the Court.] Bred Scott v. Sandford.
ticular territory of which, we have spoken, and cannot, by any
just rule of interpretation, he extended to territory which the
new Government might afterwards obtain from a foreign na¬
tion. Consequently, the power which Congress may have
lawfully exercised in this Territory, while it remained under a
Territorial Government, and which may have been sanctioned
by judicial decision, can furnish no justification and no argu¬
ment to support a similar exercise of power over territory af¬
terwards 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 differ¬
ent 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 sin¬
gle sentence out of the latter and separating it from the con¬
text, that even an appearance of conflict can he 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 opin¬
ion 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, hut merely
affirmed the power of Congress to establish a Government in
the Territory, leaving it an open question, whether that power
was derived from this clause in the Constitution, or was to be
necessarily inferred from a power to acquire territory by
cession from a foreign Government. The opinion on this part
of the case is short, and we give the whole of it to show how
well the selection of a single sentence is calculated to mislead.
The passage referred to is in page 542, in which the court,
in speaking of the power of Congress to establish a Territorial
Government in Florida until it should become a State, uses
the following language :
"In the mean time Florida continues to be a Territory of the
United States, governed by that clause of the Constitution
which empowers Congress to make all needful rules and regu¬
lations 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, ac¬
quired the means of self-government, may result, necessarily,
from the facts that it is not within the jurisdiction of any par-
DECEMBER TERM, 1856.
443
Dred Scott v. Sandford. [Opinion op the Court.
ticular State, and is within the power and jurisdiction of the
United States. The right to govern may he the inevitable
consequence of the right to acquire territory. Whichever may
be the source from ivhich 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 neces¬
sary 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 he found in this opinion to
the contrary. The power stands firmly on the latter alterna¬
tive put by the court—that is, as uthe 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 51T of the report. But he does not dissent from the
opinion of the Supreme Court; thereby showing that, in his
judgment, as well as that of the court, the case before them
did not call for a decision on that particular point, and the
court abstained from deciding it. And in a part of its opinion
subsequent to the passage we have quoted, where the court
speak of the legislative power of Congress in Florida, they still
speak with the same reserve. And in page 546, speaking of
the power of Congress to authorize the Territorial Legislature
to establish courts there, the court say: "They are legislative'
courts, created in virtue of the general right of sovereignty
which exists in the Government, or in virtue of that clause
which enables Congress to make all needful rules and regula¬
tions 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 dis¬
cussed, shows that the fact is otherwise. It shows that pre¬
cisely the same question came before Mr. Justice Johnson, at
his circuit, thirty years ago—was fully considered by him, and
the same construction given to the clause in the Constitution
which is now given by this court. And that upon an appeal
444
SUPREME COURT.
Opinion of the Court.] Bred Scott v. Sandford.
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 sin¬
gle 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 ex¬
ercises the combined powers of the General and of a State
Government." And it is said, that as a State may unquestion¬
ably 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 an¬
other part of this opinion what power Congress can constitu¬
tionally exercise in a Territory, over the rights of person or
rights of property of a citizen. Put, 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 what¬
ever 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 au¬
thorized by Congress to establish such a tribunal, with such
powers; and one of the parties, among other objections, in¬
sisted that Congress could not under the Constitution authorize
the Legislature of the Territory to establish such a tribunal with
such powers, but that it must be established by Congress itself;
and that a sale of cargo made under its order, to pay salvors,
was void, as made without legal authority, and passed no prop¬
erty to the purshaser.
DECEMBER TERM, 1856.
445
Dred Scott v. Sandford. [Opinion op the Court.
It is in disposing of this objection that the sentence relied
on occurs, and the court begin that part of the opinion by
stating with great precision the q>oint 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 ex¬
ercised 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 de¬
cide 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 exer¬
cises 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, Con¬
gress undoubtedly exercises the combined power of the Gen¬
eral 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 ex¬
ercises the power of the General Government in investing that
446
SUPREME COURT.
.Opinion of the Court.] Dred Scott v. Sandford.
court with, admiralty jurisdiction, over which the General Gov¬
ernment 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 rela¬
tion to the question now before the court. That depended on
the construction of the third article of the Constitution, in re¬
lation 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 Consti¬
tution, altogether separate and apart from the one above men¬
tioned. The question as to what courts Congress may ordain
or establish in a Territory to administer laws which the Con¬
stitution authorizes it to pass, and what laws it is or is not
authorized by the Constitution to pass, are widely different-
are regulated by different and separate articles of the Constitu¬
tion, 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 for a moment to the question now before
this court, or that it meant in that case to say that Congress
had a right to prohibit a citizen of the United States from
taking any property which he lawfully held into a Territory of
the United States.
This brings us to examine by what provision of the Consti¬
tution 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 he admitted as one of the States of the Union.
There is certainly no power given by the Constitution to
the Federal Government to establish or maintain colonies
bordering on the United States or at a distance, to be ruled
and governed at its own pleasure; nor to enlarge its territorial
limits in any way, except by the admission of new States.
That power is plainly given; and if a new State is admitted,
it needs no further legislation by Congress, because the Con¬
stitution itself defines the relative rights and powers, and
duties of the State, and the citizens of the State, and the Fed¬
eral Government. But no power is given to acquire a Terri¬
tory to be held and governed permanently in that character.
And indeed the power exercised by Congress to acquire ter¬
ritory and establish a Government there, according to its own
unlimited discretion, was viewed with great jealousy by the
DECEMBER TERM, 1856.
447
Dred Scott v. Sandford. [Opinion op the Court.
leading statesmen of the day. And in the Federalist, (No. 38,)
written hy Mr. Madison, he speaks of the acquisition of the
Northwestern Territory hy the confederated States, hy the
cession from Virginia, and the establishment of a Government
there, as an exercise of power not warranted hy 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.
AVe do not mean, however, to question the power of Con¬
gress 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 depart¬
ments of the Government, it has been held to authorize the
acquisition of territory, not fit for admission at the time, but
to be admitted as soon as its population and situation would
entitle it to admission. It is acquired to become a State, and
not to be held as a colony and governed by Congress with
absolute authority; and as the propriety of admitting a new
State is committed to the sound discretion of Congress, the
power to acquire territory for that purpose, to be held by the
United States until it is in a suitable condition to become a
State upou an equal footing with the other States, must rest
upon the same discretion. It is a question for the political
department of the Government, and not the judicial; and
whatever the political department of the Government shall
recognise as within the limits of the United States, the judicial
department is also bound to recognise, and to administer in it
the laws of the United States, so far as they apply, and to
maintain in the Territory the authority and rights of the
Government, and also the personal rights and rights of prop¬
erty 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 neces¬
sarily 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 be¬
longing to the people of the United States, cannot be ruled as
mere colonists, dependent upon the will of the General Gov¬
ernment, and to be governed by any laws it may think proper
to impose. The principle upon which our Governments rest,
and upon which alone they continue to exist, is the union of
States, sovereign and independent within their own limits in
448
SUPREME COURT.
Opinion op the Court.] JDred Scott v. Sandford.
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 peo¬
ple 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 depend¬
ent territories,- over which they might legislate without restric¬
tion, would be inconsistent with its own existence in its pres¬
ent 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 pro¬
moting the interests of the whole people of the Union in the
exercise of the powers specifically granted.
At the time when the Territory in question was obtained by
cession from France, it contained no population fit to be asso¬
ciated together and admitted as a State; and it therefore was
absolutely necessary to hold possession of it, as a Territory be¬
longing to the United States, until it was settled and inhabit¬
ed 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 rep¬
resentative 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 Ter¬
ritory was obtained, it was not only within the scope of its
powers, tut it was its duty to pass such laws and establish
such a Government as would enable those by whose authority
they acted to reap) the advantages anticipated from its acquisi¬
tion, 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 estab-
DECEMBER TERM, 1856.
449
Dred Scott v. Sandford. [Opinion op the Court.
lished necessarily rested in tlie discretion of Congress. It was
tlieir duty to establish the one that would he best suited for
the protection and security of the citizens of the United States,
and other inhabitants who might be authorized to take up
their abode there, and that must always depend upon the ex¬
isting condition of the Territory, as to the number and char¬
acter of its inhabitants, and their situation in the Territory.
In some cases a Government, consisting of persons appointed
by the Eederal Government, would best subserve the inter¬
ests of the Territory, when the inhabitants were few and scat¬
tered, 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 necessa¬
ry 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 exerpise of a discretionary
power by Congress, acting within the scope of its constitution¬
al 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 exer¬
cise of this discretion, and it must be held and governed in
like manner, until it is fitted to be a State.
But the power of Congress over the person or property of a
citizen can never be a mere discretionary power under our
Constitution and form of Government. The powers of the
Government and the rights and privileges of the citizen are
regulated' and plainly defined by the Constitution itself, And
wheir the Territory becomes a part of the United. States, the
impressed upon it by those who created it. It enters upon it
with its powers over the citizen strictly defined, and limited
fcy. 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
United States, put off its charactei^Jind_mssume-dj^cretionary
off despotic powers which the Constitution has denied to it.
It cannot create for itself a new character separated from the
citizens of the Unitcd~States, and the duties it owes them un¬
der 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 re¬
spective rights defined and marked out; and the Federal Gov-
450
SUPREME COURT.
Opinion of the Court.] Dred Scott v. Sand/ord.
ernment can exercise no power over Pis person or property,
beyond what that instrument confers, nor lawfully deny any
right which it has reserved.
A reference to a few of the provisions of the Constitution
will illustrate this proposition.
For example, no one, we presume, will contend that Con¬
gress can make any law in a Territory respecting the estab¬
lishment of religion, or the free exercise thereof, or abridging
the freedom of speech or of the press, or the right of the poo-
pie of the Territory peaceably to assemble, and to petition the
Government for the redress of grievances.
RTor can Congress deny to the people the right to keep and
hear arms, nor the right to trial by jury, nor compel any one
to he a witness against himself in a criminal proceeding.
These powers, and others, in delation 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 jaerson, and placed on the same groun(UbyThUgfElTamend-
menFto the Ccmsfifution^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. JSTor 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 vThich 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
DECEMBER TERM, 1856.
451
Dred Scott v. Sandford. [Opinion of the Court.
concerned, on tlie 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 will1 he admitted, we presume, that it could
not authorize a Territorial Government to exercise them. It
could confer no power on any local Government, established
by its authority, to violate tlie_provisions of the Constitution.
It seems, howev^tytoTie supposed, that there is a difference
between property m a slave and other property, and that
different' rcrfeS""may~be applied to it in expounding the Consti¬
tution off the United Spites. And the laws and usages of
nations, andThe 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, hav£^
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
peojde of the United States and their Government, and inter¬
fering with their relation to each other. The powers of the
Government, and the rights of the citizen under it, are positive
and practical regulations plainly written down. The people
of the United States have delegated to it certain enumerated
powers, and forbidden it to exercise others. It has no power
over the person or property of a citizen but what the citizens
of the United States have granted. And no laws or usages of
other nations, or reasoning of statesmen or jurists upon the
relations of master and slave, can enlarge the powers of the
Government, or take from the citizens the rights they have
reserved. And if the Constitution recognises the light of
property of the master in a slave, and makes no "distinction
between that descripticmaffqniopm^y^ndr-othei1 piupeity owned
by a~cftizen, no tribunal, acting under the authority of the
UnitedTstates, -whether ibbeAegl^tive, executive, or judicial,
h a shut! ghtixrd raw such a distihifijoii, or deny to it the benefit
of the provisions and guarantees which have been provided
for the protection of private property against flm encronch-
ments of thetfiovera m e nU
TAw, ns W° linyg> o Ir^fwjy in rm Afiuilior port r>f this
opini<vn, 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 tlie Government in express terms is pledged to protect
452
SUPREME COURT.
Opinion op the Court.] Drcd Scott v. Sandford.
it in all future time, if the slave escapes from Lis owner. This
is done in plain words—too plain to be misunderstood. And
no word can be found in the Constitution wbicb gives Congress
'a greater power over slave property, or which, entitles property
of that kind to less protection than property of any other
description. The only power conferred is the power coupled
with the duty of guarding and protecting the owner in his
rights.
Upon these considerations, it is the opinion of the court that
the actT>f1 Oongress w hiclr
and owning property of thip kind in the territory otUe" United
Slates north of the line therein mentioned, is not warranted
by the Constitution, and is therefore void; "ami"that neither
Kemg curried into this territory: eveniftfaev had beerrcarried
therg-fry the owB-erpwjttr the intention of becoming a perma¬
nent resident: v
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 Stra'der 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,
DECEMBER TERM, 1856.
453
Dred Scott v. Sandford. [Opinion op the Coubt.
therefore, cannot be governed by tbe case of Strader et al. v.
Graham, where it appeared, by the laws of Kentucky, that the
plaintiffs continued to he 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 o.f 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 differ¬
ent 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, re¬
quiring 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
454
SUPREME COURT.
Mr. Justice Wayne.] Dred Scott v. Sandford.
State court. And if this court takes jurisdiction in tliis form,
the result, so far as the rights of the respective parties are con¬
cerned, is in every respect substantially the same as if it had
in open violation of law entertained jurisdiction over the judg¬
ment of the State court upon a wjit of error, and revised and
reversed its judgment upon the ground that its opinion upon
the question of law was erroneous. It would ill become this
court to sanction such an attempt to evade'the law,, or to exer-
cise an appellate power in this circuitous way, which it is for¬
bidden 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 er-
ror is not a citizen of Missouri, in the sense m which that word
is used ih~tEU*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 de¬
fendant must, consequently, be reversed, and a mandate issued,
directing the suit to be dismissed for want of jurisdiction.
Mr. Justice WAYNE.
Concurring as I do entirely in the opinion of the court, as
it has been written and read by the Chief Justice—without
any qualification of its reasoning or its conclusions—I shall
neither read nor file an opinion of my own in this case, which
I prepared when I supposed it might be necessary and proper
for me to do so.
The opinion of the court meets fully and decides every point
which was made in the argument of the case by the counsel
on either side of it. Nothing belonging to the case has been
left undecided, nor has any point been discussed and deckled
which was not called for by the record, or which was not
necessary for the judicial disposition of it, in the way that it
has been done, by more than a majority of the court.
In doing this, the court neither sought nor made the case.
It was brought to us in the course of that administration of
the laws which Congress has enacted, for the review of cases
from the Circuit Courts by the Supreme Court.
In our action upon it, we have only discharged our duty as
a distinct and efficient department of the Government, as tbe
framers of the Constitution meant the judiciary to be, and as
the States of the Union and the people of those States intended
it should be, when they ratified the Constitution of the United
States.
The case involves private rights of value, and constitutional
principles of the highest importance, about which there had
DECEMBER TERM, 1856.
455
Dred Scott v. Sandford. [Mb. Justice Wayne.
become such a difference of opinion, that the peace and
harmony of the country required the settlement of them by
judicial decision.
It would certainly be a subject of regret, that the conclusions
of the court have not been assented to by all of its members,
if I did not know from, its history and my own experience
how rarely it has happened that the judges have been unani¬
mous upon constitutional questions of moment, and if our
decision in this case had not been made by as large a majority
of them as has been usually had on constitutional questions
of importance.
Two of the judges, Mr. Justices McLean and Curtis, dissent
from the opinion of the court. A third, Mr. Justice Nelson,
gives a separate opinion upon a single }5odnt in the case,
with which I concur, assuming that the Circuit Court had
jurisdiction; but he abstains altogether from expressing any
opinion upon the eighth section of the act of 1820, known
commonly as the Missouri Compromise law, and six of us
declare that it was unconstitutional.
But it has been assumed, that this court has acted extra-judi¬
cial ly in giving an opinion upon the eighth section of the act of
1820, because, as it has decided that the Circuit Court had no
jurisdiction of the case, this court had no jurisdiction to ex¬
amine the case upon its merits.
But the error of such an assertion has arisen in part from a
misapprehension of what has been heretofore decided by the,
Supreme Court, in cases of a like kind with that before us; in
part, from a misapplication to the Circuit Courts of the United
States, of the rules of pleading concerning pleas to the juris¬
diction which prevail in common-law courts; and from its having
been forgotten that this case was not brought to this court by
appeal or writ of error from a State court, but by a writ of error
to the Circuit Court of the United States.
The cases cited by the Chief Justice to show that this court
has now only done what it has repeatedly done before in other
cases, without any question of its cofrectness,. speak for them¬
selves. The differences between the rules concerning pleas to
the jurisdiction in the courts of the United States and common-
law courts have been stated and sustained by reasoning and
adjudged cases; and it has been shown that writs of error to a
State court and to the Circuit Courts of the United States are
to be determined by different laws and principles. In the first,
it is our duty to ascertain if this court has jurisdiction, under
the twenty-fifth section of the judiciary act, to review the case
from the State court; and if it shall be found that it has not, the
case is at end, so far as this court is concerned; for our power
456
SUPREME COURT.
Mb. Justice Wayne.] Bred Scott v. Sandford.
to review the case upon its merits has been made, by the twen¬
ty-fifth section, to depend upon its having jurisdiction; when
it has not, this court cannot criticise, controvert, or give any
opinion upon the merits of a case from a State court.
But in a case brought, to this court, by appeal or by writ of
error from a Circuit Court of the United States, we begin a review
of it, not by inquiring if this court has jurisdiction, but if that court
has it. If the case has been decided by that court upon its
merits, but the record shows it to be deficient in those aver¬
ments which by the law of the United States must be made by
the plaintiff in the action, to give the court jurisdiction of his
case, we send it back to the court from which it was brought,
with directions to be dismissed, though it has been decided
there upon its merits.
So, in a case containing the averments by the plaintiff which
are necessary to give the Circuit Court jurisdiction, if the de¬
fendant shall file his plea in abatement denying the truth of
them, and the plaintiff shall demur to it, and the court should
erroneously sustain the 'plaintiff's demurrer, or declare the plea to be
insufficient, and by doing so require the defendant to answer over by
a plea to the merits, and shall decide the case upon such pleading,
this court has the same authority to inquire into the jurisdiction
of that court to do so, and to correct its error in that regard,
that it had in the other case to correct its error, in trying a
case in which the plaintiff had not made those averments which
were necessary to give the court jurisdiction. In both cases
the record is resorted to, to determine the point of jurisdiction;
but, as the power of review of cases from a Federal court, by
this court, is not limited by the law to a part of the case, this
court may correct an error upon the merits; and there is the
same reason for correcting an erroneous judgment of the Cir¬
cuit Court, where the want of jurisdiction appears from any
part of the record, that there is for declaring a want of juris¬
diction for a want of "necessary averments. Any attempt to
control the court from doing so by the technical common-law
rules of pleading in case^ of jurisdiction, when a defendant has
been denied his plea to it, would tend to enlarge the jurisdiction
of the Circuit Court, by limiting this court's review of its judg¬
ments in that particular. But I will not argue a point already
so fully discussed. I have every confidence in the opinion of
the court upon the point of jurisdiction, and do not allow my¬
self to doubt that the error of a contrary conclusion will be
fully understood by all who shall read the argument of the
Chief Justice.
I have already said that the opinion of the court has my
unqualified assent.
DECEMBER TERM, 1856.
45T
Dred Scott v. Sandford. [Mb. Justice Nelsobt.
Mr. Justice HELSObT.
I sliall proceed to state tlie grounds upon which I have
arrived at the conclusion, that the judgment of the court below
should he affirmed. The suit was brought in the court below
by the plaintiff, for the purpose of asserting his freedom, and
that of Harriet, his wife, and two children.
The defendant plead, in abatement to the suit, that the
cause of action, if any, accrued to the plaintiff out of the
jurisdiction of the court, and exclusively within the jurisdic¬
tion of the courts of the State of Missouri; for, that the said
plaintiff is not a citizen of the State of Missouri, as alleged in
the declaration, because he i^s a negro of African descent; his
ancestors were of pure African blood, and were brought into
this country and sold as negro slaves.
To this plea the plaintiff demurred, and the defendant joined
in demurrer. The court below sustained the demurrer, hold¬
ing that the plea was insufficient in law to abate the suit.
The defendant then plead over in bar of the action:
1. The general issue. 2. That the plaintiff was a negro
slave, the lawful property of the defendant. And 3. That
Harriet, the wife of said plaintiff, and the two children, were
the lawful slaves of the said defendant. Issue was taken upon
these pleas, and the cause went down to trial before the court
and jury, and an agreed state of facts was presented, upon
which the trial proceeded, and resulted in a verdict for the
defendant, under the instructions of the court.
The facts agreed upon were substantially as follows:
That in the year 1834, the plaintiff, Scott, was a negro slave
of Dr. Emerson, who was a surgeon in the army of the United
States; and in that year he took the plaintiff from the State
of Missouri to the military post at Rock Island, in the State of
Hlinois, and held him there as a slave until the month of April
or May, 1836. At this date, Dr. Emerson removed, with the
plaintiff, from the Rock Island post to the military post at
Fort Snelling, situate on the west bank of the Mississippi
river, in the Territory of Upper Louisiana, and north of the lat¬
itude thirty-six degrees thirty minute's, and north of the State
of Missouri. That he held the plaintiff in slavery, at Fort
Snelling, from the last-mentioned date until the year 1838.
That in the year 1835, Harriet, mentioned in the declaration,
was a negro slave of Major Taliaferro, who belonged to the
army of the United States; and in. that year he took her to
Fort Snelling, already mentioned, and kept her there as a slave
until the year 1836, and then sold and delivered her to Dr.
Emerson, who held her in slavery, at Fort Snelling, until the
year 1838. That in the year 1836, the plaintiff and Harriet
458
SUPREME COURT.
Mb. Justice Nelson.] Dred Scott v. Sand/ord.
were married, at Fort Snelling, with, the consent of their
master. The two children, Eliza and Lizzie, are the fruit of
this marriage. The 'first is about fourteen years of age, and
was born on board the steamboat Gipsey, north of the State
of Missouri, and upon the Mississippi river; the other, about
seven years of age, was born in the State of Missouri, at the
military post called Jefferson Barracks.
In 1888, Dr. Emerson removed the plaintiff, Harriet, and
their daughter Eliza, from Fort Snelling to the State of
Missouri, where they have ever since resided. -And that,
before the commencement of this suit, they were sold by the
Doctor to Sandford, the defendant, who has claimed and held
them as slaves ever since.
The agreed case also states that the plaintiff brought a suit
for his freedom, in the Circuit Court of the State of Missouri,
on which a judgment was rendered in his favor; but that, on
a writ of error from the Supreme Court of the State, the
judgment of the court below was reversed, and the cause
remanded to the circuit for a new trial.
On Closing the testimony in the court below, the counsel
for the plaintiff prayed the court to instruct the jury, upon the
agreed state of facts, that they ought to find for the plaintiff;
when the court refused, and instructed them that, upon the
facts, the law was with the defendant.
With respect to the plea in abatement, which went to the
citizenship of the plaintiff,1 and his competency to bring a suit
in the Federal courts, the common-law rule of pleading is, that
upon a judgment against the plea on demurrer, and that the
defendant answer over, and the defendant submits to the
judgment, and pleads over to the merits, the plea in abate¬
ment is deemed to be waived, and is not afterwards to he
regarded as a part of the record in deciding upon the rights
of the parties. There is some question, however, whether this
rule of pleading applies to the peculiar system and jurisdiction
of the Federal courts. As, in these courts, if the facts appear¬
ing on the record show that the Circuit Court had no jurisdic¬
tion, its judgment will be reversed in the appellate court for
that cause, and the case remanded with directions to he
dismissed.
In the view we have taken of the case, it will not he
necessary to pass upon this question, and we shall therefore
proceed at once to an examination of the case upon its merits.
The question upon the merits, in general terms, is, whether or
not the removal of the plaintiff, who was a slave, with his
master, from the State of Missouri to the State of Illinois, with
a view to a temporary residence, and after such residence %id
DECEMBER TERM, 1856.
459
JDred Scott v. Sandford. [Me. Justice Nelson.
1
return to tlie slave State, such residence in the free State
works an emancipation.
As appears from an agreed statement of facts, this question
has been before the highest court of the State of Missouri, and
a judgment rendered that this residence in the free State has
no such effect; but, on the contrary, that his original condition
continued unchanged.
The court below, the Circuit Court of the United States for
Missouri, in which this suit was afterwards brought, followed
the decision of the State court, and rendered a like judgment
against the plaintiff.
The argument against these decisions is, that the laws, of Illi¬
nois, forbidding slavery within her territory, had the effect to
set the slave free while residing in that State, and to impress
upon him the condition and status of a freeman; and that, by
force of these laws, this status and condition accompanied him
on his return to the slave State, and of consequence he could
not be there held as a slave.
This question has been examined in the courts of several of
the slaveholding States, and different opinions expressed and
conclusions arrived at. "We shall hereafter refer to some of
them, and to the principles upon which they are founded,
Our opinion is, that the question is one which belongs to each
State' to decide for itself, either by its Legislature or courts of
justice; and hence, in respect to" the case before us, to the
State of Missouri—a question exclusively of Missouri law, and
which, when determined by that State, it is the duty of the
Federal courts to follow it. In other words, except in cases
where the power is restrained by the Constitution of the Uni¬
ted States, the law of the State is supreme over the subject of
slavery within its jurisdiction.
As a practical illustration of the principle, we may refer to
the legislation of the free States in abolishing slavery, and pro¬
hibiting its introduction into their territories. Confessedly,
except as restrained by the Federal Constitution, they exer¬
cised, and rightfully, complete and absolute power over the
subject. Upon what principle, then, can it be denied to the
State of Missouri ? The power flows from the sovereign char¬
acter of the States of this Union; sovereign, not merely as
respects the Federal Government—except as they have con¬
sented to its limitation—but sovereign as respects each other.
Whether, therefore, the State of Missouri will recognise or
give effect to the laws of Illinois within her territories on the
subject of slavery, is a question for her to determine. hTor is
there any constitutional power in this Government that can
rightfully control her.
460
SUPREME COURT.
Mr. Justice Nelson.] Dred Scott v. Sandford.
Every State or nation possesses an exclusive sovereignty and
jurisdiction within her own territory; and, her laws affect and
bind all property and persons residing within it. It may regu¬
late the manner and circumstances under which property is
held, and the condition, capacity, and state, of all persons
therein; and, also, the remedy and modes of administering
justice. And it is equally true, that no State or nation can
affect or bind property out of its territory, or persons not re¬
siding within it. No State, therefore, can enact laws to ope¬
rate beyond its own dominions, and, if it attempts to do so, it
maybe lawfully refused obedience. Such laws can have no
inherent authority extra-territorially. This is the necessary
result' of the independence of distinct and separate sovereign¬
ties.
Now, it follows from these principles, that whatever force or
effect the laws of one State or nation may have' in the territo¬
ries of another, must depend solely upon the laws and munici¬
pal regulations of the latter, upon its own jurisprudence and
polity, and upon its own express or tacit consent.
Judge Story observes, in his Conflict of Laws, (p. 24,) "that
a State may prohibit the operation of all foreign law's, and the
rights growing out of them, within its territories." "And that
when its code, speaks positively on the subject, it must be
obeyed by all persons who are within reach of its sovereignty;
when its customary unwritten or common law speaks directly
on the subject, it is equally to be obeyed." n »
Nations, from convenience and comity, and from mutual in¬
terest, and a sort of moral necessity to do justice, recognise
and administer the laws of other countries. Rut, of the nature,
extent, and utility, of them, respecting property, or the state
and condition of persons within her territories, each nation
judges for itself; and is never bound, even upon the ground
of comity, to recognise them, if prejudicial to her own interests.
The recognition is purely from comity, and not from any abso¬
lute or paramount obligation.
Judge Story again observes, (398,) "that the true foundation
and extent of the obligation of the laws of one nation within
another is the voluntary consent of the latter, and is inadmis¬
sible when they are contrary to its known interests." And he
adds, "in the silence of any positive rule affirming or denying
or restraining the operation of the foreign laws, courts of
justice presume the tacit adoption of them by their own
Government, unless they are repugnant to its policy or preju¬
dicial to its interests." (See also 2 Kent Com., p. 457; 13
Peters, 519, 589.)
These principles fully establish, that it belongs to the sover-
DECEMBER TERM, 1856.
461
Dred Scott v. Sandford. [Mr. Justice Nelson.
eign State of Missouri to determine by ber laws the question,
of slavery within her jurisdiction, subject only to such limita¬
tions as may be found in the Federal Constitution; and,
further, that the laws of other States of the Confederacy,
whether enacted by their Legislatures or expounded by their
courts, can have no operation within her territory, or affect
rights growing out of her own laws on the subject. This ip
the necessary result of the independent and sovereign character
of the State. The principle is not peculiar to the State of
Missouri, but is equally applicable to each State belonging to
the Confederacy. The laws of each have no extra-territorial
operation within the jurisdiction of another, except such as
may be voluntarily conceded by her laws or courts of justice.
To the extent of such concession upon the rule of comity of
nations, the foreign law may operate, as it then becomes a part
of the municipal law of the State. When determined that the
foreign law shall have effect, the municipal law of the State
retires, and gives place to the foreign law.
In view of these principles, let us examine a little more
closely the doctrine of those who maintain that the law of
Missouri is not to govern the status and condition of the
plaintiff. They insist that the removal and temporary resi¬
dence with his master in Illinois, where slavery is inhibited,
had the effect to set him free, and that the same effect is to be
given to the law of Illinois, within the State of Missouri, after
his return. Why was he set free in Illinois? Because the
law of Missouri, under which he was held as a slave, had no
operation by its own force, extra-territorially; and the State of
Illinois refused to recognise its effect within her limits, upon
principles of comity, as a state of slavery was inconsistent
with her laws, and contrary to her policy. But, how is the
case different on the return of the plaintiff to the State of
(Missouri ? Is she bound to recognise and enforce the law of
Illinois ? For, unless she is, the status and condition of the
slave upon his return remains the same as originally existed.
Has the law of Illinois any greater force within the jurisdiction
of Missouri, than the laws of the latter within that of the
former? Certainly not. They stand upon an equal footing.
Heither has any force extra-territorially, except what may be
voluntarily conceded to them. -
It has been supposed, by the counsel for the plaintiff', that a
rule laid down by Iluberus had some bearing upon this ques¬
tion. Iluberus observes that "personal qualities, impressed
by the laws of any place, surround and accompany the person
wherever he goes, with this effect: that in every place he en¬
joys and is subject to tlip same law which other persons of his,
SUPREME COURT.
462
Mr, Justice Nelson.] Drcd Scott v. Sandford.
class elsewhere enjoy or are subject to." (De Confl. Leg., lib.
1, tit. 3, sec. 12; 4 Dallas, 375 n.; 1 Story Con. Laws, pp. 59,
6°.)
The application sought to be given to the rule was this: that
as Dred Scott was free while residing in the State of Illinois,
by the laws of that State, on his return to the State of Mis¬
souri he carried with him the personal qualities of freedom,
and that the same effect must be given to his status there as
in the former State. But the difficulty in the case is in the
total misapplication of the rule.
These personal qualities, to which Huberus refers, are those
impressed upon the individual by the law of the domicil; it is
this that the author claims should be permitted to accompany
the person into whatever country he might go, and should su¬
persede the law of the place where he had taken up a tempo¬
rary residence.
Now, as the domicil of Scott was in the State of Missouri,
where he was a slave, and from whence he was taken by his
master into Illinois for a temporary residence, according to
the doctrine of Huberus, the law of his domicil would have
accompanied him, and during his residence there he would
remain in the same condition as in the State of Missouri. In
order to have given effect to the rule, as claimed in the argu¬
ment, it should have been first shown that a domicil had been
acquired in the free State, which cannot be pretended upon
the agreed facts in the case. But the true answer to the doc¬
trine of Huberus is, that the rule, in any aspect in which it
may be viewed, has no bearing upon either side of the ques¬
tion before us, even if conceded to the extent laid down by the
author; for he' admits that foreign Governments give effect to
these laws of the domicil no further than they are consistent
with their owp. laws, and not prejudicial to their own subjects;
in other words, their force and effect depend upon the law of (
comity of the foreign Government. We should add, also, that
this general rule of Huberus, referred to, has not been admit¬
ted in the practice of nations, nor is it sanctioned by the most
approved jurists of international law. (Story Con., sec. 91, 9G,
103, 104; 2 Kent. Com., p. 457, 458 f 1 Burge Con. Laws, pp.
12, 127.)
We come now to the decision of this court in the case of
Strader et al. v. Graham, (10 How., p. 2.) The case came up
from the Court of Appeals, in the State of Kentucky. The
question in the case was, whether certain slaves of Graham, a
resident of Kentucky, who had been employed temporarily at
several places in the State of Ohio, with their master's consent,
and had returned to Kentucky into his service, had thereby
DECEMBER TERM, 1856.
468
Dred Scott y. Sandford. [Mr. Justice Nelson.
become Entitled to their freedom. The Court of Appeals held
that they had not. The case was brought to this court under
the twenty-fifth section of the judiciary act. This court held
that it had no jurisdiction, for the reason, the question was one
that belonged exclusively to the State of Kentucky. The
Chief Justice, in delivering the opinion of the court, observed
that "every State has an undoubted right to determihe the
status or domestic and social condition of the persons domi¬
ciled within its territory, except in so far as the powers of the
States in this respect are restrained, or duties and obligations
imposed upon them, by the Constitution of the United States.
There is nothing in the Constitution of the United States, he
observes, that can in any degree control, the law of Kentucky
upon this subject. And the condition of the negroes, there¬
fore, as to freedom or slavery, after their return, depended
•altogether upon the laws of that State, and could not be influ¬
enced by the laws of Ohio. It was exclusively in the power
of Kentucky to determine, for herself, whether their employ¬
ment in another State should or should not make them free
on their return."
It has been supposed, in the argument on the part of the
plaintiff, that the eighth section of the act of Congress passed
March 6,1820, (8 St. at Large, p. 544,) which prohibited slavery
north of thirty-six degrees thirty miutes, within which the
plaintiff and his wife temporarily resided at Fort Snelling,
possessed some superior virtue and effect,. extra-territorially,
and within the State of Missouri, beyond that of the laws of
Illinois, or those of Ohio in the case of Strader et al. v. Gra¬
ham. A similar ground was taken and urged upon the court
in the case just mentioned, under the ordinance of 1787, which
was enacted during the time of the Confederation, and re-
enacteff by Congress after the adoption of the Constitution,
with some amendments adapting it to the new Government.
(1 St. at Large, p. 50.)
In answer to this ground, the Chief Justice, in delivering
the opinion of the court, observed: "The argument assumes
that the six articles which that ordinance declares to be per¬
petual, are still in force in the States since formed within the
territory, and admitted into the Union. If this proposition
could he maintained, it would not alter the question; for the
regulations of Congress, under the old Confederation or the
present Constitution, for the government of a particular Terri¬
tory, could have no force beyond its. limits. It certainly could
not restrict the power of the States, within their respective
territories, nor in any manner interfere with their laws and
institutions, nor give this court control over them.
464
SUPREME COURT.
Mb. Justictb Nelson.] Dred Scott v. Sandford.
"The ordinance in question, he observes, if still in force,
could have, no more operation than the laws of Ohio in the
State of Kentucky, and could not influence the decision upon
-the rights of the master or the slaves in that State."
This view, thus authoritatively declared, furnishes a conclu¬
sive answer to the distinction attempted to he set up between
the extra-territorial effect of a State law and the act of Congress
in question.
It must he admitted that Congress possesses no power to
regulate or abolish slavery within the States; and that, if tliis
act had attempted any such legislation, it would have been a
nullity. And yet the argument here, if there he any force in
it, leads to the result, that effect may he given to such legisla¬
tion; for it is only by giving the act of Congress operation
within the State of Missouri, that it can have any effect upon
the question between the parties. Having no such effect di¬
rectly, it will be difficult to maintain, upon any consistent
reasoning, that it can be made to operate indirectly upon the
stibject.
The argument, we think, in any aspect in which it maybe
viewed, is utterly destitute of support upon any principles of
constitutional law, as, according to that, Congress has no pow¬
er whatever over the subject of slavery within the State; and
is also subversive of the established doctrine of international
jurisprudence, as, according to that, it is an axiom that the
laws of one Government have no force within the limits of
another, or extra-territorially, except from the consent of the
latter.
It is perhaps not unfit to notice, in this connection, that many
of the most eminent statesmen and jurists of the country enter¬
tain the opinion that this provision of the act of Congress, even
within the territory to which it relates, was not authorized by
any power under the Constitution. The doctrine here con¬
tended for, not only upholds its validity in the territory, but
claims for it effect beyond and within the limits of a sovereign
State—an effect, as 'insisted, that displaces the laws of the
State, and substitutes its own provisions in their place.
The consequences of any such construction are apparent.
If Congress possesses the power, under the Constitution, to
abolish slavery in a Territory, it must necessarily possess the
like power to establish it. It cannot be a one-sided power, as
may suit the convenience or- particular views of the advocates.
It is a power, if it exists at all, over the whole subject; and
then, upon the process of reasoning which seeks to extend its
influence beyond the Territory, and within the limits of a State,
if Congress should establish, instead of abolish, slaveiy, we do
DECEMBER TERM, 1856.
465
Dred Scott v. Sandford. [Mb. Justice Nelson.
not see but that, if a slave should be removed from tbe Terri¬
tory into a free State, bis status would accompany him, and
continue, notwithstanding its laws against slavery. The laws
of the free State, according to the argument, would be displa¬
ced, and the act of Congress, in its effect, be substituted in
their place. We do not see how this conclusion could be
avoided, if the construction against which we are contending
should .prevail. We are satisfied, however, it is unsound, and
that the true answer to it is, that even conceding, for the pur¬
poses of the argument, that this provision of the act of Con¬
gress is valid within the Territory for which it was enacted, it
can have no operation or effect beyond its limits, or within the
jurisdiction of a State. It can neither displace its laws, nor
change the status or condition of its inhabitants.
Our conclusion, therefore, is, upon this branch of the case,
that the question involved is one depending solely upon the
law of Missouri, and that the Federal court sitting in the State,
and trying the case before us, was bound to follow it.
The remaining question for consideration is, What is the
law of the State of Missouri on this subject? And it would
be a sufficient answer to refer to the judgment of the highest
court of the State in the very case, were it not due to that
tribunal to state somewhat at large the course of decision and
the principles involved, on account of some diversity of opinion
in the cases. , As bave already stated, this case was
originally brought in the Circy.it Court of the State, which
resulted in a judgment for the plaintiff. The case was carried
up to the Supreme Court for revision. That court reversed
the judgment below, and remanded the cause to the circuit,
for a new trial. In that state of the proceeding, a new suit
was brought by the plaintiff in the Circuit Court of the United
States, and tried upon the issues and agreed case before us,
and a verdict and judgment for the defendant, that court
following the decision of the Supreme Court of the State.
The judgment of the Supreme Court is reported in the 15
Misso. R., p. 576. The court placed the decision upon the
temporary residence of the master with the slaves in the State
and Territory to which they removed, and their return to the
slave State; and upon the principles of international law, that
foreign laws have no extra-territorial force, except such as the
State within which they are sought to be enforced may see fit
to extend to them, upon the doctrine of comity of nations.
This is the substance of the grounds of the decision.
The same question has been twice before that court since,
and the same judgment given, (15 Misso. R., 595; 17 lb., 434.)
It must be admitted, therefore, as the settled law of the State,
466
SUPREME COURT.
Mr. Justice Nelson.] Dred Scott v. Sand/ord.
and, according to the decision in the case of Strader et al. v.
Graham, is conclusive of the case in this court.
It is said, however, that the previous cases and course of
decision in the State of Missouri on this subject were different,
and that the courts had held the slave to he free on his return
from a temporary residence in the free State. We do not see,
were this to be admitted, that the circumstance would show
that the settled course of decision, at the time this case was
tried in the court below, was not to be considered the law of
the State. Certainly, it must be, unless the first decision of a
principle of law by a State court is to be permanent and
irrevocable. The idea seems to be, that the courts of a State
are not to change their opinions, or, if they do, the first
decision is to be regarded by this court as the law of the State.
It is certain, if this be so, in the case before us, it is an
exception to the rule governing this court in all other cases.
But what court has not changed its opinions ? What judge
has not changed his ?
Waiving, however, this view, and turning to the decisions
of the courts of Missouri, it will be found that there is no
discrepancy between the earlier and the present cases upon
this subject. There are some eight of them reported previous
to the decision in the case before us, which was decided in
1852. The last of the earlier cases was decided in 1836. In
each one of these, with two exceptions, ^he master or mistress
removed into the free State with the slave, with a view to a
permanent residence—in other words, to make that his or her
domicil. And in several of the cases, this removal and
permanent residence were relied on, as the ground of the
decision in favor of the plaintiff. All these cases, therefore,
are not necessarily in conflict with the decision in the case
before us, but consistent with it. In one of the two excepted
cases, the master had. hired the slave in the State of Illinois
from 1817 to 1825. In the other, the master was an officer in
the army, and removed with his slave to the military post of
Eort Snelling, and at Prairie du Chien, in Michigan, tempora¬
rily, while acting under the orders of his Government. It is
Conceded the decision in this case was departed from in the
case before us, and in those that have followed it. But it is
to be observed that these subsequent cases are in conformity
with those in all the slave States bordering on the free—in
Kentucky, (2 Marsh., 476; 5 B. Munroe, 176; 9 lb., 505)—
in Virginia, (1 Rand., 15; 1 Leigh, 172; 10 Grattan, 495)—in
Maryland, (4 Harris and McIIenry, 295, 322, 325.) In con¬
formity, also, with the law of England on this subject, Ex parte
Grace, (2 Ilagg. Adm., R., 94,) and with the opinions of the
DECEMBER TERM, 1856.
467
Dred Scott v. Sandford. [Mr. Justice Nelson.
most eminent jurists "of the country. (Story's Confl., 396 a;
2 Kent Com., 258 n.; 18 Pick., 193, Chief Justice Shaw. See
Corresp. between Lord Stowell and Judge Story, 1 vol. Life
of Story, p. 552, 558.)
Lord Stowell, in communicating his opinion in the case of
the slave Grace to Judge Story, states, in his letter, what the
question was before him, namely: "Whether the emancipation
of a slave brought to England insured a complete emancipation
to him on his return to his own country, or whether it only
operated as a suspension of slavery in England, and his
original character devolved on him again upon his return."
He observed, "the question had never been examined since
an end was put to slavery fifty years ago," having reference
to the decision of Lord Mansfield in the case of Somersett;
but the practice, he observed, "has regularly been, that on his
return to his own country, the slave resumed his original
character of slave." And so Lord Stowell held in the case.'
Judge Story, in his letter in reply, observes: " I have read with
great attention your judgment in the slave case, &c. Upon
the fullest consideration which I have been - able to give the
subject, I entirely concur in your views. If I had been called
upon to pronounce a judgment in a like case, I should have
certainly arrived at the same result." Again he observes: "In
my native State, (Massachusetts,) the state of slavery is not
recognised as legal; and yet, if a slave should come hither,
and afterwards return to his own home, we should certainly
think that the local law attached upon him, and that his ser¬
vile character Would be redintegrated,"
We may remark, in this connection, that the case before the
Maryland court, already referred to, and which was decided in
1799, presented the same question as that before Lord Stowell,
and received a similar decision. This was nearly thirty years
before the decision in that case, which was in 1828. The Court
of Appeals observed, in deciding the. Maryland case, that
"however the laws of Great Britain in such instances, operas
ting upon such persons there, might interfere so as to prevent
the exercise of certain acts by the masters, not permitted, as in
the case of Somersett, yet, upon the bringing Ann Joice into
this State, (then the province of Maryland,) the relation of
master and slave continued in its extent, as authorized by the
laws of this State." And Luther Martin, one of the counsel
in that case, stated, on the argument, that the question had
been previously decided the same way in the case of slaves re¬
turning from a residence in Pennsylvania, where they had be¬
come free under her laws.
The State of Louisiana, whose courts had gone further in
468
SUPREME COURT.
Mil. Justice Nelson.] Dred Scott v. Sandford.
holding the slave free on his return from a residence in a
free State than the courts of her sister States, has settled the
law, by an act of her Legislature, in conformity with the
law of the court of Missouri in the case before us. (Sess. Law,
1846.)
The case before Lord Stowell presented much stronger fear
tures for giving effect to the law of England in the case of the
slave Grace than exists in the cases that have arisen in this
country, for in that case the slave returned to a colony of Eng¬
land over which the Imperial Government exercised supreme
authority. Yet, on the return of the slave to the colony, from
a temporary residence ih England, he held that the original
condition of the slave attached. The question presented in
cases arising here is as to the effect and operation to be given
to the laws of a foreign State, on the return of the slave within
an independent sovereignty.
Upon the whole, it must be admitted that the current of au¬
thority, both in England and in this country, is in accordance
with the law as declared by the courts of Missouri in the case
before us, and we think the court below was not only right,
but bound to folkiw it.
Some question has been made as to the character of the resi¬
dence in this case in the free State. But we regard the facts
as set forth in the agreed case as decisive. The removal of Dr.
Emerson from Missouri to the military posts was in the dis¬
charge of his duties as surgeon in the army, and under the
orders of his Government. He was liable at any moment to
be recalled,1 as he was in 1888, and ordered to another post.
The same is also true as it respects Major Taliaferro. In such
a case, the officer goes to his post for a temporary purpose, to
remain there for an uncertain time, and not for the purpose of
fixing his permanent abode. The question we think too plain
to require argument. The case of the Attorney General v.
Rapier, (6 "Welsh, Hurtst. and Gordon Exch. Rep., 217,) illus¬
trates and applies the principle in the case of an officer of the
English army.
A question has been alluded to, on the argument, namely:
the right of the master with his slave of transit into or through
a free State, on business or commercial pursuits, or in the ex¬
ercise of a Federal right, or the discharge of a Eederal duty,
being a citizen of the United States, which is not before us.
This question depends upon different considerations and prin¬
ciples from the one in. hand, and turns upon the rights and
privileges secured to a common citizen of the republic under
the Constitution of the United States. When that question
arises, we shall be prepared to decide iff
DECEMBER TERM, 1856.
469
Bred Scott v. Sctndford. [Me. Justice Grieb.
Our conclusion is, that the judgment of the court below
should he affirmed.
Mr. Justice GRIER.
I concur in the opinion delivered by Mr. Justice Nelson on '
the questions discussed by him.
I also concur with the opinion of the court as delivered by
the Chief Justice, that the act of Congress of 6th March, 1820,
is unconstitutional and void; and that, assuming the facts as
stated in the opinion, the plaintiff cannot sue as a citizen of
Missouri in the courts of the United States. But, that the
record shows a prima facie case of jurisdiction, requiring the
court to decide all the questions properly arising in it; and as
the decision of the pleas in bar shows that the plaintiff is a
slave, and therefore not entitled to sue in a court of the Uni¬
ted States, the form of the judgment is of little importance;
for, whether the judgment be affirmed or dismissed for want
of jurisdiction, it is justified by the decision, of the court, and
is the same in effect between the parties to the suit.
Mr. Justice DANIEL.
It may with truth be affirmed, that since the establishment
of the several communities now constituting the States of this
Confederacy, there never has been submitted to any tribunal
within its limits questions surpassing in importance those now
claiming the consideration of this court. Indeed it is difficult
to imagine, in connection with the systems of polity peculiar1
,to the United States, a conjuncture of graver import than that
must be, within which it is aimed to comprise, and to control,
not only the faculties and practical operation appropriate to
the American Confederacy as such, but also the rights and
powers of its separate and independent members, with refer¬
ence alike to their internal and domestic authority and inter¬
ests, and the relations they sustain to their confederates.
To my rpind it is evident, that nothing less than the ambi¬
tious and far-reaching pretension to compass these objects of
vital concern, is either directly essayed or necessarily implied
in the positions attempted in the argument for the plaintiff in
error.
IIow far these positions have any foundation in the nature
of the rights and relations of separate, equal, and independent
Governments, or in the provisions of our own Federal compact,
or the laws enacted under and in pursuance of the authority
of that compact, will be presently investigated.
In order correctly to comprehend the tendency and force of
those positions, it is proper here succinctly to advert to the
6
470
SUPEEME COTJET.
Mr. Justice Daniel.] Dred Scott v. Sandford.
facts upon which the questions of law propounded in the argu¬
ment have arisen.
This was aq action of trespass vi et armis, instituted in the
Circuit Court of the United States for the district of Missouri,
in the name of the plaintiff in error, a negro held as a slave, for
the recovery of freedom for himself, his wife, and two children,
also negroes.
To the declaration in this case the defendant below, who is
also the defendant in error, pleaded in abatement that the
court could not take cognizance of the cause, because the
plaintiff was not a citizen of the State of Missouri, as averred
in the declaration, hut was a negro of African descent, and that
his ancestors were of pure African blood, and were brought
into this country and sold as negro slaves; and hence it follow¬
ed, from the second section of the third article of the Consti¬
tution, which creates the judicial power of the United States,
with respect to controversies between citizens of different
States, that the Circuit Court could not take cognizance of the
action.
To this plea in abatement, a demurrer having been inter¬
posed on behalf of the plaintiff, it was sustained by the court.
After the decision sustaining the demurrer, the defendant, in
pursuance of a previous agreement between counsel, and with
the leave of the.court, pleaded in bar of the action: 1st, rot
guilty; Idly, that the plaintiff was a negro slave, the lawful property
of the defendant, and as such the defendant gently laid his hauls
upon him, and thereby had only restrained him, as the defendant had
a right to do; odly, that with respect to the wife and daughters of Ik
plaintiff, in the second and third counts of the declaration mentioned,
the defendant had, as to them., only acted in the same manner, and
in virtue of the same legal right.
Issues having been joined upon the above pleas in bar, the
following statement, comprising all the evidence in the cause,
was agreed upon and signed by the counsel of the respective
parties, viz:
"In the year 1834, the plaintiff was a negro slave belonging
to Doctor Emerson, who was a surgeon in the army of the Uni¬
ted States. In that year, 1834, said Dr. Emerson took the
plaintiff from the State of Missouri to the military post at
Eock 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 Eock Island to the military post at Eort Snel-
ling, 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-sis
DECEMBER TERM, 1856.
471
Dred Scott v. Sandford. [Me. Justice DanieIi.
degrees thirty minutes north, and north of the State of Mis¬
souri. 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 herein¬
before stated, and kept her there as a slave until the year 1836,
and then sold and delivered her as a slave at said Fort Snel¬
ling 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 horn
on hoard the steamboat Gipsey, north of the north line of the
State of Missouri, and upon the river Mississippi. Lizzie is
about seven years old, and was born in the State of Missouri,
at a military post called Jefferson barracks.
"In the year 1838, said Dr. Emerson removed the plaintiff 1
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. 1
"Further proof may be given on the trial for either party.
"R. M. Field, for Plaintiff.
"H. A. Garland, for Defendant.
"It is agreed that Dred Scott brought suit for his freedom
in the Circuit Court of St. Louis county; that there was a ver¬
dict and judgment in his favor; that on a writ of error to the
Supreme Court, the judgment below was reversed, and the
472
SUPREME COURT.
Mr. Justice Daniel.] Dred Scott v. Sandford.
cause remanded to the Circuit Court, where it has been con¬
tinued to await the decision of this case.
"Field, for Plaintiff.
"Garland, for Defendant"
i
Upop. the aforegoing agreed facts, the plaintiff prayed the
court to instruct the jury that they ought to find for the plain¬
tiff, and upon the refusal of the instruction thus prayed for,
the plaintiff excepted to the court's opinion. The court then,
upon the prayer of the defendant, instructed the jury, that
upon the facts of this case agreed as above, the law was with
the defendant. To this opinion, also, the plaintiff's counsel
excepted, as he did to the opinion of the court denying to the
plaintiff a new trial after the verdict of the jury in favor of the
defendant.
The question first in order presented by the record in this
cause, is that which arises upon the plea in abatement, and the
demurrer to that plea; and upon this question it is my opin¬
ion that the demurrer should have been overruled, and the plea
sustained.
On behalf of the plaintiff it has been urged, that by the pleas
interposed in bar of a recovery in the court below, (which pleas
both in fact and in law are essentially the same with the ob¬
jections averred in abatement,) the defence in abatement has
been displaced or waived; that it could therefore no longer he
relied on in the Circuit Court, and cannot claim the consider¬
ation of this court in reviewing this cause. This position is
regarded as wholly untenable. On the contrary, it would seem
to follow conclusively from the peculiar character of the courts
of the United States, as organized under the Constitution and
the statutes, and as defined by numerous and unvarying adju¬
dications from this bench, that there is not one of those courts
whose jurisdiction and powers can he deduced from mere cus¬
tom or tradition; not one, whose jurisdiction and powers must
not he traced palpably to, and invested exclusively by, the
Constitution and statutes of the United States; not one that
is not hound, therefore, at all times, and at all stages of its pro¬
ceedings, to look to and to regard the special and declared
extent and hounds of its commission and authority. There is
no such tribunal of the United States as a court of general
jurisdiction, in the sense in which that phrase is applied to the
superior courts under the common law; and even with
respect to the courts existing under that system, it is a well-
settled principle, that consent can never give jurisdiction.
The principles above stated, and the consequences regularly
deducible from them, have, as already remarked, been repeat-
DECEMBER TERM, 1856.
473
Dred Scott v. Sandford. [Mr. Justice Daniel.
edly and unvaryingly propounded from this bench. Beginning
with the earliest decisions of this court, we have the cases of
Bingham v. Cabot et al., (3 Dallas, 382;) Turner v. Eurille,
(4 Dallas, 7;) Abercrombie v. Dupuis et ah, (1 Cranch, 343;)
Wood v. Wagnon, (2 Cranch, 9;) The United States v. The
brig Union et al., (4 Cranch, 216;) Sullivan v. The Fulton
Steamboat Company, (6 Wheaton, 450;) Mollan et al. v.
Torrence, (9 Wheaton, 537;) Brown'z?. Keene, (8 Peters, 112,)
and Jackson v. Ashton, (8 Peters, 148;) ruling, in uniform
and unbroken current, the doctrine that it is essential to the
jurisdiction of the courts of the United States, that the facts
upon which it is founded should appear upon the record.
Kay, to such an extent and so inflexibly has this requisite to
the jurisdiction been enforced, that in the case of Capron v.
Van Noorden, (2 Cranch, 126,) it is declared, that the plaintiff
in this court may assign for error his own omission in the
pleadings in the court below, where they go to the jurisdiction.
This doctrine has been, if possible, more strikingly illustrated
in a later decision, the case of The State of Rhode Island v.
The State of Massachusetts, in the 12th of Peters.
In this case, on page 718 of the volume, this court, with
reference to a motion to dismiss the cause/or want of jurisdiction,
have said: "However late this objection has been made, or may be
made, in any cause in an inferior or appellate court of the United
States, it must be considered and decided before any court can
move one farther step in the cause, as any movement is
necessarily to exercise the jurisdiction. Jurisdiction is the
power to hear and determine the subject-matter in controversy
between the parties to a suit; to adjudicate or exercise any
judicial power over them. The question is, whether on the
case before the court their action is judicial or extra-judicial;
with or without the authority of law to render a judgment or
decree upon the rights of the litigant parties. A motion to dis¬
miss a cause pending in the courts of the United States, is not
analogous to a plea to the jurisdiction of a court of common
law or equity in England; there, the superior courts have a
general jurisdiction over all persons within the realm, and all
causes of action between them. It depends on the subject-
matter, whether the jurisdiction shall be exercised by a court
of law or equity; but that court to which it appropriately
belongs can act judicially upon the party and the subject of
the suit, unless it shall be made apparent to the court that the
judicial determination of the case has been withdrawn from
the court of general jurisdiction to an inferior and limited one.
It is a necessary presumption that the court of general
jurisdiction can act upon the given case, when nothing to the
474
SUPREME COURT.
Mr. Justice Daniel.] Bred Scott v. Sandford.
contrary appears; hence has arisen the rule that the party
claiming an exemption from its process must set out the
reason by a special plea in abatement, and show that some
inferior court of law or equity has the exclusive cognizance of
the case, otherwise the superior court must proceed in virtue
of its general jurisdiction. A motion to dismiss, therefore,
cannot be entertained, as it does not disclose a case of
exception; and if a plea in abatement is put in, it must not
only make out the exception, but point to the particular court
to which the case belongs. There are other classes of cuscs
where the objection to the jurisdiction is of a different nature,
as on a bill in chancery, that the subject-matter is cognizable
only by the Ring in Council, or that the parties defendant
cannot be brought before any municipal court on account of
their sovereign character or the nature of the controversy; or
to the very common cases which present the question, whether
the cause belong to a court of lawjop equity. To such cases,
a plea in abatement would not be applicable, because the
plaintiff could not sue in an inferior court. The objection
goes to a denial of any jurisdiction of a municipal court in the
one class of cases, and to the jurisdiction of any court of
equity or of law in the other, on which last the court decides
according to its discretion.
"An objection to jurisdiction,?on the ground of exemption
from the process of the court in which the suit is brought, or
the manner in which a defendant is brought into it, is waived
by appearance and pleading to issue; but when the objection
goes to the power of the court over the parties or the subject-
matter, the defendant need not, for he cannot, give the plaintiff
a better writ. Where an inferior court can have no jurisdiction
of a case of law or equity,- the ground of objection is not taken
by plea in abatement, as an exception of the given Case from
the otherwise general jurisdiction of the court; ap>pearahce
does not cure the defect of judicial power, and it may be relied
on by plea, answer, demurrer, or at the trial or hearing. As a
denial of jurisdiction over the subject-matter of a suit between
parties within the realm, over which and whom the court has
power to act, cannot be successful in an English court of gen¬
eral jurisdiction, a motion like the present could not be sus¬
tained consistently with the principles of its constitution.
But as this court is one of limited and special original jurisdiction, its
action must be confined to the particular cases, controversies,
and parties, over which the Constitution and laivs have author¬
ized it to act; any proceeding without the limits prescribed is
coram non judice, and its action a nullity. And whether the
want or excess of power is objected by a party, or is apparent
DECEMBER TERM, 1856.
475
Dred Scott v. Sandford. [Mr. Justice Daniel.
to the court, it must surcease its action or proceed extra-judi-
cially."
In the constructing of pleadings either in abatement or in
bar, every fact or position constituting a portion of the public
law, or of known or general history, is necessarily implied.
Such fact or position need not be specially averred and set
forth; it is what the world at large and every individual are
presumed to know—nay, are bound to know and to be gov¬
erned by.
If, on the other hand, there exist facts or circumstances by
which a particular case would be withdrawn or exempted from
the influence of public law or necessary historical knowledge,
such facts and circumstances form an exception to the general
principle, and these must be specially set forth and established
by those who would avail themselves of such exception.
Row, the following are truths which a knowledge of the
history of the world, and particularly of that of our own coun¬
try, compels us to know—that the African negro race never
have been acknowledged as belonging to the family of nations;
that as amongst them there never has been known or recog¬
nised by the inhabitants of other countries anything partaking
of the character of nationality, or civil or political polity; that
this race has been by all the nations of Europe regarded as
subjects of capture or purchase; as subjects of commerce or
traffic; and that the introduction of that race into every section
of this country was not as members of civil or political society,
but as slaves, as property in the strictest sense of the term.
In the plea in abatement, the character or capacity of citizen
on the part of the plaintiff is denied; and the causes which
show the,absence of that character or capacity are set forth by
averment. The verity of those causes, according to the settled
rules of pleading, being admitted by the demurrer, it only re¬
mained for the Circuit Court to decide upon their legal suffi¬
ciency to abate the plaintiff's action. And it now becomes
the province of this court to determine whether the plaintiff
below, (and in error here,) admitted to be a negro of African
descent, whose ancestors were of pure African blood, and were
brought into this country and sold as negro slaves—such being
his status, and such the circumstances surrounding his posi¬
tion—whether he can, by correct legal induction from that
status and those circumstances, be clothed with the character
and capacities of a citizen of the State of Missouri?
It may be assumed as a postulate, that to a slave, as such,
there appertains and can appertain no relation, civil or politi¬
cal, with the State or the Government. He is himself strictly
property, to be used in subserviency to the interests, the con-
4T6
SUPREME COURT.
Mr. Justice Daniel.] Bred Scott v. Sandford.
venience, or the will, of his owner; and to suppose, with respect
to the former, the existence of any privilege or discretion, or
of any obligation to others incompatible with the magisterial
rights just defined, would be by implication, if not direetfy, to
deny the relation of master and slave, since none can possess
and enjoy, as his own, that which another has a paramount
right and power to withhold. Hence it follows, necessarily,
that a slave, the peculium or property of a master, and possess¬
ing within himself no civil nor political rights or capacities,
cannot be a citizen. For who, it may be asked, is a citizen?
What do the character and status of citizen import ? Without
fear of contradiction, it does not import the condition of being
private property, the subject of individual power and own< r-
ship. Upon a principle of etymology alone, the term citizen,
as derived from civitas, conveys the ideas of connection or
identification with the State or Government, and a participa-
' tion of its functions. But beyond this, there is not, it is be¬
lieved, to be found, in the theories of writers on Government,
- or in any actual experiment heretofore tried, an exposition of
the term citizen, which has not been understood as conferring
the actual possession and enjoyment, or the perfect right of
acquisition and enjoyment, of an entire equality of privileges,
civil and political. -
Thus Vattel, in the preliminary chapter to his Treatise on
the Law of Hhtions, says: "^Nations or States are bodies poli¬
tic; societies of men united together for the purpose of pro¬
moting their mutual safety and advantage, by the joint efforts
of their mutual strength. Such a society has her affairs and
her interests; she deliberates and takes resolutions inepmnon;
thus becoming a moral person, who possesses an understand¬
ing and a will peculiar to herself." Again, in the first chap¬
ter of the first book of the Treatise just quoted, the same
writer, after repeating his definition of a State, proceeds to
remark, that, "from the very design that induces a number
of men to form a society, which has its common interests and
which is to act in concert, it is necessary that there should be
established a public authority, to order and direct what is to
be done by each, in relation to the end of the association.
This political authority is the sovereignty." Again this writer
remarks: "The authority of all 6ver each member essentially
belongs to the body politic or the State."
By this same writer it is also said: "The citizens are the
members of the civil society; bound to this society by certain
duties, and subject to its authority; they equally participate in
its advantages. The natives, or natural-born citizens, are
those born in the country, of parents who are citizens. As so-
DECEMBER TERM, 1856.
477
Dred Scott v. Sandford. [Me. Justice Daniel.
cicty cannot perpetuate itself otherwise than by the. children
of the citizens, thosb children naturally follow the condition
of their parents, and succeed to all their rights." Again: "I
say, to be of the country, it is necessary to be born of a person
who is a citizen; for if he be born there of a foreigner, it will
be only the place of his birth, and not his country. The inhab¬
itants, as distinguished from citizens, are foreigners who are
permitted to settle and stay in the country." (Yattel, Book 1,
cap. 19, p. 101.)
Erom the views here expressed, and they seem to be unex¬
ceptionable, it must follow, that with the slave, with one devoid
of rights or capacities, civil or political, there could be no pact;
that one thus situated could be no party to, or actor in, the
association of those possessing free will, power, discretion,
lie could form no part of the design, no constituent ingredient
or portion of a society based upon common, that is, upon- equal
interests and powers. He could not at the same time be the
sovereign and the slave.
But it has been insisted, in argument, that the emancipation
of a slave, effected either by the direct act and assent of the
master, or by causes operating in contravention of his will,
produces a change in the status or capacities of the slave, such
as will transform him from a mere subject of property, into a
being possessing a social, civil, and political equality with a
citizen. In other words, will make him a citizen of the State
within which he was, previously to his emancipation, a slave.
It is difficult to conceive by what magic the mere surcease or
renunciation of an interest in a subject of property, by an indi¬
vidual possessing that interest, can alter the essential character
of that property with respect to persons or communities un¬
connected with such renunciation. Can it be pretended that
an individual in any State, by his single act, though volun¬
tarily or designedly performed, yet without the co-operation
or warrant of the Government, perhaps in opposition to its
policy or its guaranties, can create a citizen of that State?
Much more emphatically may it be asked, how such a result
could be accomplished by means wholly extraneous, and en¬
tirely foreign to the Government of the State ? 'The argument
thus urged must lead to these extraordinary conclusions. It
is regarded at once as wholly untenable, and as unsustained
by the direct authority or by the analogies of history.
The institution of slavery, as it exists and has existed from
the period of its introduction into the United States, though
more humane and mitigated in character than was the same
institution, either under the republic or the empire of Rome,
bears, both in its tenure and in the simplicity incident to the
478
SUPREME COURT.
• Mr. Justice Daniel.] Bred Scott v. Sandford.
mode of its exercise, a closer resemblance to Roman slavery
than it does to tlie condition of villanage, as it formerly existed
in England. Connected with the latter, there were peculiari¬
ties, from custom or positive regulation, which varied it materi¬
ally from the slavery of the Romans, or from slavery at any
period within the United States.
But with regard to slavery amongst the Romans, it is by no
means true that emancipation, either during the republic or
the empire, conferred, by the act itself, or implied, the status or
the rights of citizenship.
The proud title of Roman citizen, with the immunities and
rights incident thereto, and as contradistinguished alike from
the condition of conquered subjects or of the lower grades of
native domestic residents, was maintained throughout the du¬
ration of the republic, and until a late period of the eastern
empire, and at last was in effect destroyed less by an elevation
of the inferior classes"than by the degradation of the free, and
the previous possessors of rights and immunities civil and
political, to the indiscriminate abasement incident to absolute
and simple despotism.
By the learned and elegant historian of, the Decline and Fall
of the Roman Empire, we are told that "In the decline of the
Roman empire, the proud distinctions of the republic were
gradually abolished; and the reason or instinct of Justinian
completed the simple form of an absolute monarchy. The
emperor could not eradicate the popular reverence which
always waits on the possession of hereditary wealth or the
memory of famous ancestors. He delighted to honor with
titles and emoluments his generals, magistrates, and senators,
and his precarious indulgence communicated some rays of
their glory to their wives and children. But in the eye of the
law all Roman citizens were equal, and all subjects of the em¬
pire were citizens of Rome. That inestimable character was
degraded to an obsolete and empty name. The voice of a
Roman could no longer enact his laws, or create the annual
ministers of his powers; his constitutional rights might have
checked the arbitrary will of a master; and the bold adven¬
turer from Germany or Arabia was admitted with equal favor
to the civil and military command which the citizen alone had
been once entitled to assume over the conquests of his fathers.
The first Caesars had scrupulously guarded the distinction of
ingenuous and servile birth, which was decided by the condition
of the mother. The slaves who were liberated by a generous
master immediately entered into the middle class of libertini or
freedmen; but they could never be enfranchised from the du¬
ties of obedience and gratitude; whatever were the fruits of
DECEMBER TERM, 1856.
479
Dred Scott v. Sandford. [Ma. Justice Daniel.
tlicir industry, their patron and his family inherited the third
part, or even the whole of their fortune, if they died without
children and without a testament. Justinian respected the
rights of patrons, hut his indulgence removed the "badge of
disgrace from the two inferior orders of freedmen; whoever
ceased to he a slave, obtained without reserve or delay the sta¬
tion of a citizen; and at length the dignity of an ingenuous
birth was created or supposed by the omnipotence of the empe¬
ror."*
The above account of slavery and its modifications will he
found in strictest conformity with the Institutes of Justinian.
Thus, hook 1st, title 3d, it is said: "The first-general division
of persons in respect to their rights is into freemen and slaves."
' The same title, sect 4th: " Slaves are horn such, or become so.
They are born such of bondwomen; they become so either by
the law of nations, as by capture, or by the civil law. Section
5th: "In the condition of slaves there is no diversity; but
among free persons there are many. Thus some are ingenui or
freemen, others libertini or freedmen."
Tit. 4th. De Ingenuis.—"A freeman is one who is born free
by being born in matrimony, of parents who both are free, or
both freed; or of parents one free and the other freed. But
one born^ff a free mother, although the father be a slave or
unknown, is free."
Tit. 5th. Be Libertinis.—"Freedmen are those who have
been manumitted from just servitude."
Section third of the same title states that "freedmen were
formerly distinguished by a threefold division." But the em¬
peror proceeds to say: u Owe piety leading us to reduce all
things into a better state, we have amended our laws, and re¬
established the ancient usage; for anciently liberty was simple
and undivided—that is, was conferred upon the slave as his
manumittor possessed it, admitting this single difference, that
the person manumitted became only a freed man, although his
manumittor was a free man." And he further declares: "We
have made all freed men in general become citizens of Rome,
regarding neither the age of the manumitted, nor the manu¬
mittor, nor the ancient forms of manumission. We have also
introduced many new methods by which slaves may become
Roman citizens."
By the references above given it is shown, from the nature
and objects of civil and political associations, and upon the
direct authority of history, that citizenship was not conferred
* Vide Gibbons's Decline and Fall of the Roman Empire. London edition of
18125, vol. 3d, chap. 44, p. 183.
480
SUPREME COURT.
Ma. Justice Daniel.] Dred Scott v. Sandford.
by the simple fact of emancipation, but tbat sncb a result was
deduced therefrom in violation of the fundamental principles
of free political association; by the exertion of,despotic will to
establish, under a false and misapplied denomination, one equal
and universal slavery; and to effect this result required the ex¬
ertions of absolute power—of a power both in theory and prac¬
tice, being in its most plenary acceptation the sovereignty,
the State itself—it could not be produced by a less or in¬
ferior authority, much less by the will or the act of one who,
with reference to civil and political rights, was himself a slave.
The master might abdicate or abandon his interest or owner¬
ship in his property, but his act would be a mere abandon¬
ment. It seems to involve an absurdity to impute to it the
investiture of rights which the sovereignty alone had power to
impart. There is not perhaps a community in which slavery
is recognised, in which the power of emancipation and the
modes of its exercise ate not regulated by law—that is, by the
sovereign authority; and none can fail to comprehend the ne¬
cessity for such regulation, for the preservation of order, and
even of political and social existence.
By the argument for the plaintiff in error, a power equally
despotic is vested in every member of the association, and the
most obscure or unworthy individual it comprises may arbi¬
trarily invade and derange its most deliberate and soremn ordi¬
nances. At assumptions anomalous as these, so fraught with
mischief and ruin, the mind at once is revolted, and goes di¬
rectly to the conclusions, that to change or to abolish a funda¬
mental principle of the society, must be the act of the society
itself—of the sovereignty; and that none other can admit to a
participation of that high attribute. It may further expose the
character of the argument urged for the plaintiff, to point out
some of the revolting consequences which it would authorize.
If that argument possesses any integrity, it asserts the power
in any citizen, or quasi citizen, or a resident foreigner of any
one of the States, from a motive either of corruption or caprice,
not only to infract the inherent and necessary authority of such
State, but also materially to interfere with the organization of
the Federal Government, and with the authority of the sepa¬
rate and independent States. He may emancipate his negro
slave, by which process he first transforms that slave into a
citizen of his own State; he may next, under color of article
fourth, section second, of the Constitution of the United States,
obtrude him, and on terms of civil and political equality, upon
any and every State in this Union, in defiance of all regula¬
tions of necessity or policy, ordained by those States for their
internal happiness or safety. Hay, more: this manumitted slave
DECEMBER TERM, 1856.
481
Dred Scott v. Sandford. [Me. Justice Daniel.
may, by a proceeding springing from tbe will or act of his mas¬
ter alone, be mixed up with the institutions of the Eederal
Government, to which he is not a party, and in opposition to
the laws of that Government which, in authorizing the exten¬
sion by naturalization of the rights and immunities of citizens
of the United States to those not originally parties to the Fed¬
eral compact, have restricted that boon to free white alienh alone.
If the rights and imniunities connected with or practiced un¬
der the institutions of the United States can by any indirec¬
tion be claimed or deduced from sources or modes other than
the Constitution and laws of the United States, it follows that
the power of naturalization vested in Congress is not exclu¬
sive—that it has in effect no existence, but is repealed or abro¬
gated.
But it has been strangely contended that the jurisdiction of
the Circuit Court might be maintained upon the ground that
the plaintiff was a resident of Missouri, an'd that, for the purpose
of vesting the court with jurisdiction over the parties, residence
within the State was sufficient.
The first, and to my mind a conclusive reply to thi& singular
argument is presented in the fact, that the language of the
Constitution restricts the jurisdiction of the courts to cases in
which the parties shall be citizens, and is entirely silent with
respect to residence. A second answer to this strange and
latitudinous notion is, that it so far stultifies the sages by
whom the Constitution was framed, as to impute to them ig¬
norance of the material distinction existing between citizenship
and mere residence or domicil, and of the well-known facts, that
a person confessedly an alien may be permitted to reside in a
country in which' he can possess no civil or political rights, or
of which he is neither a citizen nor subject; and that for certain
purposes a man may have a domicil in different countries, in no
one of which he is an actual personal resident.
The correct conclusions upon the question here considered
would seem to be these:
That in the establishment of the several communities now
the States of this Union, and in the formation of the Federal
Government, the African was not deemed politically a person,
lie was regarded and owned in every State in the Union as
property merely, and as such was not and could not be a party
or an actor, much less a peer in any compact or form of gov¬
ernment established by the States or the United States. That
if, since the adoption of the State Governments, he has been or
could have been elevated to the possession of political rights
or pov ers, this result could have been effected by no authori¬
ty less potent than that of the sovereignty—the State—exert-
482
SUPREME COURT.
Mr. Justice Daniel.] Dred Scott v. Sandford.
ed to tliat end, either in the form of legislation, or in some
other mode of operation. It could certainly never have been
accomplished by the will of an individual operating independ¬
ently of the sovereign power, and even contravening and con¬
trolling that power. That so far as rights and immunities ap¬
pertaining to citizens have been defined and secured by the
Constitution and laws of the United States, the African race
is not and never was recognised either by the language or pur¬
poses of the former; and it has been expressly excluded hy
every act of Congress providing for the creation of citizens hy
naturalization, these laws, as has already been remarked, being
restricted to free white aliens exclusively.
But it is evident that, after the formation of the Federal Gov¬
ernment by the adoption of the Constitution, the highest ex¬
ertion of State power would be incompetent to bestow a char¬
acter or status created by the Constitution, or conferred in
virtue of its authority only. Upon those, therefore, who were
not originally parties to the Federal compact, or who are not
admitted and adopted as parties thereto, in the mode prescrib¬
ed by its paramount authority, no State could have power to
bestow the character or the rights and privileges exclusively
reserved by the States for the action of the Federal Govern¬
ment by that compact.
The States, in the exercise of their political power, might,
with reference to their peculiar Government and jurisdiction,
guaranty the rights of person and property, and the enjoy¬
ment of civil and political privileges, to those whom they
should be disposed to make the objects of their bounty; but
they could not reclaim or exert the powers which they had
vested exclusively in the Government of the United States.
They could not add to or change in any respect the class of
persons to whom alone the character of citizen of the United
States appertained at the time of the adoption of the Federal
Constitution. They, could not create citizens of the United
States by any direct or indirect proceeding.
According to the view taken of the law, as applicable to the
demurrer to the plea in abatement in this cause, the questions
subsequently raised upon the several pleas in bar might be
passed by, as requiring neither a particular examination, nor
an adjudication directly upon them. But as these questions
are intrinsically of primary interest and magnitude, and have
been elaborately discussed in argument, and as with respect to
them the opinions of a majority of the court, including my
own, are perfectly coincident, to me it seems proper that they
should here be fully considered, and, so far as it is practicable
for this court to accomplish such an end, finally put to rest.
DECEMBER TERM, 1856.
483
Bred Scott v. Sandford. [Mb. Justice Daniel.
Tlie questions tlien to be considered upon the several pleas
in bar, and upon tbe agreed statement of facts between tbe
counsel, are: 1st. Whether the admitted master and owner
of the plaintiff, holding him as his slave in the State of Mis¬
souri, and in conformity with his fights guarantied to him by
the laws of Missouri then and still in force, by carrying with
him for his own benefit and accommodation, and as his own
slave, the person of the plaintiff into the State of Illinois, with¬
in which State slavery had been prohibited by the Constitu¬
tion thereof, and by retaining the plaintiff during the com¬
morancy of the master within the State of Illinois, had, upon
his return with his slave into the State of Missouri, forfeited
his rights as master, by reason of any supposed operation of
the prohibitory provision in the Constitution of Illinois, be¬
yond the proper territorial jurisdiction of the latter State ? 2d.
Whether a similar removal of the plaintiff by his master from
the State of Missouri, and his retention in service at a point
included within no State, but situated north of thirty-six de¬
grees thirty minutes of north latitude, worked a forfeiture of
the right of property of the master, and the manumission of
the plaintiff?
In considering the first -of these questions, the acts or decla¬
rations of the master, as expressive of his purpose to emanci¬
pate, may be thrown out of view, since none will deny the
right of the owner to relinquish his interest in any subject of
property, at any time or in any place. The inquiry here bears
no relation to acts or declarations of the owner as expressive
of his intent or purpose to make such a relinquishment; it is
simply a question whether, irrespective of such purpose, and
in opposition thereto, that relinquishment can be enforced
against the owner of property within his own country, in defi¬
ance of every guaranty promised by its laws; and this through
the instrumentality of a claim to power entirely foreign and
extraneous with reference to himself, to the origin and found¬
ation of his title, and to the independent authority of hjs
country. A conclusive negative answer to such an inquiry is
at once supplied, by announcing a few familiar and settled
principles and doctrines of publiclaw.
Yattel, in his chapter on the general principles of the laws
of natioiis, section 15th, tells us, that "nations being free and
independent of each other in the same manner that men are
naturally free and independent, the second general law of their
society is, that each nation should be left in the peaceable
enjoyment of that liberty which she inherits from nature."
"The natural society of nations," says this writer, "cannot
subsist unless the natural rights of each be respected." In
484
SUPREME COURT.
Mk. Justice Daniel.] Dred Scott v. Sandford.
section 16th. he says, "as a consequence of that liberty and in¬
dependence, it exclusively belongs to each nation to form her
own judgment of what her conscience prescribes for her—of
what it is proper or improper for her to do; and of course it
rests solely with her to examine and determine whether she
can perform any office for another nation without neglecting
the duty she owes to herself. In all cases, therefore, in which
a nation has the right of judging what her duty requires, no
other nation can compel her to act in such or such a particular
manner, for any attempt at such compulsion would be an in¬
fringement on the liberty of nations." Again, in section 18th,
of the same chapter, "nations composed of men, and considered
as so many free persons living together in a state of nature, are
naturally equal, and inherit from nature the same obligations
and rights. Power or weakness does not produce any differ¬
ence. A small republic is no less a sovereign state than the
most powerful kingdom."
So, in section 20: "A nation, then, is mistress of her own
actions, so long as they do not affect the proper and perfect
rights of any other nation—so long as she is only internally
bound, and does not lie under any external and perfect obliga¬
tion. If she makes an ill use of her liberty, she is guilty of a
breach of duty; but other nations are bound to acquiesce in
her conduct, since they have no right to dictate to her. Since
nations are free, independent, and equal, and since each possesses
the right of judging, according to the dictates of her conscience,
what conduct she is to pursue, in order to fulfil her duties, the
effect of the whole is to produce, at least externally, in the eyes
of mankind, a perfect equality of rights between nations, in the
administration of their affairs, and in the pursuit of their pre¬
tensions, without regard to the intrinsic justice of their con¬
duct, of which others have no right to form a definitive judg¬
ment."
Chancellor Kent, in the 1st volume of his Commentaries,
lecture 2d, after collating the opinions of Grotius, Ileineccius,
Vattel, and Rutherford, enunciates the following positions as
sanctioned by these and other learned publicists, viz: that
"nations are equal in respect to each other, and entitled to
claim equal consideration for their rights, whatever may he
their relative dimensions or strength, or however greatly they
may differ in government, religion, or manners. This perfect
equality and entire independence of all distinct States is a
fundamental principle of public law. It is a necessary conse¬
quence of this equality, that each nation has a right to govern
itself as it may think properi, and no one nation is entitled to
dictate a form of government or religion, or a course of inter-
DECEMBER TERM, 1856.
485
Dred Scott v. Sand/ord. [Mr. Justice Daniel.
nal policy, to another." This writer gives some instances of
the violation of this great national immunity, and amongst
them the constant interference by the ancient Romans, under
the pretext of settling disputes between their neighbors, but
with the real purpose of reducing those neighbors to bondage;
the interference of Russia, Prussia, and Austria, for the dis¬
memberment of Poland; the more recent invasion of Naples
by Austria in 1821, and of Spain by the French Government
in 1823, under the excuse of suppressing a dangerous spirit of
internal revolution and reform.
"With reference to this right of self-government in independ¬
ent sovereign States, an opinion has been expressed, which,
whilst it concedes this right as inseparable from and as a ne¬
cessary attribute of sovereignty and independence, asserts
nevertheless some implied and paramount authority of a sup¬
posed international law, to which this right of self-government
must be regarded and exerted as subordinate; and from which
independent and sovereign States can be exempted only by a
protest, or by some public and formal rejection of that author¬
ity. With all respect for those by whom this opinion has been
professed, I am constrained to regard it as utterly untenable,
as palpably inconsistent, and as presenting in argument a com¬
plete felo de se.
Sovereignty, independence, and a perfect right of self-gov-
^ ernment, can signify nothing less than a superiority to and an
•exemption from all claims by any extraneous power, however
expressly they may be asserted, and render all attempts to
enforce such claims merely attempts at usurpation. Again,
could such claims from extraneous sources be regarded as
legitimate, the effort to resist or evade them, by protest or
denial, would be as irregular and unmeaning as it would be
futile. It could in no wise affect the question of superior right.
For the position here combatted, no respectable authority has
been, and none it is thought can be adduced. It is certainly
irreconcilable with the doctrines already cited from the writers
upon public law.
Neither the case of LewisfSomersett, (Howell's State Trials,
vol. 20,) so often vaunted as the proud evidence of devotion to
freedom under a Government which has done as much perhaps
to extend the reign of slavery as all the world besides; nor
does any decision founded upon the authority of Somersett's
case, when correctly expounded, assail or impair the principle
of national equality enunciated by each and all of the publicists
already referred to. In the case of Somersett, although the
applicant for the habeas corpus and the individual claiming
property in that applicant were both subjects and residents
486
SUPREME COURT.
Mr. Justice Daniel.] Dred Scott v. Sandford.
within the British empire, yet the decision cannot he correctly
understood as ruling absolutely and under all circumstances
against the right of property in the claimant. That decision
goes no farther than to determine, that within the realm of Eng¬
land there was no authority to justify the detention of an indi¬
vidual in private bondage. If the decision in Somersett's case
had gone beyond this point, it would have presented the
anomaly of a repeal by laws enacted for and limited in their
operation to the realm alone, of other laws and institutions
established for places and subjects without the limits of the
realm of England; laws and institutions at that very time,
and long subsequently, sanctioned and maintained under the
authority of the British Government, and which the full and
combined action of the King and Parliament was required to
abrogate.
Rut could the decision in Somersett's case be correctly in¬
terpreted as ruling the doctrine which it has been attempted
to deduce from it, still that doctrine must be considered as
having been overruled by the lucid and able opinion of Lord
Stowell in the more recent case of the slave Grace, reported in
the second volume of Haggard, p. 94; in which opinion, whilst
it is conceded by the learned judge that there existed no power
to coerce the slave whilst in England, that yet, upon her return
to the island of Antigua, her status as a slave was revived, or,
rather, that the title of the owner to the slave as property had t
never been extinguished, but had always existed in that island/
If the principle of this decision be applicable as between differ¬
ent portions of one and the same empire, with how much more
force does it apply as between nations or Governments entirely
separate, and absolutely independent of each other? For in
this precise attitude the States of this Union stand with refer¬
ence to this subject, and with reference to the tenure of every
description of property vested under their laws and held within
their territorial jurisdiction.
A strong illustration of the principle ruled by Lord Stowell,
and of the effect of that principle even in a case of express
contract, is seen in the case of LSwis v. Fullerton, decided hy
the Supreme Court of Virginia, and reported in the first volume
of Randolph, p. 15. The case was this: A female slave, the
property of a citizen of Virginia, whilst with her master in the
State of Ohio, was taken from his possession under a writ of
habeas corpus, and set at liberty. Soon, or immediately after,
by agreement between this slave and her master, a deed was
executed in Ohio by the latter, containing a stipulation that
this slave should return to Virginia, and, after a service of two
years in that State, should there be free. The law of Virginia
DECEMBER TERM, 1856.
487
Bred Scott v. Sandford. [Me. Justice Daniel.
regulating emancipation required that deeds of emancipation
should, within a given time from their date, be recorded in
the court of the county in which the grantor resided, and de¬
clared that deeds with regard to which this requisite was not
complied with should be void. Lewis, an infant son of this
female, under the rules prescribed in Buch cases, brought an
action, in forma pauperis, in one of the courts of Virginia, for
the recovery of his freedom, claimed in virtue of the transac¬
tions above mentioned. Upon an appeal to the Supreme Court
from a judgment against the plaintiff, Roane, Justice, in deliv¬
ering the opinion of the court, after disposing of other ques¬
tions discussed in that case, remarks:
"As to the deed of emancipation contained in the record,
that deed, taken in connection with the evidence offered in
support of it, shows that it had a reference to the State of Vir¬
ginia; and the testimony shows that it formed a part of this
contract, whereby the slave Milly was to be brought back (as
she was brought back) into the State of Virginia. Her object
was therefore to secure her freedom by the deed within the
State of Virginia, after the time should have expired for which
she had indented herself, and when she should be found
abiding within the State of Virginia.
" If, then, this contract had an eye to the State of Virginia
for its operation and effect, the lex loci ceases to operate. In
that case it must, to have its effect, conform to the laws of Vir¬
ginia. It is insufficient under those laws to effectuate an eman¬
cipation, for want of a due recording in the county court, as
was decided in the case of Givens v. Mann, in this court. It is
also ineffectual within the Commonwealth of Virginia for an¬
other reason. The lex loci is also to be taken subject to the
exception, that it is not to be enforced in another country, when
it violates some moral duty or the policy of that country, or is
not consistent with a . positive right secured to a third person
or party by the laws of that country in which it is sought to
be enforced. In such a case we are told, ' magis jus nostrum,
quam jus alienum scrvemus.'", (Huberus, torn. 2, lib. 1, tit. 8;
2 Fontblanque, p. 444.) "That third party in this instance is
the Commonwealth of Virginia, and, her policy and interests
are also to be attended to. These turn the scale against the
lex loci in the present instance."
The second or last-mentioned position assumed for the plain-,
tiff under the pleas in bar, as it rests mainly if not solely upon
the provision of the act of Congress of March 6, 1820, pro¬
hibiting slavery in Upper Louisiana north of thirty-six degrees
thirty minutes north latitude, popularly called the Missouri
Compromise} that assumption renews the question, formerly so
488
SUPREME COTJRT.
Mb. Justice Daniel.] Dred Scoit v. Sandford.
zealously debated, as to the validity of tbe provision in the act
of Congress, and upon tbe constitutional competency of Con¬
gress to establish it.
Before proceeding, however, to examine the validity of the
prohibitory provision of the law, it may, so far as the rights
involved in this cause are concerned, be remarked, that con¬
ceding to that provision the validity of a legitimate exercise
of power, still this concession could by no rational interpreta¬
tion imply the slightest authority for its operation• beyond the
territorial limits comprised within its terms; much less could
there be inferred from it a power to destroy or in any degree
to control rights, either of person or property, entirely within
the bounds of a distinct and independent sovereignty—rights
invested and fortified by the guaranty of that sovereignty.
These surely would remain in all their integrity, whatever
effect might be ascribed to the prohibition within the limits
defined by its language.
But, beyond and in defiance of this conclusion, inevitable
and undeniable as it appears, upon every principle of justice
or sound induction, it has been attempted to convert this
prohibitory provision of the act of 1820 not only into a weapon
with which to assail the inherent—-the necessarily inherent-
powers of independent sovereign Governments, but into a
mean of forfeiting that equality of rights ancl immunities
which are the birthright or the donative from the Constitution
of every citizen of the United States within the length and
breadth of the nation. In this attempt, there is asserted a
power in Congress, whether from incentives of interest, igno¬
rance, faction, partiality, or prejudice, to bestow upon a portion
of the citizens of this nation that which is the common
property and privilege of all—the power, in fine, of confisca¬
tion, in retribution for no offence, or, if for an offence, for that
of accidental locality only.
It may be that, with respect to future cases, like the one
now before the court, there is felt an assurance of the impo¬
tence of such a pretension; still, the fullest conviction of that
result can impart to it no claim to forbearance, nor dispense
with the duty of antipathy and disgust at its sinister aspect,
whenever it may be seen to scowl upon the justice, the order,
the tranquillity, and fraternal feeling, which are the surest,
nay, the only means, of promoting or preserving the happiness
and prosperity of the nation, and which were the great and
efficient incentives to the formation of this Government.
The power of Congress to impose the prohibition in the
eighth section of the act of 1820 has been advocated upon an
attempted construction of the second clause of the third section
DECEMBER TERM, 1856.
489
Dred Scott v. Sandford. [Mr. Justice Danie^L
of the fourth article of the Constitution, which declares that
"Congress shall have power to dispose of and to make all
needful rules and regulations respecting the territory and other
property belonging to the United States."
In the discussions in both houses of Congress, at the time
of adopting this eighth section of the act of 1820, great weight
was given to the peculiar language of this clause, viz: territory
and other property belonging to the United States, as going to
show that the power of disposing of and regulating, thereby-
vested in Congress, was restricted to a proprietary interest in the
territory or land comprised therein, and did not extend to the
personal or political rights of citizens or settlers, inasmuch as
this phrase in the Constitution, " territory or other property,"
identified territory with property, and inasmuch as citizens or
persons could not be property, and especially were not property
belonging to the United States. And upon every principle of
reason or necessity, this power to dispose of and to regulate
the territory of the nation could he designed to extend no
farther than to its preservation and appropriation to the uses
of those to whom it belonged, viz: the nation. Scarcely any¬
thing more illogical or extravagant can be imagined than the
attempt to deduce from this provision in the Constitution a
power to destroy or in any wise to impair the civil and political
rights of the citizens of the United States, and much more so
the power to establish inequalities amongst those citizens by
creating privileges in one class of those citizens, and by the
disfranchisement of other portions or classes, by degrading
them from the position they previously occupied.
There can exist no rational or natural connection or affin¬
ity between a pretension like this and the power vested by
the Constitution in Congress with regard to the Territo¬
ries ; on the contrary, there is an absolute incongruity between
them.
But whatever the power vested in Congress, and whatever
the precise subject to which that power extended, it is clear
that the power related to a subject appertaining to the United
States, and one to be disposed of and regulated for the benefit
and under the authority of the United States. Congress was
made simply the agent or trustee for the United States, and
could not, without a breach of trust and a fraud, appropriate
the subject of the trust to any other beneficiary or cestui que
trust than the United States, or to the people of the United
States, upon equal grounds, legal or equitable. Congress
could not appropriate that subject to any one class or portion
of the people, to the exclusion of others, politically and
constitutionally equals; but every citizen would, if any one
490
SUPREME COURT.
r. Justice Daniel.] Dred Scott v. Sandford.
could claim it, have the like rights of purchase, settlement,
occupation, or any other right, in the national territory.
Nothing can he more conclusive to show the equality of this
with every other right in all the citizens of the United States,
and the iniquity and absurdity of the pretension to exclude or
to disfranchise a portion of them because they are the owners
of slaves, than the fact that the same instrument, which
imparts to Congress its very existence and its every function,
guaranties to the slaveholder the title to his property, and
gives him the right to its reclamation throughout the entire
extent of the nation; and, farther, that the only private
property' which the Constitution has specifically recognised, and
has imposed it as a direct obligation both on the {States and
the Federal Government to protect and enforce, is the property
of the master in his slave; no other right of property is placed
by the Constitution upon the same high ground, nor shielded
by a similar guaranty.
Can there be imputed to the sages and patriots by whom the
Constitution was framed, or can there be detected in the text
of that Constitution, or in any rational construction or implica¬
tion deducible therefrom, a contradiction so palpable as would
exist between a pledge to the slaveholder of an equality with
his fellow-citizens, and of the formal and solemn assurance for
the security and enjoyment of his property, and a warrant
given, as it were uno flatu, to another, to rob him of that
property, or to subject him to proscription and disfranchisc-
, ment for possessing or for endeavoring to retain it? The
injustice and extravagance necessarily implied in a supposition
like this, cannot be rationally imputed to the patriotic or the
honest, or to those who were merely sane.
A conclusion in favor of the prohibitory power in Congress,
as asserted in the eighth section of t]^e act of 1820, has been
attempted, as deducible from the precedent of the ordinance of
the convention of 1787, concerning the cession by Virginia of
the territory northwest of the Ohio; the provision in which
ordinance, relative to slavery, it has been attempted to impose
upon other and subsequently-acquired territory.
The first circumstance which, in the consideration of this
provision, impresses itself upon my mind, is its utter futility
and want of authority. This court has, in repeated instances,
ruled, that whatever may have been the force accorded to this
ordinance of 1787 at the period of its enactment, its authority
and effect ceased, and yielded to the paramount authority of
the Constitution, from the period of the adoption of the latter.
Such is the principle ruled in the cases of Pollard's Lessee v.
Hagan, (3 How., 212,) Parmoli v. The First Municipality of
DECEMBER TERM, 1856.
491
Drtd Scott y. Sandford. [Mr. Justice Daniel.
New Orleans, (3 How., 589,) Strader v. Graham, (16 How., 82.)
But apart from the superior control of tlie Constitution, and
anterior to the adoption of that instrument, it is obvious that
the inhibition in question never had and never could have any
legitimate and binding force. We may seek in vain for any
power in the convention, either to require or to accept a con¬
dition or restriction upon the cession like that insisted on; a
condition inconsistent with, and destructive of, the object of
the grant. The cession was, as recommended by the old Con¬
gress in 1780, made originally and completed in terms to the
United States, and for the benefit of the United States, i. e., for
the people-, all- the people, of the United States. The condition
subsequently sought to be .annexed in 1787, (declared, too, to
be perpetual and immutable,) being contradictory to the terms
and destructive of the purposes of the cession, and after the
cession was consummated, and the powers of the ceding party
terminated, and the rights of the grantees, the people of the Unir
ted, States, vested, must necessarily, so far, have been ah initio
void. With respect to the power of the convention to impose
this inhibition, it seems to be pertinent in this place to recur
to the opinion of one cotemporary with the establishment of
the Government, and whose distinguished services in the form¬
ation and adoption of our national charter, point him out as
the artifex maximus of our Federal system. James Madison,
in the year 1819, speaking with reference to the prohibitory
power claimed by Congress, then threatening the very exist¬
ence of the Union, remarks of the language of the second
clause of the third section of article fourth of the Constitution,
"that it cannot be Well extended beyond a power over the ter¬
ritory as property, and the power to make provisions really
needful or necessary for the government of settlers, until ripe
for admission into the Union."
Again he says, "with respect to what has taken place in the
Northwest territory, it may be observed that the ordinance
giving it its distinctive character 6n the subject of slavehold-
ing proceeded from the old Congress, acting with the best in¬
tentions, but under a charter which contains no shadow of the
authority exercised; and it remains to be decided how far the
States formed within that territory, and admitted into the
Union, are on a different footing from its other members as to
their legislative sovereignty. As to the power of admitting
new States into the Federal compact, the questions offering
themselves are, whether Congress can attach conditions, or
the new States concur in conditions, which after admission
would abridge or enlarge the constitutional rights of legislation
common to other States; whether Congress can, by a compact
492
SUPREME COURT.
Mr. Justice Daniel.] Bred Scott v. Sand/ord.
with, a new State, take power either to or from itself, or place
the new member above or below the equal rank and rights
possessed by the others; whether all such stipulations express¬
ed or implied would not be nullities, and be so pronounced
when brought to a practical test. It falls within the scope of
your inquiry to state the fact, that there was a proposition in
the convention to discriminate between the old and the new
States by an article in the Constitution. The proposition, hap¬
pily, was rejected. The effect of such a discrimination is suffi¬
ciently evident."*
In support of the ordinance of 1787, there may be adduced
the semblance at least of obligation deducible from compact,
the form of assent or agreement between the grantor and
grantee; but this form or similitude, as is justly remarked by
Mr. Madison, is rendered null by the absence of power or au¬
thority in the contracting parties, and by the more intrinsic and
essential defect of incompatibility with the rights and avowed
purposes of those parties, and with their relative duties and
obligations to others. If, then, with the attendant formalities
of assent or compact, the restrictive power claimed was void
as to the immediate subject of the ordinance, how much more
unfounded must be the pretension to such a power as derived
from that source, (viz: the ordinance of 1787,) with respect to
territory acquired by purchase or conquest under the supreme
authority of the Constitution—territory not the subject of mere
donation, but obtained in the name of all, by the combined efforts
and resources of all, and with no condition annexed or pre¬
tended.
In conclusion, my opinion is, that the decision of the Cir¬
cuit Court, upon the law arising upon the several pleas in bar,
is correct, but that it is erroneous in having sustained the de¬
murrer to .the plea in abatement of the jurisdiction; that for
this error the decision of the Circuit Court should be reversed,
and the cause remanded to that court, with instructions to
abate the action, for the reason set forth and pleaded in the
plea in abatement.
In the aforegoing examination of this cause, the circumstance
that the questions involved therein had been previously ad¬
judged between these parties by the court of the State of Mis¬
souri, has not been adverted to; for although it has been ruled
by this court, that in instances of concurrent jurisdiction, the
court first obtaining possession or cognizance of the contro¬
versy should retain and decide it, yet, as in this case there had
* Letter from James Madison to Robert Walsh, November 2Tth, 1819, on the sub¬
ject of the Missouri Compromise.
DECEMBER TERM, 1856.
493
Bred Scott v. Sandford. [Ma. Justice Campbell.
been no plea, either of a former judgment or of autre action
pendent, it was thought that the fact of a prior decision, how¬
ever conclusive it might have been if regularly pleaded, could
not be incidentally taken into view.
Mr. Justice CAMPBELL.
I concur in the judgment pronounced by the Chief Justice,
but the importance of the cause, the expectation and interest
it has awakened, and the responsibility involved in its deter¬
mination, induce me to file a separate opinion.
The case shows that the plaintiff, in the year 1834, was a
negro slave in Missouri, the property of Dr. Emerson, a sur¬
geon in the army of the United States. In 1834, his master
took him to the military station at Rock Island, on the border
of Illinois, and' in 1836 to Port Snelling, in the present Min¬
nesota, then "Wisconsin, Territory. While at Fort Snelling,
the plaintiff married a slave who was there with her master,
and two children have, been born of this connection; one
during the journey of the family in returning to Missouri, and
the other after their return to that State.
Since 1838, the plaintiff and the members of his family have
been in Missouri in the condition of slaves. The object of this
suit is to establish their freedom. The defendant, who claims
the plaintiff and his family, under the title of Dr. Emerson,
denied the j urisdiction of the Circuit Court, by the plea that
the plaintiff was a negro of African blood, the descendant of
Africans who had been imported and sold in this country as
slaves, and thus he had no capacity as a citizen of Missouri to
maintain a suit in the Circuit Court. The court sustained a
demurrer to this plea, a trial was then had upon the general
issue, and special pleas to the effect that the plaintiff' and his
family were slaves belonging to the defendant.
My opinion in this case is not affected by the plea to the
jurisdiction, and I shall not discuss the questions it suggests.
The claim of the plaintiff to freedom depends upon the effect
to be given to his absence from Missouri, in company with his
master, in Illinois and Minnesota, and this effect is to be ascer¬
tained by a reference to the laws of Missouri. For the tres¬
pass complained of wah committed upon one claiming to be a
freeman and a citizen, in that State, and who had been living
for years under the dominion of its laws. And the rule is,
that whatever is a justification where the thing is done, must be
a justification in the forum where the case is tried. (20 How.
St. Tri., 234; Cowp. S. C., 161.)
The Constitution of Missouri recognises slavery as a legal
condition, extends guaranties to the masters of slaves, and in-
494
SUPREME COURT.
Mr. Justice Campbell.] Dred Scoit v. Sand/ord.
vites immigrants to introduce them, as property, by a promise
of protection. The laws of the State charge the master with
the custody of the slave, and provide for the maintenance and
security of their relation.
The Federal Constitution and the acts of Congress provide
for the return of escaping slaves within the limits of the Union.
No removal of the slave beyond the limits of the State, against
the consent of the master, nor residence there in another con¬
dition, would be regarded as an effective manumission by the
courts of Missouri, upon his return to the State. " Sicut libcria
captis status restituitur sic servus domino." Nor can the mas¬
ter emancipate the slave within the State, except through the
agency of a public authority. The inquiry arises, whether the
manumission of the slave is effected by his removal, with the
consent of the master, to a community where the law of slavery
does not exist, in a case where neither the master nor slave
discloses a purpose to remain permanently, and where both
parties have continued to maintain their existing relations.
What is the law of Missouri in such a case ? Similar inquiries
have arisen in a great number of suits, and the discussions in
the State courts have relieved the subject of much of its diffi¬
culty. (12 B. M. Ky. R., 545; Foster v. Foster, 10 Gratt. Va.
R., 485; 4 Har. and McH. Md. R., 295; Scott v. Emerson, 15
Misso., 576; 4 Rich. S. C. R., 186; 17 Misso., 434; 15 Misso.,
596; 5 B. M., 173; 8 B. M., 540, 633; 9 B. M., 565; 5 Leigh,
614; 1 Raud., 15; 18 Pick., 193.)
The result of these discussions is, that in general, the status,
or civil and political capacity of a pdrson, is determined, in
the first instance, by the law of the domicil where he is born;
that the legal effect on persons, arising from the operation of
the law of that domicil, is not indelible, but that a new capa¬
city or status may be acquired by a change of domicil. That
questions of status are closely connected with considerations
arising out of the social and political organization of the State
where they originate, and each sovereign power must deter¬
mine them within its own territories.
A large class of cases has been decided upon the second of
the propositions above stated, in the Southern and "Western
courts—cases in which the law of the actual domicil was
adjudged to have altered the native condition and status of the
slave, although he had never actually possessed the status of
freedom in that domicil. (Rankin v. Lydia, 2 A. K. M.; Iler-
ny v. Becker, Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter
v. Fulcher, 1 Leigh.)
I do not impugn the authority of these cases. No evidence
is found in the record to establish the existence of a domicil
DECEMBER TERM, 1856.
495
Bred Scoit v. Sandford. [Mb. Justice Campbell.
acquired by the master and slave, either in Illinois or Minne¬
sota. The master is described as an officer of the army, who
was transferred from one station to another, along the Western
frontier, in the line of his duty, and who, after performing the
usual tours of service, returned to Missouri; these slaves re¬
turned to Missouri with him, and had been there for near
fifteen years, in that condition, when this suit was instituted..
But absence, in the performance of military duty, without more,
is a fact of no importance in determining a question of a change
of domicil. Questions of that kind depend upon acts and in¬
tentions, and are ascertained from motives, pursuits, the con¬
dition of the family, and fortune of the party, and no change
will be inferred, unless evidence shows that one domicil was
abandoned, and there was an intention to acquire another.
(11 L. and Eq., 6; 6 Exch., 217; 6 M. and "W., 511; 2 Curt.
Ecc. R., 368.
The cases first cited deny the authority of a foreign law to
dissolve relations which have been legally contracted in the
State where the parties are, and have their actual domicil—re¬
lations which were never questioned during their absence from
that Stated-relations which are consistent with the native ca¬
pacity and condition of the respective parties, and with the
policy of the State where they reside; but which relations
wore inconsistent with the policy tor laws of the State or Terri¬
tory within which they had been for a time, and from which
they had returned, with these relations undisturbed. It is upon
the assumption, that the law of Illinois or Minnesota was in¬
delibly impressed upon the slave, and its consequences carried
into Missouri, that the claim of the plaintiff depends. The im¬
portance of the case entitles the doctrine on which it rests to a
careful examination.
It will be conceded, that in countries where no law or regu¬
lation prevails, opposed to the existence and consequences of
slavery, persons who are born in that condition in a foreign
State would not be liberated by the accident of their intro-
gression. The relation of domestic slavery is recognised in
the law of nations, and the interference of the authorities of
one State with the rights of a master belonging to another,
without a valid cause, is a violation of that law. (Wheat. Law
of Ha., 724; 5 Stats, at Large, 601; Calh. Sp., 378; Reports
of the Com. U. S. and G. B., 187, 238, 241.)
The public law of Europe formerly permitted a master to re¬
claim his bondsman, within a limited period, wherever he could
find him, and one of the capitularies of Charlemagne abolishes
the rule of prescription. He directs, " that wheresoever, within
the bounds of Italy, either the runaway slave of the king, or of
496
SUPREME COURT.
Mr. Justice Campbell.] Dred Scott v. Sandford.
the church, or of any other man, shall he found by his master,
he shall be restored without any bar or prescription of years;
yet upon the provision that the master be a Frank or German,
or of any other nation (foreign;) but if he be a Lombard or a
Roman, he shall acquire or receive his slaves by that law which
has been established from ancient times among them." With¬
out referring for precedents abroad, or to the colonial history,
for similar instances, the history of the Confederation and Union
affords evidence to attest the existence of this ancient law. In
1783, Congress directed General Washington to continue his
remonstrances to the commander of the British forces respecting
the permitting negroes belonging to the citizens of these States
to leave Few York, and to insist upon the discontinuance of
that measure, i In 1788, the resident minister of the United
States at Madrid was instructed to obtain from the Spanish
Crown orders to its Governors in Louisiana and Florida, "to
permit and facilitate the apprehension of fugitive slaves from
the States, promising that the States would observe the like
conduct respecting fugitives from Spanish subjects." The
committee thqt made the report of this resolution consisted of
Hamilton, Madison, and Sedgwick, (2 Hamilton's Works, 473;)
and the clause in the Federal Constitution providing for the
restoration of fugitive slaves is a recognition of this ancient
right, and of the principle that a change of place does not effect
a change of condition. The diminution of the power of a
master to reclaim his escaping bondsman in Europe commenced
in the enactment of laws of prescription in favor of privileged
communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in
Germany; Carcassonne, Beziers, Toulouse, and Paris, in France,
acquired privileges on this subject at an early period. The or¬
dinance of William the Conqueror, that a residence of any of
the servile population of England, for a year and a day, with¬
out being claimed, in any city, burgh, walled town, or castle
of the King, should entitle them to perpetual liberty, is a speci¬
men of these laws.
The earliest publicist who has discussed this subject is Bodin,
a jurist of the sixteenth century, whose work was quoted in
the early discussions of the courts in France and England on
this subject. He says: "In France, although there be some
remerpbrance of old servitude, yet it is not lawful here to make
a slave or to buy any one of others, insomuch as the slaves of
strangers, so soon as they set their foot within France, become
frank and free, as was determined by an old decree of the court
of Paris against an ambassador of Spain, who had brought
a slave, with him into France." He states another case, which
arose in the city of Toulouse, of a Genoese merchant, who had
DECEMBER TERM, 1856.
497
Dred Scott v. Sandford. [Mr. Justice Campbell^
carried a slave into that city on his Voyage from Spain; and
when the matter was brought before the magistrates, the
"procureur of the city, out of the records, showed certain
ancient privileges given unto them of Tholouse, wherein it was
granted that slaves, so soon as they should come into Tholouse,
should he free." These cases were cited with much approba¬
tion in the discussion of the claims of the West India slaves
of Verdelin for freedom, in 1738, before the judges in admi¬
ralty, (15 Causes Celebres, p. 1; 2 Masse Droit Com., sec. 58,)
and were reproduced before Lord Mansfield, in the cause of
Somersett, in 1772. Of the cases cited by Bodin, it is to he
observed that Charles V of France exempted all the inhabit¬
ants of Paris from serfdom, or other feudal incapacities, in
1371, and this was confirmed by several of his successors, (3
Dulaire Ilist. de Par., 546; Broud. Cout. de Par., 21,) and the
ordinance of Toulouse is preserved as follows: " Civitas Tholo-
sana fait et erit sine fine libera, adeo ut servi et ancUlee, sclavi et
sclavce, dominos sive dominas habentes-, cum rebus vel sine rebus suis,
ad Tholosam vel irifrct terminos extra urbem terminatos accedentes
acquirant libertatem." (Hist, de Langue, tome 3, p. 69; Ibid.
6, p. 8; Loysel Inst., b. 1, sec. 6.)
The decisions were made upon special ordinances, or char¬
ters, which contained positive prohibitions of slavery, and
where liberty had been granted as a privilege; and the history
of Paris furnishes but little support for the boast that she was
a usacro sancta civitas," where liberty always had an asylum, or
for the "self-complacent rhapsodies" of the French advocates
in the case of Verdelin, which amused the grave lawyers who
argued the case of Somersett. The case of Verdelin was
decided upon a special ordinance, which prescribed the condi¬
tions on which "West India slaves might be introduced into
France, and which had been disregarded by the master.
The case of Somersett was that of a Virginia slave carried
to England by his master in 1770, and ^vho remained there
two years. For some cause, he was confined on a vessel
destined to Jamaica, where he was to be sold. Lord Mansfield,
upon a return to a habeas corpus, states the question involved.
"Here, the person of the slave himself," he says, "is the
immediate subject of inquiry, Can any dominion, authority, or
coercion, be exercised in this country, according to the Amer¬
ican laws?" He answers: "The difficulty of adopting the
relation, without adopting it in all its consequences, is indeed
extreme, and yet many of those consequences are absolutely
contrary to the municipal law of England." Again, he says:
"The return states that the slave departed, and refused to
serve; whereupon, he was kept to be sold abroad." " So high
498
SUPREME COURT.
Mr. Justice Campbell.] Dred Scott v. Sandford.
an act of dominion must be recognised by the law of the
country where it is used. The power of the master over his
slave lias been extremely different in different countries."
" The state of slavery is of such a nature, that it is incapable
of being introduced on any reasons, moral or political, hut
only by positive law, which preserves its force long after the
reasons, occasion, and time itself, from whence it was created,
are erased from the memory. It is so odious, that nothing
can he suffered to support it but positive law." That there is a
difference in the systems of States, which recognise and which
do not recognise the institution of slavery, cannot he disguised.
Constitutional law, punitive law, police, domestic economy,
industrial pursuits, and amusements, the modes of thinking
and of belief of the population of the respective communities,
all show the profound influence exerted upon society by this
single arrangement. This influence was discovered in the
Federal Convention, in the deliberations on the plan of the
Constitution. Mr. Madison observed, "that the States were
divided into different interests, not by their difference of size,
but by other circumstances; the most material of which
resulted partly from climate, but principally from the effects
of their having or not having slaves. These two causes concur
in forming the great division of interests in the United States."
The question to be raised with the opinion of Lord Mans¬
field, therefore, is not in respect to the incongruity of the two
systems, but whether slavery was absolutely contrary to the
law of England; for if it was so, clearly, the American laws
could not operate there. Historical research ascertains that at
the date of the Conquest the rural population of England were
generally in a servile condition, and under various names, de¬
noting slight variances in condition, they were sold with the
land like cattle, and were a part of its living money. Traces
of the existence of African slaves are to be foutid in the early
chronicles. Parlian^cnt in the time of Richard II, and also
of Henry VTTT, refused to adopt a general law of emancipation.
Acts of emancipation by the last-named monarch and by Eliz¬
abeth are preserved.
The African slave trade had been carried qn, under the un¬
bounded protection of the Crown, for near two centuries, when
the case of Somersett was heard, and no motion for its sup¬
pression had ever been submitted to Parliament; while it was
forced upon and maintained in unwilling colonies by the Par¬
liament and Crown of England at that moment. Fifteen
thousand negro slaves wrere then living in that island, wThcre
they had been introduced under the counsel of the most illus¬
trious jurists of the realm, and such slaves had been publicly
DECEMBER TERM, 1856.
499
Dred Scott v. Sandford. [Mb. Justice Campbell.
sold for near a century in tlie markets of London. In the
northern part of the kingdom of Great Britain there existed a
class of from 30,000 to 40,000 persons, of whom the Parlia¬
ment said, in 1775, (15 George III, chap. 28,) "many colliers,
coal-heavers, and salters, are in a-state of slavery or bondage,
hound to the collieries and salt works, where, they work for
life, transferable with the collieries and salt works when their
original masters have no use for them; and whereas the eman¬
cipating or setting free the colliers, coal-heavers, and salters,
in Scotland, who are now in a state of servitude, gradually and
upon reasonable conditions, would be the means of increasing
the number of colliers, coal-heavers, and salters, to the great
benefit of the public, without doing any injury to the present
masters, and w^ould remove the reproach of allowing such a
state of servitude to exist in a free country," &c.; and again,
in 1799, "they declare that many colliers and coal-heavers still
continue in a state of bondage." ISTo statute, from the Con¬
quest till the 15 George III, had been passed upon the subject
of personal slavery. These facts have led the most eminent
civilian of England to question the accuracy of this judgment,
and to insinuate that in this judgment the offence of ampliare
jurisdictionem by private authority was committed by the emi¬
nent magistrate who pronounced it.
This sentence is distinguishable f^om those cited from the
French courts in this: that fhere positive prohibitions existed
against slavery, and the right to freedom was conferred on
the immigrant slave by positive law; whereas here the conse¬
quences of slavery merely—that is, the public policy—were
found to be contrary to the law of slavery. The case of the
slave Grace, (2 Ilagg.,) with four others, came before Lord
Stowell in 1827, by appeals from the West India vice admiralty
courts. They were cases of slaves who had returned to those
islands, after a residence in Great Britain, and where the claim
to freedom was first presented in the colonial forum. The
learned judge in that case said: "This suit fails in its founda-'
tion. iShe (Grace) was not a free person; no injury is done her
by her continuance in slavery, and she has no pretensions to
any other station than that which was enjoyed by every slave
of a family. If she depends upon such freedom conveyed by
a mere residence in England, she complains of a violation of
right which she possessed no longer than whilst she resided in
England, but which totally expired when that residence ceased,
and she was imported into Antigua."
The decision of Lord Mansfield was, "that so high an act
of dominion" as the master exercises over his slave, in send¬
ing him abroad for sale, could not be exercised in England
500
SUPREME COURT.
Mr. Justice Campbell.] Dred Scott v. Sandford.
under the American laws, and contrary to the spirit of their
own.
The decision of Lord Stowell is, that the authority of the
English laws terminated when the slave departed from Eng¬
land. That the laws of England were not imported into An¬
tigua, with the slave, upon her return, and that the colonial
forum had no warrant for applying a foreign code to dissolve
relations which had existed between persons belonging to that
island, and which were legal according to its own system.
There is no distinguishable difference between the case before
us and that determined in the admiralty of Great Britain.
The complaint here, in my opinion, amounts to this: that
the judicial tribunals of Missouri have not denounced as
odious the Constitution and laws under which they are organ¬
ized, and haye not superseded them on their own private au¬
thority, for the purpose of applying the laws of Illinois, or
those passed by Congress for Minnesota, in their stead. The
eighth section of the act of Congress of the 6th of March,
1820, (3 Statutes at Large, 545,) entitled, "An act to authorize
the people of Missouri to form a State Government," &c., &c.,
is referred to, as affording the authority to this court to pro¬
nounce the sentence which the Supreme Court of Missouri felt
themselves constrained to refuse. That section of the act pro¬
hibits slavery in the district of country west of the Mississippi,
north of thirty-six degrees thirty minutes north latitude, which
belonged to the ancient province of Louisiana, not included in
Missouri.
It is a"settled doctrine of this court, that the Federal Gov¬
ernment can exercise no power over the subject of slavery
within the States, nor control the intermigration of slaves,
other than fugitives, among the States. Nor can that Gov¬
ernment affect the duration of slavery within the States, other
than by a legislation over the foreign slave trade. The power
of Congress to adopt the section of the act above cited must
therefore depend upon some condition of the Territories which
distinguishes them from States, and subjects them to a con¬
trol more extended. The third section of the fourth article of
the Constitution is referred to as the only and all-sufficient
grant to support this claim. It is, that " new States may he
admitted by the. Congress to this Union; but no new State
shall be fortned or erected within the jurisdiction of any other
State, nor any State be formed by the junction of two or more
States, or parts of States, without the consent of the Legisla¬
tures of the States concerned, as well as of the Congress. The
Congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or other prop-
DECEMBER TERM, 1856.
501
Dred Scott v. Sandford. [Mr. Justice Campbell.
erty "belonging to the IJnited States; and nothing in this Con¬
stitution shall he so construed as to prejudice any claims of
the United States, or of any particular State."
It is conceded, in the decisions of this court, that Congress
may secure the rights of the United States in the public do¬
main, provide for the sale or lease of any part of it, and estab¬
lish the validity of the titles of the purchasers, and may or¬
ganize Territorial Governments, with powers of legislation.
(3 How., 212; 12 How., 1; 1 Pet., 511; 13 P., 436; 16 H.,
164.)
But the recognition of a plenary power in Congress to dis¬
pose of the public domain, or to organize a Government over
it, does not imply a corresponding authority to determine the
internal polity, or to adjust the domestic relations, or the per¬
sons who may lawfully inhabit the territory in which it is situ¬
ated. A supreme power to make needful rules respecting the
public domain, and a similar power of framing laws to operate
upon persons and things.within the territorial limits where it
lies, are distinguished by broad lines of demarcation ih Ameri¬
can history. This court has assisted us to define them. In
Johnsons. Mcintosh, (8 "Wheat., 595—543,) they say: "Ac¬
cording to the theory of the British Constitution, all vacant
lands are vested in the Crown; and the exclusive power to
grant them is admitted to reside in the Crown, as a branch of
the royal prerogative.
"All the lands we hold were originally granted by the
Crown, and the establishment of a royal Government has
never been considered as impairing its right to grant lands
within the chartered limits of such colony."
And the British Parliament did claim a supremacy of legis¬
lation coextensive with the absoluteness of the dominion of
the sovereign over the Crown lands. The American doctrine,
to the contrary, is embodied in two brief resolutions of the
people of Pennsylvania, in 1774: 1st. " That the inhabitants
of these colonies are entitled to the same rights and liberties,
within the colonies, that the subjects born in England are en¬
titled within the realm." 2d. " That the power assumed by
Parliament to bind the people of these colonies by statutes, in
all cases whatever, is unconstitutional, and therefore the source
of these unhappy difficulties." The Congress of 1774, in their
statement of rights and grievances, affirm ^a free and exclu¬
sive power of legislation" in their several Provincial Legisla¬
tures, "in all cases of taxation and internal polity, subject only
to the negative of their sovereign, in such manner as has been
heretofore used and accustomed." (1 Jour. Cong., 32.)
The unanimous consent of the people of the colonies, then,
8
502
SUPREME COURT.
Mb. Justice Campbell.] Bred Scott v. Sandford.
to the power of their sovereign, "to dispose of and make all
needful rules and regulations respecting the territory" of the
Crown, in 1774, was deemed by them as entirely consistent
with opposition, remonstrance, the renunciation -of allegiance,
and proclamation of civil war, in preference to submission to
his claim of supreme power in the territories.
I pass now to the evidence afforded during the Revolution
and Confederation. The American Revolution was not a so¬
cial revolution. It did not alter the domestic condition or
capacity of persons within the colonies, nor was it designed to
disturb the domestic relations existing among them. It was a
political revolution, by which thirteen dependent colonies be¬
came thirteen independent States." " The Declaration of Inde¬
pendence was not," says Justice Chase, "a declaration that
the United Colonies jointly, in a collective capacity, were in¬
dependent States, &c., &c., &c., but that each of them was a
sovereign and independent State; that is, that each of them
had a right to govern itself by its own authority and its own
laws, without any control from any other power on earth." (3
Dall., 199; 4 Cr., 212.)
These sovereign and independent States, being united as a
Confederation, by various public acts of cession, became jointly
interested in territory, and concerned to dispose of and make
all needful rules and regulations respecting it. It is a conclu¬
sion not open to discussion in this court, "that there was no
territory within the (original) United States, that was claimed
by them in any other right than that of some of the confede¬
rate States." (Harcourt v. Gaillord, 12 "Wh., 523.) "The ques¬
tion whether the vacant lands within the United States," says
Chief Justice Marshall, "became joint property, or belonged
to the separate States, was a momentous question, which
threatened to shake the American Confederacy to its founda¬
tions. This important and dangerous question*has been com¬
promised, and the compromise is not now to be contested."
(6 C. R., 87.)
The cessions of the States to the Confederation were made
on the condition that the territory ceded should be laid out
and formed into distinct republican States, which should he
admitted as members to the Federal Union, having the same
rights of sovereignty, freedom, and independence, as the other
States. The first effort to fulfil this trust was made in 1785,
by the offer of a charter or compact to the inhabitants who
might come to occupy the land.
Those inhabitants were to form for themselves temporary
State Governments, founded on the Constitutions of any of the
States, but to be alterable at the will of their Legislature; and
DECEMBER TERM, 1856.
503
Dred Scott v. Saniford. [Me. Justice Campbell.
permanent Governments were to succeed these, whenever the
population became sufficiently numerous to authorize the
State to enter the Confederacy; and Congress assumed to ob¬
tain powers from the States to facilitate this object.' Neither
in the deeds of cession of the States, nor in this compact, was
a sovereign power for Congress to govern the Territories
asserted. Congress retained power, by this act, "to dispose
of and to make rules and regulations respecting the public
domain," but submitted to the people to organize a Govern¬
ment harmonious with those of the confederate States.
The next stage in the progress of colonial government was
the adoption of the ordinance of 1787, by eight States, in
which the plan of a Territorial Government, established by
act of Congress, is first seen. This was adopted while the
Federal Convention to form the Constitution was sitting.
The plan placed the Government in the hands of a Governor,
Secretary, and Judges, appointed by Congress, and conferred
power on them to select suitable laws from the codes of the
States, until the population should equal 5,000. A Legislative
Council, elected by the people, was then to be admitted to a
share of the legislative authority, under the supervision of
Congress; and States were to be formed whenever the number
of the population should authorize the measure.
This ordinance was addressed to the inhabitants as a funda¬
mental compact, and six of its articles define the conditions to
be observed in their Constitution and laws. These conditions
were designed to fulfil the trust in the agreements of cession,
that the States to be formed of the ceded Territories should
be " distinct republican States." This ordinance was submit¬
ted to Virginia in 1788, and the 5th article, embodying as it
does a summary of the entire act, was specifically ratified and
confirmed by that State. This was an incorporation of the
ordinance into her act of cession. It was conceded, in the
argument, that the authority of Congress was not adequate
to the enactment of the ordinance, and that it cannot be sup¬
ported upon the Articles of Confederation. To a part of the
engagements, the assent of nine States was required, and for
another portion no provision had been made in those articles.
Mr. Madison said, in a writing nearly contemporary, but be¬
fore the confirmatory act of Virginia, "Congress have pro¬
ceeded to form new States, to erect temporary Governments,
to appoint officers for them, and to prescribe the conditions on
which such States shall be admitted into the Confederacy; all
this has been done, and done without the least color of con¬
stitutional authority." (Federalist, No. 38.) Richard Henry
Lee, one of the committee who reported the ordinance to Con-
504
SUPREME COURT.
Mb. Justice Campbell.] Dred Scott v. Sandford.
gress, transmitted it to General "Washington, (15th July, 1787,)
saying, "It seemed necessary, for the security of property
among uninformed and perhaps licentious people, as the greater
part of those who go there are, that a strong-toned Government
should exist, and the rights of property he clearly defined."
The consent of all the States represented in Congress, the
consent of the Legislature of Virginia, the consent of the
inhabitants of the Territory, all concur to support the authority
of this enactment. It is apparent, in the frame of the Consti¬
tution, that the Convention recognised its validity, and adjust¬
ed parts of their work with reference to it. The authority to
admit new States into the Union, the omission to provide
distinctly for Territorial Governments, and the clause limiting
the foreign slave trade to States then existing, which might
not prohibit it, show that they regarded this Territory as
provided with a Government, and organized permanently with
a restriction on the subject of slavery. Justice Chase, in the
opinion already cited, says of the Government before, and it is
in some measure true during the Confederation, that "the
powers of Congress originated from necessity, and arose out
of and were only limited by events, or, in other words, they
were revolutionary in their very nature. Their extent de¬
pended upon the exigencies and necessities of public affairs;"
and there is only one rule of construction, in regard to the
acts done, which will fully support them, viz: that the powers
actually exercised were rightfully exercised, wherever they
were supported by the implied sanction of the State Legisla¬
tures, and by the ratifications of the people.
The clauses in the 3d section of the 4th article of the Con¬
stitution, relative to the admission of new States, and the dis¬
posal and regulation of the territory of the United States, were
adopted without debate in the Convention.
There was a warm discussion on the clauses that relate to
the subdivision of the States, and the reservation of the claims
of the United States and each of the States from any prejudice.
The Maryland members revived the controversy in regard to
the Crown lands of the Southwest. There was nothing to in¬
dicate any reference to a government of Territories not in¬
cluded within the limits of the Union; and the whole dis¬
cussion demonstrates that the Convention was consciously
dealing with a Territpry whose condition, as to government, had
been arranged by a fundamental and unalterable compact.
An examination of this clause of the Constitution, by the
light of the circumstances in which the Convention was placed,
will aid us to determine its significance. The first clause is,
"that new States may be admitted by the Congress to this
DECEMBER TERM, 1856.
505
Dred Scott v. Sandford. [Me. Justice Campbell.
Union." The condition of Kentucky, Yermont, Rhode Island,
and the new States to he formed in the Northwest, suggested
this, as a necessary addition to the powers of Congress. The
next clause, proving for the subdivision of States, and the
parties to consent to such an alteration, was required, by the
plans on foot, for changes in Massachusetts, New York, Penn¬
sylvania, North Carolina, and Georgia. The clause which en¬
ables Congress to dispose of and make regulations respecting
the public domain, was demanded by the exigencies of an ex¬
hausted treasury and a disordered finance, for relief by sales,
and the preparation for sales, of the public lands; and the last
clause, that nothing in the Constitution should prejudice the
claims of the United States or a particular State, was to quiet
the jealousy and irritation of those who had claimed for the
United States all the unappropriated lands. I look in vain,
among the discussions of the time, for the assertion of a supreme
sovereignty for Congress over the territory then belonging to
the United States, or that they might thereafter acquire. I seek
in vain for an annunciation that a consolidated power had been
inaugurated, whose subject comprehended an empire, and
which had no restriction but the discretion of Congress. This
disturbing element of the Union entirely escaped the appre¬
hensive previsions of Samuel Adams, George Clinton, Luther
Martin, and Patrick Henry; and, in respect to dangers from
power vested in a central Government over distant settlements,
colonies, or provinces, their instincts were always alive. Not
a word escaped them., to warn their countrymen, that here was
a power to threaten the landmarks of this federative Union,
and with them the safeguards of popular and constitutional
liberty; or that under this article there might be introduced,
on our soil, a single Government over a vast extent of country—
a Government foreign to the persons- over whom it might he
exercised, and capable of binding those not represented, by
statutes, in all cases whatever. I find nothing to authorize
these enormous pretensions, nothing in the expositions of the
friends of the Constitution, nothing in the expressions qf alarm
by its opponents—expressions which have since been developed
as prophecies. Every portion of the United States was then
provided with a municipal Government, which this Constitution
was not designed to supersede, but merely to modify as to its
conditions.
The compacts of cession by North Carolina and Georgia are
subsequent to the Constitution. They adopt the ordinance of
1787, except the clause respecting slavery. But the pre¬
cautionary repudiation of that article forms an argument quite
as satisfactory to the advocates for Federal power, as its intro-
506
SUPREME COURT.
Mr. Justice Campbell.] Dred Scott v. Sandford.
duction would have done. The refusal of a power to Congress
to legislate in one place, seems to justify the seizure of the
same power when another place for its exercise is found.
This proceeds from a radical error, whichAies at the found¬
ation of much of this discussion. It is, that the Federal
Government may lawfully do whatever is not directly prohibited
by the Constitution. This would have been a fundamental
error, if no amendments to the Constitution had been made.
But the final expression of the will of the people of the States,
in the 10th amendment, is, that the powers of the Federal
Government are limited to the grants of the Constitution.
Before the cession of Georgia was made, Congress asserted
rights, in respect to a part of her territory, which require a
passing notice. In 1798 and 1800, acts for the settlement of
limits with Georgia, and to establish a Government in the
Mississippi Territory, were adopted. A Territorial Government
was organized, between the Chattahoochee and Mississippi
rivers. This was within the limits of Georgia. These acts
dismembered Georgia. They established a separate Govern¬
ment upon her soil, while they rather derisively professed,
"that the establishment of that Government shall in no re¬
spects impair the rights of the State of Georgia, either to tie
jurisdiction or soil of the Territory." The Constitution pro¬
vided th'at the importation of such persons as any of the ex¬
isting States shall think proper to admit, shall not be prohibited
by Congress before 1808. By these enactments, a prohibition
was placed upon the importation of slaves into Georgia, al¬
though her Legislature had made none.
This court have repeatedly affirmed the paramount claim of
Georgia to this Territory. They have denied the existence of
any title in the United States. (6 C. R., 87; 12 Wh., 523; 3
How., 212; 13 How., 381.) Yet these acts were cited in the
argument as precedents to show the power of Congress in the
Territories. These statutes were the occasion of earnest ex¬
postulation and bitter remonstrance on the part of the authori¬
ties of the State, and the memory of their injustice and wrong
remained long after the legal settlement of the controversy by
the compact of 1802. A reference to these acts terminates
what I have to say upon the Constitutions of the Territory
within the original limits of the United States. These Consti¬
tutions were framed by the concurrence of the States making
the cessions, and Congress, and were tendered to immigrants
who might be attracted to the vacant territory. The legisla¬
tive powers of the officers of this Government were limited to
the selection of laws from the States; dnd provision was made
for the introduction of popular institutions, and their emanci-
DECEMBER TERM, 1856.
507
Dred Scott v. Sandford. [Mb. Justice Campbell.
pation from Federal control, whenever a suitable opportunity
occurred. The limited reservation of legislative power to the
officers of the Federal Government was excused, on the plea
of necessity; and the probability is, that the clauses respecting
slavery embody some compromise among the statesmen of that
time; beyond these, the distinguishing features of the system
which the patriots of the Revolution had claimed as their birth¬
right, from Great Britain, predominated in them.
The acquisition of Louisiana, in T803, introduced another
system into the United States. This vast province was ceded
by Napoleon, and its population had always been accustomed
to a viceroyal Government, appointed by the Crowns of France
or Spain. To establish a Government constituted on similar
principles, and with like conditions, was not an unnatural pro¬
ceeding. •
But there was great difficulty in finding constitutional au¬
thority for the measure. The third section of the fourth arti¬
cle of the Constitution was introduced into the Constitution,
on the motion of Mr. Gouverneur Morris. In 1803, he was
appealed to for information in regard to its meaning. He an¬
swers: "I am very certain I had it not in contemplation to in¬
sert a decree de cocrcendo imperio in the Constitution of Amer¬
ica. * * * I knew then, as well as I do now, that all
North America must at length be annexed to us. Happy in¬
deed, if the lust of dominion stop here. It would therefore
have been perfectly Utopian to oppose a paper restriction to
the violence of popular sentiment, in a popular Government."
(3 Mor. Writ., 185.) A few days later, he makes another reply
to his correspondent. "I perceive," he says, "I mistook the
drift of your inquiry, which substantially is, whether Con¬
gress can admit, as a new State, territory which did not belong
to the United States when the Constitution was made. In my
opinion, they cannot. I always thought, when we should ac¬
quire Canada and Louisiana, it would be proper to govern
tiiem as provinces, and allow tlfem no voice in OUT councils.
In wording the third section op the fourth article, I went as far as
circumstances would permit, to establish the exclusion. Candor
obliges me to add my belief, that had it been more pointed¬
ly expressed, a strong opposition would have been made."
(3 Mor. Writ., 192.) The first Territorial Government of Lou¬
isiana was an Imperial one, founded upon a French or Span¬
ish model. For a time, the Governor, Judges, Legislative
Council, Marshal, Secretary, and officers of the militia, were
appointed by the President.*
*Mr. Varnum said: "The bill provided such a Government as had never been
known in the United States." Mr. Eustis: "The Government laid down in this
508
SUPREME COURT."
Mr. Justice Campbell.] Dred Scott v. Sandford.
Besides these anomalous arrangements, the acquisition gave
rise to jealous inquiries, as to the influence it would exert in
determining the men and States that were to be "the arbiters
and rulers " of the destinies of the Union; and unconstitutional
opinions, having for their aim to promote sectional divisions,
were announced and developed. "Something," said an emi¬
nent statesman; " something has suggested to the members of
Congress the policy of acquiring geographical majorities. This
is a very direct step.towards disunion, for it must foster the
geographical enmities by which alone it can be effected. This
something must be a contemplation of particular advantages
to be derived from such majorities; and is it not notorious that
they consist of nothing else but usurpations over persons and
property, by which they can regulate the internal wealth and
prosperity of States and individuals ? "
■ The most dangerous of the efforts to employ a geographical
political power, to perpetuate a geographical preponderance in
the Union, is to be found in the deliberations upon the act of
the 6th of March, 1820, before cited. The attempt consisted
of a proposal to exclude Missouri from a place in the"Union,
unless her people would adopt a Constitution containing a
prohibition upon the subject of slavery, according to a pre¬
scription of Congress. The sentiment is now general, if not
universal, that Congress had no constitutional power to impose
the restriction. This was frankly admitted at the bar, in the
course of this argument. The principles which this court have
pronounced condemn the pretension then made on behalf of
the legislative department. In Groves v. Slaughter, (15 Pet.,)
the Chief Justice said: "The power over this subject is exclu¬
sively with the several States, and each of them has a right to
decide for itself whether it will or will not allow persons of
this description to be brought within its limits." Justice
McLean said: '.'The Constitution of the United States ope¬
rates alike in all the States, and one State has the same power
over the subject of slavery as every other State." In Pollard's
Lessee v. Hagan, (3 IIow., 212,) the court say: "The United
States have no constitutional capacity to exercise municipal
bill is certainly a new thing in the United States." Mr. Lucas: "It has been re¬
marked, that this bill establishes elementary principles never previously intro¬
duced in the Government of any Territory of the United States. Granting the
truth of this observation," &c., &c. Mr. Macon: "My.first objection to the princi¬
ple contained in this section is, that it establishes a species of government un¬
known to the United States." Mr. Boyle: "Were the President an angel instead
■ of a man, I would not clothe him with this power." Mr. G. W. Campbell: " On
examining the section, it will appear that it really establishes a complete despot¬
ism." Mr. Sloan: "Can anything be more repugnant to the principles of just gov¬
ernment? Can anything be more despotic?"—Annals of Congress, 1803-4.
DECEMBER TERM, 1856.
509
Dred Scott v. Sandford. [Me. Justice Campbell.
jurisdiction, sovereignty, or eminent domain, within the limits
of a State or elsewhere, except in cases where it is delegated,
and the court denies the faculty of the Federal Government to
add to its powers by treaty or compact."
This is a necessary consequence, resulting from the nature
of the Federal Constitution, which is a federal compact among
the States, establishing a limited Government, with powers
delegated by the people of distinct and independent commu¬
nities, who reserved to their State Governments, and to them¬
selves, the powers they did not grant. This claim to impose
a restriction upon the people of Missouri involved a denial of
the constitutional relations between the people of the States
and Congress, and affirmed a concurrent right for the latter,
with their people, to constitute the social and political system
of the new States. A successful maintenance of this claim
would have altered the basis of the Constitution. The new
States would have become members of a Union defined in part
by the Constitution and in part by Congress. They would
not have been admitted to "this Union." Their sovereignty
would have been restricted by Congress as \yell as, the Consti¬
tution. The demand was Unconstitutional and subversive, but
was prosecuted with an energy, and aroused such animosities
among the people, that patriots, whose confidence had not
failed during the Revolution, begain to despair for the Consti¬
tution.* Amid the utmost violence of this extraordinary
contest, the expedient contained in the eighth section of this
act was proposed,' to moderate it, and to avert the catastrophe
it menaced. It was not seriously debated, nor were its consti¬
tutional aspects severely scrutinized by Congress. For the
first time, in the history of the country, has its operation been
embodied in a case at law, and been presented to this court
for their judgment. The inquiry is, whether there are condi¬
tions in the Constitutions of the Territories which subject the
' capacity and status of persons within their limits to the direct
action of Congress. Can Congress determine the condition
and status of persons who inhabit the Territories ?
The Constitution permits Congress to dispose of and to
make all needful rules and regulations respecting the territory
or other property belonging to the United States. This power
applies as well to territory belonging to the United States
within the States, as beyond them. It comprehends all the
public domain, wherever it may be. The argument is, that
* Mr. Jefferson wrote : " The Missouri question is the most portentous one that
ever threatened our Union. In the gloomiest moments of the revolutionary war,
I never had any apprehension equal to that I feel from this source."
510
SUPREME COURT.
Mr. Justice Campbell.] Dred Scott v. Sandford.
the power to make "all needful rules and regulations" "is a
power of legislation," "a full legislative power;" "that it
includes all subjects of legislation in the territory," and is
without any limitations, except the positive prohibitions which
affect all the powers of Congress. Congress may then regulate
or prohibit slavery upon the public domain within the new
States, and such a prohibition would permanently affect the
capacity of a slave, whose master might carry him to it. And
why not ? Because no power has been conferred on Congress.
This is a conclusion universally admitted. But the power to
"make rules and regulations respecting the territory" is not
restrained by State lines, nor are there any constitutional
prohibitions upon its exercise in the domain of the United
States within the States; and whatever rules and regula¬
tions respecting territory Congress may constitutionally make
are supreme, and are not dependent on the situs of "the terri¬
tory."
The author of the Farmer's Letters, so famous in'the ante-
revolutionary history, thus states the argument made by the
American loyalists in favor of the claim of the British Parliar
ment to legislate in all cases whatever over the colonies: "It
has been urged with great vehemence against us," he says,
" and it seems to be thought their fort by our adversaries, that
a power of regulation is a power of legislation; and a power
of legislation, if constitutional, must be universal and supreme,
in the utmost sense of the word. It is therefore concluded
that the colonies, by acknowledging the power of regulation,
acknowledged every other power."
This sophism imposed upon a portion of the patriots of that
day. Chief Justice Marshall, in his life of Washington, says
"that many of the best-informed men in Massachusetts had
perhaps adopted the opinion of the parliamentary right of
internal, government over the colonies;" "that the English
statute book furnishes many instances of its exercise;" "that
in no case recollected, vvas their authority openly controvert
ed;" and "that the General Court of Massachusetts; on a late
occasion, openly recognised the principle." (Marsh. Wash.,
v. 2, p. 75, 76.)
But the more eminent men of Massachusetts rejected it; and
another patriot of the time .employs the instance to warn us
of "the stealth with which oppression approaches," and "the
enormities towards which precedents travel." And the people
of the United States, as we have seen, appealed to the last ar¬
gument, rather than acquiesce in their authority. Could it
have been the purpose of Washington and his illustrious asso-
ciates, by the use of ambiguous, equivocal, and expansive
DECEMBER TERM, 1856.
511
r
Dred Scott v. Sandford. [Me. Justice Campbell.
words, such, as "rules," "regulations," "territory," to re-es¬
tablish in the Constitution of their country that fort which
had been prostrated amid the toils and with the sufferings and
sacrifices of seven years of war? Are these words to be un¬
derstood as the Norths, the Grenvilles, Hillsboroughs, Hutch-
insons, and Dunmores—in a word, as George III would have
understood them—or are we to look for their interpretation to
Patrick Henry or Samuel Adams, to Jefferson, and Jay, and
Dickinson; to the sage Franklin, or to Hamilton, who from
bis early manhood was engaged in combating British con¬
structions of such words? We know that the resolution of
Congress of 1780 contemplated that the new States to be form¬
ed under their recommendation were to have the same rights
of sovereignty, freedom, and independence, as the old. That
every resolution, cession, compact, and ordinance, of the
States, observed the same liberal principle. That the Union,
of the Constitution is a union formed of equal States; and that
new States, when admitted, were to enter "this Union." Had
another union been proposed in "any pointed manner," it
would have encountered not only "strong" but successful op¬
position. The disunion between Great Britain and her col¬
onies originated in the antipathy of the latter to "rules and
regulations" made by a remote power respecting their internal
policy. In forming the Constitution, this. fact was ever pres¬
ent in the mindS of its authors. The people were assured by
their most trusted statesmen "that the jurisdiction of the Fed¬
eral Government is limited to certain enumerated objects,
which concern all members of the republic," and "that the
local or municipal authorities form distinct portions of su¬
premacy, no more subject within their respective spheres to
the general authority, than the general authority is subject to
them within its own sphere." Still, this did not content them.
Under the lead of Hancock and Samuel Adams, of Patrick
Henry and George Mason, they demanded an explicit declara¬
tion that no more power was to be exercised than they had
delegated. And the ninth and tenth amendments to the Con¬
stitution were designed to include the reserved rights of the
States, and the people, within all the sanctions of that instru¬
ment, and to" bind the authorities, State and Federal, by the
judicial oath it prescribes, to their recognition and observance.
Is it probable, therefore, that the supreme and irresponsible
power, which is now claimed for Congress over boundless ter¬
ritories, the use of which cannot fail to react upon the politi¬
cal system of the States, to its subversion, was ever within the
contemplation of the statesmen who conducted the counsels
of the people in the formation of this Constitution ?, "When
512
Mr. Justice Campbell.]
SUPREME COURT.
Dred Scott V. Sandford.
the questions that came to the surface upon the acquisition of
Louisiana were presented to the mind of Jefferson, he wrote:
" I had rather ask an enlargement of power from the nation,
where it is found necessary, than to assume it by a construc¬
tion which would make our powers boundless. Our peculiar
security is in the possession of a written Constitution. Let us
not make it blank paper by construction. I say the same as
to the opinion of those who consider the grant of the treaty-
making power as boundless. If it is, then we have no Consti¬
tution. If it has bounds, they can be no others than the defi¬
nitions of the powers which that instrument gives. It specifies
and delineates the operations permitted to the Federal Gov¬
ernment, and gives the powers necessary to carry them into
execution." The-publication of the journals of the Federal
Convention in 1819, of the debates reported by Mr. Madison
in 1840, and the mass of private correspondence of the early
statesmen before and since, enable us to approach the discus¬
sion of the aims of those who made the Constitution, with
some insight and confidence.
I have endeavored, with the assistance of these, to find a
solution for the grave and difficult question involved in this
inquiry. My opinion is, that the claim for Congress of su¬
preme power in the Territories, under the grant to "dispose
of and make all needful rules and regulations respecting terri¬
tory," is not supported by the historical evidence drawn from
the Revolution, the Confederation, or the deliberatipns which
preceded the ratification of the Federal Constitution. The
ordinance of 1787 depended upon the action of the Congress
of the Confederation, the assent of the State of Virginia, and
the acquiescence of the people who recognised the validity of
that plea of necessity which supported so many of the acts of
the Governments of that time; and the Federal Government
accepted the ordinance as a recognised and valid engagement
of the Confederation.
In referring to the precedents of 1798 and 1800, 1 find the
Constitution was plainly violated by the invasion of the rights
of a sovereign State, both of soil and jurisdiction; and in ref¬
erence to that of 1804, the wisest statesmen protested against
it, and the President more than doubted its policy and the
power of the Government.
Mr. John Quincy Adams, at a later period, says of the last
act, "that the President found Congress mounted to the pitch
of passing those acts, without inquiring where they acquired
the authority, and he conquered his own scruples as they had
done theirs." But this court cannot undertake for themselves
the same conquest. They acknowledge that our peculiar se-
DECEMBER TERM, 1856.
518
jQred Scott v. Sandford. [Me. Justice Campbell.
( ,
curity is in the possession of a written Constitution, and they
cannot make it blank paper by construction.
They look to its delineation of the operations of the Federal
Government, and they must not exceed the limits it marks
out, in their administration. The court have said ££that Con¬
gress cannot exercise municipal jurisdiction, sovereignty, or
eminent domain, within the limits of a State or elsewhere, be¬
yond what has been delegated." "We are then to find the
authority for supreme power in the Territories in the Consti¬
tution. What are the limits upon the operations of a Govern¬
ment invested with legislative, executive, and judiciary powers,
and charged with the power to dispose of and to make all need¬
ful rules and regulations respecting a vast public domain?
The feudal system would have recognised the claim made on
behalf of the Federal Government for supreme power over
persons and things in the Territories, as an incident to this
title—that is, the title to dispose of and make rules and regu¬
lations respecting it.
The Norman lawyers of "William the Conqueror would have
yielded an implicit assent to the doctrine, that a supreme sov¬
ereignty is an inseparable incident to a grant to dispose of and
to make all needful rules and regulations respecting the public
domain. But an American patriot, in contrasting the European
and American systems, may affirm, "that European sovereigns
give lands to their colonists, but reserve to themselves a power
to control their property, liberty^ and privileges; but the
American Government sells the lands belonging to the people
of the several States (i. e., United States) to their citizens, who
are already in the possession of personal and political rights,
which the Government did not give, and cannot take away."
And the advocates for Government sovereignty in the Terri¬
tories have been compelled to abate a portion of the pretensions
originally made in its behalf, and to admit that the constitu¬
tional prohibitions upon Congress operate in the Territories.
But a constitutional prohibition is not requisite to ascertain
a limitation upon the authority of the several departments
of the Federal Government. Nor are the States or people
restrained by any enumeration or definition of their rights or
liberties.
To impair or diminish either, the department must produce
an authority from the people themselves, in their Constitution;
and, as we have seen, a power to make rules and regulations
respecting the public domain does not confer a municipal sov¬
ereignty over persons and things upon it. But as this is
"thought their fort" by our adversaries, I propose a more
definite examination of it. We have seen, Congress does not
514
SUPREME COURT.
Mr. Justice Campbell.] Bred Scott v. Sandford.
dispose of or make rules and regulations respecting' domain
"belonging to themselves, but "belonging to the United States.
These conferred on their mandatory, Congress, authority to
-dispose of the territory which belonged to them in common;
and to accomplish that object beneficially and effectually, they
gave an authority to make suitable rules and regulations re¬
specting it. "When the power of disposition is fulfilled, the
authority to make rules and regulations terminates, for it at-'
taches only upon territory "belonging to the United States."
Consequently, the power to make rules and regulations, from
the nature of the subject, is restricted to such administrative
and conservatory acts as are needful for the preservation of the
public domain, and its preparation for sale or disposition. The
system of land surveys; the reservations for schools, internal
improvements, military sites, and public buildings; the pre¬
emption claims of settlers; the establishment of land offices,
and boards of inquiry, to determine the validity of land titles;
the modes of entry, and sale, and of conferring titles; the pro¬
tection of the' lands from trespass and waste; the partition of
the public domain into municipal subdivisions, having reference
to the erection of Territorial Governments and States; and
perhaps the selection, under their authority, of suitable laws
for the protection of the settlers, until there may be a sufficient
number of them to form a self-sustaining municipal Govern¬
ment—these important rules and regulations will sufficiently
illustrate the scope and operation of the 3d section of the 4th
article of the Constitution. But this clause in the Constitution
does not exhaust the powers of Congress within the territorial
subdivisions, or over the persons who inhabit them. Congress
may exercise' there all the powers of Government which belong
to them as the Legislature of the United States, of which these
Territories make a part. (Loughborough v. Blake, 5 Wheat.,
317.) Thus the laws of taxation, for the regulation of foreign,
Eederal, and Indian commerce, and s5 for the abolition of
the slave trade, for the protection of copyrights and inventions,
for the establishment of postal communication and courts of
justice, and for the punishment of crimes, are as operative
there as within the States. I admit that to mark the bounds
for the jurisdiction of the Government; of the United States
within the Territory, and of its power in respect to persons and
things within the municipal subdivisions it has created, is a
Work of delicacy and difficulty, and, in a great measure, is
beyond the cognizance of the judiciary department of that Gov¬
ernment. How much municipal power may be exercised by
the people of the Territory, before their admission to the Union,
the courts of justice cannot decide. This must depend, for
DECEMBER TERM, 1856.
515
Bred Scott v. Sandford. [Mb. Justice Campbell.
the most part, on political considerations, which, cannot enter
into the determination of a case of law or equity. I do not feel
called upon to define the jurisdiction of Congress. It is suffi¬
cient for the decision of this - case to ascertain whether the
residuary sovereignty of the States or people has been invaded
hy the 8th section of the act of 6th March, 1820, I have cited,
in so far as it concerns the capacity and status of persons in
the condition and circumstances of the plaintiff and his family.
These States, at the adoption of the Federal Constitution,
were organized communities, having distinct systems of muni¬
cipal law, which, though derived from a common source, and
recognising in the main similar principles, yet in some respects
had become unlike, and on a particular subject promised to he
antagonistic.
Their systems provided protection for life, liberty, and prop¬
erty, among their citizens, and for the determination of the
Condition and capacity of the persons domiciled within their
limits. These institutions, for the most part, were placed
beyond the control of the Federal Government. The Consti¬
tution allows Congress to coin money, and regulate its value;
to regulate foreign and Federal commerce; to secure, for a
limited period, to authors and inventors, a property in their
writings and discoveries; and to make rules concerning cap¬
tures in war; and, within the limits of these powers, it has
exercised, rightly, to a greater or less extent, the power to
determine what sball and what shall not be property.
But the great powers of war and negotiation, finance, postal
communication, and commerce, in general, when employed in
respect to tli^e property of a citizen, refer to, and depend upon,
the municipal laws of the States, to ascertain and determine
what is property, and the rights of the owner, and the tenure
by which it is held. •
Whatever these Constitutions and laws validly determine to
be property, it is the duty of the Federal Government, through
the domain of jurisdiction merely Federal, to recognise to be
property.
And this principle follows from the structure of the respect¬
ive Governments, State and Federal, and their reciprocal rela¬
tions. They are different agents and trustees of the people of
the several States, appointed with different powers and with
distinct purposes, but whose acts, within the scope of their
respective jurisdictions, are mutually obligatory. They are
respectively the depositories of such powers of legislation as
the people were willing to surrender, and their duty is to
co-operate within their several jurisdictions to maintain the
rights of the same citizens under both Governments unim-
516
SUPREME COURT.
Me. Justice Campbell.} Dred Scott v. Sandford.
paired. A proscription, therefore, of the Constitution and
laws of one or more States, determining property, on the part
of the Federal Government, by which the stability of its social
system may be endangered, is plainly repugnant to the con¬
ditions on which the Federal Constitution was adopted, or
which that Government was designed to accomplish. Each
of the States surrendered its powers of war and negotiation, to
raise armies and to support a navy, and all of these powers are
sometimes required to preserve a State from disaster and ruin.
The Federal Government was constituted to exercise these
powers for the preservation of the States, respectively, and to
secure to all their citizens the enjoyment of the rights which
were not surrendered to the Federdl Government. The provi¬
dent care of the statesmen who projected the Constitution was
signalized by such a distribution of the powers of Government
as to exclude many of the motives and opportunities for
promoting provocations and spreading discord among the
States, and for guarding against those partial combinations, so
destructive of the community of interest, sentiment, and feel¬
ing, which are so essential to the support of the Union. The
distinguishing features of their system consist in the exclusion
of the Federal Government from the local and internal con¬
cerns of, and in the establishment of an independent internal
Government within, the States. And it is a significant fact in
the history of the United States, that those controversies which
have been productive of the greatest animosity, and have
occasioned most peril to the peace of the Union, have had
their origin in the well-sustained opinion of a minority among
the people, that the Federal Government had overstepped its
constitutional limits to grant some exclusive privilege, or to
disturb the legitimate distribution of property or power among
the States or individuals. For can a more signal instance of
this be found than is furnished by the act before us. FTo candid
or rational man can hesitate to believe, that if the subject of
the eighth section of the act of March, 1820, had never been
introduced into Congress and made the basis of legislation, no
interest common to the Union would have been seriously
affected. And, certainly, the creation, within this Union, of
large confederacies of unfriendly and frowning States, which
has been the tendency, and, to an alarming extent, the result,
produced by the agitation arising from it, does not commend
it to the patriot or statesman. This court have determined
that the intermigration of slaves was not committed to the
jurisdiction or control of Congress. "Wherever a master is
entitled to go within the United States, his slave may accom¬
pany him, wfithout any impediment from, or fear of, Congres-
DECEMBER TERM, 1856.
51T
Dred Scott v. Sandford. [Me. Justice Campbell.
sional legislation or interference. The question then arises,
whether Congress, which can exercise no jurisdiction over the,
relations of master and slave within the limits of -the Union,
and is hound to recognise and respect the rights and relations
that validly exist under the Constitutions and laws of the
States, can deny the exercise of those rights, and prohibit the
continuance of those relations, within the Territories.
And the citation of State statutes prohibiting the immigra¬
tion of slaves, and of the decisions of State courts enforcing
the forfeiture of the master's title in accordance with their rule,
only darkens the discussion. For the question is, have Conr
gress. the municipal sovereignty in the Territories which the
State Legislatures have derived from the authority of the
people, and exercise in the States ?
And this depends upon the construction of the article in the
Constitution before referred to.
And, in my opinion, that clause confers no power upon Con¬
gress to. dissolve the relations of the master and slave on the
domain of the United States, either within or without any of
the States.
The eighth section of the act of Congress of the 6th of March,
1820, did not, in my opinion, operate to determine the domes¬
tic condition and status of the plaintiff and his family during
their sojourn in Minnesota Territory, or after their return to
Missouri.
The question occurs as to the judgment to be given in this
case. It appeared upon the trial that the plaintiff, in 1834,
was in a state of slavery in Missouri, and he had been in Mis¬
souri for near fifteen years in that condition when this suit was
brought. Hor does it appear that he at any time possessed
another state or condition, de facto. His claim to freedom
depends upon his temporary elocation, from the domicil of his
origin, in company with his master, to communities where the
law of slavery did not prevail. My examination is confined to
the case, as it was submitted upon uncontested evidence, upon
appropriate issues to the jury, and upon the instructions given
and refused by the court upon that evidence. My opinion is,
that the opinion of the Circuit Court was correct upon all the
claims involved in those issues, and that the verdict of the
jury was justified by the evidence and instructions.
The jury have returned that the plaintiff and his family are
slaves.
Upon this record, it is apparent that this is not a controversy
between citizens of different States; and that the plaintiff, at
no period of the life which has been submitted to the view of
the court, lias had a capacity to maintain a suit in the courts
518
SUPREME COURT.
Mr. Justice Catron.] Bred Scott v. Sandford.
of tlie United States. And in so far as tlie argument of the
Chief Justice upon the plea in abatement has a reference to
the plaintiff or his family, in any of the conditions or circum¬
stances of their lives, as presented in the evidence, I concur in
that portion of his opinion. I concur in the judgment which
expresses the conclusion that the Circuit Court should not
have rendered a general judgment.
The capacity of the plaintiff to sue is involved in the pleas in
bar, and the verdict of the jury discloses an incapacity under
the Constitution. Under the Constitution of the United States,
his is an incapacity to sue in their courts, while, by the laws
of Missouri, the operation of the verdict would be more exten¬
sive. I think it a safe conclusion to enforce the lesser disabil¬
ity imposed by the Constitution of the United States, and leave
to the plaintiff all his rights in Missouri. I think the judgment
should be affirmed, on the ground that the Circuit Court had
ho jurisdiction, or that the case should be reversed and re¬
manded, that the suit may be dismissed.
Mr. Justice CATRON".
The defendant pleaded to the jurisdiction of the Circuit
Court, that the plaintiff was a negro of African blood; the
descendant of Africans, who had been imported and sold in
this country as slaves, and thus had no capacity as a citizen of
Missouri to maintain a suit in the Circuit Court. The court
sustained a demurrer to this plea, and a trial was had upon
the pleas, of the general issue, and also that the plaintiff and
his family were slaves, belonging to the defendant. In this
trial, a verdict was given for the defendant.
The judgment of the Circuit' Court upon the plea in abate¬
ment is not open, in my opinion, to examination in this court
upon the plaintiff 's writ.
The judgment was given for him conformably to the prayer
of his demurrer. He cannot assign an error in such a judg¬
ment. (Tidd's Pr., 1163; 2 "Williams's Saund., 46 a; 2 Iredell
N. C., 87; 2 W. and S., 391.) Nor does the fact that the judg¬
ment was given on a plea to the jurisdiction, avoid the appli¬
cation of this rule. (Capron v. Van Noorden, 2 Cr., 126; 6
Wend., 465; 7 Met., 598; 5 Pike, 1005.)
The declaration discloses a case within the jurisdiction of
the court—a controversy between citizens of different States.
The plea in abatement, impugning these jurisdictional aver¬
ments, was waived when the defendant answered to the decla¬
ration by pleas to the merits. The proceedings on that plea
remain a part of the technical record, to show tlm history of
the case, but are not open to the review of this court by a writ
DECEMBER TERM, 1856.
519
Bred Scott v. Sand/ord. [Mb. Justich Catron.
of error. The authorities are very conclusive on this point.
Shepherd v. Graves, 14 How., 505; Bailey v. Dozier, 6 How.,
23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,)
555; 2 Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,)
78. Uor can the court assume, as admitted facts, the aver¬
ments of the plea from the confession of the demurrer. That
confession was for a single object, and cannot be used for any
other purpose than to test the validity of the plea. Tompkins
v. Ashley, 1 Moody and Mackin, 32; 33 Maine, 96, 100.
There being nothing in controversy here but the merits, I
will proceed to discuss them.
The plaintiff claims to have acquired property in himself,
and became free, by being kept in Illinois during two years.
The Constitution, laws, and policy, of Illinois, are somewhat
peculiar respecting slavery. Unless the master becomes an in¬
habitant of that State, the slaves he takes there do' not acquire
their freedom; and if they return with their master to the
slave State of his domicil, they cannot assert their freedom
after their return. For the reasons and authorities on this
point, I refer to the opinion of my brother Kelson, with which
I not only concur, but think his opinion is the most conclusive
argument on the subject within my knowledge.
It is next insisted for the plaintiff, that his freedom (and that
of his wife and eldest child) was obtained by force of the act
of Congress of 1820, usually known as the Missouri compro¬
mise act, which declares: "That in all that territory ceded by
France to the United States, which lies north of thirty-six de¬
grees thirty minutes north latitude, slavery and involuntary
servitude shall be, and .are hereby, forever prohibited."
From this prohibition, the territory now constituting, the
State of Missouri was excepted; which exception to the stipu¬
lation gave it the designation of a compromise.
The first question presented on this act is, whether Congress
had power to make such compromise. For, if power was want¬
ing, then no freedom could be acquired by the defendant un¬
der the act.
That Congress has no authority to pass laws and bind men's
rights beyond the powers conferred by the Constitution, is not
open to controversy. But it is insisted that, by the Constitu¬
tion, Congress has power to legislate for and govern the Ter¬
ritories of the United States, and that by force of the power to
govern, laws could be enacted, prohibiting slavery in any por¬
tion of the Louisiana Territory; and, of course, to abolish sla¬
very in all parts of it, whilst it was, or is, governed as a Terri¬
tory.
My opinion is, that Congress is vested with power to govern
520
SUPREME COURT.
Me. Justice Catron.] Bred Scott v. Sandford.
the Territories of the United States by force of the third sec¬
tion of the fourth article of the Constitution. And I will state
my reasons for this opinion.
Almost every provision in that instrument has a history
that must he understood, before the brief and sententious lan¬
guage employed can be comprehended in the relations its au¬
thors intended. We must bring before us the state of things
presented to the Convention, and in regard to which it acted,
when the compound provision was made, declaring: 1st. That
"new States may be admitted by the Congress -into this
Union." 2d. "The Congress shall have power to dispose of
and make all needful rules and regulations respecting the ter¬
ritory or other property belonging to the United States. And
nothing in this Constitution shall be so construed as to preju¬
dice any claims of the United States, or any particular State."
Having ascertained the historical facts giving rise to these
provisions, the difficulty of arriving at the true meaning of the
language employed will be greatly lessened.
The history of these facts is substantially as follows:
The King of Great Britain, by his proclamation of 1763,
virtually claimed that the country west of the mountains had
been conquered from France, and ceded to the Crown of Great
Britain by the treaty of Paris of that year, and he says: ""We
reserve it under our sovereignty, protection, and dominion, for
the use. of the Indians."
This country was conquered from the Crown of Great Brit¬
ain, and surrendered to the United States by the treaty of
peace of 1783. The colonial charters of Virginia, North Caro¬
lina, and Georgia, included it. Other States set up pretensions
of claim to some portions of the territory north of the Ohio,
but they were of no value, as I suppose. (5 Wheat., 375.)
As this vacant country had been won by the blood and
treasure of all the States, those whose charters did not reach
it, insisted that the country belonged to the States united, and
that the lands should be disposed of for the benefit of the
whole; and to which end, the western territory should he
ceded to the States united. The contest was stringent and
angry, long before the Convention convened, and deeply agi¬
tated that body. As a matter of justice, and to quiet the
controversy, Virginia consented to cede the country north of
the Ohio as early as 1783; and in 1784 the deed of cession was
executed, by her delegates in the Congress of the Confederar
tion, conveying to the United States in Congress assembled,
for the benefit of said States, all right, title, and claim, as
well of soil as of jurisdiction, which this Commonwealth hath
to the territory or tract of country within the limits of the Vir-
DECEMBER TERM, 1856.
521
Dred Scott y. Sandford. [Me. Justice Catron.
ginia charter, situate, lying, and being to the northwest of the
river Ohio." In 1787, (July 13,) the ordinance was passed by
the old Congress to govern the Territory.
Massachusetts had ceded her pretension of claim to western
territory in 1785, Connecticut hers in 1786, and New York
had ceded hers. In August, 1787, South Carolina ceded to
the Confederation her pretension of claim to territory west of
that State. And North Carolina was expected to cede hers,
which she did do, in April, 1790. And so Georgia was confi¬
dently expected to cede her large domain, now constituting
the territory of the States of Alabama and Mississippi.
At the time the Constitution was under consideration, there
had been ceded to the United States, or was shortly expected
to be ceded, all the western country, from the British Canada
line to Florida, and from the head of the Mississippi almost to
its mouth, except that portion which now constitutes the State
of Kentucky.
Although Virginia had conferred on the Congress of the
Confederation power to govern the Territory north of the
Ohio, still, it cannot be denied, as I think, that power was
wanting to admit a new State under the Articles of Confedera¬
tion.
With these facts prominently before the Convention, they
proposed to accomplish these ends:
1st. To give power to admit new States.
2d. To dispose of the public lands in the Territories, and
such as might remain undisposed of in the new States after
they were admitted.
And, thirdly, to give power to govern the different Territo¬
ries as incipient States, not of the Unioii, and fit them for
admission. No one in the Convention seems to have doubted
that these powers were necessary. As early as the third day
of its session, (May 29th,) Edmund Randolph brought forward
a set of resolutions containing nearly all the germs of the Con¬
stitution, the tenth of which is as follows:
" Resolved, That provision ought to be made for the admis¬
sion of States lawfully arising within the limits of the United
Stales, whether from a voluntary junction of government and
territory or otherwise, with the consent of a number of voices
iu the National Legislature less than the whole."
August 18th, Mr. Madison submitted, in order to be referred
to the committee of detail, the following powers as proper to
be added to those of the General Legislature:
"To dispose of the unappropriated lands of the United
States." " To institute temporary Governments for new States
arising therein." (3 Madison Papers, 1353.)
522
SUPREME COURT.
Me. Justice CAteon.] Dred Scott v. Sandford.
These, with the resolution, that a district for the location of
the seat of Government should he provided, and some others,
were referred, without a dissent, to the committee of detail, to
arrange and put them into satisfactory language.
Gouverneur Morris constructed the clauses, and combined
the views of a majority on the two provisions, to admit new
States; and secondly, to dispose of the public lands, and to
govern the Territories, in the mean time, between the cessions
of the States and the admission into the Union of new States
arising in the ceded territory. (3 Madison Papers, 1456 to
1466.)
It was hardly possible to separate the power "to make all
needful rules and regulations" respecting the government of
the territory and the disposition of the public lands.
Korth of the Ohio, Virginia conveyed the lands, and vested
the jurisdiction in the thirteen original States, before the Con¬
stitution was formed. She had the sole title and sole sover¬
eignty, and the same power to cede, on any terms she saw
proper, that the King of England had to grant the Virginia
colonial charter of 1609, or to grant the charter of Pennsylva¬
nia to William Penn. The thirteen States, through their rep¬
resentatives and deputed ministers in the old Congress, had
the same right to govern that Virginia had before the cession.
(Baldwin's Constitutional Views, 90.) And the sixth article
of the Constitution adopted all engagements entered into by
the Congress of the Confederation, as valid against the United
States; and that the laws, made in pursuance of the new Con¬
stitution, to carry out this engagement, should be the supreme
law of the land, and the judges bound thereby. To give the
compact, and the ordinance, which was part of it, full.effect
under the new Government, the act of August 7th, 1789, was
passed, which declares, "Whereas, in Order that the ordinance
of the United States in Congress assembled, for the govern¬
ment of the Territory northwest of the river Ohio, may have
full effect, it is requisite that certain provisions should be made,
so as to adapt the same to the present Constitution of the Uni¬
ted States." It is then provided that the Governor and other
officers should be appointed by the President, with the con¬
sent of the Senate; and be subject to removal, &c., in like
manner that they were by the old Congress, whose functions
had ceased.
By the powers to govern, given by the Constitution, those
amendments to the ordinance could be made, but Congress
guardedly abstained from touching the compact of Virginia,
further than to adapt it to the new Constitution.
It is due to myself to say, that it is asking much of a judge,
DECEMBER TERM, 1856.
523
Dred Scott y. Sandford. [Me. Justice Catron.
who has for nearly twenty years been exercising jurisdiction,
from the western Missouri line to the Rocky Mountains, and,
on this understanding of the Constitution, inflicting the ex¬
treme penalty of death for crimes committed where the direct
legislation of Congress was the only rule, to agree that he had
been all the while acting in mistake, and as an usurper.
More than sixty years have passed away since Congress has
exercised power to govern the Territories, by its legislation
directly, or by Territorial charters, subject to repeal at all
times, and it is now too late to call that power into question, if
this court could disregard its own decisions; which it cannot
do, as I think. It was held in the case of Cross v. Harrison, (16
IIow., 193-4,) that the sovereignty of California was in the
United States, in virtue of the Constitution, by which power
had been given to Congress to dispose of and make all need¬
ful rules and regulations respecting the territory or other
property belonging to the United States, with the power to
admit new States into the Union. That decision«followed pre¬
ceding ones, there cited. The question was then presented,
how it was possible for the judicial mind to conceive that the
United States Government, created solely by the Constitution,
could, by a lawful treaty, acquire territory over which the ac¬
quiring power had no jurisdiction to hold and govern it, by
force of the instrument undkr whose authority the country -was
acquired; and the foregoing was the conclusion of this court
on the proposition. What was there announced, was most
deliberately done, and with a purpose. The only question
here is, as I think, how far the power- of Congress is limited.
As to the Northwest Territory, Virginia had the right to
abolish slavery there; and she did so agree in 1787, with the
other States in the Congress of the Confederation, by assenting
to and adopting the ordinance of 1787, for the government
of the Northwest Territory. She did this also by an act of her
Legislature, passed afterwards, which was a treaty in fact.
Before the new Constitution was adopted, she had as much
right to treat and agree as any European Government had.
And, having excluded slavery, the new Government was
bound by that engagement by article six of the new Constitu¬
tion. This only meant that slavery should not exist whilst
the United States exercised the power of government, in the
Territorial form; for, when a new State came in, it might do
so, with or without slavery.
My opinion is, that Congress had no power, in face of the
compact between Virginia and the twelve other States, to force
slavery into the Northwest Territory, because there, it was
bound to that "engagement," and could not break it.
524
SUPREME COURT.
Me. Justice Catron.] * Dred Scott v. Sandford.
In 1790, North Carolina ceded her western territory, now
the State of Tennessee, and stipulated that the inhabitants
thereof should enjoy all the privileges and advantages of the
ordinance for governing the territory north of the Ohio river,
and that Congress should assume the government, and accept
the cession, under the express conditions contained in the or¬
dinance : Provided, " That no regulation made, or to be made,
by Congress, shall tend to emancipate slaves."
In 1802, Georgia ceded her western territory to the United
States, with the provision that the ordinance of 1787 should in
all its parts extend to the territory ceded, "that article only
excepted which forbids slavery." Congress had no more power
to legislate slavery out from the North Carolina and Georgia
cessions, than it had power to legislate slavery in, north of the
Ohio. No power existed in Congress to legislate at all, affecting
slavery, in either case. The inhabitants, as respected this de¬
scription of property, stoo,d protected whilst they were governed
by Congress,>in like manner that they were protected before
the cession was made, and when they were, respectively, parts
of North Carolina and Georgia.
And how does the power of Congress stand west of the Mis¬
sissippi river? The country there was acquired from France,
by treaty, in 1803. It declares, that the First Consul, in the
name of the French Republic, doth hereby cede to the United
States, in full sovereignty, the dolony or province of Louisiana,
with all the rights and appurtenances of the said territoiy.
And, by article third, that "the inhabitants of the ceded terri¬
tory shall be incorporated in the Union of the United States,
and admitted as soon as possible, according to the principles
of the Federal Constitution, to the enjoyment of all the rights,
advantages, and immunities, of citizens of the United States;
and, in the mean time, they shall be maintained and protected
in the free enjoyment of their liberty, property, and the religion
which they profess."
Louisiana was a province where slavery was not only lawful,
hut where property in slaves was the most valuable of all per¬
sonal property. The province was ceded as a unit, with an
equal right pertaining to all its inhabitants, in every part
thereof, to own slaves. It was, to a great extent, a vacant
country, having in it few civilized inhabitants. No one portion
of the colony, of a proper size for a State of the Union had a
sufficient number of inhabitants to claim admission into the
Union. To enable the United States to fulfil the treaty, addi¬
tional population was indispensable, and obviously desired
with anxiety by both sides, so that the whole country should,
as soon as possible, become States of the Union. And for this
DECEMBER TERM, 1856.
525
Dred Scott v. Sandford. [Mb. Justice Catbon.
contemplated future population, tlie treaty as expressly pro¬
vided as it did for the inhabitants residing in the province
when the treaty was made. All these were to he protected
11 in the mean time; " that is to say, at all times, between the date
of the treaty and the time when the portion of the Territory
where the inhabitants resided was admitted into the Union as
a State.
At the date of the treaty, each inhabitant had the right to
the free enjoyment of his property, alike with his liberty and
his religion, in every part of Louisiana; the province then
being one country, he might go everywhere in it, and carry
his liberty, property, and religion, with him, and in which he
was tp be maintained and protected, until he became a citizen
of a State of the Union of the United States. This cannot be
denied to the original inhabitants and their descendants. And,
if it be true that immigrants were equally protected, it must
follow that they can also stand on the treaty.
The settled doctrine iu the State courts of Louisiana is, that
a French subject coming to the Orleans Territory, after the
treaty of 1803 was made, and before Louisiana was admitted
into the Union, and being an inhabitant at the time of the ad¬
mission, became a citizen of the United States by that act;
that he was one of the inhabitants contemplated by the third
article of the treaty, which referred to all the inhabitants em¬
braced within the new State on its admission.
That this is the true construction, I have no doubt.
If power existed to draw a line at thirty-six degrees thirty
minutes north, so Congress had equal power to draw the line
on the thirtieth degree—that is, due west from the city of Hew
Orleans—and to declare that north of that line slavery should
never exist. Suppose this had been done before 1812, when
Louisiana came into the Union, and the question of infraction
of the treaty had then been presented on the present assumption
of power to prohibit slavery, who doubts what the decision of
this court would have been on such an act of Congress; yet,
the difference between the supposed line, and that on thirty-
six degrees thirty minutes north, is only in the degree of gross-
ness presented by the lower line.
The Missouri compomise line of 1820 was very aggressive;
it declared that slavery was abolished forever throughout a
country reaching from the Mississippi river to the Pacific
ocean, stretching over thirty-two degrees of longitude, and
twelve and a half degrees of latitude on its eastern side, sweep¬
ing over four-fifths, to say no more, of the original province
of Louisiana. . .
That the United States Government stipulated m tavor of
526
SUPREME COURT.
Ma. Justice Catron.] Dred Scott v» Sand/ord.
the inhabitants to the extent here contended for, has not been
seriously denied, as far as I know; hut the argument is, that
Congress had authority to repeal the third article of the treaty
of 1803, in so far as it secured the right to hold slave property,
in a portion of the ceded territory,-leaving the right to exist in
other parts. In other words, that Congress could repeal the
third article entirely, at its pleasure. This I deny.
The compacts with North Carolina and Georgia were treaties
also, and stood on the same footing of the Louisiana treaty;
on the assumption of power to repeal the one, it must have ex¬
tended to all, and Congress could have excluded the slaveholder
of North Carolina from the enjoyment of his lands in the Ter¬
ritory now the State of Tennessee, where the citizens of the
mother State were the principal proprietors.
And so in the case of Georgia. Her citizens could have
been refused the right to emigrate to the Mississippi or
Alabama Territory, unless they left their most valuable and
cherished property behind them.
The Constitution was framed in reference to facts then exist¬
ing or likely to arise: the instrument looked to no theories of
Government. In the vigorous debates in the Convention, as
reported by Mr. Madison and others, surrounding facts, and
the condition and necessities of the country, gave rise to
almost every provision; and among those facts, it was promi¬
nently true, that Congress dare not be intrusted tvith power
to provide that, if North Carolina or Georgia ceded her west¬
ern territory, the citizens of the State (in either case) could be
prohibited, at the pleasure of Congress, from removing to their
lands, then granted to a large extent, in the country likely to
be ceded, unless they left their slaves behind. That such an
attempt, in the face of a population fresh from the war of the
Revolution, and then engaged in war with the great confede¬
racy of Indians, extending from the mouth of the Ohio to the
Gulf of Mexico, would end in open revolt, all intelligent men
knew.
In view of these facts, let us inquire how the question stands
by the terms of the Constitution, aside from the treaty ? How
it stood in public opinion when the Georgia cession was made,
in 1802, is apparent from the fact that no guaranty was required
by Georgia of the United States, for the protection of slave
property. The Federal Constitution was relied on, to secure
the rights of Georgia and her citizens during the Territorial
condition of the country. She relied on the indisputable
truths, that the States were by the Constitution- made equals
in political rights, and equals in the right to participate in the
common property of all the States united, and held in trust for
DECEMBER TERM, 1856.
527
Dred Scott v. Sandford. [Mb. Justice Catbon.
tliem. The Constitution having provided that " The citizens
of eacli State shall be entitled to all privileges and immunities
of citizens of the several States," the right to enjoy the territory
as equals was reserved to the States, and to the citizens of the
States, respectively. The cited clause is not that citizens of
the United States shall have equal privileges in the Territories,
but the citizen of each State shall come there in right of his
State, and enjoy the common property. He secures his
equality through, the equality of his State, by virtue of that
great fundamental condition of the Union—the equality of the
States.
Congress cannot do indirectly what the Constitution prohib¬
its directly. If the slaveholder is prohibited from going to the
Territory with his slaves, who are parts of his family in name
and in fact, it will follow that men owning lawful property in
their own States, carrying with them the equality of their State
to enjoy the common property, may be told, you cannot come
here with your slaves, and he will be held out at the border.
By this subterfuge, owners of slave property, to the amount
of thousand of millions, might be almost as effectually excluded
from removing into the Territory of Louisiana north of thirty-,
six degrees thirty minutes, as if the law declared that owners
of slaves, as a class, should be excluded, even if their slaves
were left behind.
Just as well might Congress have said to those of the North,
you shall not introduce into the territory south of said line
your cattle or horses, as the country is already overstocked;
nor can you introduce your tools of trade, or machines, as the
policy of Congress is to encourage the culture of sugar and
cotton south of the line, and so to provide that the Northern
people shall manufacture for those of the South, and barter
for the staple articles slave labor produces. And thus the
Northern farmer and mechanic would be held out, as the
slaveholder was for thirty years, by the Missouri restriction.
If Congress could prohibit one species of property, lawful
throughout Louisiana when it was acquired, and lawful in the
State from whence it was brought, so Congrsss might exclude
any or all property.
The case before us will illustrate the construction contended
for. Dr. Emerson was a citizen of Missouri; he had an equal
right to go to the Territory with every citizen of other States.
This is undeniable, as I suppose. Scott was Dr. Emerson's
lawful property in Missouri; he carried his Missouri title with
him; and the precise question here is, whether Congress had
the power to annul that title. It is idle to say, that if Congress
could not defeat the title directly, that it might be done
528
SUPREME COURT.
Me. Justice Catron.] Dred Scott v. Sandford.
indirectly, by drawing a narrow circle around the slave popu¬
lation of Upper Louisiana, and declaring that if the slave wont
beyond it, he should be free. Such assumption is mere evasion,
and entitled to no consideration. And it is equally idle to
contend, that because Congress has express power to regulate
commerce among the Indian tribes, and to prohibit intercourse
with the Indians, that therefore Dr. Emerson's title might be
defeated within the country ceded by the Indians to the United
States as early as 1805, and which embraces Port Snelling.
(Am. State Papers, vol. 1, p. 734.) We must meet the question,
whether Congress had the power to declare that a citizen of a
State, carrying with him his equal rights, secured to him
through his State, could be stripped of his goods and slaves,
and be deprived of any participation in the common property?
If this be the true meaning of the Constitution, equality of
rights to enjoy a common country (equal to a thousand miles
square) may be cut off by a geographical line, and a great
portion of our citizens excluded from it.
Ingenious, indirect evasions of the Constitution have been
attempted and defeated heretofore. In the passenger cases,
(7 How. R.,) the attempt was made to impose a tax on the
masters, crews, and passengers of vessels, the Constitution
having prohibited a tax on the vessel itself; but this court
held the attempt to be a mere evasion, and pronounced the
tax illegal.
I admit that Virginia could, and lawfully did, prohibit sla¬
very northwest of the Ohio, by her charter of cession, and that
the territory was taken by the United States with this con¬
dition imposed. I also admit that France could, by the treaty
of 1803, have prohibited slavery in any part of the ceded terri¬
tory, and imposed it on the United States as a fundamental
condition of the cession, in the mean time, till new States were
admitted in the Union.
I concur with Judge Baldwin, that Federal power is exer¬
cised over Ml the territory within the United States, pursuant
to the Constitution; and, the conditions of the cession, whether
it was a part of the original territory of a State of the Union,
or of a foreign State, ceded by deed or treaty; the right of the
United States in or over it depends on the contract of cession,
which operates to incorporate as well the Territory as its
inhabitants into the Union. (Baldwin's Constitutional Views,
84.)
My opinion is, that the third article of the treaty of 1803,
ceding Louisiana to the United States, stands protected by the
Constitution, and cannot be repealed by Congress.
And, secondly, that the act of 1820, known as the Missouri
DECEMBER TERM, 1856.
529
Dred Scott v. Sandford. [Me. Justice McLean.
compromise, violates the most leading feature of the Constitu¬
tion—a feature on which the Union depends, and which secures
to the respective States and their citizens an entire equality
of rights, privileges, and immunities.
On these grounds, I hold the compromise act to have been
void; and, consequently, that the plaintiff, Scott, can claim no
benefit under it.
Eor the reasons above stated, I concur with my brother
judges that the plaintiff, Scott, is a slave, and was so when
this suit was brought.
Mr. Justice McLEAU and Mr. Justice CURTIS dissented.
Mr. Justice McLEAH dissenting.
This case is before us on a writ of error from the Circuit
Court for the district of Missouri.
An action of trespass was brought, which charges the de¬
fendant with an assault and imprisonment of the plaintiff, and
also of Harriet Scott, his wife, Eliza and Lizzie, his two chil¬
dren, on the ground that they were his slaves, which was with¬
out right on his part, and against law.
The defendant filed a plea in abatement, "that said causes
of action, and each and every of them, if any such accrued to
the said Dred Scott, accrued out of the jurisdiction of this
court, and exclusively within the jurisdiction of the courts of
the State of Missouri, for that to wit, said plaintiff, Dred Scott,
is not a citizen of the State of Missouri, as alleged in his dec¬
laration, because he is a negro of African descent, his ances¬
tors were of pure African blood, and were brought into this
country and sold as negro slaves; and this the said Sandford
is ready to verify; wherefore he prays judgment whether the
court can or will take further cognizance of the action afore¬
said."
To this a demurrer was filed, which, on argument, was sus¬
tained by the court, the plea in abatement being held insuffi¬
cient; the defendant was ruled to plead over. Under this rule,
he pleaded: 1. Hot guilty; 2. That Dred Scott was a negro
slave, the property of the defendant; and 3. That Harriet, the
wife, and Eliza and Lizzie, the daughters of the plaintiff, were
the lawful slaves of the defendant.
Issue was joined on the first plea, and replications of de inju¬
ria were filed to the other pleas.
The parties agreed to the following facts: In the year 1834,
the plaintiff was a negro slave belonging to Dr. Emerson, who
was a surgeon in the army of the United States. In that year,
Dr. Emerson took the plaintiff from the State of Missouri to
530
SUPREME COURT.
Mr. Justice McLean.] Dred Scott v. Sandford.
the post of Rock Island, in the State of Illinois, and held him
there as a slave until the month of April or May, 183G. At
the time last mentioned, Dr. Emerson removed the plaintiff
from Rock Island to the military post at Eort Snelling, situate
on the west hank of the Mississippi river> in the territory
known as Upper Louisiana, acquired by the United States of
France, and situate north of latitude thirty-six degrees thirty
minutes north, and north of the State of Missouri. Dr. Emer¬
son held the plaintiff in slavery, at Fort Snelling, from the
last-mentioned date until the year 1838.
In the year 1835, Harriet, who is named in the second count
of the plaintiff's declaration, was' the negro slave of Major
Taliaferro, who belonged to the army of the, United States.
In that year, Major Taliaferro took Harriet to Fort Snelling, a
military post situated as hereinbefore stated, and kept her
there as a slave until the year 1836, and then sold and deliv¬
ered her as a slave, at Fort Snelling, unto Dr. Emerson, who
held her in slavery, at that place, until the year 1838.
In the year 1836, the plaintiff and Harriet were married at
Fort Snelling, with the consent of Dr. Emerson, who claimed
to be their master and owner. Eliza and Lizzie, named in the
third count of the plaintiff's declaration, are the fruit of that
marriage. Eliza is about fourteen years old, and was born on
board the steamboat Gipsey, north of the north line of the
State of Missouri, and upon the river Mississippi. Lizzie is
about seven years old, and was born in the State of Missouri,
at the military post called Jefferson Barracks.
In the year 1838, Dr. Emerson removed the plaintiff and
said Harriet and their daughter Eliza from Fort Snelling to
the State of Missouri, where they have ever since resided.
Before the commencement of the suit, Dr. Emerson sold
"and conveyed the plaintiff, Harriet, Eliza, and Lizzie, to the
defendant, as slaves, and he has ever since claimed to hold
them as slaves.
At the times mentioned in the plaintiff's declaration, the de¬
fendant, claiming to be the owner, laid his hands upon said
plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them;
doing in this respect, however, no more than he might lawfully
do, if they were of right his slaves at such times.
In the first place, the plea to the jurisdiction is not before
us, on this writ of error. A demurrer to the plea was sustain¬
ed, which ruled the plea bad, and the defendant, on leave,
pleaded over.
The decision on the demurrer was in favor of the plaintiff;
and as the plaintiff prosecutes this writ of error, he does not
complain of the decision on the demurrer. The defendant
DECEMBER TERM, 1856. 531
Dred Scott y. Sandford. [Mb. Justice McLeah.
might have complained of tliig decision, as against him, and
have prosecuted a writ of error, to reverse it. But as the case,
under the instruction of the court to the jury, was decided in
his favor, of course he had no ground of complaint.
But it is said, if the court, on looking at the record, shall
clearly perceive that the Circuit Court had no jurisdiction, it
is a ground for the dismissal of the case. This may be char¬
acterized as rather a sharp practice, and one which seldom, if
ever, occurs. Ro case was cited in the argument as authority,
and not a single case precisely in point is recollected in our re¬
ports. The pleadings do not show a want of jurisdiction. This
want of jurisdiction can only be ascertained by a judgment on
the demurrer to the special plea. ISTo such case, it is believed,
can be cited. But if this rule of practice is to be applied in
this case, and the plaintiff in error is required to answer and
maintain as well the points ruled in his favor, as to show the
error of those ruled against him, he has more than an ordinary
duty to perform. Under such circumstances, the want of juris¬
diction in the Circuit. Court must be so clear as not to admit
of doubt. Row, the plea which raises the question of jurisdic¬
tion, in my judgment, is radically defective. The gravamen
of the plea is this: "That the plaintiff is a negro of African
descent, his ancestors being of pure African blood, and were
brought into this country, and sold as negro slaves."
There is no averment in this plea which shows or conduces
to show an inability in the plaintiff to sue in the Circuit Court.
It does not allege that the plaintiff had his domicil in any other
State, nor that he is not a free man in Missouri. He is averred
to have had a negro ancestry, but this does not show that he
is not a citizen of Missouri, within the meaning of the act of
Congress authorizing him to sue in the Circuit Court. It has
• • 1 •
never been held necessary, to constitute a citizen within the
act, that he should have the qualifications of an elector. Fe¬
males and minors may sue in the Federal courts, and so may
any individual who has a permanent domicil in the State un¬
der whose laws his rights are protected, and to which he owes
allegiance.
Being born under our Constitution and laws, no naturaliza¬
tion is required, as one of foreign birth, to make him a citizen.
The most general and appropriate definition of the term citi¬
zen is "a freeman." Being a freeman, and having his domicil
in a State different from that of the defendant, he is a citizen
within the act of Congress, and the courts of the Union are
open to him.
It has often been held, that the jurisdiction, as regards par¬
ties, can only be exercised between citizens of different States,
532
SUPREME COURT.
Mr. Justice McLean.] Dred Scott v. Sandford.
and that a mere residence is not sufficient; hut this has hcen
said to distinguish a temporary from a permanent residence.
To constitute a good plea to the jurisdiction, it must nega¬
tive those qualities and rights which enable an individual to
sue in the Federal courts. This has not been done; and 011
this ground the plea was defective, and the demurrer was prop¬
erly sustained, hfo implication can aid a plea in abatement or
in bar; it must be complete in itself; the facts stated, if true,
must abate or bar the right of the plaintiff to sue. This is not
the character of the above plea. The facts stated, if admitted,
are not inconsistent with other facts, which may be presumed,
and which bring the plaintiff within the act of Congress.
The pleader has not the boldness to allege that the plaintiff
is a slave, as that would assume against him the matter in con¬
troversy, and embrace the entire merits of the case in a plea to
the jurisdiction. But beyond the facts set out in the plea, the
court, to sustain it, must assume the plaintiff' to be a slave,
which is decisive on the merits. This is a short and an effect¬
ual mode of deciding the cause; but I am yet to learn that it
is sanctioned by any known rule of pleading.
The defendant's counsel complain, that if the court take
jurisdiction on the ground that the plaintiff is free, the as¬
sumption is against the right of the master. This argument
is easily answered. In the first place, the plua does not show
him to be a slave; , it does not follow that a man is not free
whose ancestors were slaves. The reports of the Supreme
Court of Missouri show that this assumption has many excep¬
tions ; and there is no averment in the plea that the plaintiff' is
not within them.
By all the rules of pleading, this is a fatal defect in the plea.
If there be doubt, what rule of construction has been estab¬
lished in the slave States? In Jacob v. Sharp, (Meigs's Rep.,
Tennessee, 114,) the court held, when there was doubt as to
the construction of a will which emancipated a slave, "it must
be construed to be subordinate to the higher and more impor¬
tant right of freedom."
hTo injustice can result to the master, from an exercise of
jurisdiction in this cause. Such a decision does not in any
degree affect the merits of the case; it only enables the plain¬
tiff'to assert his claims to freedom before this tribunal. If the
jurisdiction be ruled against him, on the ground that he is a
• slave, it is decisive of his fate.
. It has been argued that, if a colored person be made a citi¬
zen of a State, he cannot sue in the Federal court. The Consti¬
tution declares that Federal jurisdiction "may be exercised
between citizens of different States," and the same is provided
DECEMBER TERM, 1856.
583
Dred Scott v. Sandford. [Mr. Justice McLean.
in the act of 1789. The above argument is properly met by
saying that the Constitution was intended to be a practical
instrument; and where its language is too plain to be misun¬
derstood, the argument'ends."
In Cliirse v. Chirae, (2 "Wheat., 261; 4 Curtis, 99,) this court
says: " That the power of naturalization is exclusively in Con¬
gress does not seem to be, and certainly ought not to be, con¬
troverted." No person can legally be made a citizen of a State,
and consequently a citizen of the United States, of foreign birth,
unless he be naturalized under the acts of Congress. Congress
lias power "to establish a uniform rule of naturalization."
It is a power which belongs exclusively to Congress, as inti¬
mately connected with our Federal relations. A State may
authorize foreigners to hold real estate within its jurisdiction,
but it has no power to naturalize foreigners, and give them
the rights of citizens. Such a right is opposed to the acts of
Congress qn the subject of naturalization, and subversive of
the Federal powers. I regret that any countenance should be
given from this bench to a practice like this in some of the
States, which has no warrant in the Constitution.
In the argument, it was said that a colored citizen would not
be an agreeable member of society. This is more a matter of
taste than of law. Several of the States have admitted persons
of color to the right of suffrage, and in this view have recog¬
nised them as citizens; and this has been done in the slave as
well as the free States. On the question of citizenship, it must
bo admitted that we have not been very fastidious. Under
the late treaty with Mexico, we have made citizens of all
grades, combinations, and colors. The same was done in the
admission of Louisiana and Florida. No one ever doubted,
and no court ever held, that the people of these Territories did
not become citizens under the treaty. They have exercised
all the rights of citizens, without being naturalized under the
acts of Congress.
There are several important principles involved in this case,
which have been argued, and which may be considered under
the following heads:
1. The locality of slavery, as settled by this court and the
courts of the States.
2. The relation which the Federal Government bears to
slavery in the States.
3. The power of Congress to establish Territorial Govern¬
ments, and to prohibit the introduction of slavery therein.
4. The effect of taking slaves into a new State or Territory,
and so holding them, where slavery is prohibited.
5. Whether the return of a slave under the control of his
10
SUPREME COURT.
Mr. Justice McLean.] Dred Scott v. Sandford.
master, after being entitled to bis freedom, reduces him to liis
former condition.
6. Are the decisions of the Supreme Court of Missouri, on
the questions before us, binding on this court, within the rule
adopted.
In the course of my judicial duties, I have had, occasion to
consider and decide several of the above points.
1. As to the locality of slavery. The civil law throughout
the Continent ,of Europe, it is believed, without an exception,
is, that slavery can exist only within the territory where it is
established; and that, if a slave escapes, or is carried beyond
such territory, his master cannot reclaim him, unless by virtue
of some express stipulation. (G-rotius, lib. 2, cliap. 15, 5,1;
lib. 10, chap. 10, 2, 1; "Wicqueposts Ambassador, lib. 1, p.
418; 4 Martin, 385; Case of the Creole in the Uouse of Lords,
1842; 1 Phillimore on International Law, 316, 335.)
There is no nation in Europe which considers itself bound
to return to his master a fugitive slave, under the civil law or
the law of nations. On the contrary, the slave is held to he
free where there is no treaty obligation, or compact in some
other form, to return him to his master. The Roman law did
not allow freedom to be sold. . An ambassador or any other
public functionary could not take a slave to France, Spain, or
an;f other country of Europe, without emancipating him. A
number of slaves escaped from a Florida plantation, and were
received on board of ship by Admiral Cochrane; by the Ring's
Bench, they were held to be free. (2 Barn, and Cres., 440.)
In the great and leading case of Prigg v. The State of
Pennsylvania, (16 Peters, 594; 14 Curtis, 421,) this court say
that, by the general law of nations, no nation is bound to
recognise the state of slavery, as found within its territorial
dominions, where it is in opposition to its own policy and
institutions, in favor of the subjects of other nations where
slavery is organized. If it does it,.it is as a matter of comity,
and not as a matter of international right. The state of slavery
is deemed to be a mere municipal regulation, founded upon
and limited to the range of the territorial laws. This was fully
recognised in Somersett's case, (Lafft's Rep., 1; 20 Howell's
State Trials, 79,) which was decided before the American
Revolution.
There was some contrariety of opinion among the judges on
certain points ruled in Prigg's case, but there was none in
regard to the great principle, that slavery is limited to the
range of the laws under which it is sanctioned.
iNo case in England appears to have been more thoroughly
examined than that of Somerset!. The judgment pronounced
DECEMBER TERM, 1856.
535
Dred Scott v. Sandford. [Mr. Justice McLean.
by Lord Mansfield was tlie judgment of the Court of King's
Bench. The cause was argued at great length, and with great
ability, by Hargrave and others, who stood among the most
eminent counsel in England. It was held under advisement
from term to term, and a due sense of its importance was felt
and expressed by.the Bench.
In giving the opinion of the court, Lord Mansfield said:
" The state of slavery is of such a nature that it is incapable
of being introduced on any reasons, moral or political, hut
only by positive law, which preserves its force long after the
reasons, occasion, and time itself, from whence it was created,
is erased from the memory; it is of a nature that nothing can
be suffered to support it hut positive law.".
He referred to the contrary opinion of Lord Hardwicke, in
October, 1749, as Chancellor: "That he and Lord Talbot,
when Attorney and Solicitor General, were of opinion that no
such claim, as here presented, for freedom, was valid."
The weight of this decision is sought to be impaired, from
the terms in which it was described by the exuberant imagina¬
tion of Curran. The words of Lord Mansfield, in giving the
opinion of the court, were such as were fit to be used by a
great judge, in almost important case. It is a sufficient answer
to all objections to that judgment, that it was pronounced
before the Revolution, and that it was considered by this court
as the highest authority. For near a century, the decision in
Somersett's case has remained the law of England. The case
of the slave Grace, decided by Lord Stowell in 1827, does not,
as has been supposed, overrule the judgment of Lord Mans¬
field. Lord Stowell held that, during the residence of the
slave in England, "Ho dominion, authority, or coercion, can
be exercised over him." Under another head, I shall have
occasion to examine the opinion in the case of Grace.
To the position, that slavery can only exist except under
the authority of law, it is objected, that in few if in any in¬
stances has it been established by statutory enactment. This
is no answer to the doctrine laid down by the court. Almost
all the principles of the common law had their foundation in
usage. Slavery was introduced into the colonies of this coun¬
try by Great Britain at an early period of their history, and
it was protected and cherished, until it became incorporated
into the colonial policy. It is immaterial whether a system of
shivery was introduced by express law, or otherwise, if it have
the authority of law. There is no slave State where the insti¬
tution is not recognised and protected by statutory enactments
and judicial decisions. Slaves are made property by the laws
of the slave States, and as such are liable to the claims of cred-
536
SUPREME COURT.
Mr. Justice McLean.] Dred Scott v. Sandford.
itors; they descend to heirs, are taxed, and in the South they
are a subject of commerce.
In the case of Rankin v. Lydia, (2 A. K. Marshall's Rep.,)
Judge Mills, speaking for the Court of Appeals of Kentucky,
says: "In deciding the question, (of slavery,) we disclaim the
influence of the general principles of liberty, which we all ad¬
mire, and conceive it ought to be decided by the law as it is,
and not as it ought to be. Slavery is sanctioned by the laws
of this State, and the right to hold slaves under our municipal
regulations is unquestionable. But we view this as a right
existing by positive law of a municipal character, without
foundation in the law of nature, or the unwritten and common
law."
I will now consider the relation which the Federal Govern¬
ment bears to slavery in the States:
Slavery is emphatically a State institution. In the ninth
section of the first article of the Constitution, it is provided
"that the migration or importation of such persons as any of
the States now existing shall think proper to admit, shall not
be prohibited by the Congress prior to the year 1808, but a
tax or duty may be imposed on such importation, not exceed¬
ing ten dollars for each person."
In the Convention, it was proposed by a committee of eleven
to limit the importation of slaves to the year 1800, when Mr.
Pinckney moved to extend the time to the year 1808. This
motion was carried—New Hampshire, Massachusetts, Connecti¬
cut, Maryland, North Carolina, South Carolina, and Georgia,
■ voting in the affirmative; and New Jersey, Pennsylvania, and
Virginia, in the negative. In opposition to the motion, Mr.
Madison said: "Twenty years will produce all the mischief
that can be apprehended/from the liberty to import slaves; so
long a term will be more dishonorable to the American char¬
acter than to say nothing about it in the Constitution." (Madi¬
son Papers.)
The provision in regard to the slave trade shows clearly that
Congress considered slavery a State institution, to be contin¬
ued and regulated by its individual sovereignty; ,and to con¬
ciliate that interest, the slave trade was continued twenty years,
not as a general measure, but for the "benefit of such States
as shall think proper to encourage it."
In the case of Groves v. Slaughter, (15 Peters, 449; 14 Cur¬
tis, 137,) Messrs. Clay and Webster contended that, under the
commercial power, Congress had a right to regulate the slave
trade among the several States; but the court held that Con¬
gress had no power to interfere with slavery as it exists in the
States, or to regulate what is called the slave trade among
DECEMBER TERM, 1856.
537
Dred Scott v. Sandford. [Mr. Justice McLean.
them. If this trade were subject to the commercial power, it
would follow that Congress could abolish or establish slavery
in every State of the Union.
The only connection which the Federal Government holds
with slaves in a State, arises from that provision of the Con¬
stitution which declares that "Ho person held to service or
labor in one State, under the laws thereof, escaping into
another, shall, in consequence of any law or regulation therein,
be discharged from such service or labor, but shall be deliver¬
ed up, on claim of the party to whom such service or labor
may be due."
This being a fundamental law of the Federal Government,
it rests mainly for its execution, as has been held, on the judi¬
cial power of the Union; and so far as the rendition of fugi¬
tives from labor has become a subject of judicial action, the
Federal obligation has been faithfully discharged.
In the formation of the Federal Constitution, care was taken
to confer no power on the Federal Government to interfere
with this institution in the States. In the provision respect¬
ing the slave trade, in fixing the ratio of representation, and
providing for the reclamation of fugitives from labor, slaves
were referred to as persons, and in no other respect are they
considered in the Constitution.
"We need not refer to the mercenary spirit which introduced
the infamous traffic in slaves, to show the degradation of negro
slavery in our country. This system was imposed upon our
colonial settlements by the mother country, and it is due to
truth to say that the commercial colonies and States were
chiefly engaged in the traffic. But we know—as-a-hjstorical
fact,, that James JMadis-Qn^-that-great-amh-gooiLm an, a leading
member 111 the Federal Convention, was solicitous To- guard
the language oUthat"instrument so as not to convey the idea
that there could b(rproperty in man.
I prefer thelights of Madison, Hamilton, and Jay, as a
means of construing the Constitution in all its bearings, rather
than to look'behind that period, into a traffic which is now de¬
clared to be piracy, and punished with death by Christian na¬
tions. I do not like to draw the sources of our domestic rela¬
tions from so dark a ground. Our independence was a great
epoch in the history of freedom; and wliile I admit the Gov¬
ernment was not made especially for the colored race, yet
many of them were citizens of the Hew England States, and
exercised the rights of suffrage when the Constitution was
adopted, and it was not doubted by any intelligent person that
its tendencies would greatly ameliorate their condition.
Many of the States, on the adoption of the Constitution, or
538
SUPREME COURT.
Mr. Justice McLean.] Bred Scott v. Sandfurd.
shortly afterward, took measures to abolish slavery within their
respective jurisdictions; and it is a well-known tact that a be¬
lief was cherished by the leading men, Sputh as well as Forth,
that the institution of slavery would gradually decline, until it
would become extinct. The increased value of slave labor, in
the culture of cotton and sugar, prevented the realization of
this expectation. Like all other communities and States, the
South were influenced by what they considered to he their
own interests.
But if we are to turn our attention to the dark ages of the
world, why confine our view to colored slavery? On the same
principles, white men were made slaves. All slavery has its
origin in power, and is against right.
The'power of Congress to establish Territorial Governments,
and to prohibit the introduction of slavery therein, is the next
point to be considered.
After the cession of western territory by Virginia and other
States, to the United States, the public attention was directed
to the best mode of disposing of it for the general benefit.
While in attendence on the Federal Convention, Mr. Madi¬
son, in a letter to Edmund Randolph, dated the 22cl April,
1787, says: "Congress are deliberating on the plan most eligi¬
ble for disposing of the western territory not yet surveyed.
Some alteration will probably be made in the ordinance on that
subject." And in the same letter he says: "The inhabitants
of the Illinois complain of the land jobbers, &c., who are pur¬
chasing titles among them. . Those of St. Vincent's complain
of the defective criminal and civil justice among them, as well
as of military protection." And on the next day he writes to
Mr. Jefferson: "The government of the settlements on the
Illinois and Wabash is a subject very perplexing in itself, and
rendered more so by our ignorance of the many circumstances
on which a right judgment depends. The inhabitants at those
places claim protection against the savages, and some provision
for both civil and criminal justice."
In May, 1787, Mr. Edmund Randolph submitted to the Fed¬
eral Convention certain propositions, as the basis of a Federal
Government, among which was the following:
" Resolved, That provision ought to be made for the admis¬
sion of States lawfully arising within the limits of the United
States, whether from a voluntary junction of government and
territory or otherwise, with the consent of a number of voices
in the Rational Legislature less than the whole."
Afterward, Mr. Madison submitted to the Convention, in
order to be referred to the committee of detail, the following
powers, as proper to be added to those of general legislation:
DECEMBER TERM, 1856.
539
Dred Scott r. Sandford. [Mr. Justice McLean.
" To dispose of tlie unappropriated lands of the United States.
To institute temporary Governments for new States arising
therein. To regulate affairs with the. Indians, as well within
as without the limits of the United States."
Other propositions were made in reference to the same sub¬
jects, which it would be tedious to enumerate. Mr. Gouvem
neur Morris proposed the following:
"The Legislature shall have power to dispose of and make
all needful rules and regulations respecting the territory or
other property belonging to the United States; and nothing in
this Constitution contained shall be so construed as to preju¬
dice any claims either of the United States or of any particular
State."
This was adopted as a part of the Constitution, with two
verbal alterations—Congress was substituted for Legislature,
and the word either was stricken out.
In the organization of the new Government, but little reve¬
nue for a series of years was expected from commerce. The
public lands were considered as the principal resource of the
country for the payment of the Revolutionary debt. Direct
taxation was the means relied on to pay the current expenses
of the Government. The short period that occurred between
the cession of western lands to the Federal Government by
Virginia and other States, and the adoption of the Constitu¬
tion, was sufficient to show the necessity of a proper land sys¬
tem and a temporary Government. This was clearly seen by
propositions and remarks in the Federal Convention, some of
which are above cited, by the passage of the Ordinance of
1787, and the adoption of that instrument by Congress, under
the Constitution, which gave to it validity.
It will be recollected that the deed of cession of western
territory was made to the United States by Virginia in 1784,
and that it required the territory ceded to be laid out into
States, that the land should be disposed of for the common
benefit of the States, and that all right, title, and claim, as well
of soil as of jurisdiction, were ceded; and this was the form
of cession from other States.
On the 13th of July, the Ordinance of 1787 was passed, "for
the government of the United States territory northwest of
the river Ohio," with but one dissenting vote. This instru¬
ment provided there should be organized in the territory not
less than three nor more than five States, designating their
boundaries. It was passed while the Federal Convention was in
session, about two months before the Constitution was adopted
Ijy the Convention. The members of the Convention must
therefore have been well acquainted with the provisions of the
540
SUPREME COURT.
Mr. Justice McLean.] Dred Scott v. Sandford.
Ordinance. It provided for a temporary Government, as initia¬
tory to the formation of State Governments. Slavery was
prohibited in the territory.
Can any one suppose that the eminent men of the Federal
Convention could have overlooked or neglected a matter so
vitally important to the country, in the organization of tempo¬
rary Governments for the vast territory northwest of the river
Ohio ? In the 3d section of the 4th article of the Constitution,
they did make provision for the admission of new States, the
sale of the public lands, and the temporary Government of the
territory. Without a temporary Government, new States
could not hgve been formed, nor could the public lands have
been sold.
If the third section were before us now for consideration for
the first time, under the facts stated, I could not hesitate to
say there was adequate legislative power given in it. The
power to piake all needful rules and regulations is a power to
legislate. This no one will controvert, 'as Congress cannot
make "rules and regulations," except by legislation. Rut it
is argued that the word territory is used as synonymous with
the word land; and that the rules and regulations of Congress
are limited to the disposition of lands and other property
belonging to the United States. That this is not the true
construction of the section appears from the fact that in the
first line of the section "the power to dispose of the public
lands" is given expressly, and, in addition, to make all needful
rules and regulations. The power to dispose of is complete
in itself, and requires nothing more. It authorizes Congress
to use the proper means k within its discretion, and any further
provision for this purpose would be a useless verbiage. As a
composition, the Constitution is remarkably free from such a
charge.
In the discussion of the power of'Congress to govern a
Territory, in the case of the Atlantic Insurance Company v.
Canter, (1 Peters, 511; 7 Curtis, 685,) Chief Justice Marshall,
speaking for the court, said, in regard to the people of Florida,
"they do not, however, participate in political power; they do
not share in the Government till Florida shall become a State;
in the mean time, Florida continues to be a Territory of the
United States, governed by virtue of that clause in the Consti¬
tution which empowers Congress 'to make all needful rules
and regulations respecting the territory or other property
belonging to the United States.' "
And he adds, "perhaps the power of governing a Territory
belonging to the United States, which has not, by becoming
a State, acquired the means of self-government, may result
DECEMBER TERM, 1856.
541
Dred Scott v. Sandford. [Mr. Justice McLean.
necessarily from the fact that it is not within the jurisdiction
of any particular State, and is within the power and jurisdic¬
tion of the United States. The right to govern may he the
inevitable consequence of the right to acquire territory; which¬
ever may be the source whence the power is derived, the
possession of it is unquestioned." And in the close of the
opinion, the court say, "in legislating for them [the Territo¬
ries,] Congress exercises the combined powers of the General
and State Governments."
Some consider the opinion to be loose and inconclusive;
others, that it is obiter dicta; and the last sentence is objected
to as recognising absolute power in Congress over Territories.
The learned and eloquent Wirt, who, in the argument of a
cause before the court, had occasion to cite a few sentences
from an opinion of the Chief Justice, observed, "no one can
mistake the style, the words so completely match the thought."
I can see no want of precision in the language of the Chief
Justice; his meaning cannot be mistaken. He states, first,
the third section as giving power to Congress to govern the
Territories, and two other grounds from which the power may
also be implied. The objection seems to be, that the Chief
Justice did not say which of the grounds stated he considered
tlie source of the power. He did not specifically state this,
but he did say, "whichever may be the source whence the
power is derived, the possession of it is unquestioned." Ho
opinion of the court could have been expressed with a stronger
emphasis; the power in Congress is unquestioned. But those
who have undertaken to criticise the opinion, consider it
without authority, because the Chief Justice did not designate
specially the power. This is a singular objection. If the
power be unquestioned, it can be a matter of no importance
on which ground it is exercised.
The opinion clearly was not obiter dicta. The turning point
in the case was, whether Congress had power to authorize the
Territorial Legislature of Florida to pass the law under which
the Territorial court was established, whose decree was brought
before this court for revision. The power of Congress, there¬
fore, was the point in issue.
The word "territory," according to Worcester, "means land,
country, a district of country under a temporary Government."
The words "territory or other property," as used, do imply,
from the use of the pronoun other, that territory was used as
descriptive of land; but does it follow that it -was not used also
as descriptive of a district of country ? In both of these senses
it belonged to the United States—as land, for the purpose of
sale; as territory, for the purpose of government.
542
SUPREME COURT.
Mr. Justice McLean.] Drcd Scott v. Sandford.
But, if it be admitted that the word territory as used moans
land, and nothing but land, the power of Congrdtes to organize
a temporary Government is clear. It has power to make all
needful regulations respecting the public lands, and the extent
of those "needful regulations" depends upon the direction of
Congress, where the means are appropriate to the end, and do
not conflict with any of the prohibitions of the Constitution.
If a temporary Government be deemed needful, necessary,
requisite, or is wanted, Congress has power to establish it.
This court says, in McCulloch v. The State of Maryland, (-4
"Wheat., 316,) "If a certain means to carry into effect any of
the powers expressly given by the Constitution to the Govern¬
ment of the Union be an appropriate measure, not prohibited
'by the Constitution, the degree of its necessity is a question
of legislative discretion, not of judicial cognizance."
The power to establish post offices and post roads gives
power to Congress to make contracts for the transportation of
the mail, and to punish all who commit depredations upon it
in its transit, or at its places of distribution. Congress has
power to regulate commerce, and, in the exercise of its discre¬
tion, to lay an embargo, which suspends commerce; so, under
the same power, harbors, lighthouses, breakwaters, &c., are
constructed.
Did Chief Justice Marshall, in saying that Congress govern¬
ed a Territory, by exercising the combined powers of the Fed¬
eral and State Governments, refer to unlimited discretion? A
Government which can make white men slaves ? Surely,, such
a remark in the argument must have been inadvertently utter¬
ed. On the contrary, there is no power in the Constitution by
which Congress can make either white or black men slaves.
In organizing the Government of a Territory, Congress is lim¬
ited to meayns appropriate to the attainment of the constitu¬
tional object. Uo powers can be exercised which are prohib¬
ited by the Constitution, or which are contrary to its spirit; so
that, whether the object may be the protection of the persons
and property of purchasers of the public lands, or of commu¬
nities who have been annexed to the Union by conquest or
purchase, they are initiatory to the establishment of State
Governments, and no more power can be claimed or exercised
than is necessary to the attainment of the end. This is the
limitation of all the Federal powers.
But Congress has no power to regulate the internal concerns
of a State, as of a Territory; consequently, in providing for the
Government of a Territory, to some extent, the combined
powers of the Federal and State Governments are necessarily
exercised.
DECEMBER TERM, 1856.
543
Dred Scott v. .Sandford. [Mb. Justice McLean.
If Congress should deem slaves or free colored persons in¬
jurious to the population of a free Territory, as conducing to
lessen the value of the public lands, or on any other ground
connected with the public interest, they have the power to
prohibit them from becoming settlers in it. This can be sus¬
tained on the ground of a sound national policy, which is so
clearly shown in our history by practical results, that it would
seem no considerate individual can question it. And, as re¬
gards any unfairness of such a policy to our Southern brethren,
as urged in the argument, it is only necessary to say that, with
one-fourth of the Federal population of the Union, they have
in the slave States a larger extent of fertile territory than- is
included in the free States; and it is submitted, if masters of
slaves be restricted from bringing them into free territory, that
the restriction on the free citizens of non-slaveholding States,
by bringing slaves into free territory, is four times greater than
that complained of by the South. But, not only so; some three
or four hundred thousand holders of slaves, by bringing them
into free territory, impose a restriction on twenty millions of
the free States. The repugnancy to slavery would probably
prevent fifty or a hundred freemen from settling in a slave
Territory, where one slaveholder would be prevented from set¬
tling in a free Territory.
This remark is made in answer to the argument urged, that
a prohibition of slavery in the free Territories is inconsistent
with the continuance of the Union. "Where a Territorial Gov¬
ernment is established in a slave Territory, it has uniformly
remained in that condition until the people form a State Con¬
stitution; the same course where the Territory is free, both
parties acting in good faith, would be attended with satisfactory
results.
The sovereignty of the Federal Government extends to the
entire limits of our territory. Should any foreign power in¬
vade our jurisdiction, it would be repelled. There is a law of
Congress to punish our citizens for crimes committed in dis¬
tricts of country where there is no organized Government.
Criminals are brought to certain Territories or States, desig¬
nated in the law, for punishment. Death has been inflicted
in Arkansas and in Missouri, on individuals, for murders com¬
mitted beyond the limit of any organized Territory or State;
and 110 one doubts that such a jurisdiction was rightfully exer¬
cised. If there be a right to acquire territory, there necessarily
must be an implied power to govern it. When the military
force of the Union shall conquer a country, may not Congress
provide for the government of such country ? This would he
an implied power essential to the acquisition of new territory.
544 SUTREME COURT.
Mr. Justice McLean.] Dred Scott v. Sand/ord.
Tliis power has "been exercised, without doubt of its constitu¬
tionality, over territory acquired by conquest and purchase.
And when there is a large district of country within the
United States, and not within any State Government, if it be
necessary to establish a temporary Government to carry out
a power expressly vested in Congress—as the disposition of
the public lands—may not such Government be instituted by
Congress? How do we read the Constitution? Is it not a
practical instrument ?
In such cases, no implication of a power can arise which is
inhibited by the Constitution, or which may be against the
theory of its construction. As my opinion rests on the third
section, these remarks are made as an intimation that the power
to establish a temporary Government may arise, also, on the
other two grounds stated in the opinion of the court in the in¬
surance case, without weakening the third section.
I would here simply remark, that the Constitution was
formed for our whole country. An expansion or contraction
of our territory required no change in the fundamental law.
"When we consider the men who laid the foundation of our
Government and carried it into operation, the men who occu¬
pied the bench, who filled the halls of legislation and the Chief
Magistracy, it would seem, if any question could be settled
clear of all doubt, it was the power of Congress to establish
Territorial Governments. Slavery was prohibited in the entire
Northwestern Territory, with the approbation of leading men,
South and North; but this prohibition was not retained when
this ordinance was adopted for the government of Southern
Territories, where slavery existed. In a late republication of
a letter of Mr. Madison, dated November 27, 1819, speaking
of this power of Congress to prohibit slavery in a Territory, he
infers there is no such power, from the fact that it has not been
exercised. This is not a very satisfactory argument against
any power, as there are but few, if any, subjects on which
the constitutional powers of Congress' are exhausted. It is
true, as Mr. Madison states, that Congress, in the act to estab¬
lish a Government in the Mississippi Territory, prohibited the
importation of slaves into it from foreign .parts; but it is
equally true, that in the act erecting Louisiana into two Terri¬
tories, Congress declared, "it shall not be lawful for any person
to bring into Orleans Territory, from any port or place within
the limits of the United States, any slave which shall have
been imported since 1798, or which may hereafter be imported,
except by a citizen of the United States who settles in the
Territory, under the penalty of the freedom of such slave."
The inference of Mr. Madison, therefore, against the power of
DECEMBER TEEM, 1856.
545
Bred Scott v. Sandford. [Mb. Justice McLean.
Congress, is of no force, as it was founded on a' fact supposed,
winch did not e.xist.
It is refreshing to turn to the early incidents of our history,
and learn wisdom from the acts of the great men who have
gone to their account. I refer to a report in the House of
liepresentatives, by John Randolph, of Roanoke, as chairman
of a committee, in March, 1803—fifty-four years ago. From
the Convention held at Yincennes, in Indiana, by their Presi¬
dent, and from the people of the Territory, a petition was pre¬
sented to Congress, praying the suspension of the provision
which prohibited slavery in that Territory. The report stated
"that the rapid population of the State of Ohio sufficiently
evinces, in the opinion of your committee, that the labor of
slaves is not necessary to promote the growth and settlement
of colonies in that region. That this labor, demonstrably the -
dearest of any, can only be employed to advantage in the
cultivation of products more valuable than any known to that
quarter of the United States; that the committee deem it
highly dangerous and inexpedient to impair a provision wisely
calculated to promote the happiness and prosperity of the
Northwestern country, and to give strength and security to
that extensive frontier. In the salutary operation of this saga¬
cious and benevolent restraint', it is believed that the inhabit¬
ants will, at no very distant day, find ample remuneration for
a temporary privation of labor and of emigration." (1 vol. State
Papers, Public Lands, 160.)
The judicial mind of this country, State and Federal, has
agreed on no subject, within its legitimate action, with equal
unanimity, as on the power of Congress to establish Territorial
Governments. Ho court, State or Federal, no judge or states¬
man, is known to have had any doubts on this question for
nearly sixty years after the power was exercised. Such Gov¬
ernments have been established from the sources of the Ohio
to the Gulf of Mexico, extending to the Lakes on the north
and the Pacific Ocean on the west, and from the lines of Geor¬
gia to Texas.
Great interests have grown up under the Territorial laws
over a country more than five times greater in extent than the
original thirteen States; and these interests, corporate or
otherwise, have been cherished and consolidated by a benign
policy, without any one supposing the law-making power had
united with the Judiciary, under the universal sanction of the
whole country, to usurp a jurisdiction which did not belong to
them. Sueli a discovery at this late date is more extraordinary
than anything wdiich lias occurred in the judicial history of
this or any other country. Texas, under a previous organiza-
&6
SUPREME COURT.
Mr. Justice McLean.] Dred Scott v. Sandford.
tion, was admitted as a State; but no State can be admitted
into tbe Union which has not been organized under some form
of government. "Without temporary Governments, our puldie
lands could not have been sold, nor our wildernesses reduced
to cultivation, and the population protected; nor could our
flourishing States, West and South, have been formed.
What do the lessons of wisdom and experience teach, under
such circumstances, if the new light, which has so suddenly and
unexpectedly burst upon us, be true? Acquiescence; acqui¬
escence under a settled construction of the Constitution for
sixty years, though it may be erroneous; which has secured to
the country an advancement and prosperity beyond the power
of computation.
An act of James Madison, when President, forcibly illus¬
trates this policy. He had made up his opinion that Congress
had no power under the Constitution to establish a Rational
Bank. In 1815, Congress passed a bill to establish a bank.
He vetoed the bill, on objections other than constitutional. In
his message, he speaks as a wise statesman and Chief Magis¬
trate, as follows:
"Waiving the question of the constitutional authority of the
Legislature to establish an incorporated bank, as being pre¬
cluded, in my judgment, by the repeated recognitions under
varied circumstances of the validity of such an institution, in
acts of the Legislative, Executive, and Judicial branches of the
Government, accompanied by indications, in different modes,
of a concurrence of the general will of the nation."
Has this impressive lesson of practical wisdom become lost
to the present generation ?
If the great and fundamental principles of bur Government
are never to be settled, there can be no lasting prosperity.
The Constitution will become a floating waif on the billows of
popular excitement.
The prohibition of slavery north of thirty-six degrees thirty
minutes, and of the State of Missouri, contained in the act ad¬
mitting that State into the Union, was passed by a vote of 134,
in the House of Representatives, to 42. Before Mr. Monroe
signed the act, it was submitted by him to his Cabinet, and
they held the restriction of slavery in a Territory to be within
the constitutional powers of Congress. It would be singular,
if in 1804 Congress had power to prohibit the introduction of
slaves in Orleans Territory from any other part of the Union,
under the penalty of freedom to the slave, if the same power,
embodied in the Missouri compromise, could not be exercised
in 1820.
But this law of Congress, which prohibits slavery north of
DECEMBER TERM, 1856.
547
Dred Scott v. Sandford. [Mr. Justice McLean
Missouri and of thirty-six degrees thirty minutes, is de¬
clared to have been null and void by my brethren. And this
opinion is founded mainly, as I understand, on the distinction
drawn between the ordinance of 1T8T and the Missouri com¬
promise line. In wffiat does the distinction consist? The
ordinance, it is said, was a compact entered into by the con¬
federated States before the adoption of the Constitution; and
that in the cession of territory authority was given to establish
a Territorial Government.
It is clear that the ordinance did not go into operation by
virtue of the authority of the Confederation, but by reason of
its modification and adoption by Congress under the Constitu¬
tion. It seems to be supposed, in the opinion of the court,
that the articles of cession placed it on a different footing from
territories subsequently acquired. I am unable to perceive the
force of this distinction. That the ordinance was intended for
the government of the Northwestern Territory, and was limited
to such Territory, is admitted. It was extended to Southern
Territories, with modifications, by acts of Congress, and to
some Northern Territories. But the ordinance was made valid
by the act of Congress, and without such act could have been
of no force. It rested for its validity on the act of Congress,
the same, in my opinion, as the Missouri compromise line.
If Congress may establish a Territorial Government in the
exercise of its discretion, it is a clear pripciple that a court
cannot Control that discretion. This being the case, I do not
see on what ground the act is held to be void. It did not pur¬
port to forfeit property, or take it for public purposes. It only
prohibited slavery; in doing which, it followed the ordinance
of 1787.
I will now consider the fourth head, which is: "The effect
of taking slaves into a State or Territory, and so holding them,
where slavery is prohibited."
If the principle laid down in the case of Prigg v. The State
of Pennsylvania is to be maintained, and it is certainly to be
maintained until overruled, as the law of this court, there can
be no difficulty on this point. In that case, the court says:
" The state of slavery is deemed to be a mere municipal regu¬
lation, founded upon and limited to the range of the territorial
laws." If this be so, slavery can exist nowhere except under the
authority of law, founded on usage having the force of law, or
by statutory recognition. And the court further says: "It is
manifest, from this consideration, that if the Constitution had
not contained the clause requiring the rendition of fugitives
from labor, every non-slaveholding State in the Union would
have been at liberty to have declared free all runaway slaves
548
SUPREME COURT.
Mr. Justice McLean.] Dred Scott v. Sandford.
coming witliiu its limits, and to have given them entire immu¬
nity and protection against the claims of their masters."
Row, if a slave abscond, he may be reclaimed; but if he ac¬
company his master into a State or Territory where slavery is
prohibited, such slave cannot be said to have left the service
of his master where his services were legalized. And if slavery
be limited to the range of the territorial laws, how can the
slave be coerced to serve in a State or Territory, not only
without the authority of law, but against its express provisions?
"What gives the master the right to control the will of his slave?
The local law, which exists in some form. But where there is
no such law, can the master control the will of the slave by
force? Where no slavery exists, the presumption, without
regard to color, is in favor of freedom. Under such a juris¬
diction, may the colored man he levied on as the property of
his master by a creditor ? On the decease of the master, docs
the slave descend to his heirs as property? Can the master
sell him ? Any one or all of these acts may he done to the
slave, where he is legally held to service. But where the law
does not confer this power, it cannot be exercised.
Lord Mansfield held that a slave brought into England was
free. Lord Stowell agreed with Lord Mansfield in this respect,
and that the slave could not be coerced in England; but 011
her voluntary return to Antigua, the place of her slave domicil,
her former status attached. The law of England did not
prohibit slavery, but did not authorize it. The jurisdiction
which prohibits slavery is much stronger in behalf of the slave
within it, than where it only does not authorize it.
By virtue of what law is it, that a master may take his slave
1 into free territory, and exact from him the duties of a slave?
The law of the Territory does not sanction it. Ro authority
can be claimed under the Constitution of the United States,
or any law of Congress. Will it be said that the slave is taken
as property, the same as other property which the master may
own? To this I answer, that colored persons are made
property by the law of the State, and no such power has been
given to Congress. Does the master carry with him the law
of the State from which he removes into the Territory? and
does that enable him to coerce his slave in the Territory?
Let us test this theory. If this may be done by a master from
one slave State, it may be done by a master from every other
slave State. This right is supposed to bo connected with the
person of the master, by virtue of the local law. Is it transfer¬
able? May it be negotiated, as a promissory note or bill of
exchange ? If it be assigned to a man from a free State, may
he coerce the slave by virtue of it ? What shall this thing be
DECEMBER TERM, 1856.
549
Dred Scott v. Sandford. [Mb. Justice McLean.
denominated? Is it personal or real property? Or is it an
indefinable fragment of sovereignty, wbicb every person carries
with liim from bis late domicil? One thing is certain, that its
origin has been very recent, and it is unknown to the laws of
any civilized country.
A slave is brought to England from one of its islands, where
slavery was introduced and maintained by the mother country.
Although there is no law prohibiting slavery in England, yet
there is no law authorizing it; and, for near a century, its
courts have declared that the slave there is free from the
coercion of the master. Lords Mansfield and Stowell agree
upon this point, and there is no dissenting authority.
There is no other description of property which was not
protected in England, brought from one of its slave islands.
Does not this show that property in a human being does not
arise from nature or from the common law, but, in the language
of this court, "it is a mere municipal regulation, founded upon
and limited to the range of the territorial laws ? " This decision
is not a mere argument, but it is the end of the law, in regard
to the extent of slavery. Until it shall be overturned, it is
not a point for argument; it is obligatory on myself and my
brethren, and on all judicial tribunals over which this court
exercises an appellate power.
It is said the Territories are common property of the States,
and that every man has a right to go there with his property.
This is not controverted. But, the court say a slave is not
property beyond the operation of the local law which makes
him such. Never was a truth more authoritatively and justly
uttered by man. Suppose a master of a slave in a British
island owned a million of property in England; would that
authorize him to take his slaves with him to England ? The
Constitution, in express terms, recognises the status of slavery
as founded on the municipal law: "No person held to service
or labor in one State, under the laws thereof, escaping into
another, shall," &c. Now, unless the fugitive escape from a
place where, by the municipal law, he is held to labor, this
provision affords no remedy to the master. What can be more
conclusive than this ? Suppose a slave escape from a Territory
where slavery is not authorized by law, can he be reclaimed ?
In this case, a majority of the court have said that a slave
may be taken by his master into a Territory of the United
States, the same as a horse, or any other kind of property. It
is true, this was said by the court, as also many other things,
which are of no authority. Nothing that has been said by
them, which has not a direct bearing on the jurisdiction of
the court, against which they decided, can be considered as
550
SUPREME COURT.
Mr. Justice McLeah.] Dred Scott v. Sandford,
authority. I shall certainly not regard it as such. The
question of jurisdiction, being before the court, was decided
by them authoritatively, but nothing beyond that question.
A slave is not a mere chattel. lie bears the impress of his
Maker, and is amenable to the laws of God and man; and he
is destined to an endless existence.
Under this head I shall chiefly rely on the decisions of the
Supreme Courts of the Southern States, and especially of the
State of Missouri.
In the first and second sections of the sixth article of the
Constitution of Illinois, it is declared that neither slavery nor
involuntary servitude shall hereafter be introduced into this
State, otherwise than for the punishment of crimes whereof
the party shall have been duly convicted; and in the second
section it is declared that any violation of this article shall
effect the emancipation of such person from his obligation to
service. In Illinois, a right of transit through the St^e is
given the master with his slaves. This is a matter which, as I
suppose, belongs exclusively to the State.
The Supreme Court of Illinois, in the case of Jarrot v. Jar-
rot, (2 Gilmer, 7,) said:
"After the conquest of this Territory by Virginia, she ceded
it to the United States, and stipulated that the titles and pos¬
sessions, rights and liberties, of the French settlers, should be
guarantied to them. This., it has been contended, secured
them in the possession of those negroes as slaves which they
held before that time, and that neither Congress nor the Con¬
vention had power to deprive them of it; or, in other words,
that the ordinance and Constitution should not be so interpret¬
ed and understood as applying to such slaves, when it is there¬
in declared that there shall be n either slavery nor involuntary
servitude in the Northwest Territory, nor in the State of Illi¬
nois, otherwise than in the punishment of crimes. But it was
held that those rights could not be thus protected, but must
yield to the ordinance and Constitution."
The first slave case decided by the Supreme Court of Mis¬
souri, contained in the reports, was Winny v. "Whitesides, (1
Missouri Rep., 473,) at October term,, 1824. It appeared that,
more than twenty-five years before, the defendant, with her
husband, had removed from Carolina to Illinois, and brought
with them the plaintiff; that they con tinued to reside in Illi¬
nois three or four years, retaining the plaintiff as a slave; after
which, they removed to Missouri, taking her with them.
The court held, that if a slave be det ained in Illinois until
he be entitled to freedom, the right of th»3 owner does not re-
yive when he finds the negro in a slave St ate.
DECEMBER TERM, 1856. 551
Dred Scott v. Sandford. [Mb. Justice McLeam.
That when a slave is taken to Illinois by his owner, who
takes up his residence there, the slave is entitled to freedom.
In the case of Lagrange v. Chouteau, (2 Missouri Rep., 20,
at May term, 1828,) it-was decided that the ordinance of 1787
was intended as a fundamental law for those who may choose
to live under it, rather than as a penal statute.
That any sort of residence contrived or permitted by the
legal owner of the slave, upon the faith of secret trusts or con¬
tracts, in order to ,defeat or evade the ordinance, and thereby
introduce slavery de facto, would entitle such slave to freedom.
In Julia v. McKinney, (8 Missouri Rep., 279,) it was held,
where a slave was settled in the State of Illinois, but with an
intention on^the part of the owner to be removed at some
future day, that hiring said slave to a person to labor for one
or two days, and receiving the pay for the hire, the slave is
entitled to her freedom, under the second section of the sixth
article of the Constitution of Illinois.
Rachel v. Walker (4 Missouri Rep., 350, June term, 1836)
is a case involving, in every particular, the principles of the
case before us. Rachel sued for her freedom; and it appeared
that she had been bought as a slave in Missouri, by Stockton,
an officer of the army, taken to Fort Snelling, where he was
stationed, and she was retained there as a slave a year; and
then Stockton removed to Prairie du Chien, taking Rachel
with him as a slave, where he continued to hold her three
years, and then he took her to the State of Missouri, and sold
her as a slave.
"Fort Snelling was admitted to be on the west side of the
Mississippi river, and north of the State' of Missouri, in the ter¬
ritory of the United States. That Prairie du Chien was in the
Michigan Territory, on the east side of the Mississippi river.
"Walker, the defendant, held Rachel under Stockton."
The court said, in this case:
"The officer lived in Missouri Territory, at the time he
bought the slave; he sent to a slaveholding country and pro¬
cured her; this was his voluntary act, done without any other
reason than that of his convenience; and he and those claiming
under him must be holden to abide the consequences of intro¬
ducing slavery both in Missouri Territory and Michigan, con¬
trary to law; and on that ground Rachel was declared to be
entitled to freedom."
In answer to the argument that, as an officer of the army,
the master had a right to take his slave into free territory, the
court said no authority of law or the Government compelled
him to keep the plaintiff there as a slave.
"Shall -it be said, that because an officer of the army owns
552
SUPREME COURT.
Mr. Justice McLean.] Bred Scott v. Sandford.
slaves in Virginia, that when, as officer and soldier, he is re¬
quired to take the command of a fort in the non-slaveliolding
States or Territories, he thereby has a right to take with him
as many slaves as will suit his interests or convenience? It
surely cannot be law. If this he true, the court say, then it is
also true that the convenience or supposed convenience of the
officer repeals, as to him and others who have, the same char¬
acter, the ordinance and the act of 1821, admitting Missouri
into the Union, and also the prohibition of the several laws
and Constitutions of the non-slaveholding States."
In Wilson v. Melvin, (4 Missouri R., 592,) it appeared the
defendant left Tennessee with an intention of residing in Illi¬
nois, taking his negroes with him. After a month's stay in
Illinois, he took his negroes to St. Louis, and hired them, then
returned to Illinois. On these facts, the inferior court in¬
structed the jury that the defendant was a sojourner in Illinois.
This the Supreme Court held was error, and the judgment was
reversed.
The case of Dred Scott v. Emerson (15 Missouri R., G82,
March term, 1852) will now he stated. This case involved the
identical question before us, Emerson having, since the hear¬
ing, sold the plaintiff to Sandford, the defendant.
Two of the judges ruled the case, the Chief Justice dissenting.
It cannot he improper to state the grounds of the opinion of
the court, and of the dissent.
The court say: "Cases of this kind are not strangers in our
court. Persons have been frequently here adjudged to he en¬
titled to their freedom, on the ground that their masters held
them in slavery in Territories or States in which that institution
is prohibited. From the first case decided in our court, it
might be inferred that this result was brought about by a pre¬
sumed assent of the master, from the fact of having voluntarily
taken his slave to s| place where the relation of master and
slave did not exist. But subsequent cases base the right to
4 exact the forfeiture of emancipation,' as they term it, on the
ground, it would seem, that it was the duty of the courts of
this State to carry into effect the Constitution and laws of other
'States and Territories, regardless of the rights, the policy, or
the institutions, of the people of this State."
And the court say that the States of the Union, in their
municipal concerns, are regarded as foreign to each other;
that the courts of one State do not take notice of the laws of
other States, unless proved as facts, and that every State has
the right to determine how far its comity to other States shall
extend; and it is laid down, that when there is no act of manu¬
mission decreed to the free State, the courts of the slave States
DECEMBER TERM, 1856.
558
jDred Scott v. Sandford. [Ma. Justice McLean.
cannot "be called to give effect to the law of the free State.
Comity, it alleges, between States, depends upon the discretion
of both, which may be varied by circumstances. And it is de¬
clared by the court, "that times are not as they were when
the former decisions on this subject were made." Since then,
not only individuals but States have been possessed with a
dark and fell spirit in relation to slavery, whose gratification
is sought in the pursuit of measures whose inevitable' conse¬
quence must be the overthrow and destruction of our Govern¬
ment. Under such circumstances, it does not behoove the
State of Missouri to show the least countenance to any measure
which might gratify this spirit. She is willing to assume her
full responsibility for the existence of slavery within her limits,
nor does she seek to share or divide it with others.
Chief Justice Gamble dissented from the other two judges,
lie says:
"In every slaveholding State in the Union, the subject of
emancipation is regulated by statute; and the forms are pre¬
scribed in which it shall be effected. "Whenever the forms
required by the laws of the State in which the master and slave
are resident are complied with, the emancipation is complete,
and the slave is free. If the right of the person thus emanci¬
pated is subsequently drawn in question in another State, it
will be ascertained and determined by the law of the State in
which the slave and his former master resided; and when it
appears that such law has been complied with, the right to
freedom will be fully sustained in the courts of all the slave-
holding States, although the act of emancipation may not be
in the form required by law in which the court sits.
"In all such cases, courts continually administer the law of
the country where the right was acquired; and when that law
becomes known to the court, it is just as much a matter of
course to decide the rights of the parties according to its re¬
quirements, as it is to settle the title of real estate situated in
our State by its own laws."
This appears to me a most satisfactory answer to the argu¬
ment of the court. Chief Justice continues:
" The perfect equality of the different States lies at the found¬
ation of the Union. As the institution of slavery in the States
is one over which the Constitution of the United States gives
no power to the General Government, it is left to be adopted
or rejected by the several States, as they think best; nor can
any one State, or number of States, claim the right to inter¬
fere with any other State upon the question of admitting or
excluding this institution.
"A citizen of Missouri, who removes with his slave to Illi-
554
SUPREME COURT.
Mb. Justice McLean.] Dred Scott v. Sand/ord.
nois, lias no right to complain that the fundamental law of
that State to which he removes, and in which he makes his
residence, dissolves the relation between him and his slave.
It is as much his own voluntary act, as if he had executed a
deed of emancipation. No one can pretend ignorance of this
constitutional provision, and," he says, "the decisions which
have heretofore been made in this State, and in many other
slaveholding States, give effect to this and other similar pro¬
visions, on the ground that the master, by making the free
State the residence of his slave, has submitted his right to the
operation of the law of such State; and this," he says, "is the
same in law as a regular deed of emancipation."
He adds:
"I regard the question as conclusively settled by repeated
adjudications of this court, and, if I doubted or denied the
propriety of those decisions, I would not feel myself any more
at liberty to overturn them, than I would any other series of
decisions by which the law of any other question was settled.
There is with me," he says, "nothing in the law relating to
slavery which distinguishes it from the law on any other sub¬
ject, or allows any more accommodation to the temporary
public excitements which are gathered around it."
"In this State," he says, "it has been recognised from the
beginning of the Government as a correct position in law, that
a master who takes his slave to reside in a State or Territory
where slavery is prohibited, thereby emancipates his slavfc."
These decisions, which come down to the year 1837, seemed
to have so fully settled the question, that since that time there
has been no case bringing it before the court for any reconsid¬
eration, until the present. In the case of Winny v. Whitesides,
the question was made in the argument, "whether one nation
would execute the penal laws of another," and the court re¬
plied in this language, (Huberus, quoted in 4 Dallas,) which
says, "personal rights or disabilities obtained or communicated
by the laws of any particular place are of a nature which ac¬
company the person wherever he goes;" and the Chief Justice
observed, in the case of Rachel v. "Walker, the act of Congress
called the Missouri compromise was held as operative as the
ordinance of 1787.
When Dred Scott, his wife and children, were removed from
Fort Snelling to Missouri, in 1838, they were free, as the law
was then settled, and continued for fourteen years afterwards,
up to 1852, when the above decision was made. Prior to this,
for nearly thirty years, as Chief Justice Gamble declares, the
residence of a master with his slave in the State of Illinois, or
in the Territory north of Missouri, where slavery was prohibited
DECEMBER TERM, 1856.
555
Dred Scott v. Sandford. [Mr. Justice McLean.
by the act called the Missouri compromise, would manumit
the slave as effectually as if he had executed a deed of emanci¬
pation ; and that an officer of the army who takes his slave
into that State or Territory, and holds him there as a slave,
liberates him the same as any other citizen—and down to the
above time it was settled by numerous and uniform decisions;
and that on the return of the slave to Missouri, his former
condition of slavery did not attach. Such was the settled law
of Missouri until the decision of Scott and Emerson.
In the case of Sylvia v. Kirby, (17 Misso. Rep., 484,) the
court followed the above decision, observing it was similar in
all respects to the case of Scott and Emerson.
This court follows the established construction of the statutes
of a State by its Supreme Court. Such a construction is con¬
sidered as a part of the statute, and we follow it to avoid two
rules of property in the same State. But we do not follow the
decisions of the Supreme Court of a State beyond a statutory
construction as a rule of decision for this court. State de¬
cisions are always viewed with respect and treated as authori¬
ty ; but we follow the settled construction of the statutes, not
because it is of binding authority, but in pursuance of a rule
of judicial policy.
But there is no pretence that the case of Dred Scott v. Emer¬
son turned upon the construction of a Missouri statute; nor
was there any established rule of property which could have
rightfully influenced the decision. On the contrary, the de¬
cision overruled the settled law for near thirty years.
This is said by my brethren to be a Missouri question; but
there is nothing which gives it this character, except that it
involves the right to persons claimed as slaves who reside in
Missouri, and the decision was made by the Supreme Court
of that State. It involves a right claimed under an act of Con¬
gress and the Constitution of Illinois, and which cannot be de¬
cided without the consideration and construction of those laws.
But the Supreme Court of Missouri held, in this case, that it
will not regard either of those laws, without which there was
no case before it; and Dred Scott, having been a slave, re¬
mains a slave. In this respect it is admitted this is a Missouri
question—a case which has but one side, if the act of Congress
and the Constitution of Illinois are not recognised.
And does such a case constitute a rule of decision for this
court—a case to be followed by this court? The course of de¬
cision so long and so uniformly maintained established a com¬
ity or law between Missouri and the free States and Territories
where slavery was prohibited, which must be somewhat re¬
garded in this case. Rights sanctioned for twenty-eight years
556
SUPREME COURT.
Ma. Justices McLean.] Dred Scott v. Sandford.
ought not and cannot he repudiated, with any semblance of
justice, by one or two decisions, influenced, as declared, by a
determination to counteract the excitement against slavery in
the free States.
The courts of Louisiana having held, for a series of years,
that where a master took his slave to France, or any free State,
he was entitled to freedom, and that on bringing him back the
status of slavery did not attach, the Legislature of Louisiana
declared by an act that the slave should not be made free un¬
der such circumstances. This regulated the rights of the mas¬
ter from the time the act took effect. But the decision of the
Missouri court, reversing a former decision, affects all previous
decisions, technically, made on the same principles, unless such
decisions are protected by the lapse of time or the statute of
limitations. Dred Scott and his family, beyond all controversy,
were free under the decisions made for twenty-eight years, be¬
fore the case of Scott v. Emerson. This was the undoubted
law of Missouri for fourteen years after Scott and his family
were brought back to that State. And the grave question
arises, whether this law may be so disregarded as to enslave
free persons. I am strongly inclined to think that a rule of
decision so well settled as not to be questioned, cannot be an¬
nulled by a single decision of the court. Such rights may be
inoperative under the decision in future; but I cannot well per¬
ceive how it can have the same effect in prior cases.
It is admitted, that when a former decision is reversed, the
technical effect of the judgment is to make all previous adju¬
dications on the same question erroneous. But the case be¬
fore us was not that the law had been erroneously construed,
but that, under the circumstances which then existed, that law
would not be recognised; and the reason for this is declared
to be the excitement against the institution of slavery in the
free States. "While I lament this excitement as much as any
oue, I cannot assent that it shall be made a basis of judicial
action.
In 1816, the common law, by statute, was made a part of
the law of Missouri; and that includes the great principles of
international law. These principles cannot be abrogated by
judicial decisions. It will require the same exercise of power
to abolish the common law, as to introduce it. International
law is founded in the opinions generally received and acted on
by civilized nations, and enforced by moral sanctions. It be¬
comes a more authoritative system when it results from special
compacts, founded on modified rules, adapted to the exigencies
of human society; it is in fact an international morality, adapt¬
ed to the best interests of nations. And in regard to the States
DECEMBER TERM, 1856.
557
Dred Scott v. Sand/ord. £Mb. Justice McLean.
of this Union, on the subject of slavery, it is eminently fitted
for a rule of action, subject to the Federal Constitution. "The
laws of nations are but the natural rights of man applied to na¬
tions." (Yattel.)
If the common law bave the force of a statutory enactment -
in Missouri, it is clear, as it seems to me, that a slave who, by
a residence in Illinois in the service of his master, becomes en¬
titled to his freedom, cannot again be reduced to slavery by
returning to his former domicil in a slave State. It is unne¬
cessary to say what legislative power might do by a general
act in such a case, but it would be singular if a freeman could
he made a slave by the exercise of a judicial discretion. And
it would be still more extraordinary if this could be done, not
only in the absence of special legislation, but in a State where
the common law is in force.
It is supposed by sopie, that the third article in the treaty
of cession of Louisiana to this country, by France, in 1803,
may have some bearing on this question. The article referred
to provides, "that the inhabitants of the ceded territory shall
he incorporated into the Union, and enjoy all the advantages
of citizens of the United States, and in the mean time they
shall be maintained and protected in the free enjoyment of
their liberty, property, and the religion they profess."
As slavery existed in Louisiana at the time of the cession, it
is supposed this is a guaranty that there should be no change
in its condition.
The answer to this is, in the first place, that such a subject
does not belong to the treaty-making power; and any such
arrangement would have been nugatory. And, in the second
place, by no admissible construction can the guaranty be car¬
ried further than the protection of property in slaves at that
time in the ceded territory. And this has been complied
with. The organization of the slave States of Louisiana, Mis¬
souri, and Arkansas, embraced every slave in Louisiana at
the time of the cession. This removes every ground of objec¬
tion under the treaty. There is therefore no pretence, growing
out of the treaty, that any part of the territory of Louisiana, as
ceded, beyond the organized States, is slave territory.
Under the fifth head, we were to consider whether the status
of slavery attached to the plaintiff and wife, on their return to
Missouri.
This doctrine is not asserted in the late opinion of the Su¬
preme Court of Missouri, and up to 1852 the contrary doctrine
was uniformly maintained by that court.
In its late decision, the court say that it will not give effect
in Missouri to the laws of Illinois, or the law of Congress
558
SUPREME COURT.
Ma. Justice McLean.] Dred Scott v. Sandford.
called the Missouri compromise. This was the effect of the
decision, though its terms were, that the court would not take
notice, judicially, of those laws.
In 1851, the Court of Appeals of South Carolina recognised
the principle, that a slave, being taken to a free State, became
free. (Commonwealth v. Pleasants, 10 Leigh Rep., 607.) In
Betty v. Horton, the Court of Appeals held that the freedom
of the slave was acquired by the action of the laws of Massa¬
chusetts, by the said slave being taken there. (5 Leigh Rep.,
615.)
The slave States have generally adopted the rule, that where
the master, by a residence with his slave in a State or Terri¬
tory where slavery is prohibited, the slave was entitled to his
freedom everywhere. This was the settled doctrine of the
Supreme Court of Missouri. It has been so held in Mississip¬
pi, in Virginia, in Louisiana, formerly ip Kentucky, Maryland,
and in other States.
The law, where a contract is made and is to be executed,
governs it. This does not depend upon comity, but upon the
law of the contract. And if, in the language of the Supreme
Court of Missouri, the master, by taking his slave to Illinois,
and employing him there as a slave, emancipates him as effect¬
ually as by a deed of emancipation, is it possible that such an
act is not matter for adjudication in any slave State where the
master may take him? Does not the master assent to the law,
when he places himself under it in a free State ?
The States of Missouri and Illinois are bounded by a common
line. The one prohibits slavery, the other admits it. This
has been done by the exercise of that sovereign power which
appertains to each. "We are bound to respect the institutions
of each,- as emanating from the voluntary action of the people.
Have the people of either any right to disturb the relations of
the other? Each State rests upon the basis of its own sover¬
eignty, protected by the Constitution. Our Union has been
the foundation of our prosperity and national glory. Shall
we not cherish and maintain it ? This can only be done by
respecting the legal rights of each State.
If a citizen of a free State shall entice or enable a slave to
escape from the service of his master, the law holds him
responsible, not only for the loss of the slave, but he is liable
to be indicted and fined for the misdemeanor. And I am
bound here to say, that I have never found a jury in the four
States which constitute my circuit, which have mot sustained
this law, where the evidence required them to sustain it. And
it is proper that I should also say, that more cases have arisen
in my circuit, by reason of its extent and locality, than in all
DECEMBER TERM, 1856.
559
Bred Scott v. Sandford. [Me. Justice McLean.
other parts of the Union. This has been done to vindicate
the sovereign rights of the Southern States, and protect the
legal interests of our brethren of the South. 1
Let these facts be contrasted with the case now before the -
court. • Illinois has declared in the most solemn and impres¬
sive form that there shall be neither slavery nor involuntary
servitude in that State, and that any slave brought into it,
with a view of becoming a resident, shall be emancipated.
And effect has been given to this provision of the Constitution
by the decision of the Supreme Court of that State. "With a
full knowledge of these facts, a slave is brought from Missouri
to Rock Island, in the State of Illinois, and is retained there
as a slave for two years, and then taken to Fort Snelling,
where slavery is prohibited by the Missouri compromise act,
and there he is detained two years longer in a state of slavery.
Harriet, his wife, was also kept at the same place four years
as a slave, having been purchased in Missouri. They were
then removed to the State of Missouri, and sold as slaves, and
in the action before us they are not only claimed as slaves, but
a majority of my brethren have held that on their being
returned to Missouri the status of slavery attached to them.
I am not able to reconcile this result with the respect due
to the State of Illinois. Having the same rights of sovereignty
as the State of Missouri in adopting a Constitution, I can
perceive no reason why the institutions of Illinois should not
receive the same consideration as those of Missouri. Allowing
to my brethren the same right of judgment that I exercise
myself, I must be permitted to say that it seems to me the
principle laid down will enable the people of a slave State to
introduce slavery into a free State, for a longer or shorter
time, as may suit their convenience; and by returning the
slave to the State whence he was brought, by force or other¬
wise, the status of slavery attaches, and protects the rights of
the master, and defies the sovereignty of the free State. There
is no evidence before us that Dred Scott and his family
returned to Missouri voluntarily. The contrary is inferable
from the agreed case: "In the year 1888, Dr. Emerson
removed the plaintiff and said Harriet, and their daughter
Eliza, from Fort Snelling to the State of Missouri, where they
have ever since resided." This is the agreed case; and can
it be inferred from this that Scott and family returned to
Missouri voluntarily? He was removed; which shows that
he was passive, as a slave, having exercised no volition on the
subject. lie did not resist the master by absconding or force.
But that was not sufficient to bring him within Lord Stowell's
decision; he must have acted voluntarily. It would be a
560
SUPREME COURT.
Mb. Justice McLean.] Bred Scott v. Sandford.
mockery of law and an outrage on his rights to coerce his
return, and then claim that it was voluntary, and on that
ground that his former status of slavery attached.
If the decision he placed on this ground, it is a fact for a
jury to decide, whether the return was voluntary, or else tlic
fact should be distinctly admitted. A presumption against
the plaintiff in this respect, I say with confidence, is not
authorized from the facts admitted.
In coming to the conclusion that a voluntary return by
Grace to her former domicil, slavery attached, Lord Stowell
took great pains to show that England forced slavery upon
her colonies, and that it was maintained by numerous acts of
Parliament and public policy, and, in short, that the system
of slavery was not only established by Great Britain in her
"West, Indian colonies, but that it was popular and profitable
to many of the wealthy and influential people of England,
who were engaged in trade, or owned and cultivated planta¬
tions in the colonies. Ho one can read his elaborate views,
and not be struck with the great difference between England
and her colonies, and the free and slave States of this Union.
While slavery in the colonies of England is subject to the
power of the mother country, our States, especially in regard
to slavery, are independent, resting upon their own sovereign¬
ties, and subject only to international laws, which apply to
independent States.
In the case of Williams, who was a slave in Granada, having
run away, came to England, Lord Stowell said: "The four
judges all concur in this—that he was a slave in Granada,
though a free man in England, and he would have continued a
free man in all other parts of the world except Granada."
Strader v. Graham (10 Howard, 82, and 18 Curtis, 305) has
been cited as having a direct bearing in the case before us.
In that case the court say: "It was exclusively in the power
of Kentucky to determine, for itself, whether the employment
of slaves in another State should or should not make them free
on their return." Ho question was before the court in that
case, except that of jurisdiction. And any opinion given on
any other point is obiter dictum, and of no authority. In the
conclusion of his opinion, the Chief Justice said: "In every
view of the subject, therefore, this court has no jurisdiction of
the case, and the writ of error must on that gronnd be dis¬
missed."
In the case of Spencer v. Hegro Dennis, (8 Gill's Rep., 321,)
the court say: "Once free, and always free, is the maxim of
Maryland law upon the subject. Freedom having once vested,
by no compact between the master and the the liberated slave,
DECEMBER TERM, 1856.
561
Dred Scott v. Sandford. [Mb. Justice McLean.
nor by any condition subsequent, attached by the master to
the gift of freedom, can a state of slavery be reproduced."
In Hunter v. Bulcher, (1 Leigh, 172:)
"By a statute of Maryland of 1796, all slaves brought into
that State to reside are declared free; a Yirginian-born slave
is carried by his master to Maryland; the master settled there,
and keeps the slave there in bondage for twelve years, the
statute in force all the time; then he brings him as a slave to
Virginia, and sells him there. Adjudged, in an action brought
by the man against the purchaser, that he is free."
Judge Kerr, in the case, says:
" Agreeing, as I do, with the general view taken in this case
by my brother Green, I would not add a word, but to mark
the exact extent to which I mean to go. The law of Maryland
having enacted that slaves carried into that State for sale or to
reside shall be free, and the owner of the slave here having
carried him to Maryland, and voluntarily submitting himself
and the slave to that law, it governs the case."
In every decision of a slave case prior to that of Dred Seott
v. Emerson, the Supreme Court of Missouri considered it as
turning upon the Constitution of Illinois, the ordinance of 1787,
or the Missouri compromise act of 1820. The court treated
these acts as in force, and held itself bound to execute them,
by declaring the slave to be free who had acquired a domicil
under them with the consent of his master.
The late decision reversed this whole line of adjudication,
, and held that neither the Constitution and laws of the States,
nor acts of Congress in relation to Territories, could be judi¬
cially noticed by the Supreme Court of Missouri. This is
believed to be in conflict with the decisions of all the courts in
the Southern States, with some exceptions of recent cases.
In Marie Louise v. Morat et al., (9 Louisiana Rep., 475,) it
was held, where a slave having been taken to the kingdom of
Erance or other country by the owner, where slavery is not
tolerated, operates on the condition of the slave, and produces
immediate emancipation; and that, where a slave thus be¬
comes free, the master cannot reduce him again to slavery.
Josephine v. Poultney, (Louisiana Annual Rep., 329,) "where
the owner removes with a slave into a State in which slavery
is prohibited, with the intention of residing there, the slave
will be thereby emancipated, and their subsequent return to
the State of Louisiana cannot restore the relation of master
and slave." To the same import are the cases of Smith v.
Smith, (13 Louisiana Rep., 441; Thomas v. Generis, Louisiana
Rep., 483; Harry et al. v. Decker and Hopkins, "Walker's
Mississippi Rep., 36.) It was held that, "slaves within the ju-
562
SUPREME COURT.
Me. Justice McLean.] Dred Scott v. Sandford.
risdiction of the Northwestern Territory became freemen by
virtue of the ordinance of 1787, and can assert their claim to
freedom in the courts of Mississippi." (Griffith v. Fanny, 1 Vir¬
ginia Rep., 143.) It was decided that a negro held in servitude
in Ohio, under a deed executed in Virginia, is entitled to free¬
dom by the Constitution of Ohio.
The case of Rhodes v. Bell (2 Howard, 307; 15 Curtis, 152)
involved the main principle in the case before us. A person
residing in "Washington city purchased a slave in Alexandria,
and brought him to Washington. Washington continued
under the law of Maryland, Alexandria under the law of Vir¬
ginia. The act of Maryland of November, 1796, (2 Maxcy's
Laws, 351,) declared any one who shall bring any negro, mu¬
latto, or other slave, into Maryland, such slave should be free.
The above slave, by reason of his being brought into Wash¬
ington city, was declared by this court to be free. This, it
appears to me, is a much stronger case against the slave than
the facts in the case of Scott.
In Bush v. White, (3 Monroe, 104,) the court say:
"That the ordinance was paramount to the Territorial laws,
and restrained the legislative power there as effectually as a
Constitution in an organized State. It was a public act of the
Legislature of the Union, and a part of the supreme law of the
land; and, as such, this court is as much bound to take notice
of it as it can be of any other law."
In the case of Rankin v. Lydia, before cited, Judge Mills,
speaking for the Court of Appeals of "Kentucky, says:
"If, by the positive provision in our code, we can and must
hold our slaves in the one case, and statutory provisions equally
positive decide against that right in the other, and liberate the
slave, he must, by an authority equally imperious, be declared
free. Every argument which supports the right of the master
on one side, based upon the force of written law, must be
equally conclusive in favor of the slave, when he can point out
in the statute the clause which secures his freedom."
And he further said:
"Free people of color in all the States are, it is believed,
quasi citizens, or, at least, denizens. Although none of the
States may allow them the privilege of office and suffrage, yet
all other Civil and conventional rights are secured to them; at
least, such rights were evidently secured to them by the ordi¬
nance in question for the government of Indiana. If these
rights are vested in that or any other portion of the United
States, can it be compatible with the spirit of our confederated
Government to deny their existence in any other part? Is
there less comity existing between State and State, or State
DECEMBER TERM, 1856.
568
Dred Scott v. Sandford. [Mr. Justice McLean.
and Territory, than exists between the despotic Governments
of Europe?"
These are the words of a learned and great judge, horn and
educated in a slave State.
I now come to inquire, under the sixth and last head, "whether
the decisions of the Supreme Court of Missouri, on the ques¬
tion before us, are binding on this court."
AVhile we respect the learning and high intelligence of the
State courts, and consider their decisions, with others, as au¬
thority, we follow them only where they give a construction
to the State statutes. On this head, I consider myself fortu¬
nate in being able to turn to the decision of this court, given
by Mr. Justice Grier, in Pease v. Peck, a case from the State
of Michigan, (18 Howard, 589,) decided in December term,
1855. Speaking for the court, Judge Grier said:
"We entertain the highest respect for that learned court,
(the Supreme Court of Michigan,) and in any question affect¬
ing the construction of their own laws, where we entertain
any doubt, would, be glad to be^ relieved from doubt and
responsibility by reposing on their decision. There are, it is
true, many dicta to be found in our decisions, averring that
the courts of the TTnited States are bound to follow the decis¬
ions of the State courts on the construction of their own laws.
But although this may be correct, yet a rather strong expres¬
sion of a general rule, it cannot be received as the annunciation
of a maxim of universal application. Accordingly, out reports
furnish many cases of exceptions to it. In all cases where
there is a settled construction -of the laws of a State, by its
highest judicature established by admitted precedent, it is the
practice of the courts of the United States to receive and adopt
it, without criticism or further inquiry. When the decisions
of the State court are not consistent, we do not feel bound to
follow the last, if it is contrary to our own convictions; and
much more is this the case where, after a long course of con¬
sistent decisions, some new light suddenly springs up, or an
excited public opinion has elicited new doctrines subversive of
former safe precedent."
These words, it appears to me, have a stronger application
to the case before us than they had to the cause in which they
were spoken as the opinion of this court; and I regret that
they do not seem to be as fresh in the recollectioil of some of
my brethren as in my own. For twenty-eight years, the de¬
cisions of the Supreme Court of Missouri were consistent on
all the points made in this case. But this consistent course
was suddenly terminated, whether by some new light suddenly
springing up, or an excited public opinion, or both, it is not
564
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
necessary to say. In the case of Scott v. Emerson, in 1852,
they were overturned and repudiated.
This, then, is the very case in which seven of my brethren
declared they would not follow the last decision. On this au¬
thority I may well repose. I can desire no other or better
basis.
But there is another ground which I deem conclusive, and
which I will re-state.
The Supreme Court of Missouri refused to notice the act of
Congress or the Constitution of Illinois, under which Dred
Scott, his wife and children, claimed that they are entitled to
freedom.
This being rejected by the Missouri court, there was no case
before it, or least it was a case with only one side. And this
is the case which, in the opinion of this court, we are bound
to follow. The Missouri court disregards the express provis¬
ions of an act of Congress and the Constitution of a sovereign
State, both of which laws for twenty-eight years it had not
only regarded, but carried into effect.
If a State court may do this, on a question involving the
liberty of a human being, what protection do the laws afford?
So far from this being a Missouri question, it is a question, as
it would spem, within the twenty-fifth section of the judiciary
act, where a right to freedom being set up under the act of
Congress, and the decision being against such right, it may he
brought for revision before this court, from the Supreme Court
of Missouri.
I think the judgment of the court below should be reversed.
Mr. Justice CURTIS dissenting.
I dissent from the opinion pronounced by the Chief Justice,
and from the judgment which the majority of the court think
it proper to render in this case. The plaintiff alleged, in his
declaration, that he was a citizen of the State of Missouri, and
that the defendant was a citizen of the State of New York. It
is not doubted that it was necessary to make each of these al¬
legations, to sustain the jurisdiction of the Circuit Court. The
defendant denied, by a plea to the jurisdiction, either sufficient
or insufficient, that the plaintiff was a citizen of the State of
Missouri. The plaintiff demurred to that plea. The Circuit
Court adjudged the plea insufficient, and the first question for
our consideration is, whether the sufficiency of that plea is be¬
fore this court for judgment, upon this writ of error. The
part of the judicial power of the United States, conferred by
Congress on the Circuit Courts, being limited to certain de¬
scribed cases and controversies, the question whether a partic-
DECEMBER TERM, 185G.
565
Dred Scott v. Sand/ord. [Mr. Justice Curtis.
ular case is within, the cognizance of a Circuit Court, may he
raised by a plea to the jurisdiction of such court. When that
question has been raised, the Circuit Court must, in the first
instance, pass upon and determine it. Whether its determina¬
tion be final, or subject to review by this appellate court, must
depend upon the will of Congress; upon which body the Con¬
stitution has conferred the power, with certain restrictions, to
establish inferior courts, to determine their jurisdiction, and
to regulate the appellate power of this court. The twenty-
second section of the judiciary act of 1789, which allows a
writ of error from final judgments of Circuit Courts, provides
that there shall be no reversal in this court, on such writ of
error, for error in ruling any plea in abatement, other than a
plea to the jurisdiction of the court. Accordingly it has been
held, from the origin of the court to the present clay, that Cir¬
cuit Courts have not been made by Congress the final judges
of their own jurisdiction in civil cases. And that when a
record comes here upon a writ of error or appeal, and, on its
inspection, it appears to this court that the Circuit Court had
not jurisdiction, its judgment must be reversed, and the cadse
remanded, to be dismissed for want of jurisdiction.
It is alleged by the defendant in error, in this case, that the
plea to the jurisdiction was a sufficient plea; that it shows, on
inspection of its allegations, confessed by the demurrer, that
the plaintiff was not a citizen of the State of Missouri; that
upon this record, it must appear to this court that the case
was not within the judicial power of the United States, as de¬
fined and granted by the Constitution, because it was not a
suit by a citizen of one State against a citizen of another State.
To this it is answered, first, that the defendant, by pleading
over, after the plea to the jurisdiction was adjudged insuffi¬
cient, finally waived all benefit of that plea.
When that plea was adjudged insufficient, the defendant
was obliged to answer over. He held no alternative. He
could not stop the further progress of the case in the Circuit
Court by a writ of error, on which the sufficiency of his plea
to the jurisdiction could be tried in this court, because the
judgment on that plea was not final, and no writ of error
would lie. He was forced to plead to the merits. It cannot
be true, then, that he waived the benefit of his plea to the
jurisdiction by answering over. Waiver includes consent.
Here, there was no consent. And if the benefit of the plea
was finally lost, it must be, not by any waiver, but because
the laws of the United States have not provided any mode of
reviewing the decision of the Circuit Court on such a plea,
when that decision is against the defendant. This is not the
12
5G6
SUPREME COURT.
Mr. Justice Curtis.] Bred Scoit v. Sandford.
law. Whether the decision of the Circuit Court 011 a pica to
the jurisdiction he against the plaintiff, or against the defend¬
ant, the losing party may have any alleged error in law, in
ruling such a plea, examined in this court on a writ of error,
when the matter in controversy exceeds the sum or value of
two thousand dollars. If the decision he against the plaintiff,
and his suit dismissed for want of jurisdiction, the judgment
is technically final, and he may at once sue out his writ of
error. (Mollan v. Torrance, 9 Wheat., 537.) If the decision
he against the defendant, though he must answer over, and
wait for a final judgment in the cause, he may then have his
writ of error, and upon it obtain the judgment of this court on
any question of law apparent on the record, touching'the juris¬
diction. The fact that he pleaded over to the merits, under
compulsion, can have no effect on his right to object to the
jurisdiction. If this were not so, the condition of the two par¬
ties would he grossly unequal. For if a plea to the jurisdic¬
tion were ruled against the plaintiff, he could at once take his
writ of error, and have the ruling reviewed here; while, if the
same plea were ruled against the defendant, he must not only
wait for a final judgment, hut could in no event have the
ruling of the Circuit Court upon the plea reviewed by this
court. I know of no ground for saying that the laws of the
United States have thus discriminated between the parties to
a suit in its courts.
It is further objected, that as the judgment of the Circuit
Court was in favor of the defendant, and the writ of error in
this cause was sued out by the plaintiff, the defendant is not
in a condition to assign any error in the record, and therefore
this Court is precluded from considering the question whether
the Circuit Court had jurisdiction.
The practice of this court does not require a technical as¬
signment of errors. (See the rule.) Upon a writ of error, the
whole record is open for inspection; and if any error be found
in it, the iudgment is reversed. (Bank of U. S. v. Smith, 11
Wheat., 171.)
It is true, as a general rule, that the court will not allow a
party to rely on anything as cause for reversing a judgment,
which was for his advantage. In this, we follow an ancient
rule of the common law. But so careful was that law of the
preservation of the course of its courts, that it made an excep¬
tion out of that general rule, and allowed a party to assign
for error that which was for his advantage, if it were a depart¬
ure by the court itself from its settled course of procedure.
The cases on this subject are collected in Bac. Ab., Error II. 4.
And this court followed this practice in Capron v. Van Noor-
DECEMBER TERM, 1856.
567
Bred Scott v. Sandford. [Mr. Justice Curtis.
den, (2 Cranch, 126,) where the plaintiff below procured the
reversal of a judgment for the defendant, on the ground that
the plaintiff's allegations of citizenship had not shown juris¬
diction.
But it is not necessary to determine whether the defendant
can he allowed to assign want of jurisdiction as an error in a
judgment in his own favor. The true question is, not what
either of the parties may be allowed to do, but whether this
court will affirm or reverse a judgment of the Circuit Court on
the merits, when it appears on the record, by a plea to the ju¬
risdiction, that it is a case to which the judicial power of the
United States does not extend. The course of the court is,
where no motion is made by either party, on its own motion,
to reverse such a judgment for want of jurisdiction, not only
in cases where it is shown, negatively, by a plea to the jurisdic¬
tion, that jurisdiction does not exist, but even where it does
not appear, affirmatively, that it does exist. (Pequignot v. The
Pennsylvania R. R. Co., 16 Plow., 104.) It acts upon the prin¬
ciple that the judicial power of the United States must not be
exerted in a case to which it does not extend, even if both par¬
ties desire to have it exerted. (Cutler v. Rae, 7 How., 729.)
I consider, therefore, that when there was a plea to the juris¬
diction of the Circuit Court in a case brought here by a writ
of error, the first duty of this court is, sua sponte, if not moved
to it by either party, to examine the sufficiency of that plea;
and thus to take care that neither the Circuit Court nor this
court shall use the judicial power of the United States in a case
to which the Constitution and laws of the United States have
not extended that power.
I proceed, therefore, to examine the plea to the jurisdiction.
I do not perceive any sound reason why it is not to be judged
by the rules of the common law applicable to such pleas. It
is true, where the jurisdiction of the Circuit Court depends on
the citizenship of the parties, it is incumbent on the plaintiff
to allege on the record the necessary citizenship; but when
be has done so, the defendant must interpose a plea in abate¬
ment, the allegations whereof show that the court has not ju¬
risdiction ; and it is incumbent on him to prove the truth of
his plea.
In Sheppard v. Graves, (14 How., 27,) the rules oh this sub¬
ject are thus stated in the opinion of the court: "That al¬
though, in the courts of the United States, it is necessary to
set forth the grounds of their cognizance as courts of limited
jurisdiction, yet wherever jurisdiction shall be averred in the
pleadings, in conformity with the laws creating those courts,
it must be taken, prima facie, as existing; and it is incumbent
568
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott V. Sandford.
on him who would impeach that jurisdiction for causes dehors
the pleading, to allege and prove such causes; that the neces¬
sity for the allegation, and the burden of sustaining it by proof,
both rest upon the party taking the exception." These posi¬
tions are sustained by the authorities there cited, as well as by
Wickliffe v. Owings, (17 How., 47.)
Whenr therefore, as in this case, the necessary averments as
to citizenship are made on the record, and jurisdiction is
assumed to exist, and the defendant comes by a plea to the
jurisdiction to displace that presumption, he occupies, in my
judgment, precisely the position described in' Racon Ab.,
Abatement: "Abatement, in the general acceptation of the
word, signifies a plea, put in by the defendant, in which he
shows cause to the court why he should not be impleaded; or,
if at all, not in the manner and form he now is."
This being, then, a plea in abatement, to the jurisdiction of
the court, I must judge of its sufficiency by those rules of the
common law applicable to such pleas.
The plea was as follows: "And the said John E. A. Sand-
ford, 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 plain¬
tiff, Dred Scott, is not a citizen of the State of Missouri, as
alleged in his declaration, because he is a negro of African
descent; his ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, and this
the said Sandford is ready to verify. "Wherefore, he prays
judgment whether this court can or will take further cogni¬
zance of the action aforesaid."
The plaintiff demurred, and the judgment of the Circuit
Court was, that the plea was insufficient.
I cannot treat this plea as a general traverse of the citizenship
alleged by the plaintiff. Indeed, if it were so treated, the plea
was clearly bad, for it concludes with a verification, and not to
the country, as a general traverse should. And though this
defect in a plea in bar must be pointed out by a special demur¬
rer, it is never necessary to demur specially to a plea in abate¬
ment ; all matters, though of form only, may be taken advantage
of upon a general demurrer to such a plea. (Chitty on PL,
465.)
The truth is, that though not drawn with the utmost tech¬
nical accuracy, it is a special traverse of the plaintiff's allegation
DECEMBER TERM, 1856.
569
Dred Scott v. Sandford. [Mr. Justice Curtis.
of citizenship, and was a suitable and proper mode of traverse
under the circumstances. By reference to Mr. Stephen's de¬
scription of the uses of such a traverse, contained in his excellent
analysis of pleadings, (Steph. on PL, 176,) it will he seen how
precisely this plea meets one of his descriptions. Ro doubt
the defendant might have traversed, by a common or general
traverse, the plaintiff's allegation that he was a citizen of the
State of Missouri, concluding to the country. The issue thus
presented being joined, would have involved matter of law, on
which the jury must have passed, under the direction of the
court. But by traversing the plaintiffs citizenship specially—
that is, averring those facts on which the defendant relied to
show that in point of law the plaintiff was not a citizen, and
basing the traverse on those facts as a deduction therefrom—
opportunity was given to do, what was done; that is, to present
directly to the court, by a demurrer, the sufficiency of those
facts to negative, in point of law, the plaintiff's allegation of
citizenship. This, then, being a special, and not a general or
common traverse, the rule is settled, that the facts thus set out
in the plea, as the reason or ground of the traverse, must of
themselves constitute, in point of law, a negative of the alle¬
gation thus traversed. (Stephen on PL, 183; Ch. on PL, 620.)
And upon a demurrer to this plea, the question which arises
is, whether the facts, that the plaintiff is a negro, of African
descent, whose ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, may all be
true, and yet the plaintiff be a citizen of the State of Missouri,
within the meaning of the Constitution and laws of the United
States, which confer on citizens of one State the right to sue
citizens of another State in the Circuit Courts. Undoubtedly,
if these facts, taken together, amount to an allegation that, at
the time of action brought, the plaintiff was himself a slave,
the plea is sufficient. It has been suggested that the plea, in
legal effect, does so aver, because, if his ancestors were sold as
slaves, the presumption is they continued slaves; and if so,
the presumption is, the plaintiff was born a slave; and if so,
the presumption is, he continued to be a slave to the time of
action brought.
I cannot think such presumptions can be resorted to, to help
out defective averments in pleading; especially, in pleading in
abatement, where the utmost certainty and precision are re¬
quired. (Chitty on PL, 457.) That the plaintiff himself was
a slave at the time of action brought, is a substantive fact,
having no necessary connection with the fact that his parents
were sold as slaves. For they might have been sold after he
was born; or the plaintiff himself, if once a slave, might have
570
SUPREME COURT.
Mr. Justice Curtis.3 Dred Scott v. Sandford.
became a freeman before action brought. To aver tliat bis an¬
cestors were sold as slaves, is not equivalent, in point of law,
to an averment that be was a slave. If it were, he could not
even confess and avoid the averment of the slavery of liis an¬
cestors, which would be monstrous; and if it be not equivalent
in point of law, it cannot be treated as amounting thereto when
demurred to; for a demurrer confesses only those substantive
facts which are well pleaded, and not other distinct substantive
facts which might be inferred therefrom by a jury. To treat
an averment that the plaintiff's ancestors were Africans, brought
to this country and sold as slaves, as amounting to an aver¬
ment on the record that he was a slave, because it may lay
some foundation for presuming so, is to hold that the facts
actually alleged may be treated as intended as evidence of an¬
other distinct fact not alleged. But it is a cardinal rule of
pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in
even earlier authorities therein referred to, "that evidence
shall never be pleaded, for it only tends to prove matter of fact;
and therefore the matter of fact shall be pleaded." Or, as the
rule is sometimes stated, pleadings must not be argument¬
ative. (Stephen on Pleading, 384, and authorities cited by
him.) In Com. Dig., Pleader E. 3, and Bac. Abridgement,
Pleas I, 5, and Stephen on PL, many decisions under this
rule are collected. In trover, for an indenture whereby A
granted a manor, it is no plea that A did not grant the manor,
for it does not answer the declaration except by argument.
(Yelv., 223.)
So in trespass for taking and carrying away the plaintiff's
goods, the defendant pleaded that the plaintiff' never had any
goods. The court said, "this is an infallible argument that
the defendant is not guilty, but it is no plea." (Dyer, a 43.)
In ejectment, the defendant pleaded a surrender of a copy¬
hold by the hand of Fosset, the steward. The plaintiff replied,
that Fosset was not steward. The court held this no issue,
for it traversed the surrender only argumentatively. (Cro. Elis.,
260.)
In these cases, and many others reported in the books, the
inferences from the facts stated were irresistible. But the
court held they did not, when demurred to, amount to such
inferable facts. In the case at bar, the inference that the de¬
fendant was a slave at the time of action brought, even if it can
be made at all, from the fact that his parents were slaves, is
certainly not a necessary inference. This case, therefore, is like
that of Digby v. Alexander, (8 Bing., 116.) In that case, the
defendant pleaded many facts strongly tending to show that he
was once Earl of Stirling; but as there was no positive alle-
DECEMBER TERM, 1856.
571
Vred Scott v. Sand/ord. [Ma. Justice Curtis.
gation that he was so at the time of action brought, and as
every fact averred might be true, and yet the defendant not
have been Earl of Stirling at the time of action brought, the
plea was held to be insufficient.
A lawful seizin of land is presumed to continue. But if, in
an action of trespass quare clausum, the defendant were to plead
that he was lawfully seized of the locus in quo, one month before
the time of the alleged trespass, I should have no doubt it would
he a had pilea. (See Mollan v. Torrance, 9 Wheat., 537.) So if a
plea to the jurisdiction, instead of alleging that the plaintiff was
a citizen of the same State as the defendant, were to allege that
the plaintiff's ancestors were citizens of that State, I think the
plea could not he supported. My judgment would he, as it is
in this case, that if the defendant meant to aver a particular
substantive fact, as existing at the time of action brought, he
must do it directly and explicitly, and not by way of inference
from certain-other averments, which are quite consistent with
the contrary hypothesis. I cannot, therefore, treat this plea
as containing an averment that the plaintiff himself was a
slave at the time of action brought; and the inquiry recurs,
whether the facts, that he is of African descent, and that his
parents were once slaves, are necessarily»inconsistent with his
own citizenship in the State of Missouri, within the meaning
of the Constitution and laws of the United States.
In Gassies v. Ballon, (6 Pet., 761,) the defendant was descri¬
bed on the record as a naturalized citizen of the United States,
residing in Louisiana. The court held this equivalent to an
averment that the defendant was a citizen of Louisiana; be¬
cause a citizen of the United States, residing in any State of
the Union, is, for purposes of jurisdiction, a citizen of that
State. ISTow, the plea to the jurisdiction in this case does not
controvert the fact that the plaintiff resided in Missouri at the
(late of the writ. If he did then reside- there, and was ffiso a
citizen of the United States, no provisions contained in the
Constitution or laws of Missouri can deprive the plaintiff of his
right to sue citizens of States other than Missouri, in the courts
of the United States.
So that, under the allegations contained in this plea, and
admitted by the demurrer,"the question is, whether any person
of African 'descent, whose ancestors were sold as slaves in the
United States, can be a citizen of the United States. If any
such person can be a citizen, this plaintiff has the right to the
judgment of the court that he is so; for no cause is shown hy
the [ilea why he is not so, except his descent and the slavery
of Lis ancestors.
The first section of the second article of the Constitution
572
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
uses the language, "a citizen of the United States at the time
of the adoption of the Constitution." One mode of approach¬
ing this question is, to inquire who were citizens of the United
States at the time of the adoption of the Constitution.
Citizens of the United States at the time of the adoption of
the Constitution can have been no other than citizens of the
United States under the Confederation. By the Articles of
Confederation, a Government was organized, the style where¬
of was, "The United States of America." This Government
was in existence when the Constitution was framed and pro¬
posed for adoption, and was to be superseded by the new Gov¬
ernment of the United States of America, organized under the
Constitution. When, therefore, the Constitution speaks of
citizenship of the United States, existing at the time of the
adoption of the Constitution, it must necessarily refer to citi¬
zenship under the Government which existed prior to and at
the time of such adoption.
Without going into any question concerning the powers of
the Confederation to govern the territory of the United States
out of the limits of the States, and consequently to sustain the
relation of Government and citizen in respeet to the inhabit¬
ants of such territory* it may safely be said that the citizens of
the several States were citizens of the United States under the
Confederation.
That Government was simply a confederacy of the several
States, possessing a few defined powers over subjects of gen¬
eral concern, each State retaining every power, jurisdiction,
and right, not expressly delegated to the United States in
Congress assembled. And no power was thus delegated to
the Government of the Confederation, to act on any question
of citizenship, or to make any rules in respect thereto. The
whole matter was left to stand upon the action of the several
States, and to the natural consequence of such action, that the
citizens of each State should be citizens of that Confederacy
into which that State had entered, the style whereof was,
"The United States of America."
To determine whether any free persons, descended from
Africans held in slavery, were citizens of the United States
under the Confederation, and consequently at the time of the
adoption of the Constitution of the United States, it is only
necessary to know whether any such persons were citizens of
either of the States under the Confederation, at the time of the
adoption of the Constitution.
Of this there can be no doubt. At the time of the ratifica¬
tion of the Articles of Confederation, all free native-born in¬
habitants of the States of New Hampshire, Massachusetts, New
DECEMBER TERM, 1856.
573
Dred Scott v. Sandford. [Mr. Justice Curtis.
York, New Jersey, and North Carolina, though, descended
from African slaves, were not only citizens of those States, hut
such of them as had the other necessary qualifications possess¬
ed the franchise of electors, on equal terms with other citizens.
The Supreme Court of North Carolina, in the case of the
State v. Manuel, (4 Dev. and Bat., 20,) has declared the law
of that State on this subject, in terms which I believe to be as
sound law in the other States I have enumerated, as it was in
North Carolina.
"According to the laws of this State," says Judge Gaston,
in delivering the opinion of the court, "all human beings
within it, who are not slaves, fall within one of two classes.
Whatever distinctions may have existed in the Roman laws
between citizens and free inhabitants, they are unknown to
our institutions. Before our Revolution, all free persons born
within the dominions of the King of Great Britain, whatever
their color or complexion, were native-born British subjects—
those born out of his allegiance were aliens. Slavery did not
exist in England, but it did in the British colonies. Slaves
were not in legal parlance persons, but property. The moment
the incapacity, the disqualification of slavery, was removed,
they became persons, and were then either British subjects,
or not British subjects, according as they were or were not
born within the allegiance of the British King. Upon the
Revolution, no other change took place in the laws of North
Carolina than was consequent on the transition from a colony
dependent on a European King, to a free and sovereign State.
Slaves remained slaves. British subjects in North Carolina
became North Carolina freemen. Foreigners, until made
members of the State, remained aliens. Slaves, manumitted
here, became freemen, and therefore, if horn within North
Carolina, are citizens of North Carolina, and all free persons
horn within the State are born citizens of the State. The
Constitution extended the elective franchise to every freeman
who had arrived at the age of twenty-one, and paid a public
tax; and it is a matter of universal notoriety, that, under it,
free persons, without regard to color, claimed and exercised
the franchise, until it was taken from free men of color a few
years since by our amended Constitution."
In the State v. Newcomb, (5 Iredell's R., 253,) decided in
1844, the same court referred to this case of the State v.
Manuel, and said: "That case underwent a very laborious
investigation, both by the bar and the bench. The case was
brought here by appeal, and was felt to be one of great import¬
ance in principle. It was considered with an anxiety and care
worthy of the principle involved, and which give it a control-
574
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
ling influence and authority on all questions of a similar
character."
An argument from speculative premises, however well cho¬
sen, that the then state of opinion in the Commonwealth of
Massachusetts was not consistent with the natural rights of
people of color who were horn on that soil, and that they were
not, by the Constitution of 1780 of that State, admitted to the
condition of citizens, would be received with surprise by the
people of that State, who know their own political history. It
is true, beyond all controversy, that persons of color, descended
from African slaves, were by that Constitution made citizens
of the State; and such of them as have had the necessary qual¬
ifications, have held and exercised the elective franchise, as
citizens, from that time to the present. (See Com. v. Aves, 18
Pick. R., 210.)
The Constitution of Hew Hampshire conferred the elective
franchise upon "every inhabitant of the State having the
necessary qualifications," of which color or descent was not
one.
The Constitution of Hew York gave the right to vote to
"every male inhabitant, who shall have resided," &c.; ma¬
king no discrimination between free colored persons and
others. (See Con. of H. Y., Art. 2, Rev. Stats, of H. Y., vol.
1, p. 126.)
That of Hew Jersey, to "all inhabitants of this colony, of
full age, who are worth £50 proclamation money, clear es¬
tate."
Hew York, by its Constitution of 1820, required colored
persons to have some qualifications as prerequisites for voting,
which white persons need not possess. And Hew Jersey, by
its present Constitution, restricts the right to vote to white
male citizens. But these changes can have no other effect
upon the present inquiry, except to show, that before they
were made, no such restrictions existed; and colored in com¬
mon with white persons, were not only citizens of those States,
but entitled to the elective franchise on the same qualifications
as white persons, as they now are in Hew Hampshire and
Massachusetts. I shall not enter into an examination of the
existing opinions of that period respecting the African race,
nor into any discussion concerning the meaning of those who
asserted, in the Declaration of Independence, that all men are
created equal; that they are endowed by their Creator with
certain inalienable rights; that among" these are life, liberty,
and the pursuit of happiness. My own opinion is, that a calm
comparison of these assertions of universal abstract truths, and
of their own individual opinions and acts, would not leave
DECEMBER TERM, 1856.
575
Dred Scott v. Sandford. [Me. Justice Curtis.
these men under any reproach of inconsistency; that the great
truths they asserted on that solemn occasion, they were ready
and anxious to make effectual, wherever a necessary regard to
circumstances, which no statesman can disregard without pro¬
ducing more evil than good, would allow; and that it would
not he just to them, nor true in itself, to allege that they in¬
tended to say that the Creator of all men had endowed the
white race, exclusively, with the great natural rights which
the Declaration of Independence asserts. But this is not the
place to vindicate their memory. As I conceive, Ave should
deal here, not with such disputes, if there can he a dispute
concerning this subject, but with those substantial facts evinced
by the written Constitutions of States, and by the notorious
practice under them. And they show, in a manner which no
argument can obscure, that in some of the original thirteen
States, free colored persons, before and at the time of the
formation of the Constitution, were citizens of those States.
The fourth of the fundamental articles of the Confederation
was as follows: "The free inhabitants of each of these States,
paupers, vagabonds, and fugitives from justice, excepted, shall
be entitled to all the privileges and immunities of free citizens
in the several States."
The fact that free persons of color were citizens of some of
the several States, and the consequence, that this fourth article
of the Confederation would have the effect to confer on such
persons the privileges and immunities of general citizenship,
were not only known to those who framed and adopted those
articles, but the evidence is decisive, that the fourth article
was intended to have that effect, and that more restricted lan¬
guage, which would have excluded such persons, was delibe¬
rately and purposely rejected.
On the 25th of June, 1778, the Articles of Confederation be¬
ing under consideration by the Congress, the delegates from
South Carolina moved to amend this fourth article, by insert¬
ing after the word "free," and before the word "inhabitants,"
the Avord "white," so that the privileges and immunities of
general citizenship would be secured only to Avhite persons.
Two States voted for the amendment, eight States against it,
and the vote of one State was divided. The language of the
article stood unchanged, and both by its terms of inclusion,
"free inhabitants," and the strong implication from its terms of
exclusion, "paupers, vagabonds, and fugitives from justice,"
who alone were excepted, it is clear, that under the Confedera¬
tion, and at the time of the adoption of the Constitution, free
colored persons of African descent might be, and, by reason
of their citizenship in certain States, Avere entitled to the
576
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford,
privileges and immunities of general citizenship of the United
States.
Did the Constitution of the United States deprive them or
their descendants of citizenship?
That Constitution was ordained and established by the peo¬
ple of the United States, through the action, in each State, of
those persons who were qualified by its laws to act thereon, in
behalf of themselves and all other citizens of that State. In
some of the States, as we have seen, colored persons were
among those qualified by law to act on this subject. These
colored persons were not only included in the body of "the
people of the United States," by whom the Constitution was
ordained and established, but in at least five of the States they
had the power to act, and doubtless did act, by their suffrages,
upon the question of its adoption. It would be strange, if we
were to find in that instrument anything which deprived of
their citizenship any part of the people of the United States
who were among those by whom it was established.
I can find nothing in the Constitution which, proprio vigore,
deprives of their citizenship any class of persons who were citi¬
zens of the United States at the time of its adoption, or who
should be native-born citizens of any State after its adoption;
nor any power enabling Congress to disfranchise persons born
on the soil of any State, and entitled to citizenship of such
State by its Constitution and laws. And my-opinion is, that,
under the Constitution of the United States, every free person
born on the soil of~a State, who is a citizen of that State by
force of its Constitution orTawsTTs also a citizen of the United
States.
X will proceed to state the grounds of that opinion.
The first section of the second article of the Constitution
uses the language, "a natural-born citizen." It thus assumes
that citizenship may be acquired by birth. Undoubtedly, this
language of the Constitution was used in reference to that
principle of public law, well understood in this country at the
time of the adoption of the Constitution, which referred citi¬
zenship to the place of birth. At the Declaration of Independ¬
ence, and ever since, the received general doctrine has been,
in conformity with the common law, that free persons born
within either of the colonies were subjects of the King; that
by the Declaration of Independence, and the consequent ac¬
quisition of sovereignty by the several States, all such persons
ceased to be subjects, and became citizens of the several States,
except so far as some of them were disfranchised by the legis¬
lative power of the States, or availed themselves, seasonably,
of the right to adhere to the British Crown in the civil contest,
DECEMBER TERM, 1856.
577
Dred Scott v. Sandford. [Mr. Justice Curtis.
and thus to continue British, subjects. (Mcllvain v. Coxe's
Lessee, 4 Cranch, 209; Inglis v. Sailors' Snug Harbor, 3 Peters,
p. 99; Shanks v. Dupont, Ibid, p. 242.)
The Constitution having recognised the rule that persons
born within the several States are citizens of the United States,
one of four things must be true:
First. That the Constitution itself has described what na¬
tive-born persons shall or shall not be citizens of the United
States; or,
Second. That it has empowered Congress to do so; or,
Third. That all free persons, born within the several States,
are citizens of the United States; or,
Fourth. That it is left to each State to determine what free
persons, born within its limits, shall be citizens of such State,
and thereby be citizens of the United States.
If there be such a thing as citizenship of the United States
acquired by birth within the States, which the Constitution
expressly recognises, and no one denies, then these four al¬
ternatives embrace the entire subject, and it only remains to
select that one which is true.
That the Constitution itself has defined citizenship of the
United States by declaring what persons, born within the sev¬
eral States, shall or shall not be citizens of the United States,
will not be pretended. It contains no such declaration. "We
may dismiss the first alternative, as 'without doubt unfounded.
lias it empowered Congress to enact what free persons, born
within the several States, shall or shall not be citizens of the
United States?
Before examining the various provisions of the Constitution
which may relate to this question, it is important to consider
for a moment the substantial nature of this inquiry. It is, in
effect, whether the Constitution has empowered Congress to
create privileged classes within the States, who alone can be
entitled to the franchises and powers of citizenship of the Uni¬
ted States. If it be admitted that the Constitution has enabled
Congress to declare what free persons, born within the several
States, shall be citizens of the United States, it must at the
same time be admitted that it is an unlimited power. If this
subject is within the control of Congress, it must depend
wholly on its discretion. For, certainly, no limits of that dis¬
cretion can be found in the Constitution, which is wholly silent
concerning it; and the necessary consequence is, that the Fed¬
eral Government may select classes of persons within the sev-'
eral States who alone can be entitled to the political privileges
of citizenship of the United States. If this power exists, what
persons born within the States may be President or Vice Pres-
578
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
ident of the United States, or members of either House of Con¬
gress, or hold any office or enjoy any privilege whereof citi¬
zenship of the United States is a necessary qualification, must
depend solely on the will of Congress. By virtue of it, though
Congress can grant no title of nobility, they may create an
oligarchy, in whose hands would be concentrated the entire
power of the Federal Government.
It is a substantive power, distinct in its nature from all
others; capable of affecting not only the relations of the States
to the General Government, but of controlling the political
condition of the people of the United States. Certainly we
ought to find this power granted by the Constitution, at least
by some necessary inference, before we can say it does not re¬
main to the States or the people. I proceed therefore to ex¬
amine all the provisions of the Constitution which may have
some bearing on this subject.
Among the powers expressly granted to Congress is "the
power to establish a uniform rule of naturalization." It is not
doubted that this is a power to prescribe a rule for the removal
of the disabilities consequent on foreign birth. To hold that it
extends further than this, would do violence to the meaning of
the term naturalization, fixed in the common law, (Co. Lit., 8
a, 129 a; 2 Yes., sen., 286; 2 Bl. Com., 293,) and in the minds
of those who concurred in framing and adopting the Constitu¬
tion. It was in this sense of conferring on an alien and his
issue the rights and powers of a native-born citizen, that it was
employed in the Declaration of Independence. It was in this
sense it was expounded in the Federalist, (Ho. 42,) has been
understood by Congress, by the Judiciary, (2 "Wheat., 259,
269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by comment¬
ators on the Constitution. (3 Story's Com. on Con., 1—3; 1
Rawle on Con., 84—88; 1 Tucker's Bl. Com. App., 255—259.)
It appears, then, that the only power expressly granted to
Congress to legislate concerning citizenship, is confined to the
removal of the disabilities of foreign birth.
Whether there be anything in the Constitution from which
a broader power may be implied, will best be seen when we
come to examine the two other alternatives, which are, whether
all free persons, born on the soil of the several States, or only
such of them as may be citizens of each State, respectively,
are thereby citizens of the United States. The last of these
alternatives, in my judgment, contains the truth.
Undoubtedly, as has already been said, it is a principle of
public law, recognised by the Constitution itself, that birth on
the soil of a country both creates the duties and confers the
rights of citizenship. But it must be remembered, that though
DECEMBER TERM, 1856.
579
JDred Scott v. Sandford. [Mr. Justice Curtis.
the Constitution was to form a Government, and under it the
United States of America were to he one united sovereign
nation, to which loyalty and obedience on the one side, and
from which protection and privileges on the other, would be
due, yet the several sovereign States, whose people were then
citizens, were not only to continue in existence, but with
powers unimpaired, except so far as they were granted by the
people to the Rational Government.
Among the powers unquestionably possessed by the several
States, was that of determining what persons should and what
persons should not be citizens. It was practicable to confer
on the Government of the Union this entire power. It
embraced what may, well enough for the purpose now in view,
be divided into three parts. First: The power to remove the
disabilities of alienage, either by special acts in reference to
each individual case, or by establishing a rule of naturalization
to be administered and applied by the courts. Second: Deter¬
mining what persons should enjoy the privileges of citizenship,
in respect to the internal affairs of the several States. Third:
"What native-born persons should be citizens of the United
States.
The first-named power, that of establishing a uniform rule
of naturalization, was granted; and here-the grant, according
to its terms, stopped. Construing a Constitution containing
only limited and defined powers of government, the argument
derived from this definite and restricted power to establish a
rule of naturalization, must be admitted to be exceedingly
strong. I do not say it is necessarily decisive. It might be
controlled by other parts of the Constitution. But when this
particular subject of citizenship was under consideration, and,
in the clause specially intended to define the extent of power
concerning it, we find a particular part of this entire power
separated from the residue, and conferred on the General
Government, there arises a strong presumption that this is all
which is granted, and that the residue is left to the States and
to the people. And this presumption is, in my opinion,
converted into a certainty, by an examination of all such other
clauses of the Constitution as touch this subject.
I will examine each which can have any possible bearing
on this question.
The first clause of the second section of the third article
of the Constitution is, "The judicial power shall extend to
controversies between a State and citizens of another State;
between citizens of different States; between citizens of the
same State, claiming lands under grants of different States;
and between States, or the citizens thereof, and foreign States,
580
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sctndford.
citizens, or subjects." I do not think this clause has any
considerable bearing upon the particular inquiry now under
consideration. Its purpose was, to extend the judicial power
to those controversies into which local feelings or interests
might so enter as to disturb the course of justice, or give rise
to suspicions that they had done so, and thus possibly give
occasion to jealousy or ill will between different States, or a
particular State and a foreign nation. At the same time, I
would remark, in passing, that it has never been held, I do
not know that it has ever been supposed, that any citizen of a
State could bring himself under this clause and the eleventh
and twelfth sections of the judiciary act of 1789, passed in
pursuance of it, who was not a citizen of the United States.
But I have referred to the clause, only because it is one of the
places where citizenship is mentioned by the Constitution.
Whether it is entitled to any weight in this inquiry or not, it
refers only to citizenship of the several States; it recognises
that; but it does not recognise citizenship of the United States
as something distinct therefrom.
As has been said, the purpose of this clause did not necessa¬
rily connect it with citizenship of the United States, even if
that were something distinct from citizenship of the several
States, in the contemplation of the Constitution. This cannot
be said of other clauses of the Constitution, which I now
proceed to refer to.
"The citizens of each State shall be entitled to all the
privileges and immunities of citizens of the several States."
Nowhere else in the Constitution is there anything concerning
a general citizenship; but here, privileges and immunities to
be enjoyed throughout the United States, under and by force
of the national compact, are granted and secured. In selecting
those who are to enjoy these national rights of citizenship,
how are they described? As citizens of each State. It is to
them these national rights are secured. The qualification for
them is not to be looked for in any provision of the Constitu¬
tion or laws of the United States. They are to be citizens of
the several States, and, as such, the privileges and immunities
of general citizenship, derived from and guarantied by the
Constitution, are to be enjoyed by them. It would seem that
if it had been intended to 'Constitute a class of native-born
persons within the States, who should derive their citizenship
of the United States from the action of the Federal Govern¬
ment, this was an occasion for referring to them. It cannot
be supposed that it was the purpose of this article to confer
the privileges and immunities of citizens in all the States upon
persons not citizens, of the United States.
DECEMBER TERM, 1856.
581
Dred Scott v. Sandford. [Mr. Justice Curtis.
And if it was intended to secure these rights only to citizens
of the United States, how has the Constitution here described
such persons ? Simply as citizens of each State.
But, further: though, as I shall presently more fully state,
I do not think the enjoyment of the elective franchise essential
to citizenship, there can be no doubt it is one of the chiefest
attributes of citizenship under the American Constitutions;
and the just and constitutional possession of this right is de¬
cisive evidence of citizenship. The provisions made by a
Constitution on this subject must therefore he looked to as
bearing directly on the question what persons are citizens under
that Constitution; and as being decisive, to this extent, that
all such persons as are allowed by the Constitution to exercise
the elective franchise, and thus to participate in the Govern¬
ment of the United States, must be deemed citizens of the
United States.
Here, again, the consideration presses itself upon us, that if
there was designed to be a particular class of native-born per¬
sons within the States, deriving their citizenship from the
Constitution and laws of the United States, they should at least
have been referred to as those by whom the President and
House of Representatives were to be elected, and to whom they
should be responsible.
Instead of that, we again find this subject referred to the
laws of the several States. The electors of President are to be
appointed in such manner as the Legislature of each State may
direct, and the qualifications of electors of members of the
House of Representatives shall be the same as for electors of
the most numerous branch of the State Legislature.
Laying aside, then, the case of aliens, concerning which the
Constitution of the United States has provided, and confining
our view to free persons born within the several States, we find
that the Constitution has recognised the general principle of
public law, that allegiance and citizenship depend on the place
of birth; that it has not attempted practically to apply this
principle by designating the particular classes of persons who
should or should not come under it; that when we turn to the
Constitution for an answer to the question, what free persons,
horn within the several States, are citizens of the United States,
the only answer we can receive from any of its express pro¬
visions is, the citizens of the several States are to enjoy the
privileges and immunities of citizens in every State, and their
franchise as electors under the Constitution depends on their
citizenship in the several States. Add to this, that the Con¬
stitution was ordained by the citizens of the several States;
that they were "the people of the United States," for whom
582
SUPREME COURT.
Mr. Justice Curtis.] Drcd Scott v. Sand/ord.
and whose posterity the Government was declared in the pre¬
amble of the Constitution to be made; that each of tliem was
"a citizen of the United States at the time of the adoption of
the Constitution," within the meaning of those words in that
instrument; that by them the Government was to be and was
in fact organized; and that no power is conferred on the Gov¬
ernment of the Union to discriminate between them, or to
disfranchise any of them—the necessary conclusion is, that
those persons born within the several States, who, by force of
their respective Constitutions and laws, are citizens of the
State, are thereby citizens of the United States.
It may be proper here to notice some supposed objections to
this view of the subject.
It has been often asserted that the Constitution was made
exclusively by and for the white race. It has already been
shown that in five of the thirteen original States, colored per¬
sons then possessed the elective franchise, and were among
those by whom the Constitution was ordained and established.
If so, it is not true, in point of fact, that the Constitution was
made exclusively by the white race. And that it was made
exclusively for the white race isv in my opinion^ not only an
assumption not warranted by anything in the Constitution, but
contradicted by its opening declaration, that it was ordained
and established by the people oT the United States, for them¬
selves and their posterity. And as free colored persons were
therfcitizens of at least five States^and so in every sense part
dfth.e~people ofthe United States, they were among those for
whom and whose~posterity the Constitution was ordained and
established'.
Again,Tt has been objected, that if the Constitution lias left
to the several States the rightful power to determine who of
their inhabitants shall be citizens of the United States, the
States may make aliens citizens.
The answer is obvious. The Constitution has left to the
States the determination what persons, born within their re¬
spective limits, shall acquire by birth citizenship of the United
States; it has not left to them any power to prescribe any rule
for the removal of the disabilities of alienage. This power is
exclusively in Congress.
It has been further objected, that if free colored persons,
born within a particular State, and made citizens of that State
by its Constitution and laws, are thereby made citizens of the
United States, then, under the second section of the fourth
article of the Constitution, such persons would be entitled to
all the privileges and immunities of citizens in the several
States; and if so, then colored persons could vote, and be
DECEMBER TERM, 1856.
583
Dred Scott v. Sandford.
[Mr. Justice Curtis.
eligible to not only Federal offices, but offices even in those
States whose Constitutions and laws disqualify colored persons
from voting or being elected t© office.
But this position rests upon an assumption which I deem
untenable. Its basis is, that no one can be deemed a citizen
of the United States who is not entitled to enjoy all the privi-
Was nrirl franphisAH wbioli are conferred on any citizen. (See
States, seems to me clear.
A naturalized citizen cannot be President of the United
States, nor a Senator till after the lapse of nine years, nor a
Representative till after the lapse of seven years, from his
naturalization. Yet, as soon as naturalized, he is certainly a
citizen of the United States. For is any inhabitant of the
District of Columbia, or of either of the Territories, eligible to
the office of Senator or Representative in Congress, though
they may be citizens of the United States. So, in all the
States, numerous persons, though citizens, cannot vote, or
cannot hold office, either on account of their age, or sex, or
the want of the necessary legal qualifications. The truth is,
that citizenship, under the Constitution of the United States,
is not dependent on the possession of any particular political
or even of all civil rights; and any attempt so to define it
must lead to error. To what citizens the elective franchise
shall be confided, is a question to be determined by each
State, in accordance with its own views of the necessities or
expediencies of its condition. "What civil rights shall be
enjoyed by its citizens, and whether all shall enjoy the same,
or how they may be gained or lost, are to be determined in the
same way.
One may confine the right of suffrage to white male citizens;
another may extend it to colored persons and females; one may
allow all persons above a prescribed age to convey property
and transact business; another may exclude married women.
But whether native-born women, or persons under age, or un¬
der guardianship because insane or spendthrifts, be excluded
from voting or holding office, or allowed to do so, I apprehend
no one will deny that they are citizens of the United States.
Besides, this clause of the Constitution does not confer on the
citizens of one State, in all other States, specific and enumera¬
ted privileges and immunities. They are entitled to such as
belong to citizenship, but not to such as belong to particular
citizens attended by other qualifications. Privileges and im¬
munities which belong to certain citizens of a State, by reason
of the operation of causes other than mere citizenship, are not
conferred. Thus, if the laws of a State require, in addition to
That this is not true, under the
584
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
citizenship of the State, some qualification for office, or the
exercise of the elective franchise, citizens of all other States,
coming thither to reside, and *not possessing those qualifica¬
tions, cannot enjoy those privileges, not because they are not
to be deemed entitled to the privileges of citizens of the State
in which they reside, but because they, in common with the
native-born citizens of that State, must have the qualifications
prescribed by law for the enjoyment of such privileges, under
its Constitution and laws. It rests with the States themselves
so to frame their Constitutions and laws as not to attach a
particular privilege or immunity to mere naked citizenship.
If one of the States will not deny to any of its own citizens a
particular privilege or immunity, if it confer it on all of them
by reason of mere naked citizenship, then it may be claimed
by every citizen of each State by force of the Constitution;
and it must be borne in mind, that the difficulties which attend
the allowance of the claims of colored persons to be citizens
of the United States are not avoided by saying that, though
each State may make them its citizens, they are not thereby
made citizens of the United States, because the privileges of
general citizenship are secured to the citizens of each State.
The language of the Constitution is, "The citizens of each
State shall be entitled to all privileges and immunities of citi¬
zens in the several States." If each State may make such
persons its citizens, they become, as such, entitled to the bene¬
fits of this article, if there be a native-born citizenship of the
United States distinct from a native-born citizenship of the
several States.
There is one view of this article entitled to consideration in
this connection. It is manifestly copied from the fourth of the
Articles of Confederation, with only slight changes of phrase¬
ology, which render its meaning more precise, and dropping
the clause which excluded paupers, vagabonds, and fugitives
from justice, probably because these cases could be dealt with
under the police powers of the States, and a special provision
therefor was not necessary. It has been suggested, that in
adopting it into the Constitution, the words "free inhabitants"
were changed for the word "citizens." An examination of the
forms of expression commonly used in the State papers of that
day, and an attention to the substance of this article of the
Confederation, will show that the words "free inhabitants,"
as. then used, were synonymous with citizens. When the
Articles of Confederation were adopted, we were in the midst
of the war of the Revolution, and there were very few persons
then embraced in the words "free inhabitants," who were not
born on our soil. It was not a time when many, save the
DECEMBER TERM, 1856.
585
Dred Scott v. Sandford. [Mr. Justice Curtis.
children of the soil, were willing to embark their fortunes in
our cause; and though there might he an inaccuracy in the
uses of words to call free inhabitants citizens, it was then a
technical rather than a substantial difference. If we look into
the Constitutions and State papers of that period, we find the
inhabitants or people of these colonies, or the inhabitants of
this State, or Commonwealth, employed to designate those
whom we should now denominate citizens. The substance
and purpose of the article prove it was in this sense it used
these words: it secures to the free inhabitants of each State
the privileges and immunities of free citizens in every State.
It is not conceivable that the States should have agreed to
extend the privileges of citizenship to persons not entitled to
eyjoy the privileges of citizens in the States where they dwelt;
that under this article there was a class of persons in some of
the States, not citizens, to whom were secured all the privi¬
leges and immunities of citizens when they went into other
States; and the just conclusion is, that though the Constitution
cured an inaccuracy of language, it left the substance of this
article in the National Constitution the same as it was in the
Articles of Confederation.
The history of this fourth article, respecting the attempt to
exclude free persons of color from its operation, has been al¬
ready stated. It is reasonable to conclude that this history
was known to those who framed and adopted the Constitu¬
tion. That under this fourth article of the Confederation, free
persons of color might be entitled to the privileges of general
citizenship, if otherwise entitled thereto, is clear. When this
article was, in substance, placed in and made part of the Con¬
stitution of the "United States, with no change in its language
calculated to exclude free colored persons from the benefit of
its provisions, the presumption is, to say the least, strong, that
the practical effect which it was designed to have, and did
have, under the former Government, it was designed to have,
and should have, under the new Government.
It may be further objected, that if free colored persons may
be citizens of the United States, it depends only on the will of
a master whether he will emancipate his slave, and thereby
make him a citizen. Not so. The master is subject to the
will of the State. Whether he shall be allowed to emancipate
his slave at all; if so, on what conditions; and what is to be
the political status of the freed man, depend, not on the wall
of the master, but on the will of the State, upon which the
political status of all its native-born inhabitants depends. Un¬
der the Constitution of the United States, each State has re¬
tained this power of determining the political status of its na-
586
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
tive-born inhabitants, and no exception thereto can be found
in the Constitution. And if a master in a slaveholding State
should carry his slave into a free State, and there emancipate
him, he would not thereby make him a native-born citizen of
that State, and consequently no privileges could be claimed
by such emancipated slave as a citizen of the United States.
For, whatever powers the States may exercise to confer privi¬
leges of citizenship on persons not born on their soil, the Con¬
stitution of the United States does not recognise such citizens.
As has already been said, it recognises the great principle of
public law, that allegiance and citizenship spring from the
place of birth. It leaves to the States the application of that
principle to individual cases. It secured to the citizens of each
State the privileges and immunities of citizens in every other
State. But it does not allow to the States the power to make
aliens citizens, or permit one State to take persons born on
the soil of another State, and, contrary to the laws and policy
of the State where they were born, make them its citizens,
and so citizens of the United States. No such deviation from
the great rule of public law was contemplated by the Consti¬
tution ; and when any such attempt shall be actually made, it
is to be met by applying to it those rules of law and those
principles of good faith which will be sufficient to decide it,
and not, in my judgment, by denying that all the free native-
born inhabitants of a State, who are its citizens under its Con¬
stitution and laws, are also citizens of the United States.
It has sometimes been urged that colored persons are shown
not to be citizens of the United States by the fact that the
naturalization laws apply only to white persons. But whether
a person born in the United States be or be not a citizen, can¬
not depend on laws which refer only to aliens, and do not
affect the status of persons born in the United States. The
utmost effect which can be attributed to them is, to show that
Congress has not deemed it expedient generally to apply the
rule to colored aliens. That they might do so, if thought fit,
is clear. The Constitution has not excluded them. And since
that has conferred the power on Congress to naturalize colored
aliens, it certainly shows color is not a necessary qualification
for citizenship under the Constitution of the United States. It
may be added, that the power to make colored persons citizens
of the United States, under the Constitution, has been actually
exercised in repeated and important instances. (See the Trea¬
ties with the Choctaws, of September 27, 1830, art. 14; with
the Cherokees, of May 23,1836, art. 12; Treaty of Guadalupe
Hidalgo, February 2, 1848, art. 8.)
I do not deem it necessary to review at length the legisla-
DECEMBER TERM, 1856.
58T
Dred Scott v. Sandford. [Mb. Justice Curtis.
tion of Congress "having more or less bearing on the citizen¬
ship of colored persons. It does not seem to me to have any-
considerable tendency to prove that it has been considered by
the legislative department of the Government, that no such
persons are citizens of the United States. Undoubtedly they
have been debarred from the exercise of particular rights or
privileges extended to white persons, but, I believe, always in
terms which, by implication, admit they may be citizens.
Thus the act of May 17, 1792, for the organization of the
militia, directs the enrolment of "every free, able-bodied,
white male citizen." An assumption that none but white
persons are citzens, would be as inconsistent with the just im¬
port of this language, as that all citizens are able-bodied, or
males.
So the act of February 28, 1803, (2 Stat, at Large, 205,) to
prevent the importation of certain persons into States, when by
the laws thereof their admission is prohibited, in its first sec¬
tion forbids all masters of vessels to import or bring "any ne¬
gro, mulatto, or other person of color, not being a native, a
citizen, or registered seaman of the United States," &c.
The acts of March 3, 1813, section 1, (2 Stat, at Large,
809,) and March 1, 1817, section 3, (3 Stat, at Large, 351,)
concerning seamen, certainly imply there may be persons ox
color, natives of the United States, who are not citizens of the
United States. This implication is undoubtedly in accordance
with the fact. Eor not only slaves, but free persons of color,
born in some of the States, are not citizens. But there is
nothing in these laws inconsistent with the citizenship of per¬
sons of color in others of the States, nor with their being citi¬
zens of the United States.
Whether much or little weight should be attached to the
particular phraseology of these and other laws, which were not
passed with any direct reference to this subject, I consider their
tendency to be, as already indicated, to show that, in the ap¬
prehension of their framers, color was not a necessary qualifi¬
cation of citizenship. It would be strange, if laws were found
on our statute book to that effect, when, by solemn treaties,
large bodies of Mexican and North American Indians as well
as free colored inhabitants of Louisiana have been admitted to
citizenship of the United States.
In the legislative debates which preceded the admission of
the State of Missouri into the Union, this question was agita¬
ted. Its result is found in the resolution of Congress, of March
5, 1821, for the admission of that State into the Union. The
Constitution of Missouri, under which that State applied for
admission into the Union, provided, that it should be the duty
588
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
of tlie Legislature "to pass laws to prevent free negroes and
mulattoes from coming to and settling in the State, under any
pretext whatever." One ground of objection to the admission
of the State under this Constitution was, that it would require
the Legislature to exclude free persons of color, who would be
entitled, under the second section of the fourth article of the
Constitution, not only to come within the State, but to enjoy
there the privileges and immunities of citizens. The resolu¬
tion of Congress admitting the State was upon the funda¬
mental condition, "that the Constitution of Missouri shall
never he construed to authorize the passage of any law, and
that no law shall be passed in conformity thereto, by which
any citizen of either of the States of this Union shall be ex¬
cluded from the enjoyment of any of the privileges and immu¬
nities to which such citizen is entitled under the Constitution
of the United States." It is true, that neither this legislative
declaration, nor anything in the Constitution or laws of Mis¬
souri, could confer or take away any privilege or immunity
granted by the Constitution. Rut it is also true, that it ex¬
presses the then conviction of the legislative power of the Uni¬
ted States, that free negroes, as citizens of some of the States,
might be entitled to the privileges and immunities of citizens
in all the States.
The conclusions at which I have arrived on this part of the
case are:
First. That the free native-|)orn citizens of each State are
citizens of the United States.
Second. That as free colored persons born within some of the
States are citizens of those States, such persons are also citi¬
zens of the United States.
Third. That every such citizen, residing in any State, has
the right to sue and is liable to be sued in the Federal courts,
as a citizen of that State in which he resides.
Fourth. That as the plea to the jurisdiction in this case shows
no facts, except that the plaintiff was of African descent, and
his ancestors were sold as slaves, and as these facts are not in¬
consistent with his citizenship of the United States, and his
residence in the State of Missouri, the plea to the jurisdiction
was bad, and the judgment of the Circuit Court overruling it
was correct.
V"I dissent,, therefore, from that part of the opinion of the ma¬
jority of thewrourt, in which it is held that a person of African
descent cannot be a citizen of the United States; and I regret
I must go further, and dissent both from what I deem their
assumption of authority to examine the nonstitutionality of
the-net of Congress commonly called the Missouri compro-
DECEMBER TERM, 1856.
589
Dred Scott v. Sandford. [Mr. Justice Curtis.
mise act, and the grounds and conclusions announced in their
opinion.
Having first decided that they were bound to consider the
sufficiency of the plea to the jurisdiction of the Circuit Court,
and having decided that this plea showed that the Circuit
Court had not jurisdiction, and consequently that this is a case
to which the judicial power of the United States does not ex¬
tend, they have gone on to examine the merits of the case as
they appeared on the trial before the court and jury, on the
issues joined on the pleas in bar, and so have reached the ques¬
tion of the power of Congress to pass the act of 1820. On so
grave a subject as this, I feel obliged to say that, in my opin¬
ion, such an exertion of judicial power transcends the limits
of the authority of the court, as described by its repeated de¬
cisions, and, as I understand, acknowledged in this opinion of
the majority of the court.
In the course of that opinion, it became necessary to com¬
ment on the case of Legrand v. Darnall, (reported in 2 Peters's
R., 664.) In that case, a bill was filed, by one alleged to be a
citizen of Maryland, against one alleged to be a citizen of Penn¬
sylvania. _The bill stated that the defendant' was the son of a
white man by one of his slaves; and that the defendant's father
devised to him certain lands, the title to which was put in con¬
troversy by the bill. These facts were admitted in the answer,
and upon these and other facts the court ma.de its decree,
founded on the principle that a devise of land by a master to a
slave was by implication also a bequest of his freedom. The
facts that the defendant was of African descent, and was born
a slave, were not only before the court, but entered into the
entire substance of its inquiries. The opinion of the majority
of my brethren in this case disposes of the case of Legrand v.
Darnall, by saying, among other things, that as the fact that
the defendant was born a slave only came before this court on
the bill and answer, it was then too late to raise the question
of the personal disability of the party, and therefore that de¬
cision is altogether inapplicable in this case.
In this I concur. Since the decision of this court in Living¬
ston v. Story, (11 Pet., 351,) the law has been settled, that when
the declaration or bill contains the necessary averments of citi¬
zenship, this court cannot look at the record, to see whether
those averments are true, except so far as they are put in issue
by a plea to the jurisdiction. In that case, the defendant de¬
nied by his answer that Mr. Livingston was a citizen of New
York, as he had alleged in the bill. Both parties went into
proofs. The court refused to examine those proofs, with refer¬
ence to the personal disability of the plaintiff. This is the
590
SUPREME COURT.
Mr. Justice Curtis.] Bred Scott v. Sa?idford.
settled law of the court, affirmed so lately as Shepherd r. Graves,
(Id IIow., 27,) and "Wickliff r. Owings, (17 How., 51.) (See
also He "Wolf v. Rahaud, 1 Pet., 470.) Rut I do not under¬
stand this to he a rule which the court may depart from at its
pleasure. If it he a rule, it is as binding on the court as on
the suitors. If it removes from the latter the power to take
any objection to the personal disability of a party alleged by
the record to be competent, which is not shown by a plea to
the jurisdiction, it is because the court are forbidden by law to
consider and decide on objections so taken. I do not consider
it to be within the scope of the judicial power of the majority
of the court to pass upon any question respecting the plaintiff's
citizenship in Missouri, save that raised by the plea to the juris¬
diction ; and I do not hold any opinion of this court, or any
court, binding, when expressed on a question not legitimately
before it. (Carroll v. Carroll, 16 IIow., 275.) The judgment
of this court is, that the case is to be dismissed for want of
jurisdiction, because the plaintiff was not a citizen of Missouri,
as he alleged in his declaration. Into that judgment, according
to the settled course of this court, nothing appearing after a
plea to the merits can enter. A great question of constitutional
law, deeply affecting the peace and welfare of the country, is
not, in my opinion, a fit subject to be thus reached.
But as, in my opinion, the Circuit Court had jurisdiction,
I am obliged to consider the question whether its judgment on
the merits of the case should stand or be reversed.
The residence of the plaintiff in the State of Illinois, and the
residence of himself and his wife in the territory acquired from
Prance lying north of latitude thirty-six degrees thirty minutes,
and north of the State of Missouri, are each relied on by the
plaintiff in error. As the residence in the terrirory affects the
plaintiff's wife and children as well as himself, I must inquire
what was its effect.
The general question may be stated to be, whether the plain¬
tiff's status, as a slave, was so changed by his residence within
that territory, that he was not a slave in the State of Missouri,
at the time this action was brought.
In such cases, two inquiries arise, which may be confounded,
but should be kept distinct.
The first is, what was the law of the Territory into which
the master and slave went, respecting the relation between
them ?
The second is, whether the State of Missouri recognises and
allows the effect of that law of the Territory, on the status of
the slave, on his return within its jurisdiction.
As to the first of these questions, the will of States and na-
DECEMBER TERM, 1856.
591
Dred Scott v. Sandford. [5Ir. Justice Curtis.
tions, by whose municipal law slavery is not recognised, has
been manifested in three different ways.
One is, absolutely to dissolve the relation, and terminate the
rights of the master existing under the law of the country
whence the parties came. This is said by Lord Stowell, in the
case of the slave Grace, (2 Hag. Ad. R., 94,) and by the Su¬
preme Court of Louisiana m the case of Maria Louise v. Marot,
(9 Louis. R., 473,) to be the law of France; and it has been
the law of several States of this Union, in respect to slaves in¬
troduced under certain conditions. (Wilson v. Isabel, 5 Call's
R., 430; Hunter v. Ilulcher, 1 Leigh, 172; Stewart v. Oaks,
5 liar, and John., 107.)
The second is, where the municipal law of a country not
recognising slavery, it is the will of the State to Refuse the
master all aid to exercise any control over his slave; and if he
attempt to do so, in a manner justifiable only by that relation,
to prevent the exercise of that control. But no law exists, de¬
signed to operate directly on the relation of master and slave,
and put an end to that relation. This is said by Lord Stowell,
in the case above mentioned, to be the law of England, and by
Mr. Chief Justice Shaw, in the case of the Commonwealth v.
Aves, (18 Pick., 193,) to be the law of Massachusetts.
The third is, to make a distinction between the ease of a
master and his slave only temporarily in the country, animo
non manendi, and those who are there to reside for permanent
or indefinite purposes. This is said by Mr. Wheaton to be the
law of Prussia, and was formerly the statute law of several
States of our Union. It is necessary in this case to keep in
view this distinction between those countries whose laws are
designed to act directly on the status of a slave, and make him
a freeman, and those where his master can obtain no aid from
the laws to enforce his rights.
It is to the last case only that the authorities, out of Missouri,
relied on by defendant, apply, when the residence in the non-
slaveholding Territory was permanent. In the Commonwealth
v. Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From
the principle above stated, on which a slave brought here
becomes free, to wit: that he becomes entitled to the protection
of our laws, it would seem to follow, as a necessary conclusion,
that if the slave waives the protection of those laws, and
returns to the State wThere he is held as a slave, his condition
is not changed." It was upon this ground, as is apparent
from his whole reasoning, that Sir "Willianfc,Scott rests his
opinion in the case of the slave Grace. To use one of his
expressions, the effect of the law of England wTas to put the
liberty of the slave into a parenthesis. H there had been an
592
SUPREME COURT.
Me. Justice Curtis.] Bred Scolt v. Sandford.
act of Parliament declaring that a slave coming to England
with his master should thereby be deemed no longer to he a
slave, it is easy to see that the learned judge could not have
arrived at the same conclusion. This distinction is very clearly
stated and shown by President Tucker, in his opinion in the
case of Petty v. Ilorton, (5 Leigh's Virginia R., 615.) (See
also Hunter v. Fletcher, 1 Leigh's Va. R., 172; Maria Louise
v. Marot, 9 Louisiana R.; Smith v. Smith, 13 lb., 441;
Thomas v. Genevieve, 16 lb., 483; Rankin v. Lydia, 2 A. X.
Marshall, 467; Pavies v. Tingle, 8 B. Munroe, 539; Griffeth
v. Fanny, Gilm. Va. R., 143; Lumford v. Coquillon, 14
Martin's La. R., 405; Josephine v. Poultney, 1 Louis. Ann.
R., 329.)
But if Ihe acts of Congress on this subject are valid, the
law of the Territory of Wisconsin, within whose limits the
residence of the plaintiff and his wife, and their marriage and
the birth of one or both of their children, took place, falls
under the first category, and is a law operating directly on the
status of the slave. By the eighth section of the act of March
6, 1820, (3 Stat, at Large, 548,) it was enacted that, within
this Territory, "slavery and involuntary servitude, otherwise
than in the punishment of crimes, whereof the parties shall
have been duly convicted, shall be, and is hereby, forever
p inhibited: Provided, always, that any person escaping into the
same, from whom labor or service is lawfully claimed in any
State or Territory of the United States, such fugitive may be
lawfully reclaimed, and conveyed to the person claiming his
or her labor or service, as aforesaid."
By the act of April 20, 1836, (4 Stat, at Large, 10,) passed
in the same month and year of the removal of the plaintiff to
Fort Snelling, this part of the territory ceded by France,
where Fort Snelling is, together with so much of the territory
of the United States east of the Mississippi as now constitutes
the State of Wisconsin, was brought under a Territorial Gov¬
ernment, under the name of the Territory of Wisconsin. By
the eighteenth section of this act, it was enacted, "That the
inhabitants of this Territory shall be entitled to and enjoy all
and singular the rights, privileges, and advantages, granted
and secured to the people of the Territory of the United States
northwest of the river Ohio, by the articles of compact con¬
tained in the ordinance for the government of said Territory,
passed on the 13th day of July, 1787; and shall be subject to
all the restrictions and prohibitions in said articles of compact
imposed upon the people of the said Territory." The sixth
article of that compact is, "there shall be neither slavery nor
involuntary servitude in the said Territory, otherwise than in
DECEMBER TERM, 1856.
593
Dred Scott v. Sandford. [Mr. Justice Curtis.
the punishment of crimes, whereof the party shall have been
duly convicted. Provided, always, that any person escaping
into the same, from whom labor or service is lawfully claimed
in any one of the original States, such fugitive may be law¬
fully reclaimed, and conveyed to the person claiming his or
her labor or service, as aforesaid." By other provisions of this
act establishing the Territory of Wisconsin, the laws of the
United States, and the then existing laws of the State of Mich¬
igan, are extended over the Territory; the latter being subject
to alteration and repeal by the legislative power of the Terri¬
tory created by the act.
Fort Snelling was within the Territory of Wisconsin, and
these laws were extended over it. The Indian title to that
site for a military post had been acquired from the Sioux na¬
tion as early as September 23,1805, (Am. State Papers, Indian
Affairs, vol. 1, p. 744,) and until the erection of the Territorial
Government, the persons at that post were governed by the
rules and articles of war, and such laws of the United States,
including the eighth section of the act of March 6, 1820, pro¬
hibiting slavery, as were applicable to their condition; but
after the erection of the Territory, and the extension of the
laws of the United States and the laws of Michigan over the
whole of the Territory, including this military post, the per¬
sons residing there were under the dominion of those laws in
all particulars to which the rules and articles of war did not
apply.
It thus appears that, by these acts of Congress, not only was
a general system of municipal law borrowed from the State of
Michigan, which did not tolerate slavery, but it was positively
enacted that slavery and involuntary servitude, with only one
exception, specifically described, should not exist there. It is
not simply that slavery is not recognised and cannot be aided
by the municipal law. It is recognised for the purpose of
being absolutely prohibited, and declared incapable of exist¬
ing within the Territory, save in the instance of a fugitive
slave.
It would not be easy for the Legislature to employ more
explicit language to signify its will that the status of slavery
should not exist within the Territory, than the words found in
the act of 1820, and in the ordinance of 1787; and if any doubt
could exist concerning their application to cases of masters
coming into the Territory with their slaves to reside, that doubt
must yield to the inference required by the words of exception.
That exception is, of cases of fugitive slaves. An exception
from a prohibition marks the extent of the prohibition; for it
would be absurd, as -well as useless, to except from a prohibi-
594
SUPREME COURT.
Mb. Justice Curtis.] Drcd Scott v. Sand/ord.
tion a case not contained within it. (9 ."Wheat., 200.) I must
conclude, therefore, that it was the will of Congress that the
state of involuntary servitude of a slave, coming into the Terri¬
tory with his master, should cease to exist. The Supreme Court
of Missouri so held in Rachel v. Walker, (4 Misso. R., 350,)
which was the case of a military officer going into the Terri¬
tory with two slaves.
But it is a distinct question, whether the law of Missouri
recognised and allowed effect to the change wrought in the
status of the plaintiff, by force of the laws of the Territory of
Wisconsin.
I say the law of Missouri, because a judicial tribunal, in one
State or nation, can recognise personal rights acquired hy force
of the law of any other State or nation, only so far as it is the
law of the former State that those rights should be recognised.
But, in the absence of positive law to the contrary, the will of
every civilized State must be presumed to be to allow such
effect to foreign laws as is in accordance with the settled rules
of international law. And legal tribunals are bound to act on
this presumption. It may be assumed that the motive of the
State in allowing such operation to foreign 'laws is what has
been termed comity. But, as has justly been said, (per Chief
Justice Taney, 13 Pet., 589,) it is the comity of the State, not
of the court. The judges have nothing to do with the motive
of the State. Their duty is simply to ascertain and give effect
to its will. And when it is found by them that its will to de¬
part from a rule of international law has not been manifested
by the State, they are bound to assume that its will is to give
effect to it. Undoubtedly, every sovereign State may refuse
to recognise a change, wrought by the law of a foreign State,
on the status of a person, while within such foreign State, even
in cases where the rules of international law require that recog¬
nition. Its will to refuse such recognition may be manifested
by what we term statute, law, or by the customary law of the
State. It is within the province of its judicial tribunals to in¬
quire and adjudge whether it appears, from the statute or cus¬
tomary law of the State, to be the will of the State to refuse to
recognise such changes of status by force of foreign law, as the
rules of the law of nations require to be recognised. But, in
my opinion, it is not within the province of any judicial tribu- ■
nal to refuse such recognition from any political considerations,
or any view it may take of the exterior political relations be¬
tween the State and one or more foreign States, or any im¬
pressions it may have that a change of foreign opinion and
action on the subject of slavery may afford a reason why the
State should change its own action. To understand and give
DECEMBER TERM, 1856.
595
Drcd Scott v. Sandford. [Me. Justice Curtis.
just effect to such considerations, and to change the action of
the State in consequence of them, are functions of diplomatists
and legislators, not of judges.
The inquiry to be made on this part of the case is, therefore,
whether the State of Missouri has, by its statute, or its cus¬
tomary law, manifested its will to displace any rule of inter¬
national law, applicable to a change of the status of a slave, by
foreign law.
I have not heard it suggested that there was any statute
of the State of Missouri bearing on this question. The cus¬
tomary law of Missouri is the common law, introduced by
statute in 1816. (1 Ter. Laws, 436.) And the common law,
as Blackstone says, (4 Com., 67,) adopts, in its full extent,
the law of nations, and holds it to be a part of the law of the
land. •
I know of no sufficient warrant for declaring that any rule
of international law, concerning the recognition, in that State,
of a change of status, wrought by an extra-territorial law, has
been displaced or varied by the will of the State of Missouri.
I proceed then to inquire what the rules of international
law prescribe concerning the change of status of the plaintiff
wrought by the law of the Territory of Wisconsin.
It is generally agreed by writers upon international law, and
the rule has been judicially applied in a great number of cases,
that wherever any question may arise concerning the status of
a person, it must be determined according to that law which
has next previously rightfully operated on and fixed that status.
And, further, that the laws of a country do not rightfully ope¬
rate upon and fix the status of persons who are within its limits
in itincre, or who are abiding there for definite temporary pur¬
poses, as for health, curiosity, or occasional business; that
these laws, known to writers on public and private interna¬
tional law as personal statutes, operate only on the inhabitants
of the country. hTot that it is or can be denied that each inde¬
pendent nation may, if it thinks fit, apply them to all persons
within their limits. But when this is done, not in conformity
with the principles of international law, other States are not
understood to be willing to recognise or allow effect to such
applications of personal statutes.
It becomes necessary, therefore, to inquire whether the ope¬
ration of the laws of the Territory of Wisconsin upon the status
of the plaintiff was or was not such an operation as these prin¬
ciples of international law require other States to recognise
and allow effect to.
And this renders it needful to attend to the particular facts
and circumstances of this case.
596
SUITvEME COURT.
Mk. Justice Curtis.] Dred Scott v. Sandford.
It appears that this case came on for trial before the Circuit
Court and a jury, upon an issue, in substance, whether the
plaintiff, together with his wife and children, were the slaves
of the defendant.
The court instructed the jury that, "upon the facts in this
case, the law is with the defendant." This withdrew from the
jury the consideration and decision of every matter of fact.
The evidence in the case consisted of written admissions,
signed by the counsel of the parties. If the case had been
submitted to the judgment of the court, upon an agreed state¬
ment of facts, entered of record, in place of a special verdict,
it would have been necessary for the court below, and for this
court, to pronounce its judgment solely on those facts, thus
agreed, without inferring any other facts therefrom. By the
rules of the common law applicable to such a case, and by force
of the seventh article of the amendments of the Constitution,
this court is precluded from finding any fact not agreed to by
.the parties on the record. No submission to the court on a
statement of facts was made. It was a trial by jury, in which
certain admissions, made by the parties, were the evidence.
The jury were not only competent, but were bound to draw
from that evidence every inference which, in their judgment,
exercised according to the rules of law, it would warrant.
The Circuit Court took from the j ury the power to draw any
inferences from the admissions made by the parties, and de¬
cided the case for the defendant. This course can be justified
here, if at all, only by its appearing that upon the facts agreed,
and all such inferences of fact favorable to the plaintiff's case,
as the jury might have been warranted in drawing from those
admissions, the law was with the defendant. Otherwise, the
plaintiff would be deprived of the benefit of his trial by jury,
by whom, for aught we can know, those inferences favorable
to his case would have been drawn.
The material facts agreed, bearing on this part of the case,
are, that Dr. Emerson, the plaintiff's master, resided about
two years at the military post of Fort Snelling, being a surgeon
in the army of the United States, his domicil of origin being
unknown; and what, if anything, he had done, to preserve or
change his domicil prior to his residence at Rock Island, being
also unknown.
Now, it is true, that under some circumstances the residence
of a military officer at a particular place, in the discharge of
his official duties, does not amount to the acquisition of a tech¬
nical domicil. But it cannot be affirmed, with correctness,
that it never does. There being actual residence, and this
being presumptive evidence of domicil, all the circumstances
DECEMBER TERM, 1856.
597
Dred Scott v. Sandford. [Mk. Justice Curtis.
of the case must "be considered, before a legal conclusion can
be reached, that his place of residence is not his domicil. If
a military officer stationed at a particular post should entertain
an expectation that his residence there would be indefinitely
protracted, and in consequence should remove his family to
the place where his duties were to be discharged, form a per¬
manent domestic establishment there, exercise there the civil
rights and discharge the civil duties of an inhabitant, while he
did no act and manifested no intent to have a domicil else¬
where, I think no one would say that the mere fact that he
was himself liable to be called away by the orders of the Gov-
erment would prevent his acquisition of a technical domicil at
the place of the residence of himself and his family. In other
words, I do not think a military officer incapable of acquiring
a domicil. • (Bruce v. Bruce, 2 Bos. and Pul., 230; Munroe v.
Douglass, 5 Mad. Ch. R., 232.) This being so, this ease stands
thus: there was evidence before the jury that Emerson resided
about two years at Eort Snelling, in the Territory of "Wiscon¬
sin. This may or may not have been with such intent as to
make it his technical domicil. The presumption is that it was.
It is so laid down by this court, in.Ennis v. Smith, (14 How.,)
and the authorities in support of the position are there referred
to. His intent was a question of fact for the jury. (Eitchburg
v. Winchendon, 4 Cush., 190.)
The case was taken from the jury. If they had power to
find that the presumption of the necessary intent had not been
rebutted, we cannot say, on this record, that Emerson had not
his technical domicil at Fort Snelling. But, for reasons which
I shall now proceed to give, I do not deem it necessary in this
case to determine the question of the technical domicil of Dr.
Emerson.
It must be admitted that the inquiry whether the law of a
particular country has rightfully fixed the status of a person, so
that in accordance with the principles of international law that
status should be recognised in other jurisdictions, ordinarily
depends on the question whether the person was domiciled in
the country whose laws are asserted to have fixed his status.
But, in the United States, questions of this kind may arise,
where an attempt to decide solely with reference to technical
domicil, tested by the rules which are applicable to changes
of places of abode from one country to another, would not be
consistent with sound principles. And, in my judgment,, this
is one of those cases.
The residence of the plaintiff, who was taken by his master,
Dr. Emerson, as a slave, from Missouri to the State of Illinois,
and thence to the Territory of Wisconsin, must be deemed to
598
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
have been for the time being, and nntil he asserted his own
separate intention, the same as the residence of his master;
and the inquiry, whether the personal statutes of the Territory
were rightfully extended over the plaintiff, and ought, in ac¬
cordance with the rules of international law, to be allowed to
fix his status, must depend upon the circumstances under
which Dr. Emerson went into that Territory, and remained
there; and upon the further question, whether anything was
there rightfully done by the plaintiff to cause those personal
statutes to operate on him.
Dr. Emerson was an officer in the army of the United States.
He went into the Territory to discharge his duty to the United
States. The place was out of the jurisdiction of any particular
State, and within the exclusive jurisdiction of the United
States. It does not appear where the domicil of origin of Dr.
Emerson was, nor whether or not he had lost it, and gained
another domicil, nor of what particular State, if any, he was a
citizen.
On what ground can it be denied that all valid laws of the
United States, constitutionally enacted by Congress for the
government of the Territory, rightfully extended over an
officer of the United States and his servant who went into the
Territory to remain there for an indefinite length of time, to
take part in its civil or military affairs ? They were not for¬
eigners, coming from abroad. Dr. Emerson was a citizen of
the country which had exclusive jurisdiction over the Terri¬
tory; and not only a citizen, but he went there in a public
capacity, in the service of the same sovereignty which made
the laws. Whatever those laws might be, whether of the kind
denominated personal statutes, or not, so far as they were
intended by the legislative will, constitutionally expressed, to
operate on him and his servant, and on the relations between
them, they had a rightful operation, and no other State or
country can refuse to allow that those laws might rightfully
operate on the plaintiff and his servant, because such a refusal
would be a denial that the United States could, by laws con¬
stitutionally enacted, govern their own servants, residing on
their own Territory, over which the United States had the
exclusive control, and in respect to which they are an inde¬
pendent sovereign power. Whether the laws now in question
were constitutionally enacted, I repeat once more, is a separate
question. Rut, assuming that they were, and that they opera¬
ted directly on the status of the plaintiff, I consider that no
other State or country could question the rightful power of the
United States so to legislate, or, consistently with the settled
rules of international law, could refuse to recognise the effects
DECEMBER TERM, 1856.
599
Dred Scott v. Sandford. [Me. Justice Curtis.
of such legislation upon the status of their officers and servants,
as valid everywhere.
This alone would, in my apprehension, be sufficient to
decide this question'.
But there are other facts stated on the record which should
not he passed over. It is agreed that, in the year 1836, the
plaintiff, while residing in the Territory, was married, with the
consent of Dr. Emerson, to Harriet, named in the declaration
as his wife, and that Eliza and Lizzie were the children of that
marriage, the first named having been born on the Mississippi
river, north of the line of Missouri, and the other having been
born after their return to Missouri. And the inquiry is,
whether, after the marriage of the plaintiff in the Territory,
with the consent of Dr. Emerson, any other State or country
can, consistently with the settled rules of international law,
refuse to recognise and treat him as a free man, when suing
for the liberty of himself, his wife, and the children of that
marriage. It is in reference to his status, as viewed in other
States and countries, that the contract of marriage and the
birth of children becomes strictly material. At the same time,
it is proper to observe that the female to whom he was
married having been taken to the same military post of Fort
Snelling as a slave, and Dr. Emerson claiming also to be her
master at the time of her marriage, her status, and that of
the children of the marriage, are also affected by the same
considerations.
If the laws of Congress governing the Territory of Wisconsin
were constitutional and valid laws, there can be no doubt these
parties were capable of contracting a lawful marriage, attended
with all the usual civil rights and obligations of that condition.
In that Territory they were absolutely free persons, having
full capacity to enter into the civil contract of marriage.
It is a principle of international law, settled beyond contro¬
versy in England and America, that a marriage, valid by the
law of the place where it was contracted, and not in fraud of
the law of any other place, is valid everywhere; and that no
technical domicil at the place of the contract is necessary to
make it so. (See Bishop on Mar. and Div., 125—129, where
the cases are collected.)
If, in Missouri", the plaintiff were held to be a slave, the
validity and operation of his contract of marriage must be
denied. lie can have no legal rights; of course, not those of
a husband and father. And the same is true of his wife and
children. The denial of his rights is the denial of theirs. So
that, though lawfully married in the Territory, when they
came out of it, into the State of Missouri, they were no longer
600
SUPREME COURT.
Mr. Justice Curtis.] Dred Scoit v. Sand/ord.
husband and wife; and a child of that lawful marriage, though
born under the same dominion where its parents contracted a
lawful marriage, is not the fruit of that marriage, nor the child
of its father, hut subject to the maxim, partus sequitur ventrem.
It must be borne in mind that in this case there is no ground
for the inquiry, whether it be the will of the State of Missouri
not to recognise the validity of the marriage of a fugitive slave,
who escapes into a State or country where slavery is not
allowed, and there contracts a marriage; or the validity of
such a marriage, where the master, being a citizen of the State
of Missouri, voluntarily goes with his slave, in itincrc, into a
State or country which does not permit slavery to exist, and
the slave there contracts marriage without the consent of his
master; for in this case, it is agreed, Dr. Emerson did consent;
and no further question can arise concerning his rights, so
far as their assertion is inconsistent with the validity of the
marriage. Kor do I know of any ground for the assertion
that this marriage was in fraud of dny law of Missouri. It has
been held by this court, that a bequest of property by a master
to his slave, by necessary implication entitles the slave to his
freedom; because, only as a freeman could he take and hold
the bequest. (Legrand v. Darnall, 2 Pet. R., 664.) It has
also been held, that when a master goes with his slave to
reside for an indefinite period in a State where slavery is not
tolerated, this operates as an act/of manumission; because it is
sufficiently expressive of the consent of the master that the
slave should be free. (2 Marshall's Ken. R., 470; 14 Martin's
Louis. R., 401.)
"What, then, shall we say of the consent of the master, that
the slave may contract a lawful marriage, attended with all
■the civil rights and duties which belong to that relation; that
he may enter into a relation which none but a free man can
assume—a relation which involves not only the rights and
duties of the slave, but those of the other party to the contract,
•and of their descendants to the remotest generation ? In my
judgment, there can be no more effectual abandonment of the
legal rights of a master over his slave, than by the consent
of the master that the slave should enter into a contract of
marriage, in a free State, attended by all the civil rights and
obligations which belong to that condition.
And any claim by Dr. Emerson, or any one claiming under
him, the effect of which is to deny the validity of this marriage,
and the lawful paternity of the children born from it, wherever
asserted, is, in my judgment, a claim inconsistent with good
faith and sound reason, as well as with the rules of international
law. And I go further: in my opinion, a law of the State
DECEMBER TERM, 1856.
601
Dred Scott v. Sandford. [Ma. Justice Curtis.
of Missouri, wliicli should thus annul a marriage, lawfully
contracted by these parties while resident in "Wisconsin, not
in fraud of any law of Missouri, or of any right of Dr. Emerson,
who consented thereto, would be a law impairing the obligation
of a contract, and within the prohibition of the Constitution
of the United States. (See 4 Wheat., 629, 695, 696.)
To avoid misapprehension .on this important and difficult
subject, I will state, distinctly, the conclusions at which I have
arrived. They are:
First. The rules of international law respecting the emanci¬
pation of slaves, by the rightful operation of the laws of another
State or country upon the status of the slave, while resident in
such foreign State or country, are part of the common law of
Missouri, and have not been abrogated by any statute law of
that State.
Second. The laws of the United States, constitutionally en¬
acted, which operated directly on and changed the status of a
slave coming into the Territory of Wisconsin with his master,
who went thither to reside for an indefinite length of time, in
the performance of his duties as an officer of the United States,
had a rightful operation on the status of the slave, and it is ih
conformity with the rules of international law that this change
of status should be recognised everywhere.
Third. The laws of the United States, in operation in the
Territory of Wisconsin at the time of the plaintiff's residence
there, did act directly on the status of the plaintiff, and change
his status to that of a free man.
Fourth. The plaintiff and his wife were capable of contract¬
ing, and, with the consent of Dr. Emerson, did contract a
marriage in that Territory, valid under its laws; and the valid¬
ity of this marriage cannot be questioned in Missouri, save by
showing that it was in fraud of the laws of that State, or of
some right derived from them; which cannot be shown in this
case, because the master consented to it.
Fifth. That the consent of the master that his slave, residing
in a country which cloes not tolerate slavery, may enter into a
lawful contract of marriage, attended with the civil rights and
duties which belong to that condition, is an effectual act of
emancipation. And the law does not enable Dr. Emerson, or
any one claiming under him, to assert a title to the married
persons as slaves, and thus destroy the obligation of the con¬
tract of marriage, and bastardize their issue, and reduce them
to slavery.
But it is insisted that the Supreme Court of Missouri has
settled this case by its decision in Scott v. Emerson, (15
Missouri Reports, 576;) and that this decision is in conformity
602
SUPREME COURT.
Me. Justice Curtis.] Drcd Scott Sandford.
with the weight of authority elsewhere, and with sound prin¬
ciples. If the Supreme Court of Missouri had placed its de¬
cision on the ground that it appeared Dr. Emerson never became
domiciled in the Territory, and so its laws could not rightfully
operate on him and his slave; and the facts that he went there
to reside indefinitely, as an officer of the United States, and
that the plaintiff was lawfully married there, with Dr. Emer¬
son's consent, were left out of view, the decision would find
support in other cases, and I might not be prepared to deny
its correctness. But the decision is not rested on this ground.
The domicil of Dr. Emerson in that Territory is not question¬
ed in that decision; and it is placed on a broad denial of the
operation, in Missouri, of the law of any foreign State or coun¬
try upon the status of a slave, going with his master from Mis¬
souri into such foreign State or country, even though they went
thither to become, and actually became, permanent inhabitants
of such foreign State or country, the laws whereof acted direct¬
ly on the status of the slave, and changed his status to that of a
freeman.
< To the correctness of such a decision I cannot assent. In my
judgment, the opinion of the majority of the court in that case
is in conflict with its previous decisions,'with a great weight of
judicial authority in other slaveholding States, and with fun¬
damental principles of private international law. Mr. Chief
Justice Gamble, in his dissenting opinion in that case, said:
"I regard the question as conclusively settled by repeated
adjudications of this court; and if I doubted or denied the pro¬
priety of those decisions, I would' not feel myself any more at
liberty to overturn them, than I would any other series of de¬
cisions by which the law upon any other question had been
settled. There is with me nothing in the law of slavery which
distinguishes it from the law on any other subject, or allows
any more accommodation to the temporary excitements which
have gathered around it. * * * * * But in the
midst of all such excitement, it is proper that the judicial
mind, calm and self-balanced, should adhere to principles es¬
tablished when there was no feeling to disturb the view of the
legal questions upon -which the rights of parties depend."
"In this State, it has been recognised from the beginning of
the Government as a correct position in law, that the master
who takes his slave to reside in a State or Territory where sla¬
very is prohibited, thereby emancipates his slave." (Winney
v. Whitesides, 1 Mo., 473; Le Grange v. Chouteau, 2 Mo., 20;
Milley v. Smith, lb., 36; Ralph v. Duncan, 3 Mo., 194; Julia
v. McKinney, lb., 270; Nat v. Ruddle, lb., 400; Rachel v.
Walker, 4 Mo., 350; Wilson v. Melvin, 592.)
DECEMBER TERM, 1856.
603
Dred Scott v. Sandford. [Me. Justice Curtis.
Chief Justice Gamble has also examined the decisions of the
courts of other States in which slavery is established, and finds
tliein in accordance with these preceding decisions of the Su¬
preme Court of Missouri to which he refers.
It would be a useless parade of learning for me to go over
the ground which he has so fully and ably occupied.
But it is further insisted we are bound to follow this de¬
cision. I do not think so. In this case, it is to be determined
what laws of the United States were in operation in the Terri¬
tory of Wisconsin, and what was their effect 011 the status of
the plaintiff. Could the plaintiff contract a lawful marriage
there? Does any law of the State of Missouri impair the obli¬
gation of that contract of marriage, destroy his rights as a hus¬
band, bastardize the issue of the marriage, and reduce them to
a state of slavery?
These questions, which arise exclusively under the Consti¬
tution and laws of the United States, this court, under the
Constitution and laws of the United States, has the rightful
authority finally to decide. And if we look beyond these ques¬
tions, we come to the consideration whether the rules of inter¬
national law, which are part of the laws of Missouri until dis¬
placed by some statute not alleged to exist, do or do not require
the status of the plaintiff, as fixed by the laws of the Territory
of Wisconsin, to be recognised in Missouri. Upon such a ques¬
tion, not depending on any statute or local usage, but on prin¬
ciples of universal jurisprudence, this court has repeatedly
asserted it could not hold itself bound by the decisions of State
courts, however great respect might be felt for their learning,
ability, and impartiality. (See Swift v. Tyson, 16 Peters's R.,
1; Carpenter v. The Providence Ins. Co., Ib., 495; Foxcroft v.
Mallet, 4 IIow., 353; Rowan v. Runnels, 5 How., 134.)
Some reliance has been placed on the fact that the decision
in the Supreme Court of Missouri was between these parties,
and the suit there was abandoned to obtain another trial in the
courts of the United States.
In Homei; v. Brown, (16 How., 354,) this court made a de¬
cision upon the construction of a devise of lands, in direct
opposition to the unanimous opinion of the Supreme Court of
Massachusetts, between the same parties, respecting the same
subject-matter—the claimant having become nonsuit in the
State court, in order to bring his action in the Circuit Court
of the United States. I did not sit in that case, having been
of counsel for one of the parties while at the bar; but, on ex¬
amining the report of the argument of the counsel for the plain¬
tiff in error, I find they made the point, that this court ought
to give effect to the construction put upon the will by the State
604
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
court, to the end that rights respecting lands may be governed
by one law, and that the law of the place where the lands are
situated; that they referred to the State decision of the case,
reported in 3 Gushing, 390, and to many decisions of this court.
But this court does not seem to have considered the point of
sufficient importance to notice it in their opinions. In Millar
v. Austin, (13 How., 218,) an action was brought by the endorsee
of a written promise. The question was, whether it was nego¬
tiable under a statute of Ohio. The Supreme Court of that
State having decided it was not negotiable, the plaintiff became
nonsuit, and brought his action in the Circuit Court of the
United States. The decision of the Supreme Court of the
State, reported in 4 Ves., L. J., 527, was relied on. This court
unanimously held the paper to be negotiable.
When the decisions of the highest court of a State are directly
in conflict with each other, it has been repeatedly held, here,
that the last decision is not necessarily to be taken as the rule.
(State Bank v. Knoop, 16 How., 369; Pease v. Peck, 18 How.,
599.) • _
To these considerations I desire to add, that it was not made
known to the Supreme Court of Missouri, so far as appears,
that the plaintiff was married in Wisconsin with the consent
of Dr. Emerson, and it is not made known to us that Dr. Em¬
erson was a citizen of Missouri, a fact to which that court
seem to have attached much importance.
Sitting here to administer the law between these parties, I do
not feel at liberty to surrender my own convictions of what the
law requires, to the authority of the decision in 15 Missouri
Reports.
I have thus far assumed, merely for the purpose of the argu¬
ment, that the laws of the United States, respecting slavery in
this Territory, were constitutionally enacted by Congress. It
remains to inquire whether they are constitutional and binding
laws.
In the argument of this part of the case at bar, it was justly
considered by all the counsel to be necessary to ascertain the
source of the power of Congress over the territory belonging
to the United States. Until this is ascertained, it is not pos¬
sible to determine the extent of that power. On the one side
it was maintained that the Constitution contains no express
grant of power to organize and govern what is now known to
the laws of the United States as a Territory. That whatever
power of this kind exists, is derived by implication from the
capacity of the United States to hold and acquire territory out
of the limits of any State, and the necessity for its having some
government.
DECEMBER TERM, 1856.
605
Dred Scott v. Sandford. [Mr. Justice Curtis.
On the other side, it was insisted that the Constitution has
not failed to make an express provision for this end, and that
it is found in the third section of the fourth article of the
Constitution.
To determine which of these is the correct view, it is needful
to advert to some, facts respecting this subject, which existed
when the Constitution was framed and adopted. It will be
found that these facts not only shed much light on the question,
whether the framers of the Constitution omitted to make a
provision concerning the power of Congress to organize and
govern Territories, but they will also aid in the construction
of any provision which may have been made respecting this
subject.
Tinder the Confederation, the unsettled territory within the
limits of the United States had been a subject of deep interest.
Some of the States insisted that these lands were within their
chartered boundaries, and that they had succeeded to the title
of the Crown to the soil. On the other hand, it was argued
that the vacant lands had been acquired by the United States,
by the war carried on by them under a common Government
and for the common interest.
This dispute was further complicated by unsettled questions
of boundary among several States. It not only delayed the
accession of Maryland to the Confederation, but at one time
seriously threatened its existence. .(5 Jour, of Cong., 208,442.)
Under the pressure of these circumstances, Congress earnestly
recommended to the several States a cession of their claims and
rights to the. United States. (5 Jour, of Cong., 442.) And
before the Constitution was framed, it had been begun. That
by New York had been made on the 1st day of March, 1781;
that of Virginia on the 1st day of March, 1784; that of Mas¬
sachusetts on the 19th day of April, 1785; that of Connecticut
on the 14th day of September, 1786; that of South Carolina
on the 8th day of August, 1787, while the Convention for
framing the Constitution was in session.
It is very material to observe, in this connection, that each
of these acts cedes, in terms, to the United States, as well the
jurisdiction as the soil.
It is also equally important to note that, when the Constitu¬
tion was framed and adopted, this plan of vesting in the United
States, for the common good, the great tracts of ungranted
lands claimed by the several States, in which so deep an in¬
terest was felt, was yet incomplete. It remained for North
Carolina and Georgia to cede their extensive and valuable
claims. These were made, by North Carolina on the 25th day
of February, 1790, and by Georgia on the 24th day of April,
606
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sand/ord.
1802. The terms of these last-mentioned cessions will here¬
after be noticed in another connection; but I observe here that
each of them distinctly shows, upon its face, that they were
not only in execution of the general plan proposed by the
Congress of the Confederation, but of a formed purpose of each
of these States, existing when the assent of their respective
people was given to the Constitution of the United States.
It appears, then, that when the Federal Constitution was
framed, and presented to the people of the several States for
their consideration, the unsettled territory was viewed as justly
applicable to the common benefit, so far as it then had or
might attain thereafter a pecuniary value; and so far as it might
become the seat of new States, to be admitted into the Union
upon an equal footing with the original States. And also that
the relations of the United States to that unsettled territory
were of different kinds. The titles of the States of New York,
Virginia, Massachusetts, Connecticut, and South Carolina, as
well of soil as of jurisdiction, had been transferred to the
United States. North Carolina and Georgia had not actually
made transfers, but a confident expectation, founded on their
appreciation of the justice of the general claim, and fully justi¬
fied by the results, was entertained, that these cessions would
be made. The ordinance of 1787 had made provision for the
temporary government of so much of the territory actually
ceded as lay northwest of the river Ohio.
But it must have been apparent, both to the framers of the
Constitution and the people of the several States who were
to act upon it, that the Government thus provided for could
not continue, unless the Constitution should confer on the
United States the necessary powers to continue it. That tem¬
porary Government, under the ordinance, was to consist of
certain officers, to be appointed by and responsible to the
Congress of the Confederation; their powers had been con¬
ferred and defined by the ordinance. So far as it provided for
the temporary government of the Territory, it was an ordinary
act of legislation, deriving its force from the legislative power
of Congress, and depending for its vitality upon the continu¬
ance of that legislative power. But the officers to be appoint¬
ed for the Northwestern Territory, after the adoption of the
Constitution, must necessarily be officers of the United States,
and not of the Congress of the Confederation; appointed and
commissioned by the President, and exercising powers derived
from the United States under the Constitution.
Such was the relation between the United States and the
Northwestern Territory, which all reflecting men must have
foreseen would exist, when the Government created by the
DECEMBER- TERM, 1856.
607
Dred Scott v. Sandford. [Mb. Justice Curtis.
Constitution should supersede that of the Confederation. That
if the new Government should he without power to govern
this Territory, it could not appoint and commission officers,
and send them into the Territory, to exercise there legislative,
judicial, and executive power; and that this Territory, which
was even then foreseen to he so important, both politically and
financially, to all the existing States, must he left not only
without the control of the General Government, in respect to
its future political relations to the rest of the States, hut abso¬
lutely without any Government, save what its inhabitants, act¬
ing in their primary capacity, might from time to time create
for themselves.
But this Northwestern Territory was not the only territory,
the soil and jurisdiction whereof were then understood to have
been ceded to the United States. The cession by South Caro¬
lina, made in August, 1787, was of "all the territory included
within the river Mississippi, and a*line beginning at that part
of the said river which is intersected by the southern boundary
of North Carolina, and continuing along the said boundary
line until it intersects the ridge or chain of mountains which
divides the Eastern from the Western waters; then to he con¬
tinued along the top of the said ridge of mountains, until it
intersects a line to be drawn due west from the head of the
southern branch of the Tugaloo river, to the said mountains;
and thence to run a due west course to the river Mississippi."
It is true that by subsequent explorations it was ascertained
that the source of the Tugaloo river, upon which the title of
South Carolina depended, was so far to the northward, that
the transfer conveyed only a narrow slip of land, about twelve
miles wide, lying on the top of the ridge of mountains, and
extending from the northern boundary of Georgia to the
southern boundary of North Carolina. But this was a discov¬
ery made long after the cessi'on, and there can he no doubt
that the State of South Carolina, in making the cession, and
the Congress in accepting it, viewed it as a transfer to the
United States of the soil and jurisdiction of an extensive and
important part, of the unsettled territory ceded by the Crown
of Great Britain by the treaty of peace, though its quantity or
extent then remained to he ascertained.*
It must he remembered also, as has been already stated, that
not only was there a confident expectation entertained by the
* Note by Mr. Justice Curtis. This statement that some territory did actually pass
by this cession, is taken from the opinion of the court, delivered by Mr. Justice
Wayne, in the case of Howard v. Ingersoll, reported in 13 How., 405. It is an ob¬
scure matter, and, on some examination of it, I have been led to doubt whether any
territory actually passed by this cession. But as the fact is not important to the
argument, I have not thought it necessary further to investigate it.
608
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
other States, that North Carolina and Georgia would complete
the plan already so far executed by New York, Virginia, Mas¬
sachusetts, Connecticut, and South Carolina, but that the opin¬
ion was in no small -degree prevalent, that the just title to this
"back country," as it was termed, had vested in the United
States by the treaty of peace, and could not rightfully be
claimed by any individual State.
There is another consideration applicable to this part of the
subject, and entitled, in my judgment, to great weight.
The Congress of the Confederation had assumed the power
not only to dispose of the lands ceded, but to institute Govern¬
ments and make laws for their inhabitants. In other words,
they had proceeded to act under the cession, which, as we have
seen, was as well of the jurisdiction as of the soil. This ordi¬
nance was passed on the 13th of July, 1787. The Convention
for framing the Constitution was then in session at Philadel¬
phia. The proof is direct -and decisive, that it was known to
the Convention.* It is equally clear that it was admitted and
understood not to be within the legitimate powers of the Con¬
federation to pass this ordinance. (Jefferson's Works, vol. 9,
pp. 251, 276; Federalist, Nos. 38, 43.)
The importance of conferring on the new Government regu¬
lar powers commensurate with the objects to be attained, and
thus avoiding the alternative of a failure to execute the trust
assumed by the acceptance of the cessions made and expected,
or its execution by usurpation, could scarcely fail to be per¬
ceived. That it was in fact perceived, is clearly shown by the
Federalist, (No. 38,) where this very argument is made use of
in commendation of the Constitution.
Keeping these facts in view, it may confidently be asserted
that there is very strong reason to believe, before we examine
the Constitution itself, that the necessity for a competent grant
of power to hold, dispose of, and govern territory, ceded and
expected to be ceded, could not have escaped the attention of
those who framed or adopted the Constitution; and that if it
did not escape their attention, it could not fail to be adequate¬
ly provided for.
Any other conclusion would involve the assumption that a
subject of the gravest national concern, respecting which the
small States felt so much jealousy that it had been almost an
insurmountable obstacle to the formation of the Confederation,
and as to which all the States had deep pecuniary and political
interests, and which had been so recently and constantly agita-
* It was published in a newspaper at Philadelphia, in May, and a copy of it was
sent by R. H. Lee to Gen. Washington, on the 15th of July. (See p. 261, Cor. of
Am. Rev., vol. 4, and Writings of Washington, vol. 9, p. 174.)
DECEMBER TERM, .1856.
609
Bred Scott v. Sandford. [Mb. Justice Curtis.
ted, was nevertheless overlooked; or that such a subject was
not overlooked, hut designedly left unprovided for, though it
was manifestly a subject of common concern, which belonged
to the care of the General Government, and adequate provision
for which could not fail to he deemed necessary and proper.
The admission of new States, to he framed out of the ceded
territory, early attracted the attention of the Convention.
Among the resolutions introduced by Mr. Randolph, on the
29tli of May, was one on this subject, (Res. Uo. 10, 5 Elliot,
128,) which, having been affirmed in Committee of the Whole,
on the 5th of June, (5 Elliot, 156,j and reported to the Conven¬
tion on the 13th of June, (5 Elliot, 190,) was referred to the
' Committee of Detail, to prepare the Constitution, on the 26th
of July, (5 Elliot, 376.) This committee reported an article
for the admission of new States "lawfully constituted or estab¬
lished." Isothing was said concerning the power of Congress
to prepare or form such States. This omission struck Mr. Mad¬
ison, who, on the 18th of August, (5 Elliot, 439,) moved for
the insertion of power to dispose of the unappropriated lands
of the United States, and to institute temporary Governments
for new States arising therein.
On the 29th of August, (5 Elliot, 492,) the report of the
committee was taken up, and after debate, which exhibited
great diversity of views concerning the proper mode of pro¬
viding for the subject, arising out of the supposed diversity of
interests of the large and small States, and between those
which had and those which had not unsettled territory, but no
difference of opinion respecting the propriety and necessity of
some adequate provision for the subject, Gouverneur Morris
moved the clause as it stands in the Constitution. This met
with general approbation, and was at once adopted. The whole
section is as follows:
"New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the
jurisdiction of any other State, nor any State be formed by the
junction of two or more States, or parts of States, without the
consent of the Legislatures of the States concerned, as well as
of Congress.
" The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States; and nothing in this
Constitution shall be so construed as to prejudice any claims
of the United States or any particular State."
That Congress has some power to institute temporary Gov¬
ernments over the territory, I believe all agree; and, if it be
admitted that the necessity of some power to govern the terri-
610
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
tory of the United States could not and did not escape the at¬
tention of the Convention and the people, and that the neces¬
sity is so great, that, in the absence of any express grant, it is
strong enough to raise an implication of the existence of that
power, it would seem to follow that it is also strong enough to
afford material aid in construing an express grant of power re¬
specting that territory; and that they who maintain the exist¬
ence of the power, without finding any words at all in which
it is conveyed, should be willing to receive a reasonable inter¬
pretation of language of the Constitution, manifestly intended
to relate to the territory, and to convey to Congress some au¬
thority concerning it.
It would seem, also, that when we find the subject-matter of
the growth and formation and admission of new States, and
the disposal of the territory for these ends, were under consid¬
eration, and that some provision therefor was expressly made,
it is improbable that it would be, in its terms, a grossly inad¬
equate provision; and that an indispensably necessary power
to institute temporary Governments, and to legislate for the
inhabitants of the territory, was passed silently by, and left to
be deduced from the necessity of the case.
In the argument at the bar, great attention has been paid to
the meaning of the word "territory."
Ordinarily, when the territory of a sovereign power is spoken
of, it refers to that tract of country which is under the political
jurisdistion of that sovereign power. Thus Chief Justice Mar¬
shall (in United States v. Bevans, 3 Wheat., 386) says: "What,
then, is the extent of jurisdiction which a State possesses?
We answer, without hesitation, the jurisdiction of a State is
coextensive with its territory." Examples might easily be
multiplied of this use of the word, but they are unnecessary,
because it is familiar. But the word "territory" is not used
in this broad and general sense in this clause of the Consti¬
tution.
At the time of the adoption of the Constitution, the United
States held a great tract of country northwest of the Ohio;
another tract, then of unknown extent, ceded by South Caro¬
lina; and a confident expectation was then entertained, and
afterwards realized, that they then were or would become the
owners of other great tracts, claimed by Horth Carolina and
Georgia. These ceded tracts lay within the limits of the Uni¬
ted States, and out of the limits of any particular State; and
the cessions embraced the civil and political jurisdiction, and
so much of the soil as had not previously been granted to in¬
dividuals.
These words, "territory belonging to the United States,"
DECEMBER TERM, 1856.
611
Dred Scott v. Sandford. [Mr. Justice Curtis.
were not used in the Constitution to describe an abstraction,
but to identify and apply to these actual subjects matter then
existing and belonging to the United States, and other similar
subjects which might afterwards be acquired; and this being
so, all the essential qualities and incidents attending such
actual subjects are embraced within the words "territory
belonging to the United States," as fully as if each of those
essential qualities and incidents had been specifically de¬
scribed.
I say, the essential qualities and incidents. But in deter¬
mining what were the essential qualities and incidents of the
subject with which they were dealing, we must take into con¬
sideration not only all the particular facts which were imme¬
diately before them, but the great consideration, ever present
to the minds of those who framed and adopted the Constitu¬
tion, that they were making a frame of government for the
people of the United States and their posterity, under which
they hoped the United States might be, what they have now
become, a great and powerful nation, possessing the power to
make war and to conclude treaties, and thus to acquire terri¬
tory. (See Cerre v. Pitot, 6 Cr., 336; Am. Ins. Co. v. Canter,
1 Pet., 542.) With these in view, I turn to examine the clause
of the article now in question.
It is said this provision has no application to any territory
save that then belonging to the United States. I have already
shown that, when the Constitution was framed, a confident
expectation was entertained, which was speedily realized, that
North Carolina and Georgia would cede their claims to that
great territory which lay "west of those States. No doubt has
been suggested that the first clause of this same article; which
enabled Congress to admit new States, refers to and includes
new States to be formed out of this territory, expected to be
thereafter ceded by North Carolina and Georgia, as well as
new States to be formed out of territory northwest of the Ohio,
which then had been ceded by Virginia. It must have been
seen, therefore, that the same necessity would exist for an au¬
thority to dispose of and make all needful regulations respect¬
ing this territory, when ceded, as existed for a like authority
respecting territory which had been ceded.
No reason has been suggested why any reluctance should
have been felt, by the framers of the Constitution, to apply
this provision to all the territory which might belong to the
United States, or why any distinction should have been made,
founded on the accidental circumstance of the dates of the ces¬
sions ; a circumstance in no way material as respects the neces¬
sity for rules and regulations, or the propriety of conferring
612
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
on the Congress power to make them. And if we look at the
course of the debates in the Convention on this article, we
shall find that the then nnceded lands, so far from having
been left out of view in adopting this article, constituted, in
the minds of members, a subject of even paramount import¬
ance.
Again, in what an extraordinary position would the limita¬
tion of this clause to territory then belonging to the United
States, place the territory which lay within the chartered limits
of Rorth Carolina and Georgia. The title to that territory
was then claimed by those States, and by the United States;
their respective claims are purposely left unsettled by the ex¬
press words of this clause; and when cessions were made by
those States, they were merely of their claims to this terri¬
tory, the United States neither admitting nor denying the
validity of those claims; so that it was impossible then, and
has ever since remained impossible, to know whether this ter¬
ritory did or did not then belong to the United States; and,
consequently, to know whether it was within or without the
authority conferred by this clause, to dispose of and make
rules and regulations respecting the territory of the United
States. This attributes to the eminent men who acted on this
subject a want of ability and forecast, or a want of attention to
the known facts upon which they were acting, in which I can¬
not concur.
There is not, in my judgment, anything in the language,
the history, or the subject-matter of this article, which restricts
its operation to territory owned by the United States when the
Constitution was adopted.
But it is also insisted that provisions of the Constitution re¬
specting territory belonging to the United States do not apply
to territory acquired by treaty from a foreign nation. This
objection must rest upon the position that the Constitution did
not authorize the Federal Government to acquire foreign terri¬
tory, and consequently has made no provision for its govern¬
ment when acquired; or, that though the acquisition of foreign
territory was contemplated by the Constitution, its provisions
concerning the admission of new States, and the making of all
needful rules and regulations respecting territory belonging to
the United States, were not designed to be applicable to terri¬
tory acquired from foreign nations.
It is undoubtedly true, that at the date of the treaty of 1803,
between the United States and France, for the cession of Louis¬
iana, it was made a question, whether the Constitution had
conferred on the executive department of the Government of
the United States power to acquire foreign, territory by a treaty.
DECEMBER TERM, 1856.
618
Dred Scott v. Sandford. [Mr. Justice Curtis.
There is evidence that very grave doubts were then enter¬
tained concerning the existence of this power. But that there
was then a settled opinion in the executive and legislative
branches of the Government, that this power did not exist,
cannot be admitted, without at the same time imputing to those
who negotiated and ratified the treaty, and passed the laws
necessary to carry it into execution, a deliberate and known
violation of their oaths to support the Constitution; and what¬
ever-doubts may then have existed, the question must now be
taken to have been settled. Four distinct acquisitions of for¬
eign territory have been made by as many different treaties,
under as many different Administrations. Six States, formed
on such territory, are now in the XJnion. Every branch of this
Government, during a period of more than fifty years, has
participated in these transactions. To question their validity
now, is vain. As was said by Mr. Chief Justice Marshall, in
the American Insurance Company v. Canter, (1 Peters, 542,)
"the Constitution confers absolutely on the Government of the
Union the powers of making war and of making treaties; con¬
sequently, that Government possesses the power of acquiring
territory, either by conquest or treaty." (See Cerre v. Pitot,
6 Cr., 336.) And I add, it also possesses the power of govern¬
ing it, when acquired, not by resorting to supposititious powers,
nowhere found described in the Constitution, but expressly
granted in the authority to make all needful rules and regula¬
tions respecting the territory of the United States.
There was to be established by the Constitution a frame of
government, under which the people of the United States and
their posterity were to continue indefinitely. To take one of
its provisions, the language of which is broad enough to extend
throughout the existence of the Government, and embrace all
territory belonging to the United States throughout all time,
and the purposes and objects of which apply to all territory of
the United States, and narrow it down to territory belonging
to the United States when the Constitution was framed, while
at the same time it is admitted that the Constitution contem¬
plated and authorized the acquisition, from time to time, of
other and foreign territory, seems to me to be an interpretation
as inconsistent with the nature and purposes of the instrument,
as it is with its language, and J can have no hesitation in re¬
jecting it.
I construe this clause, therefore, as if it had read, Congress
shall have power to make all needful rules and regulations re¬
specting those tracts of country, out of the limits of the several
States, which the United States have acquired, or may here¬
after acquire, by cessions, as well of the jurisdiction as of the
15
614
SUPREME COURT.
Me. Justice Curtis.] Dred Scott v. Sandford.
soil, so far as the soil may be the property of the party making
the cession, at the time of making it.
It has been urged that the words "rules and regulations"
are not appropriate terms in which to convey authority to make
laws for the government of the territory.
Rut it must be remembered that this is a grant of power to
the Congress—that it is therefore necessarily a grant of power
to legislate—and, certainly, rules and regulations respecting a
particular subject, made by the legislative power of a country,
can be nothing but laws. Uor do the particular terms em¬
ployed, in my judgment, tend in any degree to restrict this
legislative power. Power granted to a Legislature to make all
needful rules and regulations respecting the territory, is a
power to pass all needful laws respecting it.
The word regulate, or regulation, is several times used in the
Constitution. It is used in the fourth section of the first article
to describe those laws of the States which prescribe the times,
places, and manner, of choosing Senators and Representatives;
in the second section of the fourth article, to designate the
legislative action of a State on the subject of fugitives from
service, having a very close relation to the matter of our present
inquiry; in the second section of the third article, to empower
Congress to fix the extent of the appellate jurisdiction of this
court; and, finally, in the eighth section of the first article are
the words, " Congress shall have power to regulate commerce."
It is unnecessary to describe the body of legislation which
has been enacted under this grant of power; its variety and
extent are well known. But it may be mentioned, in passing,
that under this power to regulate commerce, Congress has
enacted a great system of municipal laws, and extended it over
the vessels and crews of the United States on the high seas
and in foreign ports, and even over citizens of the United
States resident in China; and has established judicatures, with
power to inflict even capital punishment within that country.
If, then, this clause does contain a power to legislate
respecting the territory, what are the limits of that power?
To this I answer, that, in common with all the other
legislative powers of Congress, it finds limits in the express
prohibitions on Congress not to do certain things; that, in the
exercise of the legislative power, Congress cannot pass an ex
post facto law or bill of attainder; and so in respect to each
of the other prohibitions contained in the Constitution.
Besides this, the rules and regulations must be needful.
But undoubtedly the question whether a particular rule or
regulation be needful, must be finally determined by Congress
itself. "Whether a law be needful, is a legislative or political,
DECEMBER TERM, 1856.
615
Dred Scott v. Sandford. [Me. Justice Cuktis.
not a judicial, question. "Whatever Congress deems needful
is so, under the grant of power.
ISTor am I aware that it has ever been questioned that laws
providing for the temporary government of the settlers on the
public lands are needful, not only to prepare them for admission
to the Union as States, but even to enable the United States
to dispose of the lands.
Without government and social order, there can be no
property; for without law, its ownership, its use, and the
power of disposing of it, cease to exist, in the sense in which
those words are used and understood in all civilized States.
Since, then, this power was manifestly conferred to enable
the United States to dispose of its public lands to settlers, and
to admit them into the Union as States, when in the judgment
of Congress they should be fitted therefor, since these were
the needs provided for, since it is confessed that Government
is indispensable to provide for those needs, and the power
is, to make all needful rules and regulations respecting the
territory, I cannot doubt that this is a power to govern the
inhabitants of the territory, by such laws as Congress deems
needful, until they obtain admission as States.
Whether they should be thus governed solely by laws
enacted by Congress, or partly by laws enacted by legislative
power conferred by Congress, is one of those questions which
depend on the judgment of Congress—a question which of
these is needful.
But it is insisted, that whatever other powers Congress may
have respecting the territory of the United States, the subject
of negro slavery forms an exception.
The Constitution declares that Congress shall have power
to make "all needful rules and regulations" Respecting the
territory belonging to the United States.
The assertion is, though the Constitution says all, it does
not mean all—though it says all, withont qualification, it
means all except such as allow or prohibit slavery. It cannot
be. doubted that it is incumbent on those who would thus
introduce an exception not found in the language of the
instrument, to exhibit some solid and satisfactory reason,
drawn from the subject-matter or the purposes and objects
of the clause, the context, or from other provisions of the
Constitution, showing that the words employed in this clause
are not to be understood according to their clear, plain, and
natural signification.
The subject-matter is the territory of the United States
out of the limits of every State, and consequently under the
exclusive power of the people of the United States. Their
616
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
will respecting it, manifested in the Constitution, can bo
subject to no restriction. The purposes and objects of tlie
clause were the enactment of laws concerning the disposal of
the public lands, and the temporary government of the settlers
thereon until new States should be formed. It will not be
questioned that, when the Constitution of the United States
was framed and adopted, the allowance and the prohibition of
negro slavery were recognised subjects of municipal legisla¬
tion; every State had in some measure acted thereon; and
the only legislative act concerning the territory—the ordinance
of 1787, which had then so recently been passed—contained a
prohibition of slavery. The purpose and object of the clause
being to enable Congress to provide a body of municipal law
for the government of the settlers, the allowance or the prohi¬
bition of slavery comes within the known and recognised scope
of that purpose and object.
There is nothing in the context which qualifies the grant of
power. The regulations must be "respecting the territory."
An enactment that slavery may or may not exist there, is a
regulation respecting the territory. Regulations must be
needful; but it is necessarily left to the legislative discretion
to determine whether a law be needful. No other clause of
the Constitution has been referred to at the bar, or has been
seen by me, which imposes any restriction or makes any
exception concerning the power of Congress to allow or pro¬
hibit slavery in the territory belonging to the United States.
A practical construction, nearly contemporaneous with the
adoption of the Constitution, and continued by repeated
instances through a long series of years, may always influence,
and in doubtful cases should determine, the judicial mind, on
a question of the interpretation of the Constitution. (Stuart
v. Laird, 1 Cranch, 269; Martin v. Hunter, 1 Wheat., 304;
Cohens v. Virginia, 6 "Wheat., 264; Prigg v. Pennsylvania, 16
Pet., 621; Cooley v. Port Wardens, 12 How., 315.)
In this view, I proceed briefly to examine the practical con¬
struction placed on the clause now in question, so far as it re¬
spects the inclusion therein of power permit or prohibit
slavery in the Territories.
It has already been stated, that after the Government of the
United States was organized under the Constitution, the tem¬
porary Government of the Territory northwest of the river
Ohio could no longer exist, save under the powers conferred
on Congress by the Constitution. Whatever legislative, judi¬
cial, or executive authority should be exercised therein could
be derived only from the people of the United States under
the Constitution. And, accordingly, an act was passed on the
DECEMBER TERM, 1856.
617
' Dred Scott v. Sandford. [Me. Justice Cuetis.
7 th day of August, 1789, (1 Stat, at Large, 50,) which, recites:
"Whereas, in order that the ordinance of the "United States in
Congress assembled, for the government of the territory north¬
west of the river Ohio, may continue to have full effect, it is re¬
quired that certain provisions should he made, so as to adapt
the same to the present Constitution of the United States."
It then provides for the appointment by the President of all
officers, who, by force of the ordinance, were to have been ap¬
pointed by the Congress of the Confederation, and their com¬
mission in the manner required by the Constitution; and em¬
powers the Secretary of the Territory to exercise the powers
of the Governor in case of the death or necessary absence of
the latter.
Here is an explicit declaration of the will of the first Con¬
gress, of which fourteen members, including Mr. Madison, had
been members of the Convention which framed the Constitu¬
tion, that the ordinance, one article of which prohibited sla¬
very, "should continue to have full effect." Gen. Washington,
who signed this bill, as President, was the President of that
Convention.
It does not appear to me to be important, in this connection,
that that clause in the ordinance which prohibited slavery was
one of a series of articles of what is therein termed a compact.
The Congress of the Confederation had no power to make such
a compact, nor to act at all on the subject; and after what had
been so recently said by Mr. Madison on this subject, in the
thirty-eighth number of the Federalist, I cannot suppose that
he, or any others who voted for this bill, attributed any intrin¬
sic effect to what was denominated in the ordinance a compact
between "the original States and the people and States in the
new territory;" there being no new States then in existence
in the territory, with whom a compact could be made, and the
few scattered inhabitants, unorganized into a political body,
not being capable of becoming a party to a treaty, even if the
Congress of the Confederation had had power to make one
touching the government of that territory.
I consider the passage of this law to have been an assertion
by the first Congress of the power of the United States to pro¬
hibit slavery within this part of the territory of the United
States; for it clearly shows that slavery was thereafter to be
prohibited there, and it could he prohibited only by an exer¬
tion of the power of the United States, under the Constitution;
no other power being capable of operating within that terri-
toiy after the Constitution took effect.
On the 2d of April, 1790, (1 Stat, at Large, 106,) the first
Congress passed an act accepting a deed of cession by Uorth
618
SUPREME COURT.
Mr. Justice Curtis.] Dred Soott v. Sandford.
Carolina of that territory afterwards erected into the State of
Tennessee. The fourth express condition contained in this
deed of cession, after providing that the inhabitants of the Ter¬
ritory shall be temporarily governed in the same manner as
those beyond the Ohio, is followed by these words: "Provided,
always, that no regulations made or to be made by Congress
shall tend to emancipate slaves."
This provision shows that it was then understood Congress
might make a regulation prohibiting slavery, and that Con¬
gress might also allow it to continue to exist in the Territory;
and accordingly, when, a few days later, Congress passed the
act of May 20th, 1T90, (1 Stat, at Large, 123,) for the govern¬
ment of the Territory south of the river Ohio, it provided,
"and the Government of the Territory south of the Ohio shall
be similar to that now exercised in the Territory northwest of
the Ohio, except so far as is otherwise provided in the condi¬
tions expressed in an act of Congress of the present session,
entitled, 'An act to accept a cession of the claims of the State
of ISTorth Carolina to a certain district of western territory.'"
Under the Government thus established, slavery existed until
the Territory became the State of Tennessee.
On the 7th of April, 1798, (1 Stat, at Large, 649,) an act was
passed to establish a Government in the Mississippi Territory
in all respects like that exercised in the Territory northwest of
the Ohio, "excepting and excluding the last article of the ordi¬
nance made for the government thereof by the late Congress,
on the 13th day of July, 1787." When the limits of this Ter¬
ritory had been amicably settled with Georgia, and the latter
ceded all its claim thereto, it was one stipulation in the com¬
pact of cession, that the ordinance of July 13th, 1787, "shall
in all its parts extend to the Territory contained in the present
act of cession, that article only excepted which forbids slavery."
The Government of this Territory was subsequently established
and organized under the act of May 10th, 1800; but so much
of the ordinance as prohibited slavery was not put in operation
there.
Without going minutely into the details of each case, I will
now give reference to two classes of acts, in one of which Con¬
gress has extended the ordinance of 1787, including the article
prohibiting slavery, over different Territories, and thus exerted
its power to prohibit it; in the other, Congress has erected
Governments over Territories acquired from Erance and Spain,
in which slavery already existed, but refused to apply to them
that part of the Government under the ordinance which ex¬
cluded slavery.
Of the first class are the act of May 7th, 1800, (2 Stat, at
DECEMBER TERM, 1856.
619
Dred Scott v. Sandford. {Mb, Justice Curtis.
Large, 58,) for the government of the Indiana Territory; the
act of January 11th, 1805, (2 Stat, at Large, 309,) for the govern¬
ment of Michigan Territory; the act of May 3d, 1809, (2 Stat,
at Large, 514,) for the government of the Illinois Territory;
the act of April 20th, 1836, (5 Stat, at Large, 10,) for the gov¬
ernment of the Territory of Wisconsin; the act of June 12th,
1838, for the government of the Territory of Iowa; the act of
August 14th, 1848, for the government of the Territory 6f
Oregon. To these instances should he added the act of March
6th, 1820, (3 Stat, at Large, 548,) prohibiting slavery in the
territory acquired from France, being northwest of Missouri,
and north of thirty-six degrees thirty minutes north latitude.
Of the second class, in which Congress refused to interfere
with slavery already existing under the municipal law of France
or Spain, and established Governments by which slavery wa§
recognised and allowed, are: the act of March 26th, 1804, (2
Stat, at Large, 283,) for the government of Louisiana; the act
of March 2d, 1805, (2 Stat, at Large, 322,) for the government
of the Territory of Orleans; the act of June 4th, 1812, (2 Stat,
at Large, 743,) for the government of the Missouri Territory;
the act of March 30th, 1822, (3 Stat, at Large, 654,) for the
government of the Territory of Florida. Here are eight dis¬
tinct instances, beginning with the first Congress, and coming
down to the year 1848, in which Congress has excluded slavery
from the territory of the United States; and six distinct instan¬
ces in which Congress organized Governments of Territories
by which slavery was recognised and continued, beginning also
with the first Congress, and coming down to the year 1822.
These acts were severally signed by seven Presidents of the
United States, beginning with General Washington, and coming
regularly down as far as Mr. John Quincy Adams, thus in¬
cluding all who were in public life when the Constitution was
adopted.
If the practical construction of the Constitution contempo¬
raneously with its going into effect, by men intimately ac¬
quainted with its history from their personal participation in
framing and adopting it, and continued by them through a
long series of acts of the gravest importance, be entitled to
weight in the judicial mind on a question of construction, it
would seem to be difficult to resist the force of the acts above
adverted to.
It appears, however, from what has taken place at the bar,
that notwithstanding the language of the Constitution, and the
long line of legislative and executive precedents under it, three
different and opposite views are taken of the power of Congress
respecting slavery in the Territories.
620
SUPREME COURT.
Me. Justice Curtis.] Dred Scott v. Sand/ord.
One is, that though Congress can make a regulation pro¬
hibiting slavery in a Territory, they cannot make a regulation
allowing it; another is, that it can neither be established nor pro¬
hibited by Congress, but that the people of a Territory, when
, organized by Congress, can establish or prohibit slavery; while
the third is, that the Constitution itself secures to every citizen
who holds slaves, under the laws of any State, the indefeasible
right to carry them into any Territory, and there hold them as
property.
Uo particular clause of the Constitution has been referred to
at the bar in support of either of these views. The first seems
to be rested upon general considerations concerning the social
and moral evils of slavery, its relations to republican Govern¬
ments, its inconsistency with the Declaration of Independence
and with natural right.
The second is drawn from considerations equally general,
concerning the right of self-government, and the nature of the
political institutions which have been established by the people
of the United States.
"While the third is said to rest upon the equal right of all
citizens to go with their property upon the public domain, and
the inequality of a regulation which would admit the proj>erty
of some and exclude the property of other citizens; and, inas¬
much as slaves are chiefly held by citizens of those particular
States where slavery is established, it is insisted that a regu¬
lation excluding slavery from a Territory operates, practically,
to make an unjust discrimination between citizens of different
States, in respect to their use and enjoyment of the territory
of the United States.
With the weight of either of these considerations, when pre¬
sented to Congress to influence its action, this court has no
concern. One or the other may be justly entitled to guide or
control the legislative judgment upon what is a needful regu¬
lation. The question here is, whether they are sufficient to
authorize this court to insert into this clause of the Constitu¬
tion an exception of the exclusion or allowance of slavery, not
found therein, nor in any other part of that instrument. To
engraft on any instrument a substantive exception not found
in it, must be admitted to be a matter attended with great diffi¬
culty. And the difficulty increases with the importance of the
instrument, and the magnitude and complexity of the interests
involved in its construction. To allow this to be done with
the Constitution, upon reasons purely political, renders its ju¬
dicial interpretation impossible—because judicial tribunals, as
such, cannot decide upon political considerations. Political
reasons have not the requisite certainty to afford rules of ju-
DECEMBER TERM, 1856.
621
Dred Scott v. Sandford. [Mr. Justice Curtis.
ridical interpretation. They are different in different men.
They are different in the same men at different times. And
when a strict interpretation of the Constitution, according to
the fixed rules which govern the interpretation of laws, is
abandoned, and the theoretical opinions of individuals are al¬
lowed to control its meaning, we have no longer a Constitution;
we are under the government of individual men, who for the
time being have power to declare what the Constitution is, ac¬
cording to their own views of what it ought to mean. "When
such a method of interpretation of the Constitution obtains, in
place of a republican Government, with limited and defined
powers, we have a Government which is merely an exponent
of the will of Congress; or what, in my opinion, would not be
preferable, an exponent of the individual political opinions of
the members of this court.
If it can be shown, by anything in the Constitution itself,
that when it confers on Congress the power to make all need¬
ful rules and regulations respecting the territory belonging to
the United States, the exclusion or the allowance of slavery
was excepted; or if anything in the history of this provision
tends to show that such an exception was intended by those
who framed and adopted the Constitution to be introduced
into it, I hold it to be my duty carefully to consider, and to
allow just weight to such considerations in interpreting the
positive text of the Constitution. But where the Constitution
has said all needful rules and regulations, I must find some¬
thing more than theoretical reasoning to induce me to say it
did not mean all.
There have* been eminent instances in this court closely
analogous to this one, in which such an attempt to introduce
an exception, not found in the Constitution itself, has failed
of success.
By the eighth section of the first article, Congress has the
power of exclusive legislation in all cases whatsoever within
this District.
In the case of Loughborough v. Blake, (5 "Whea., 324,) the
question arose, whether Congress has power to impose direct
taxes on persons and property in this District. It was insisted,
that though the grant of power was in its terms broad enough
to include direct taxation, it must be limited by the principle,
that taxation and representation are inseparable. It would not
be easy to fix on any political truth, better established or more
fully admitted in our country, than that taxation and repre¬
sentation must exist together. We went into the war of the
Revolution to assert it, and it is incorporated as fundamental
into all American Governments. But however true and im-
622
SUTREME COURT.
Mk. Justice Curtis.] Bred Scott v. Sand/ord.
portant this maxim may be, it is not necessarily of universal
application. It was for the people of the United States, who
ordained the Constitution, to decide whether it should or
should not be permitted to operate within this District. Their
decision was embodied in the words of the Constitution; and
as that contained no such exception as would permit the maxim
to operate in this District, this court, interpreting that language,
held that the exception did not exist.
Agam, the Constitution confers on Congress power to regu¬
late commerce with foreign nations. Under Jhis, Congress
passed an act on the 22d of December, 1807, unlimited in
duration, laying an embargo on all ships and vessels in the
ports or within the limits and jurisdiction of the United States.
Uo law of the United States ever pressed so severely upon
particular States. Though the constitutionality of the law
was contested with an earnestness and zeal proportioned to
the ruinous effects which were felt from it, and though, as Mr.
Chief Justice Marshall has said, (9 Wheat., 192,) "a want of
acuteness in discovering objections to a measure to which they
felt the most deep-rooted hostility will not be imputed to those
who were arrayed in opposition to this," I am not aware that
the fact that it prohibited the use of a particular species of
property, belonging almost exclusively to citizens of a few
States, and this indefinitely, was ever supposed to show that it
was unconstitutional. Something much more stringent, as a
ground of legal judgment, was relied on—that the power to
regulate commerce did not include the power to annihilate
commerce.
But the decision was, that under the power to*regulate com¬
merce, the power of Congress over the subject was restricted
only by those exceptions and limitations contained in the Con¬
stitution ; and as neither the clause in question, •which was a
general grant of power to regulate commerce, nor any other
clause of the Constitution, imposed any restrictions as to the
duration of an embargo, an unlimited prohibition of the use of
the shipping of the country was within the power of Congress.
On this subject, Mr. Justice Daniel, speaking for the court in
the case-of United States v. Marigold,. (9 How., 560,) says:
"Congress are, by the Constitution, vested with the power
to regulate commerce with foreign nations; and however, at
periods of high excitement, an application of the terms 'to
regulate commerce,' such as would embrace absolute prohi¬
bition, may have been questioned, yet, since the passage of the
embargo and non-intercourse laws, and the repeated judicial
sanctions these statutes have received, it can scarcely at this
day be open to doubt, that every subject falling legitimately
DECEMBER TERM, 1856.
623
jDred Scott v. Sandford. [Mr. Justice Curtis.
within the sphere of commercial regulation may be partially
or wholly excluded, when either measure shall be demanded
by the safety or the important interests of the entire nation.
The power once conceded, it may operate on any and every
subject of commerce to which the legislative discretion may
apply it."
If power to regulate commerce extends to an indefinite pro¬
hibition of the use of all vessels belonging to citizens of the
several States, and may operate, without exception, upon every
subject of commerce to which the legislative discretion may
apply it, upon what grounds can 1 say that power to make all
needful rules and regulations respecting the territory of the
United States is subject to an exception of the allowance or
prohibition of slavery therein ?
While the regulation is one "respecting the territory," while
it is, in the judgment of Congress, "a needful regulation," and
is thus completely within the words of the grant, while no
other clause of the Constitution can be shown, which requires
the insertion of an exception respecting slavery, and while the
practical construction for a period of upwards of fifty years for¬
bids such an exception, it would, in my opinion, violate every
sound rule of interpretation to force that exception into the
Constitution upon the strength of abstract political reasoning;
which we are bound to believe the people of the United States
thought insufficient to induce them to limit the power of Con¬
gress, because what they have said contains no such limita¬
tion.
Before I proceed further to notice /some other grounds of
supposed objection to this power of Congress, I desire to say,
that if it were not for my anxiety to insist upon what I deem
a correct exposition of the Constitution, if I looked only to the
purposes of the argument, the source of the power of Congress
asserted in the opinion of the majority of the court would an¬
swer those purposes equally well. For they admit that Con¬
gress has power to organize and govern the Territories until
they arrive at a suitable condition for admission to the Union;
they admit', also, that the kind of Government which shall thus
exist should be regulated by the condition and wants of each
Territory, and that it is necessarily committed to the discre¬
tion of Congress to enact such laws for that purpose as that
discretion may dictate; and no limit to that discretion has been
shown, or even suggested, save those positive prohibitions to
legislate, which are found in the Constitution.
I confess myself unable to perceive any difference whatever
between my own opinion of the general extent of the power of
Congress and the opinion of the majority of the court, save
624
SUPEEME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
that I consider it derivable from the express language of the
Constitution, while they hold it to be silently implied from the
poAver to acquire territory. Looking at the power of Congress
over the Territories as of the extent just described, what posi¬
tive prohibition exists in the Constitution, which restrained
Congress from enacting a law in 1820 to prohibit slavery north
of thirty-six degrees thirty minutes north latitude ?
The only one suggested is that clause in the fifth article of
the amendments of the Constitution which declares that no
person shall be deprived of his life, liberty, or property, vvitli-
out due process of law. I will now proceed to examine the
question, whether this clause is entitled to the effect thus at¬
tributed to it. It is necessary, first, to have a clear view of
the nature and incidents of that particular species of property
which is now in question.
Slavery, being contrary to natural right, is created only by
municipal law. This is not only plain in itself, and agreed by
all AA7riters on the subject, but is inferable from the Constitu¬
tion, and has been explicitly declared by this court. The Con¬
stitution refers to sla\7es as "persons held to service in one
State, under the laws thereof." Nothing can more clearly de¬
scribe a status created by municipal law. In Prigg v. Pennsyl¬
vania, (10 Pet., 611,) this court said: "The state of slavery is
deemed to be a mere municipal regulation, founded on and
limited to the range of territorial laws." In Rankin v. Lydia,
(2 Marsh., 12, 470,). the Supreme Court of Appeals of Ken¬
tucky said: "Slavery is sanctioned by the laws of this State,
and the right to hold them under our municipal regulations is
unquestionable. Rut we-view this as a right existing by posi¬
tive law of a municipal character, without foundation in the
law of.nature or the unwritten common law." I am not ac¬
quainted with any case or writer questioning the correctness
of this doctrine. (See also 1 Burge, Col. and For. Laws, 788—
741, where the authorities are collected.)
The status of slavery is not necessarily always attended with
the same powers on the part of the master. The master is sub¬
ject to the supreme power of the State, whose will controls his
action towards his slave, and this control must be defined and
regulated by the municipal law. In one State, as at one period
of the Roman law, it may put the life of the slave into the hand
of the master; others, as those of the United States, which tol¬
erate slavery, may treat the slave as a person, when the mas¬
ter takes his life; while in others, the law may recognise a
right of the slave to be protected from cruel treatment. In
other words, the status of slavery embraces every condition,
from that in which the slave is known to the law simply as a
DECEMBER TERM, 1856.
625
Dred Scott v. Sandford. [Mr. Justice Curtis.
chattel, with no civil rights, to that in which he is recognised
as a person for all purposes, save the compulsory power of
directing and receiving the fruits of his labor. Which of these
conditions shall attend the status of slavery, must depend on
the municipal law which creates and upholds it.
And not only must the status of slavery be created and
measured by municipal law, but the rights, powers, and obli¬
gations, which grow out of that status, must be defined, pro¬
tected, and enforced, by such laws. The liability of the mas¬
ter for the torts and crimes of his slave, and of third persons
for assaulting or injuring or harboring or kidnapping him,
the forms and modes of emancipation and sale, their subjec¬
tion to the debts of the master, succession by death of the mas¬
ter, suits for freedom, the capacity of the slave to be party to a
suit, or to be a witness, with such police regulations as have
existed in all civilized States where slavery has been tolerated,
are among the subjects upon which municipal legislation be¬
comes necessary when slavery is intrgduced.
Is it conceivable that the Constitution has conferred the
right on every citizen to become a resident on the territory
of the United States with his slaves, and there to hold them
as such, but has neither made nor provided for any municipal
regulations which are essential to the existence of slavery?
Is it not more rational to conclude that they who framed
and adopted the Constitution were aware that persons held to
service under the laws of a State are property only to the
extent and under the conditions fixed by those laws; that they
must cease to be available as property, when their owners
voluntarily place them permanently within another jurisdic¬
tion, where no municipal laws on the subject of slavery exist;
and that, being aware of these principles, and having said
nothing to interfere with or displace them, or to compel
Congress to legislate in any particular manner on the subject,
and having empowered Congress to make all needful rules
and regulations respecting the territory of the United States,
it was their intention to leave to the discretion of Congress
what regulations, if any, should be made concerning slavery
therein? Moreover, if the right exists, what are its limits,
and what are its conditions ? If citizens of the United States
have the right to take their slaves to a Territory, and hold
them there as slaves, without regard to the laws of the Terri¬
tory, I suppose this right is not to be restricted to the citizens
of slaveholding States. A citizen of a State which does not
tolerate slavery can hardly be denied the power of doing the
same thing. And what law of slavery does either take with
him to the Territory? If it be said to be those laws respecting
G26
SUPREME COURT.
» Mr. Justice Curtis.] Dred Scott v. Sandford.
slavery which existed in the particular State from which each
slave last came, what an anomaly is this ? "Where else can we
find, under the law of any civilized country, the power to
introduce and permanently continue diverse systems of foreign
municipal law, for holding persons in slavery? I say, not
merely to introduce, but permanently to continue, these anom¬
alies. For the offspring of the female must be governed by
the foreign municipal laws to which the mother was subject;
and when any slave is sold or passes by succession on the
death of the owner, there must pass with him, by a species of
subrogation, and as a kind of unknown jus in re, the foreign
municipal laws which constituted, regulated, and preserved,
the status of the slave before his exportation. Whatever theo¬
retical importance may be now supposed to belong to the
maintenance of such a right, I feel a perfect conviction that it
would, if ever tried, prove to be as impracticable in fact, as it
is, in my judgment, monstrous in theory.
I consider the assumption which lies at the basis of this
theory to be unsound; not in its just sense, and when properly
understood, but in the sense which has been attached to it.
That assumption is, that the territory ceded by France was
acquired for the equal benefit of all the citizens of the United
States. I agree to the position. Rut it was acquired for their
benefit in their collective, not their individual, capacities.
It was acquired for their benefit, as an organized political
society, subsisting as "the people of the United States," under
the Constitution of the United States; to be administered
justly and impartially, and as nearly as possible for the equal
benefit of every individual citizen, according to the best judg¬
ment and discretion of the Congress; to whose power, as the
Legislature of the nation which acquired it, the people of the
United States have committed its administration. Whatever
individual claims may be founded on local circumstances, or
sectional differences of condition, cannot, in my opinion, be
recognised in this court, without arrogating to the judicial
branch of the Government powers not committed to it; and
which, with all the unaffected respect I feel for it, when acting
in its proper sphere, I do not think it fitted to wield.
Uor, in my judgment, will the position, that a prohibition
to bring slaves into a Territory deprives any one of his
property without due process of law, bear examination.
It must be remembered that this restriction on the legisla¬
tive power is not peculiar to the Constitution of the United
States; it was borrowed from Magna, Charta; was brought to
America by our ancestors, as part of their inherited liberties,
and has existed in all the States, usually in the very words of
DECEMBER TERM, 1856.
627
Dred Scott v. Sandford. [Ma. Justice Curtis.
the great charter. It existed in every political community in
America in 1787, when the ordinance prohibiting slavery north
and west of the Ohio was passed.
And if a prohibition of slavery in a Territory in 1820 violated
this principle of Magna Charta, the ordinance of 1787 also
violated it; and what power had, I do not say the Congress
of the Confederation alone, but the Legislature of Yirginia,
or the Legislature of any or all the States of the Confederacy,
to consent to such a violation ? The people of the States had
conferred no such power. I think I may at least say, if the
Congress did then violate Magna Charta by the ordinance, no
one discovered that violation. Besides, if the prohibition upon
all persons, citizens as well as others, to bring slaves into a
Territory, and a declaration that if brought they shall be free,
deprives citizens of their property without due process of law,
what shall we say of the legislation of many of the slavehold-
ing States which have enacted the same prohibition ? As early
as October, 1778, a law was passed in Yirginia, that thereafter
no slave should be imported into that Commonwealth by sea
or by land, and that every slave who should be imported
should become free. A citizen of Yirginia purchased in Mary¬
land a slave who belonged to another citizen of Yirginia, and
removed with the slave to Yirginia. The slave sued for her
freedom, and recovered it; as may be seen in Wilson v. Isabel,
(5 Call's R., 425.) See also Hunter v. Hulsher, (1 Leigh, 172;)
and a similar law has been recognised as valid in Maryland,
in Stewart v. Oaks, (5 liar, and John., 107.) I am not aware
that such laws, though they exist in many States, were ever
supposed to be in conflict with the principle of Magna Charta
incorporated into the State Constitutions. It was certainly
understood by the Convention which framed the Constitution,
and has been so understood ever since, that, under the power
to regulate commerce, Congress could prohibit the importation
of slaves; and the exercise of the power was restrained till
1808. A citizen of the United States owns slaves in Cuba,
and brings them to the United States, where they are set free
by the legislation of Congress. Does this legislation deprive
him of his property without due process of law ? If so, what
becomes of the laws prohibiting the slave trade ? If not, how
can a similar regulation respecting a Territory violate the fifth
amendment of the Constitution ?
Some reliance was placed by the defendant's counsel upon
the fact that the prohibition of slavery in this territory was in
the words, "that slavery, &c., shall be and is hereby forever
prohibited." But the insertion of the word forever can have
no legal effect. Every enactment not expressly limited in its
G28
SUPREME COURT.
Mb. Justice Curtis.] Dred Scott v. Sand/ord.
duration continues in force until repealed or abrogated by
some competent power, and the use of tbe word "forever"
can give to the law no more durable operation. The argu¬
ment is, that Congress cannot so legislate as to bind the future
States formed out of the territory, and that in this instance it
has attempted to do so. Of the political reasons which may
have induced the Congress to use these words, and which
caused them to expect that subsequent Legislatures would
conform their action to the then general opinion of the coun¬
try that it ought to be permanent, this court can take no
cognizance.
However fit such considerations are to control the action of
Congress, and however reluctant a statesman may be to dis¬
turb what has been settled, every law made by Congress may
be repealed, and, saving private rights, and public rights gained
by States, its repeal is subject to the absolute will of the same
power which enacted it. If Congress had enacted that the
crime of murder, committed in this Indian Territory, north of
thirty-six degrees thirty minutes, by or on any white man,
should forever be punishable with death, it would seem to me
an insufficient objection to an indictment, found while it was
a Territory, that at some future day States might exist there,
and so the law was invalid, because, by its terms, it was to
continue in force forever. Such an objection rests upon a
misapprehension of the province and power of courts respect¬
ing the constitutionality of laws enacted by the Legislature.
If the Constitution prescribe one rule, and the law another
and different rule, it is the duty of courts to declare that
the Constitution, and not the law, governs the case before
them for judgment. If the law include no case save those for
which the Constitution has furnished a different rule, or no
case which the Legislature has the power to govern, then the
law can have no operation. If it includes cases which the
Legislature has power to govern, and concerning which the
Constitution does not prescribe a different rule, the law gov¬
erns those cases, though it may, in its terms, attempt to in¬
clude others, on which it cannot operate. In other words,
this court cannot declare void an act of Congress which con¬
stitutionally embraces some cases, though other cases, within
its terms, are beyond the control of Congress, or beyond the
reach of that particular law. If, therefore, Congress had
power to make a law excluding slavery from this territory
while under the exclusive power of the United States, the
use of the word "forever" does not invalidate the law, so
long as Congress has the exclusive legislative power in the
territory.
DECEMBER TERM, 1856.
620
Dred Scott v. Sandford. [Mr. Justice Curtis.
But it is further insisted that the treaty of 1803, between
the United States and France, by which this territory was
acquired, has so restrained the constitutional powers of Con¬
gress, that it cannot, by law, prohibit the introduction of
slavery into that part of this territory north and west of Mis¬
souri, and north of thirty-six degrees thirty minutes north
latitude.
By a treaty with a foreign nation, the United States may
rightfully stipulate that the Congress will or will not exercise
its legislative power in some particular manner, on some par¬
ticular subject. Such promises, when made, should be volun¬
tarily kept, with the most scrupulous good faith. But that a
treaty with a foreign nation can deprive the Congress of any
part of the legislative power conferred by the people, so that
it no longer can legislate as it was empowered by the Consti¬
tution to do, I more than doubt.
The powers of the Government do and must remain unim¬
paired. The responsibility of the Government to a foreign
nation, for the exercise of those powers, is quite another mat¬
ter. That responsibility is to be met, and justified to the for¬
eign nation, according to the requirements of the rules of
public law; but never upon the assumption that the United
States had parted with or restricted any power of acting ac¬
cording to its own free will, governed solely by its own appre¬
ciation of its duty.
The second section of the fourth article is, "This Constitu¬
tion, and the laws of the [Jnited States which shall be made in
pursuance thereof, and all treaties made or which shall be-
made under the authority of the United States, shall be the
supreme law of the land." This has made treaties part of our
municipal law; but it has not assigned to them any particular
degree of authority, nor declared that laws so enacted shall be
irrepealable. IsTo supremacy is assigned to treaties over acts
of Congress. That they are not perpetual, and must be in
some way repealable, all will agree.
If the President and the Senate alone possess the power to
repeal or modify a law found in a treaty, inasmuch as they
oan change or abrogate one treaty only by making ai;other in¬
consistent with the first, the Government of the United States
could not act at all, to that effect, without the consent of some
foreign Government. I do not consider, I am not aware it has
ever been considered, that the Constitution has placed our
country in this helpless condition. The action of Congress in
repealing the treaties with France by the act of July 7th, 1798,
(1 Stat, at Large, 578,) was in conformity with these views.
In the case of Taylor et al. v. Morton, (2 Curtis's Cir. Ct. R.,.
630
SUPREME COURT.
Mr. Justice Curtis.] Dred Scott v. Sandford.
454,) I had occasion to consider this subject, and I adhere to
the views there expressed.
If, therefore, it were admitted that the treaty between the
United States and France did contain an express stipulation
that the United States would not exclude slavery from so
much of the ceded territory as is now in question, this court
could not declare that an act of Congress excluding it -was
void by force of the treaty. "Whether or no a case existed
sufficient to justify a refusal to execute such a stipulation,
would not be a judicial, but a political and legislative question,
wholly beyond the authority of this court to try and determine.
It would belong to diplomacy and legislation, and not to the
administration of existing laws. Such a stipulation in a treaty,
to legislate or not to legislate in a particular way, has been re¬
peatedly held 'in this court to address itself to the political or
the legislative power, by whose action thereon this court is
bound. (Foster v. FTieoison, 2 Peters, 314; Garcia v. Lee, 12
Peters, 519.)
But, in my judgment, this treaty contains no stipulation in
any manner affecting the action of the United States respecting
the territory in question. Before examining the language of
the treaty, it is material to bear in mind that the part of the
ceded territory lying north of thirty-six degrees thirty minutes,
and west and north of the present State of Missouri, was then
a wilderness, uninhabited save by savages, whose possessory
title had not then been extinguished.
It is impossible for me to conceive on what ground France
could have advanced a claim, or could have desired to advance
a claim, to restrain the United States from making any rules
and regulations respecting this territory, which the United
States might think fit to make; and still less can I conceive
of any reason which would have induced the United States to
yield to such a claim. It was to be expected that France
would desire fo make the change of sovereignty and jurisdic¬
tion as little burdensome as possible to the then inhabitants
of Louisiana, and might well exhibit even an anxious solici¬
tude to protect their property and persons, and secure to them
and their posterity their religious and political rights; and tbc
United States, as a just Government, might readily accede to
all proper stipulations respecting those who were about to
have their allegiance transferred. But what interest France
could have in uninhabited territory, which, in the language of
the treaty, was to be transferred "forever, and in full sover¬
eignty,'' to the United States, or how the United States could
consent to allow a foreign nation to interfere in its purely
internal affairs, in which that foreign nation had no concern
DECEMBER TERM, 1856.
631
Dred Scott v. Sandford. [Mr. Justice Curtis.
whatever, is difficult for me to conjecture. In my judgment,
this treaty contains nothing of the kind.
The third article is supposed to have a bearing on the ques¬
tion. It is as follows: "The inhabitants of the ceded territory
shall be incorporated in the Union of the United States, and
admitted as soon as possible, according to the principles of the
Federal Constitution, to the enjoyment of all the rights, advan¬
tages, and immunities, of citizens of the United States; and in
the mean time they shall be maintained and protected in the
enjoyment of their liberty, property, and the religion they pro¬
fess."
There are two views of this article, each of which, I think,
decisively shows that it was not intended to restrain the Con¬
gress from excluding slavery from that part of the ceded terri¬
tory then uninhabited. The first is, that, manifestly, its sole
object was to protect individual rights of the then inhabitants
of the territory. They are to be "maintained and protected
in the free enjoyment of their liberty, property, and the re¬
ligion they profess." But this article does not secure to them
the right to go upon the public domain ceded by the treaty,
either with or without their slaves. The right or power of
doing this did not exist before or at the time the treaty was
made. The French and Spanish Governments while they
held the country, as well as the United States when they ac¬
quired it, always exercised the undoubted right of excluding
inhabitants from the Indian country, and of determining when
and on what conditions it should be bpened to settlers. And
a stipulation, that the then inhabitants of Louisiana should be
protected in, their property, can have no reference to their use
of that property, where they had no right, under the treaty, to
go with it, save at the will of the United States. If one who
was an inhabitant of Louisiana at the time of the treaty had
afterwards taken property then owned by him, consisting of
fire-arms, ammunition, and spirits, and had gone into the In¬
dian country north of thirty-six degrees thirty minutes, to sell
them to the Indians, all must agree the third article of the
treaty would not have protected him from indictment under
the act of Congress of March 30, 1802, (2 Stat, at Large, 139,)
adopted and extended to this territory by the act of March 26,
1801, (2 Stat, at Large, 283.)
Besides, whatever rights were secured were individual rights.
If Congress should pass any law which violated such rights of
any individual, and those rights were of such a character as
not to be within the lawful control of Congress under the
Constitution, that individual could complain, and the act of
Congress, as to such rights of his, would be inoperative; but it
032
SUPREME COURT.
Mil. Justice Curtis.] Drcd Scott v. Sandford.
would be valid and operative as to all other persons, whose in¬
dividual rights did not come under the protection of the treaty.
And inasmuch as it does not appear that any inhabitant of
Louisiana, whose rights were secured by treaty, had been in¬
jured, it would be wholly inadmissible for this court to assume,
first, that one or more such cases may have existed; and, sec¬
ond, that if any did exist, the entire law was void—not only as
to those cases, if any, in which it could not rightfully operate,
but as to all others, wholly unconnected with the treaty, in
which such law could rightfully operate.
But it is quite unnecessary, in my opinion, to pursue this
inquiry further, because it clearly appears from the language
of the article, and it has been decided by this court, that the
stipulation was temporary, and ceased to have any effect when
the then inhabitants of the Territory of Louisiana, in whose
behalf the stipulation was made, were incorporated into the
Union.
In the cases of New Orleans v. De Armas et al., (9 Peters,
223,) the question was, whether a title to property, which ex¬
isted at the date of the treaty, continued to be protected by
the treaty after the State of Louisiana was admitted to the
Union. The third article of the treaty was relied on. Mr.
Chief Justice Marshall said: "This article obviously contem¬
plates two objects. One, that Louisiana shall be admitted into
the Union as soon as possible, on an equal footing with the
other States; and the other, that, till such admission, the in¬
habitants of the ceded territory shall be protected in the free
enjoyment of their liberty, property, and religion. Had any
one of these rights been violated while these stipulations con¬
tinued in force, the individual supposing himself to be injured
might have brought his case into this court, under the twenty-
fifth section of the judicial act. But this stipulation ceased to
operate when Louisiana became a member of the Union, and
its inhabitants were "admitted to the enjoyment of all the
rights, advantages, and immunities, of citizens of the United
States."
The cases of Chouteau v. Marguerita, (12 Peters, 507,) and
Permoli v. New Orleans, (3 How., 589,) are in conformity with
this view of the treaty.
To convert this temporary stipulation of the treaty, in be¬
half of French subjects who then inhabited a small portion of
Louisiana, into a permanent restriction upon the power of
Congress to regulate territory then uninhabited, and to assert
that it no.t only restrains Congress from affecting the rights of
property of the then inhabitants, but enabled them and all
other citizens of the United States to go into any part of the
DECEMBER TERM, 1856.
633
Dred Scott v. Sandford. [Mr. Justice Curtis.
ceded territory with their slaves, and hold them there, is a con¬
struction of this treaty so opposed to its natural meaning, and
so tar beyond its subject-matter and the evident design of the
parties, that I cannot assent to it. In my opinion, this treaty
has no bearing on the present question.
For these reasons, I am of opinion that so much of the sev¬
eral acts of Congress as prohibited slavery and involuntary ser¬
vitude within that part of the Territory of Wisconsin lying
north of thirty-six degrees thirty minutes north latitude, and
west of the river Mississippi, were constitutional and valid
laws.
I have expressed my opinion, and the reasons therefor, at
far greater length than I could have wished, upon the differ¬
ent questions on which I have found it necessary to pass, to
arrive at a judgment on the case at bar. These questions are
numerous, and the grave importance of some of them required
me to exhibit fully the grounds of my opinion. I have touch¬
ed no question which, in the view I have taken, it was not ab¬
solutely necessary for me to pass upon, to ascertain whether
the judgment of the Circuit Court should stand or be reversed.
I have avoided no question on which the validity of that judg¬
ment depends. To have done either more or less, would have
been inconsistent with my views of my duty.
In my opinion, the judgment of the Circuit Court should be
reversed, and the cause remanded for a new trial.