SUPREME COURT OF THE UNITED STATES.
No. 7.-DECEMBER TERM, 1856.
DREP SCOTT, (A Color:ED MAN,)
WS.
JOHN F. A., SANDFORD,
Argument of Montgomery Blair, of Counsel for the Plaintiff in
Error.
Giuson, Pºuter, 511 Ninth street, Washington, D, C,

SUPREME COURT OF THE UNITED STATES.
No. 7.-DECEMBER TERM, 1856.
DRED SCOTT, (A Color:ED MAN,)
WS.
JOHN F. A. SANDFORI).
Argument of Montgomery Blair, of Counsel for the Plaintiff in
Error.
STATEMENT OF THE CASE.
This is a suit brought to try the right to freedom of the plaintiff and
his wife Harriet, and his children Eliza and Lizzie. It was origi-
nally brought against the administratrix of Dr. Emerson, in the circuit
court of St. Louis county, Missouri, where the plaintiff recovered judg-
ment; but on appeal to the supreme court of the State, a majority of
that court, at the March term of 1852, reversed the judgment; when the
cause was remanded it was dismissed, and this suit, which is an action
of trespass for false imprisonment, was brought in the circuit court of
the United States for the district of Missouri, by the plaintiff, as a
“citizen” of that State, against the defendant, a “citizen” of the State
of New York, who had purchased him and his family since the com-
mencement of the suit in the State court.
The defendant denied, by plea in abatement, the jurisdiction of the
circuit court of the United States, on the ground that the plaintiff “is a
negro of African descent, his ancestors were of pure African blood, and
were brought into this country and sold as slaves,” and therefore the
plaintiff “is not a citizen of the State of Missouri.” To this plea the
plaintiff demurred, and the court sustained the demurrer.
Thereupon the defendant pleaded over, and justified the trespass on
the ground that the plaintiff and his family were his negro slaves; and
a statement of facts, agreed to by both parties, was read in evidence, as
follows: “In the year 1834, the plaintiff was a negro slave belonging

3.
to Dr. Emerson, who was a surgeon in the army of the United States.
In that year (1834) said Dr. Emerson took the plaintiff from the State
of Missouri to the military post at Rock Island, in the State of Illinois,
and held him there as a slave until the month of April, 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, situ-
ated on the west bank of the Mississippi river, in the territory known
as Upper Louisiana, acquired by the United States of France, and sit-
uate ºrth of the latitute of 35° 30′ north, and north ºf the State of
Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort
Snelling, until the year 1838.
“In the year 1835, Harriet, (who is named in the second count of
the plaintiff’s declaration,) was the slave of Major Taliaferro, who be:
longed 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 Fort Snelling
unto said Dr. Emerson, hereinbefore named; and 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 Snel-
ling, with the consent of said Dr. Emerson, who then claimed to be
their master and owner, intermarried, and took each other for husband
and wiſe. Eliza and Lizzie, named in the third count of the plain-
tiff’s declaration, are the fruit of that marriage. Eliza is about four-
teen years old, and was born on board the steamboat Gipsey, north of
the north line of the State of Missouri, and upon the Mississippi river;
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 defend-
ant as slaves, and the defendant claimed to hold 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,
Harrieſ, 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.”
On these facts, the court instructed the jury to find for the defend-
ants. The plaintiff excepted to the instructions. The jury found a
verdict for defendant, and judgment was rendered accordingly, on the
16th May, 1854. On-the 16th a writ of error issued, and the case was
brought up to the December term of 1854 of this court.
1. The first question is, whether this court will consider the question
raised in the circuit court, by the plea to the jurisdiction, no final
judgment having been rendered on the demurrer to that plea, and the
defendant having pleaded over after the demurrer was sustained, and

4.
the final judgment assigned for error having been rendered on the issue
on the merits?
2. Whether, if the ruling of the circuit court on the demurrer to the
plea in abatement is subject to be reviewed here, the judgment of the
court in holding the plaintiff to be “a citizen,” in such sense as to
enable him to maintain an action in that character in the courts of the
United Statates, was erroneous !
3. Whether the facts stated in the agreed case entitles the plaintiff
and his family to freedom, supposing the Sth section of the act of 1820,
known as the Missouri Compromise, to be constitutional?
4. Whether the said act is constitutional?
Whether the question of jurisdiction is waived by pleading over ?
1. In the case of Sheppard vs. Graves, 14 Howard, p 510, several pleas
in abatement were filed, and, among others, one to the jurisdiction,
on the ground that the plaintiſſ was a citizen of Texas, and not of
Louisiana, as alleged; pleas to the merits were aſterwards filed. The
court speaks of this as “a practice fraught with confusion and perplex-
ity, and one endangering the rights of suitors,” and which “it is ex-
ceedingly desirable should be reſormed; and we are aware of no stand-
ard of reformation and improvement more safe or more convenient
than that which is supplied by the time-tested rules of the common law.
And by one of those, believed to be without an exception, it is or-
dained, that objections to the jurisdiction of the court or to the com-
petency of the parties, are matters pleadable in abatement only; and
that if, after such matters relied on, a defence be interposed in bar, and
going to the merits of the controversy, the grounds alleged in abate-
ment became thereby immaterial, and are waived.” In the case of
the United States vs. Boyd, 5 Howard, page 51, the court say: “The
counsel for the defendants ask the court to revise the judgment of the
court below, rendered upon the demurrer to the rejoinders of the de-
fendants to the plaintiff’s amended replication overruling the demurrer,
insisting that the rejoinder was good, and that judgment should have
been rendered for the defendants. The answer to this is, that the with-
drawal of the demurrer, and going to issue upon the pleading, operated
as a waiver of the judgment. If the defendants had intended to have
a review of that judgment on a writ of error, they should have refused
to amend the pleadings, and have permitted the judgment on the de-
murrer to stand.”
But it is urged, that notwithstanding it is true, as a general principle,
that pleading over waives the ruling on the demurrer, yet in the courts
of the United States, where it appears in proof, at any stage of the case,
that the court has no jurisdiction of the person, it is error to proceed to
judgment on, other matters; and if such further proceedings and judg-
ment are had, the Supreme Court must reverse the judgment and re-
mand the cause, with orders to dismiss it; that here the plea to the
merits, as well as the plea to the jurisdiction, alleges that the plaintiff

-
o
is a negro, and the agreed case, read in evidence on the trial, admits
the fact, that the same matter may be pleaded to the merits and in
abatement, &c. - - -
This does not take the case out of the reasoning of the court in the
cases already cited. For pleading over not only waived the matter in
abatement in the case of Sheppard and Graves, and rendered the fact
immaterial; but the court say, p. 511, “The question of residence, or
the right of the parties to sue, as incident to residence, cannot be en-
quired into under the general issue;” and the case of Smith vs. Ker-
nochen, 7 Howard, 216, is cited, where the court held, that it was too
late for defendant to avail himself of objections to jurisdiction on the
trial of the merits. Other cases to the same effect, are Sims vs. Hand-
ley, 6 H. 1; Baily vs. Dozier, Ib. 23; Conrad vs. Atlantic Ins. Co.,
1 P. 386; 10' Wolf vs. Rabaud et al., Ib. 476; Evans vs. Gee, 11 Ib.
89; 1 Wash. C. C. 70, 80; 2 Sumner, 251; 2 Dall. 381; 4 lb. 330.
In this case, as in those cited, the declaration gives jurisdiction, and
the facts alleged in support of it can only be contested by making an
issue, as in other cases. If that issue be not made, or be waived in the
conduct of the cause, according to a well-settled practice of the court,
there is no reason in this case, more than in any other, why the objec-
tion should be available at a later stage of the case. If the fact had
been, that plaintiff was not a resident of Missouri, and that was the
reason why he was not a citizen, no advantage could be taken of the
fact at any subsequent stage of the cause. What difference does it
make that another fact is relied on to show that he is not a citizen? It
is the right to sue as “a citizen” of Missouri which is questioned; and
it is immaterial whether the right be questioned on account of resi-
dence, or on account of any other circumstance which deprives him of
the character of a citizen of Missouri.
Citizenship.
II. But iſ the court should be of opinion that the question raised by
the plea in abatement and the demurfer thereto is not waived, and that
the judgment of the circuit court thereon must be maintained before it
will consider the questions affecting his right to freedom, I submit the
following considerations in support of the judgment on the demurrer:
It has been decided in 1 Liſiell, 326, (A Geo. 68,) Meigs, 339, and
1 English, 509, that free negroes are not citizens within the meaning of
the 2d section of the 4th article of the Constitution, which is in these
words: “The citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.” The case of Amy
vs. Smith, in 1 Littell, 326, is the earliest case, and is referred to, and
the reasoning adopted, in the others. In that case it was held, by a
majority of the court, that “to be a citizen, it is necessary that he should
be entitled to the enjoyment of those privileges and immunities upon
the same terms upon which they are confeſſed upon other citizens;
and unless he be so entitled, he cannot, in the proper sense of the term.
be a citizen. It results, then, that the plaintiff cannot have been a

6
citizen either of Pennsylvania or Virginia, unless she belonged to a
class of society upon which, by the institutions of the States, was con-
ferred a right to enjoy all the privileges and immunities appertaining
to the States.”
“Prior to the adoption of the Constitution, the several States might
make any persons they chose citizens. But as the laws of the United
States do not now authorize any but a white person to become a citizen,
it marks the national sentiment on the subject, and creates the presump-
tion that no State had made persons of color citizens; and this presump-
tion must stand, unless positive evidence to the contrary were produced.
But none such was produced, either as to Pennsylvania or Virginia.
On the contrary, it appears from the preamble of the abolition act of
Pennsylvania, that the legislature of that State intended to confer only
a portion of the freedom which they themselves enjoyed; and they could
not, therefore, have designed to give them all the rights and privileges
of citizens, much less could they have designed to bestow those rights
and privileges upon those who, like the plaintiff, were not intended to
be emancipated, but who might become free by the failure of their
owners to have them registered.”
This opinion, delivered in the spring of 1822, displays no research,
logic or learning; and the reference found in the case, to the contest
on the subject carried on in Congress at the time Missouri was admitted,
gives the clew to its extraordinary conclusions. The other opinions,
which are predicated on this, show even less research and thought.
On the other hand, the dissenting opinion of Judge Mills, to be found
at p. 337, examines the question with the fairness, independence and
learning becoming his position. He disposes of the absurd test of citi-
zenship here set up, in a few words. Judge Boyle, who delivered the
opinion of the court, it seems, supposed that the “immunities and
privileges” spoken of in the Constitution, meant offices, amongst other
things; and that those only who were eligible to the high places, or, at
least, those of the class who were so eligible, were citizens.
Judge Mills shows that the definition would exclude many who
were acknowledged to be citizens on all hands; and it is obvious that,
however explained, it excludes all naturalized citizens who are ineli-
gible to the Presidency, and to the gubernatorial chair in some of the
States, and perhaps to other positions. He shows that in England
nativity gives citizenship, and that this is true also of Rome; but that
this is immaterial, for the American colonies brought with them the
common, and not the civil law. -
The error, he shows, consists in not attending to the distinction be-
tween political functions and civil rights. By attending to this distinc-
tion, all perplexity is removed. The qualifications required for elec-
tors, representatives, jurors, witnesses, are, as they purport to be, tests
of fitness for the several duties required, not tests of citizenship. Pro-
perty, age, sex, religious belief, or the want of it, and a variety of cir-
cumstances, besides color, determine these qualifications in this country
and in England without affecting the question of citizenship. For

7
most of such functions, it is true, citizenship is required, but there is
no uniformity on the subject in the States. Thus foreigners are elec-
tors and jurors in many of the States, and may be witnesses in all.
In most of the States an elector must be a free white male citizen, over
the age of twenty-one, who has resided some time in the county where
he offers to vote; but in many of the States, as Vermont, Massachusetts,
Maine, New Hampshire, New York, and other of the Northern States,
he is not required to be white, and was not, so prior to 1835 in North
Carolina; and when this is not required, colored men are admitted to
vote, as other citizens. (See 2 Kent, p. 258, note, 4th ed., where the
chancellor says they are allowed to vote in New York, and are recog-
nised by the constitution and laws of New York as citizens.)
Judge Mills is fully sustained in his views of citizenship by Judge
washington, (4 Wash. C. C. 371, Canfield vs. Coryell,) where it is
decided that the immunities and privileges conceded by the Constitu-
tion to citizens in the several States were to be confined to those which
were in their nature fundamental, and belonged, of right, to the citi-
zens of all free governments. Such are the rights of protection of life
and liberty, and to acquire and enjoy property, and to pay no higher
impositions than other citizens, and to pass through or reside in the
State at pleasure, and to enjoy the elective franchise, if coming within
the regulations of the State law on that subject. But this immunity
does not extend to every right which may belong exclusively to resi-
dent citizens, &c.
It appears ſrom this opinion, that the essence of citizenship is the
right of protection of life and liberty, to acquire and enjoy property,
and equal taxation. Suffrage is not an absolute right of citizenship;
and the citizen of one State is not entitled to it in the other, unless he is
of the description of citizens entitled to it in such State. He may be a
citizen without having any such right anywhere, and, as already ob-
served, he may have it in some States without being a citizen of any
one of them. (See 21 Ala., p. 454, hereinafter cited, showing that
free negroes are citizens.)
The supreme court of North Carolina, in an elaborate opinion de-
livered, in 1838, in the case of the State vs. Manuel, (4 Dev. and Bat.,
p. 24,) by Judge Gaston, one of the most learned and able jurists in
the Union, on the precise point under consideration, fully sustains the
views here contended for. The court say:
“According to the laws of this State, all human beings within it
who are not slaves fall within one of two classes. Whatever distine-
tions may have existed in the Roman law between citizens and free
inhabitants, they are unknown to our institutions. Before our revolu-
tion, 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 exist in the British colonies. Slaves
were not in legal parlance persons, but property. The moment the
incapacity or disqualification of slavery was removed they became per-

S
sons, and were then either British subjects or not British subjects, ac-
cording as they were or were not born within the allegiance of the
British king. Upon the Revolution no other change took place in the
law of North Carolina than was consequent upon the transition from a
colony dependent on an European king to a ſtee and sovereign State;
slaves remained slaves; British subjects in North Carolina became
North Carolina freemen; foreigners, until made members of the State,
continued aliens; slaves manumitted here became freemen; and there-
re, if born within North Carolina, are citizens of Worth Carolina;
* all free persons born within the State are born citizens of the State.
A few only of the principal objections which have been urged against
this view of what we consider the legal doctrine will be noticed. It
has been said that, by the Constitution of the United States, the power
of naturalization has been conferred exclusively upon Congress, and
therefore it cannot be competent for any State, by its municipal reg-
ulations, to make a citizen. But what is naturalization? It is the
removal of the disabilities of alienage. Emancipation is the removal
of the incapacity of slavery. The latter depends wholly upon the in-
ternal regulations of the State; the former belongs to the Government
of the United States. It would be a dangerous mistake to conſound
them.
“It has been said that, before our revolution, free persons of color did
not exercise the right of voting for members of the Colonial legislature.
How this may have been, it would be difficult at this time to ascertain.
It is certain, however, that very few, if any, could have claimed the
right of suffrage, for a reason of a very different character than the one
supposed. The principle of freehold suffrage seems to have been
brought over from England with the first colonists, and to have been
preserved almost invariably in the colony ever aſterwards.
“In the act of 1743, ch. 1, (Swann's Revisal, 171,) it will be seen
that a freehold of fifty acres was necessary to entitle the inhabitant of
a county to vote; and by the act of 2d September of 1746, (ch. 1, 1bid.
223,) the freeholders only of the respective towns of Edenton, Bath,
Newbern, and Wilmington, were declared entitled to vote for members
of the Colonial legislature. The very Congress which framed our
constitution was chosen by freeholders. That 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 noto-
riety, 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. But surely the possession of
political power is not essential to constitute a citizen. If it be, then
women, minors, and persons who have not paid public taxes, are not
citizens; and free white men who have paid public taxes and arrived
at full age, but have not a freehold of fiſy acres, inasmuch as they
may vote for one branch and cannot vote for the other branch of our
legislature, would be in an intermediate state—a sort of hybrids be:
tween citizens and not citizens. The term ‘citizen,” as understood

9
in our law, is precisely analogous to the term subject in the common
law, and the change of phrase has entirely resulted from the change
of government. The sovereignty has been transferred from one man
... the collective body of the people, and he who was before a ‘subject
of the king,' is now a ‘citizen of the State.’” -- -
The argument most relied on by those who deny the citizenship of
free colored men is, that the acts of Congress on the subject ºf nat:
uralization provide for naturalizing white persons only, and thus, it
is contended, marked the national sentiment, that none but white per-
sons were citizens. -
Naturalization is a process by which aliens become citizens, and we
would not look to the regulations on this subject to aid our inquiries as
to who are citzens without naturalization. They are not in pari ma-
seria. But naturalization even was not limited to whites by the Con-
stitution, and though in general the acts of Congress provide only for
naturalizing whites, it has been extended repeatedly by treaty and by
act of Congress to Indians and negroes. Thus, by treaty with Choc-
taws and Cherokees, Indians have been naturalized or acknowledged
as citizens. (See treaty with Choctaws, art. 14, 20th September, 1830,
vol. 7, p. 335; see also 12th art, treaty with Cherokees, Ib. p. 483.)
This article does not stipulate expressly that the individuals who re-
main in the States after the removal of the tribe shall be citizens, but
assumes it to result as the legal consequence of such separation from
their tribe, and incorporation with the people of the State.
By the act of 3d March, 1843, § 7, p. 647, vol. 5 U. S. Laws, pro-
vision is made for the individuals of the Stockbridge tribe of Indians
becoming citizens.
By the treaties of 1803 for La., of 1819 for Florida, and of 1847 for
California, the inhabitants of those countries are to be citizens of the
United States. There were inhabitants other than white; in fact many
negroes, some of whom were free; and it has been decided in 21 Ala.,
454, that such negroes are within the provisions of the treaty, and may
inherit property in Alabama as citizens. This case shows, also, that
political rights are not of the essence of citizenship, but merely the right
to property, protection, liberty, &c.
The Constitution commits the subject of naturalization to Congress
without limitation; and although in general it has been confined to
white persons, yet, as we have seen, it has been extended to both In-
dians and negroes. The favorite argument, therefore, of the adversa-
ries of negro citizenship is turned against them; and, if it had been
valid, the facts would be conclusive against them. But, as Judge
Gaston says, there is no connection between the subject of citizenship
as acquired by birth and that acquired under the laws of Congress; and
“it would be a dangerous mistake to confound them.”
That citizenship is acquired by birth is a well-settled common law
principle; and Vattel, ch. 19, §§ 212, 213, 214, divides the in-
habitants of countries into citizens and strangers, (aliens,) and an in-
termediate class, who are an inferior class of citizens, but says these
2
-

10
divisions are inapplicable to England, where citizenship is acquired by
birth.
Justinian, lib. 1, tit. v., § 3, says, formerly citizenship was extended
to but one class of freed-men in Rome, but afterwards it was extended
to all.
The Constitution, section 5, article 2, provides “that no person ex-
cept a natural-born citizen” shall become President; thus not only
recognising birth in the country as a mode of acquiring citizenship,
but the mode in which the favored class acquire it.
If there be limitations on a principle adopted in the United States,
which is of universal application in the mother country, it is for those who
insist on the limitations to show affirmatively that such limitations have
been established here. The Constitution of the United States certainly
recognises no such limitations on this subject; it recognises but two kinds
of free persons—citizens and aliens;–nobody supposes that free negroes
are aliens; they are, therefore, necessarily citizens, and are, in fact, so
regarded and treated. Thus, they are permitted to hold property in all
the States; to carry on commerce under the laws of the United States;
are entitled to bounties and pre-emptions; (see opinion of Legare, Attºy
Gen’1, vol. 4, p. 147.) All these rights are held by them as “citizens;”
and even where the laws discriminate against them as respects political
functions or privileges, it is still as a class of citizens they are excluded.
For examples:
The 3d section of the act of 6th March, 1820, 3d vol. Stat. 546,
which provides the establishment of State government in Missouri,
authorizes “all free white male citizens” to vote for members of the
convention. The 6th section of the act of 1812, to form a Territorial
government in Missouri, defines qualifications of electors in same terms.
The Militia act, 17th May, 1792, § 1, directs the enrolment of
“every free able-bodied white male citizen.”
The constitutions and laws of the States are to the same effect. The
constitutions of some of the States—as Vermont, New Hampshire, Mas-
sachusetts, New York, and others—recognise no such distinctions among
their citizens. In others—as Kentucky, Louisiana, Mississippi, Con-
necticut, and Missouri—the distinction is recognised. In Kentucky,
the Sth sec., 2d art. of the old constitution, provided, that “in all elec-
tions for representatives, every free male citizen, (negroes, mulattoes.
and Indians excepted,) &c., shall enjoy the right of an elector.”
in Louisiana, by tit. 2, art. 6, no person shall be a representative
who is not “a free white male citizen” of the United States; $ 6, art.
3, of constitution of Missouri is to same effect; and so of § 1, 3d art. of
that of Mississippi; and § 2, art. 6, of Connecticut.
Free blacks are thus recognised as citizens in all the States. Where
the law does not prescribe, as one of the qualifications of an elector,
that he shall be white, they vote as other citizens, and they are ex-
cepted nowhere from any duty or privilege appertaining to citizens,
unless by express provision of law. And so of the United States.
See 4 Dev. and Bat., p. 24; 2 Kent, p. 258, note 5.

These considerations would authorize the conclusion that the framers
of the Constitution and the patriots of that era regarded this class of per-
sons as citizens, and included them in that character in the provisions
ºf ſhe constitution; and this is fully confirmed by reference to the laws
d records of that day. -
". an act was º in Massachusetts on 6th March, 1788, for-
bidding any negro not a subject of the emperor of Morocco, or a citizen
of the United States, from tarrying in the commonwealth.
The most satisfactory solution of the question is ſound in the pro:
ceedings of Congress, where it will be seen this very question attracted
attention and was decided.
It was moved by South Carolina to amend the 4th article, on 25th
June, 1778, which is as follows: “The better to secure and perpetuate
mutual friendship and intercourse among the people of the different
States in the Union, the free inhabitants of each of these States—pau-
pers, vagabonds, and fugitives from justice excepted—shall be entitled
to all the privileges and immunities of free citizens of the several
States,” by inserting the word white before the words “free inhab-
itants.” The motion was negatived, eight to two, and one divided.
It was then moved, after the words “the several States,’’ to insert
“according to the law of the several States respectively for the govern-
ment of their own free white inhabitants.” Negatived, 8 to 2, divided
one. (See Journals, vol. 2, p. 606.)
Again in 1783 it was resolved, “that all charges of war, and all ex-
penses that have been or shall be incurred for the common defence and
general welfare, &c., shall be defrayed out of the common treasury,
which shall be supplied by the several States in proportion to the whole
number of white and other free citizens and inhabitants of every age,
sex and condition,” &c. (Journals, 1st April, vol. 4, p. 183.)
In the organization of the Western Territory, first by the resolutions
adopted 23d April, 1784, the organization was committed to the “free
males of full age;” afterwards, by the ordinance of 1787, to “the free
male inhabitants of full age,” residents in the Territory for a specified
time, and to “the citizens of the States’’ resident there. The 4th arti-
cle provides for the admission of the States to be formed out of the ter-
ritory into the Union on an equal footing with the original States, and
the celebrated and long contested 6th article abolished slavery. The
ordinance, therefore, distinctly contemplated not only the establishment
of civil and political equality in Territories, but designed that its “free
inhabitants,” including those made free by the ordinance, should “be
entitled to the privileges and immunities of citizens of the several
States.”
These proceedings show, 1st, that Congress refused emphatically to
allow any distinction to be made between the white and other inhabi.
º's in the privileges to be extended to them by the several States; and
2d, that others were recognised as citizens besides whites; and together
demonstrate that the substitution which was made in the Constitution
without debate or objection, of the word “citizen” for “free inhabi.

12
tant,” used in the articles of Confederation, was not done to exclude
such “other citizens” from the privileges conferred by the Constitution.
The proceedings quoted show beyond cavil, that it was designed
to include free negroes in the privileges of citizenship in the several
States, extended to the “free inhabitants” of a State by the 4th article
of Confederation, and that they were not embraced in the provision by
mere oversight in using general terms. The two motions made to ex-
clude them, and lost by the vote of eight States against two, and one
divided, shows what sense was then had of the rights of free persons of
color. No inconvenience was found to follow from allowing them the
ordinary privileges of citizenship between that date and the formation
of the Constitution, or indeed since the formation of the Constitution
to the present time; and therefore, when this provision was considered,
no attempt was made to deprive them of these privileges. On the other
hand, if the word “citizen,” which is substituted in the Constitution
for free inhabitant in the Confederation, had been understood to effect
such exclusion, we know there would have been resistance to it from
what took place when the effort was actually made in 1778.
Chancellor Kent, vol. 2, p. 258, note b, of the Commentaries, con-
siders this question at some length, and concludes that free negroes are
citizens. After reading the arguments against it, adduced in the de-
cisions above referred to, and in Denny’s book, he says it is a mere
controversy about words, meaning, that whilst it is attempted to take
away the name of citizen, the substantial rights which the name im-
ports are conceded on all hands. -
This question was much discussed in Congress during the session of
1820–21, on the admission of Missouri. The 4th clause of 26th sec-
tion, article 3 of the constitution presented, made it the duty of the
legislature of Missouri “to passlaws to prevent free negroes and mulattoes
from coming to and settling in the State under any pretext whatever;”
and the admission was refused until a second Missouri compromise was
effected, by which the State agreed that the article objected to should
not be construed to authorize any act excluding a citizen of any other
State from the privileges and immunities to which he was entitled under
the Constitution.
The laws of Missouri, accordingly, (see Rev. Laws of 1845, p. 755)
permit “free negroes or mulattoes, who produce a certificate of citizen-
ship from some one of the United States,” to reside in the State; and
by the code of 1835, “free negroes who were citizens of other States”
were excepted from the exclusion imposed on others, and were to be
released if arrested, on producing a certificate of citizenship from any
court of record. In reply to this recognition of citizenship, it was ar-
gued that this law of Missouri was an evasion of the requirements of
the fundamental condition upon which the State was admitted, as it
required naturalization certificates from the States, when it was well
known the Constitution had taken the power of naturalization from
the States; and it was stated by counsel that, in point of fact, no such
certificates had ever been produced.

13
The answer to this is easy. The law does not purport to require
naturalization certificates, but merely certificates attesting the citizen-
ship of the parties in some of the States. This would be an easy
condition, on the part of a free negro going from almost any of the
Northern States, in which they are under no disabilities; as, for in
stance, from New York, where Chancellor Kent says they are recog:
mised as citizens, both by the constitution and laws. That no such
certificate was ever produced, may be accounted for by the notorious
fact that the law has not been enforced. --
The plea to the jurisdiction alleges that Dred was not a citizen, be-
cause he was a negro. But the law of Missouri admits that negroes
may be citizens, and prescribes the evidence which shall be required.
fibe decisions against the citizenship of free negroes, as well as the
opposition manifested in Congress in 1821 by Southern men, were die-
tated by the apprehension that this class of persons could not otherwise
be prohibited from going into the Slave States, even when the States
thought it expedient to exclude them, in order to protect themselves
from serious mischief.
But in N. Y. vs. Miln, 11 P. 101, at page 139, the court declares
the extent of police power of States, and the grounds on which it is
placed, and says, “the right to punish or prevent crime does in no de-
gree depend on citizenship:” and in Moore vs. Illinois, 14 H. 18, the
power to exclude paupers, vagabonds, free negroes, &c., when the
States deem such exclusion necessary to their safety or welfare, is re-
cognised. (See also Mr. Berrien's Op. on S. C. statute, Ops. Attºys
Genºl, vol. 11, p. 427.)
I have proceeded so far in the argument on the supposition that it
was necessary to maintain not only the converse of the doctrine an-
nounced in the decisions in 1 Littell, Meigs, etc.; that is, that free ne-
groes were citizens who were entitled to all the immunities and privi-
leges of citizens of the several States; but, moreover, that the word
citizen, when used in Art. III, sec. 2 of the Constitution, and sec. 11
of the Judiciary act, had the same signification as when used in sec. 2
Art. IV of the Constitution.
These cases all give construction to the word “citizen” in the fourth
article, and do not deny the citizenship of free negroes altogether, but
only that they are not the citizens referred to in that article, and are not
entitled to all the privileges it secures. That “a quasi citizenship” has
always been extended to them is admitted. (See Eng., 509.) And,
indeed, the existence of different kinds or degrees of citizenship results
necessarily from the doctrine in which these cases proceed, that all the
privileges, &c., are reserved only to those who belong to the class the
members of which are eligible to all the dignities, &c. As has been
shown, this eligibility varies much; and yet citizenship continues to be
allowed to individuals and classes who are not voters, or eligible to
office, on account of age, sex, religion, &c., and to naturalized for-
eigners, who can never become eligible to some offices, no matter what
may be their age, sex, or religion, &c.

14
The plaintiff’s claim of citizenship is consistent with this view of the
subject. He is not eligible to office, and is not a voter, and therefore
is not, according to these cases, a citizen entitled to all the privileges
secured by the fourth article; but that he is a quasi citizen, or citizen in
that sense of the term which enables him to acquire and hold property
under the States and under the United States, is universally admitted;
and it would seem to follow, necessarily, that all the incidents to these
acknowledged rights of person and property, or all the rights necessary.
to maintain them, and which are allowed to others in the same circum-
stances as parts of such rights, attached also to these persons. No one
can be said to have title to property who cannot maintain an action
to defend it against trespassers; and, accordingly, these persons can sue
and be sued as other citizens in the State court, and so suits have been
heretofore maintained in the courts of the United States, without ques-
tion—an instance of which is the suit of Legrand vs. Darnell, hereinaf-
ter referred to for other purposes, (reported 2 Peters, 670,) brought by
the present Chief Justice of the Supreme Court, in which the defend-
ant is described in the bill as a negro, and in which that fact also ap-
pears by the subject-matter. They are embraced in the class of citi-
zens, without question, in the construction of the laws regulating
commerce, the holding and acquisition of property, &c. The laws
of the United States regulating judicial proceedings follow the same
division of free persons into citizens and aliens, observed in legislating
on other subjects aiming to provide for all cases under this division.
Why should not the classification allowed on other subjects hold in
judicial proceedings?
No reason can be imagined for permitting a suit between free white
persons of different States for wrongs which the local tribunals were
deemed inadequate to redress, which will not apply with equal force to
controversies to which a free negro may be a party. They have equal
capacity with other citizens to hold property and carry on business, and
therefore to create the mischief against which the national judiciary
was provided.
The words of a law are to be construed with reference to the objects
of the law. (16 P. 640; 12 Wheat. 44.) The object in establishing
the national courts, and giving them jurisdiction of controversies between
citizens of different States, is not satisfied by limiting that jurisdiction
to any particular class of citizens, and excluding from it others who are
equally identified with all the different communities by birth, residence,
the right to hold property, and the right to protection in the enjoyment
of life, liberty, and property, and who are, besides, in many of the
States, possessed also of the political privileges. But this is of no im-
portance in a judicial aspect, because it is in respect only to the right
of person and property—not the political controversies that arise in
Courts.
Moreover, the right of action in the Federal courts, between citizens
of different States, was the mode adopted to bring before these courts
questions which might affect the national peace and harmony, which

15
it was a special object of the Constitution to submit to the national
judiciary. (See speech of Mr. Randolph and his resolutions, adopted
on motion of Mr. Madison, pp. 728, 855, 2d vol. Madison Papers.)
Now the position of free colored people in society is such, as is shown
by this case, as to bring them even more forcibly within the reason of
the constitutional provision than other citizens, not that they are citizens
in any other sense than other natural-born citizens, but because ques.
tions affecting their rights are even more apt to be made the ground of
controversy between the States of the Union. See Judge Scott's opin-
ion, (15 Mo., p. 586,) where he charges certain “States with being
possessed with a dark and fell spirit,” and denies the plaintiff’s rights
because “it does not behoove the State of Missouri to show the least
countenance to any measure which might countenance this spirit.”
The same judge has gone still further, and declared, in 18 Missouri R.,
p. 252, that a negro cannot hold slaves. This decision, like that in
Dred’s case, annuls the well-settled law of the land. Both are obviously
the result of the strong political excitement existing in the State.
It is but a short step in this progress to decide that free negroes cannot
hold any property in Missouri. However equivocal the position of per-
sons may be in other States, whose property and liberty may be confis-
cated by such decisions; and however little concern or interest may
be felt for them generally under ordinary circumstances, it is obvious
that the course of decision I am remarking upon is calculated to create
resentment, if not for the sake of those who are the victims of such in-
justice, yet because this injustice is avowedly dictated by resentment
felt in Missouri against “the dark and fell spirit” ascribed to other
States. The humbleness of these persons in the scale of society, which
constitutes the whole argument for excluding them from citizenship,
and thereby to exclude them from judicial protection, whilst it provokes
and draws down upon them the spleen of tyrannical tempers, arouses a
spirit of resistance to their wrongs in generous minds, and they are,
therefore, just in that condition to be the cause of the beginnings of
strife, to be extended, by retaliation and mutual wrong, into a general
rupture of the harmony of the nation.
Consistently with these views, in Gordon vs. Longest, 16 P., 104,
this court declared that the object of this provision was “to have a
tribunal in each State presumed to be free from local influence, and to
which all who were non-residents or aliens might resort for legal re-
dress.”
In 1 Payne C. C. Rep., 394, the court say that a person need not
have acquired political rights; it is only necessary that he should have
acquired a domicil to enable him to sue as a “citizen;” and in 3 Wash.
546, that “citizenship means nothing but residence.”
- For the same reason, to secure harmony between the States, provi-
sion is made in the Constitution for giving jurisdiction to the courts of
the United States of suits between “citizens” of the same State claim
ing lands under grants from different States; and there is equal reas
16
for applying the term to all persons who are capable of holding the
controverted rights in the one case as in the other.
Although the point under consideration has not been expressly de-
cided by this court, suits have been entertained, and here, as already
shown, without question, in which free persons of color were parties in
character of “citizens.”
On the question of Emancipation.
III. The next question to be considered is, Whether Dred and his
family, or either of them, was emancipated by being taken to Illinois
and to that part of Louisiana Territory lying north of 36° 30', and be-
ing detained there in the manner described in the agreed case 2 I shall
consider separately the validity of the Sth section of the act of 1820,
(3 Stat., p. 546,) prohibiting slavery in that Territory north of 36° 30',
upon which the freedom of Harriet and her youngest child depends.
The eldest child, Eliza, having been born north of the Missouri
line on the boat whilst descending the Mississippi river, it will be pre-
sumed, on well-settled principles, that she was born in Illinois, if such
presumption is, for any reason, more favorable to her freedom than
the supposition that she was born in the Territory. The constitution
of Illinois (article 6, section 1,) provides, that “neither slavery nor in-
voluntary servitude shall be introduced into this State otherwise than
for the punishment of crime whereof the party shall be duly con-
victed.” Section 2, “no person bound to labor in any other State shall
be hired to labor in this State, except within the tract reserved for the
Salt Works near Shawneetown, nor even at that place for a longer
period than one year at a time; nor shall it be allowed there after the
year one thousand eight hundred and twenty-five. Any violations of
this article shall effect the emancipation of such person from his obli-
gation to service.”
The 8th section, act of 6th March, 1820, (3 Stat., p. 544,) pro-
vides that, “in all the territory ceded by France to the United States
under the name of Louisiana, which lies north of 36° 30' north lati-
tude, not included within the limits of Missouri, siavery and involun-
tary servitude, otherwise than for the punishment of crime whereof the
party shall have been duly convicted, shall be, and is hereby, forever
prohibited: Provided, that any person escaping into the same from
whom service or labor is lawfully claimed in any State or Territory of
the United States, such fugitive may be lawfully reclaimed, and con-
veyed to the person claiming his or her labor as aforesaid.”
Case of the oldest child.
It was decided by the Court of Appeals of Virginia, in the case of
Spotts vs. Gillaspie, (6 Randolph, p. 572,) that a child born in the State
of Pennsylvania after the act of 1780 abolishing slavery, was free,
although born of a slave mother, and was free in Virginia as well as


17
in Pennsylvania. The same principle was decided in The Common-
wealth vs. Holloway, (2 Serg, and Rawle, p. 305,) in which the child
of a fugitive slave was held to be free. The other child, called Liz-
zie, was born in Missouri, and is free if her mother was free at the
time.
Rule of Decision.
The circuit court decided against the plaintiff, because the supreme
court of Missouri had so decided on the same facts, in the case of Scott
vs. Emerson, (reported 15 Mo. Repts., p. 586,) construing the lan-
guage used in the opinion of this court, in the case of Strader vs. Gra-
ham, (10 Howard, pp. 93, 94) and quoted in the brief of defendant’s
counsel, (p. 9, ) so as to require the courts of the United States to ſol-
low the decisions of the State courts on such questions. This, it seems
to me, is altogether a misconception of the effect of the language of the
court; and this appears plainly by quoting the paragraph next before
and the sentence next after that quoted in the brief of the defendant.
The brief begins with the words “every State,” in the last paragraph
of page 73, and ends with the words “continued to be slaves.” The
whole passage is as follows: “Much of the argument on the part of
the plaintiff in error has been offered for the purpose of showing that
the judgment of the State court was erroneous in deciding that these
negroes were slaves. And it is insisted that their previous employment
in Ohio made them free when they returned to Kentucky. But this
question is not before us. Every State has an undoubted right to de-
termine the status or domestic and social position and condition of the
persons domiciled within its territory, except in so far as the powers of
the States in this respect are restrained, or duties and obligations im-
posed upon them by the Constitution of the United States. There is
nothing in the Constitution of the United States that can in any degree
control the law of Kentucky upon this subject; and the condition of
the negroes, therefore, as to freedom or slavery after their return, de-
pended 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 Ken-
tucky to determine for itself whether their employment in another
State should or should not make them free on their return. The court
of appeals have determined, that by the laws of this State they con-
tinued to be slaves; and their judgment upon this point is, upon this
writ of error, conclusive upon this court, and we have no jurisdiction
over it.”
The case was a writ of error under the Judiciary act, prosecuted to
ºverse the judgment of the court of appeals of Kentucky, on the ground
that the ordinance of 1787, which was claimed to be a statute of the
United States, had been drawn in question by the decision, and a right
acquired under it, to wit, the right to freedom, had been deciſed
against. The court say, the ordinance was not drawn in question in
the case at all; first, because it had ceased to exist on August 7, 1789,
being superseded by the act of Congress of that date, passed to carry
-
18
it into full effect; and that the act had, in turn, been superseded by
the constitution of Ohio; and second, because the decision of the court
of appeals of Kentucky involved only the laws of Kentucky; and as
there was no jurisdiction under the writ of error, by which the case was
brought up to revise such construction, it was final and conclusive.
The court did not mean that a decision of a State court was more
conclusive as to the law on this than on any other subject, but merely
that a writ of error to the judgment of the State court on this subject,
as on every other which involved only State laws, could give no juris-
diction, and the judgment on this particular case was therefore con-
clusive.
But in the form this question was presented to the circuit court, and
in which it is now presented to the Supreme Court, so far from being
conclusive, the decision of the supreme court of Missouri is of no weight
at all, beyond what is due to the research, reason and authority which
the opinion accompanying the judgment displays, or which may be
due to the character of the court which pronounces it.
It is only upon questions arising upon a local law of real property, or
on the construction of the statutes of a State, that the exposition given
by the supreme court of a State is adopted by the courts of the United
States—and then only when such exposition is settled and fixed by the
decisions of the State courts, whereas, in this case, no such statute or
local law is involved. But the question depends on general principles
of law; and the courts of the United States, whilst they will respectfully
consider the decisions of the State court, decide such questions according
to their own judgment of the law. (Swift vs. Tyson, 16 Peters, 1; Car-
penter vs. Providence Washington Insurance Company, Ib., 511; Lane
& al. vs. Wick & al., 3 H. 476; Foxcraft vs. Mallet, 4 lb., 379; 3
Sumner, 136.
Question of Residence.
I shall now consider what the law of Missouri is on the agreed case.
And first: As there is a distinction made in the cases on this subject,
between the case where a residence or domicil is acquired in the State
or Territory in which slavery is prohibited, into which the slave is re-
moved, and where the removal into such State or Territory is for a tem-
porary or transient purpose, it is important to ascertain to which of these
classes this case belongs. The facts are, that Dr. Emerson took Dred
to his station at Rock Island in 1834, and there remained with him for
two years; then took him to his station at Fort Snelling, and remained
there with him also for two years. Harriet was taken to Fort Snelling
in 1835, and remained there three years, under similar circumstances.
There is no evidence in the case that Dr. Emerson had or claimed a
residence elsewhere whilst he was living at these posts; and this court
says, in the Koskiusko case, Ennis vs. Smith, (14 Howard, p. 423,)
“where a person lives is taken prima facie to be his domicil.”
No such point was made below, nor in the case of Scott vs. Emer-
son, 15 Mo., decided on the same facts; but, on the contrary, it was





19
distinctly admitted that Emerson had his residence or domicil at these
posts during the time he remained there. See also the case of Silvia
vs. Kirby, IT Mo., p. 434–a suit for freedom, -where it is alleged, in
the petition, that plaintiff was taken to reside in the territory north of
36° 30', and a demurrer to the petition sustained in the circuit court,
and judgment affirmed by the supreme court, on the ground that “The
question involved in this case is similar in all respects to that which
underwent consideration in Scott vs. Emerson, 15 Mo. 576.”
Ew parte Grace, Commonwealth vs. Aves, and Mahony vs. Ashton.
Two grounds are taken, by the majority of the supreme court, in the
opinion delivered by Judge Scott in the case of Scott vs. Emerson, 15
Mo. 576, for refusing to give judgment in that case according to the
law, as settled not only by a series of more than a dozen decisions
of the supreme court of Missouri, beginning with the Government, but
by a multitude of decisions of the highest courts of other States. These
are: 1. That by returning to Missouri to reside, the master’s right,
which was suspended during the residence in Illinois and in the Ter-
ritory, is revived. 2. That the constitution of Illinois and the 8th
section of the act of 1820 are penal statutes, which the courts of other
States were not bound to enforce.
1. In support of the first position, the case of the slave Grace, 2 Hagg.
90, and the case of the Commonwealth vs. Aves, 18 Pickering, 93,
are cited; defendant’s counsel cites also Mahony vs. Ashton, 4 H. and
McH. 295. The second case was an application for a habeas corpus, to
relieve a negro named Med, brought temporarily into the State of Mas-
sachusetts by a Mr. Slater, a resident of New Orleans, and her owner
there.
Chief Justice Shaw having ordered the release of the negro, observed,
(and this is the language relied on,) “whether, if a slave, voluntarily
brought here, and with his own consent returning with his master,
would resume his condition as a slave, is a question which was inci-
dentally raised in the argument, but is one on which we are not called
on to give an opinion in this case, and we give none. From the prin-
ciple above stated, in which a slave brought here becomes free—to wit,
that he becomes entitled to the protection of our laws, and there is no
law to warrant his forcible arrest and removal—it would seem to fol.
low, as a necessary conclusion, that if the slave waives the protection
of those laws, and returns to the State where he is held as a slave, his
condition is not changed.”
The Judge adds, “In the case of Ex parte Grace, 2 Hagg. Adm. R.
94, this question was fully considered by Sir Wm. Scott, in the case
of a slave brought from the West Indies, and he held that she was re-
instated in her condition of slavery. A different decision, I believe,
has been made in some of the United States, but for the reasons already
given, it is not necessary to consider it farther here.”
These decisions are inapplicable to the case at bar.

20
The ground of Lord Stowell’s decision in Ex parte Grace is that
stated in the opinion of Chief Justice Shaw as the ground of his own
decision in Aves’s case—to wit, that whilst in England the slave was
entitled to the protection of the laws, and as “there was no law to war-
rant his forcible arrest and removal,” he must be released on applica-
tion to the courts. “The slave continues a slave, though the law of
England relieves him, in those respects, from the rigors of that (the
slave) code while he is in England, and that is all that it does,” says
Lord Stowell, 2 Hagg., p. 117.
Again, at page 113, he says: “It (slavery) was a system not to be
thrown out of use because it was incapable of being used in the full
eatent in England. * º sº The fact certainly is, that it
never has happened that the slavery of an African, returned from Eng-
land, has been interrupted in the colonies, in consequence of this act
of limited liberation conferred on him in England.”
“Such rights could not be extinguished by mere silence, or by this
country declining to act.”
(Page 109.) “The arguments of counsel, in that decisive case of
Somersett, do not go further than to the extinction of slavery as unsuit-
able to the genius of the country, and to the modes of enforcement.”
“It may, perhaps, be doubted whether the emancipation of slaves in
England, pronounced at the end of the last century, was not rather
more owing to the increased refinement of the sentiments and manners
of the people than to the decay of the two systems of villanage.”
The argument is, simply, that the power of the master was partially
suspended whilst in England, but his rights continued, because there
was no law abrogating them.
Whether the distinction which his lordship attempts is tenable, it is
not important to determine for the purposes of the present case, as all
the American cases depend on an express constitutional and statutory
prohibition of slavery, which the course of his reasoning concedes would
make a different case altogether from that before him.
It may be observed, however, that the distinction is recognised in
Maryland, where the case of Mahony vs. Ashton was decided, and in
the same volume of decisions. In that case, to be found in 4 H. and
McH., p. 295, it was held that the negro who had been taken from
Barbadoes to England, and thence to Maryland, was not manumitted
by the law of England; whereas, in David vs. Porter, Ib. p. 418, a
slave was declared free by the law of Pennsylvania, he having been
hired in that State; and it was decided also in Virginia, by the court of
appeals, in Betty and al. vs. Horton, 1 Leigh, 615, to result from
residence in Massachusetts. The court said, it having been held by
the Massachusetts supreme court that slavery was prohibited there,
negroes carried there to reside, and brought back to Virginia, were free
there for that reason. The constitution of Illinois says, that neither
slavery nor involuntary servitude shall be introduced, and declares
that emancipation shall be effected if the provision is violated. The
act of 1S20 prohibits slavery and involuntary servitude forever. It is

21
in virtue of such positive regulations that all American courts which
have been called to act on the subject, till the present case was
presented, have declared that every vestige of slavery was extinguished
where the parties, by becoming residents, and domiciliated in a com-
munity which so regulates itself, have made themselves members of the
community, and thus consented, in the fullest sense, to subject their
relations to its laws. It has not been so adjudged in cases where
travellers and persons are only transiently in the territory where such
laws are in force, because it is not assumed of them, as of the resident
community, that the local law expresses their will, and is in force by
their consent.
But it is just to Judge Scott to observe, that in speaking of the case
of Ea parte Grace he says only, that “this is the law of England;” and
of Judge Shaw’s expression, in Commonwealth vs. Aves, that it is not
an opinion, but an intimation, and says nowhere that either Lord
Stowell's opinion or Judge Shaw’s intimation is applicable to the
present case. On the contrary, he says expressly: “On almost three
sides the State of Missouri is surrounded by free soil. If one of our
slaves travels that soil with his master’s assent he becomes entitled to
his freedom. Considering the numberless instances in which those
living along an extreme frontier would have occasion to occupy their
slaves beyond our boundary, how hard would it be if our courts should
liberate all the slaves who should be thus employed. How unreasonable
to ask it ! If a master sends his slave to hunt his horses or cattle beyond
the boundary, shall he thereby be liberated But our courts, it is said,
will not go so far. If not to the entire length, wby go at all?” The
real question with him was, in his language, “Now are we prepared
to say that we shall suffer these laws to be enforced in our courts?”
- Comity.
2. The second objection, therefore, is alone relied on by the majority
of the supreme court of Missouri. It is, that the provisions in the
Constitution of Illinois, and the 8th sect. of the act of 1820, by which
enancipation is effected, are penal regulations not to be enforced in
Missouri.
Judge Scott sustains this objection against all previous adjudications
on the reasoning I here quote.
He says, (p. 582,) “cases of this kind are not strangers in our courts.
Persons have been frequently here adjudged to be entitled to their free-
dom, on the ground that their masters held them in slavery in territo-
ries or States in which that institution was prohibited. From the first
case decided in our courts, it might be inferred that this result was
brought about by a presumed assent of the master, from the fact of
having voluntarily taken his slave to a place where the relation of
master and slave did not exist. But subsequent cases base the right to
“exact the forfeiture of emancipation, as they term it, on the ground, it
would seem, that it is the duty of this court to carry into effect the con-

22
stitution and laws of other States and territories, regardless of the rights,
the policy, or the institutions of the people of this State.”
(P. 583.) He says, “no State is bound to carry into effect enactments
conceived in a spirit hostile to that which pervades her own laws.”
He quotes part of the 38th sect. of the Conflict of Laws, saying that
“in the silence of any positive rule affirming or denying or restraining the
operation of foreign laws, courts of justice presume the tacit adoption
of them by their own government, unless they are repugnant to its
policy or prejudicial to its interests.”
“It is a humiliating spectacle to see the courts of a State confiscating
the property of her own citizens by command of a foreign law.”
“Are we concerned that such laws should be enforced, and that, too,
at the cost of our own citizens !”
“On almost three sides, the State of Missouri is surrounded by free
soil. If one of our slaves touch that soil,” (he says, although he well
knows that both in Missouri and Illinois the contrary has been decided
over and over again,) “with his master's assent, he becomes entitled to
his freedom.”
Judge Scott seems to have been sensible that the 38th section of the
Conflict of Laws, the authority he relied on, did not sustain his position.
To obtain even a semblance of support for his argument, he dissevers
the statement of the doctrine referred to, and omits that portion of the
section which pointed to the mode of ascertaining and giving applica-
tion to its principle. “Foreign laws,” says his authority, “courts of
justice presume the adoption of by their own governments, unless they
are repugnant to its policy and prejudicial to its interest.” Here the
judge stops and makes his own ipse divit supply the rest of the author's
explanations of the law, by assuming that in this case the laws of the
United States, and of Illinois, giving freedom to my client, are against
“the policy and prejudicial to the interests” of Missouri. But the sup-
pressed portion of the section, of which Judge Scott gives a part, shows
that this essential point was not left to depend on his will. It continues
thus: “It is not the comity of the courts, but the comity of the nation,
which is administered and ascertained in the same way, and guided by
the same reasoning, by which all other principles of the municipal law
are ascertained and guided.” This “comity of nations,” which is to
govern the courts, is administered and ascertained and guided by the
reasoning which holds in regard to municipal law. And whence do
we derive our exposition of municipal law Is it not from statutes,
customs, precedents? I will quote presently from a statute of Missouri,
proving that so far from its being the policy of the State to defeat per-
sons asserting freedom, acquired under the laws of other States, that
special care is taken, by positive legislation, to assist them; and that the
statutes and all the precedents of the judicature of Missouri anterior to
the decision announced by Judge Scott, take for granted that a man's
right to freedom, no matter where acquired, is a right, not in contra-
vention of the policy nor of the interests of the State, but one to which
its courts uniformly gave, and are expected to continue to give, their

23
most effective sanction. In proof of this assertion, no ampler testimony
can be given than that borne in this very case by Judge Scott’s asso-
ciate, Judge Gamble. This venerable jurist is, by the universal voice
of the profession, proclaimed its chief: for learning, ability, probity, for
calm and even-balanced powers of investigation, directed by long ex-
perience, he has no superior. He thus treats the topic relied on by Judge
Scott to sustain his opposing opinion:
“I regard the question as conclusively settled by repeated adjudica-
tions of this court; and if I doubted or denied the propriety of those
decisions, I would not feel myself any more at liberty to overturn them
than I would any other series of decisions by which the law upon any
other question had been settled. There is with me nothing in the law
of slavery which distinguishes it from the law on any other subject, or
allows any more accommodations to the temporary excitements which
are gathered around it. * * * But in the midst of all such excite-
ment it is proper that the judicial mind, calm and self-balanced, should
adhere to principles established, when there was no feeling to disturb
the view of the legal question upon which the rights of parties de-
pend.”
“In this State it has been recognised from the beginning of the Gov-
ernment as a correct position in law, that the master who takes his
slave to reside in a State or Territory where slavery is prohibited,
thereby emancipates his slave.” (Winney vs. Whitesides, 1 Mo.,
473; Le Grange vs. Chouteau, 2 Mo., 20; Milley vs. Smith, Ib. 36;
Ralph vs. Duncan, 3 Mo., 194; Julia vs. McKinney, Ib., 270; Nat
vs. Ruddle, Ib., 400; Rachel vs. Walker, 4 Mo., 350; Wilson vs.
Melvin, 592.)
The contrast between the men, as lawyers, cannot be presented in a
stronger light than is shown by their opinions in this case. Judge
Gamble puts his opinion on the ground that “there is nothing in the
law of slavery which distinguishes it from the law on any other subject,
or allows any more accommodations to the temporary excitements
which may be gathered around it.” He thinks the “judicial mind,
calm and self-balanced, should adhere to the principles established,
when there was no feeling to disturb the view of the legal question
upon which the legal rights of parties depend.”
Judge Scott, per contra, decides that the settled law should not pre-
Vail if there happens to be “a dark and fell spirit in relation to slavery”
in another part of the Union. In such circumstances the law, as es-
tablished in Missouri, to protect the freedom acquired by persons in
other States must be sacrificed by the judicial tribunal, by way of re-
buke to the “dark and fell spirit” exhibited elsewhere against slavery.
Judge Scott thus argues for the overthrow of the established law, in
favor of freedom, by the tribunal sworn to support it.
“Times are not as they were when the former decisions were made.
Since then, not only individuals, but States, have been possessed
with a dark and fell spirit in relation to slavery, whose gratification
is sought in the pursuit of measures whose inevitable consequence

24
must be the overthrow and destruction of our Government. Under
such circumstances it does not behoove the State of Missouri to show
the least countenance to any measure which might gratify this spirit.
She is willing to assume her full responsibility for the existence of
slavery within her limits, nor does she seek to share or divide with
others. Although we may, for our own sakes, regret that the avarice
and hard-heartedness of the progenitors of those who are now so sen-
sitive on this subject ever introduced the institution among us, yet we
will not go to them to learn law, morality, or religion, on the subject.”
I give the whole context of this final argument on which Judge
Scott rests his power for the overthrow of the whole mass of unvarying
decisions rendered by the courts of Missouri, in maintaining the rights
of persons suing for freedom. It never occurred to any of the pre-
decessors of Judge Scott, more than to his associate, Judge Gamble,
that when a master had liberated his slave by his own act, co-operating
with the law of another State, that the recognition of that enfranchise-
ment by the judicial tribunals of another State, whose policy allowed
of manumission of slaves by masters when legally effected, could be
construed into the taking away or enforcing the forfeiture of the mas-
ter’s property. The master ceased to have property in the slave the
moment he did the act which conferred his liberty; and the question
for this court now is, whether it will hold valid a right to freedom based
on the ordinance of ’87, the act of '89, and the constitution of Illinois–
all affirmed by a succession of judicial decisions in Missouri, covering
the third of a century, and recognised by statute iaw—or substitute
Judge Scott's principle, that the existence of what he describes “a dark
and fell spirit against slavery,” in other portions of the country, is suſ.
ficient to subvert the law.
The supreme court of Missouri, in the case of Lagrange vs. Chou-
teau, 9 Missouri R., p. 20, decided that the 6th section of the ordinance
of '87 was not a penal law; and the court of appeals of Virginia, in
the case of McMicken vs. Amos, 4 Rand., p. 134, decided the same
thing of a law of Virginia, under which a right to freedom had been
acquired. If, therefore, the Missouri reports speak of “exacting the
forfeiture of emancipation,” which language Judge Scott purports to
quote without citing the place where it is found, it is not a correct use
of terms. It conveys no other meaning, however, than is conveyed
by saying the negroes recovered their liberty, to which they became
entitled by the voluntary act of their masters. No distinction can be
made between the character of the emancipation effected in Missouri
and in Illinois; the latter is not more penal than the former, because:
from the nature of the relation of master and slave, no consideration
can pass. In both it results from the voluntary act of the master, by
operation of law. In both the maxim applies, volenti non fit injuria.
By the law of Missouri, (see title “Freedom,” Rev. Code of 1845,
p. 531.) any person held in slavery may sue for his freedom in forma
pauperis, and during the pendency of the suit will be protected from
improper treatment, by being taken from under the control of the

25
person claiming him as a slave. These and other provisions in the act
show that such suits are favored actions; nor is this favor confined to
actions in which rights are asserted, which have accrued within the
State. Both the decisions and the statutes show it to be otherwise;
thus the 21st sect. of the “Act concerning free negroes and mulattoes,”
Rev. Code, p. 757, provides that “Every free negro or mulatto, whose
right to freedom shall have accrued without this State, although such
right may have been established by suit in this State, shall be treated
as if he had actually been free at the time of his coming or being
brought into this State, and, as such, shall be subject to the provisions
of this act.”
These provisions recognise the propriety of the decisions which Judge
Scott denounces “as regardless of the rights, the policy, or the institu-
tions of this State,” and make provision for the recurrence of such
cases with like results. No right could accrue without the State, to be
established by suit in the State, on Judge Scott’s maxims; because all
such rights, whether founded on deeds of emancipation or acts in pais,
which by the law of the place effected it, depend on the enforcement
of what he calls “the foreign law.” But it so happens, that all the
cases in the Missouri reports where the right to freedom had been estab-
lished, and to which, therefore, it is fair to presume this 21st section re-
ferred, were cases founded on the identical causes for which this suit
was brought.
It is, however, wholly unnecessary for the plaintiff to show affirm-
alively, by statute or decision, that the policy of Missouri favored his
cause. It is for the defendant to show some act of the State which
negatives the presumption, that the law under which he claims to be
free is repugnant to the policy and prejudicial to the Interests of the
State. Nothing short of such evidence is admissible for that purpose,
according to the requirements of this court. -
In the case of the Bank of Augusta vs. Earle, 13 Peters, 590, after
quoting with approval the maxim of Huberus, embodied in the 38th
sec. of Story's Conflict of Laws, to the effect that, in the absence of a
conflicting law, courts of justice administer foreign laws as part of the
ºunicipal law, this court, in an opinion delivered by Chief Justice
Taney, says: “The intimate union of these States, as members of the
sºme great political family; the deep, and vital interests which bind
them so closely together, should lead us, in the absence of proof to the
*ary, to presume a greater degree of comity, and friendship, and
kindness towards one another, than we should be authorized to presume
between foreign nations. And when (as without doubt must occasion-
ally happen) the interest or policy of any State requires it to restrict
the rule, it has but to declará is will, and the legal presumption is at
* *4. But until this is done, upon what grounds could this court
refuse to administer the law of international polity between these
States?”
And in accordance with the general principle thus announced, the
Courts º the Slave States have invariably acted in declaring every

26
negro free who appealed to them, on the ground that he had been taken
by his master to reside where slavery was forbidden, and so was free
in a sister State; holding, in such cases, as declared by the court of
appeals of Virginia, in Spotts vs. Gillespie, 6 Rand. 573, that the court
does not “execute the law of Pennsylvania, but the law of Virginia,
which does not now and never did permit a person, free in Pennsyl-
vania, to be held in slavery here”—and, as in Spencer vs. Dennis, 8
Gill, 321, adopting the maxim, “once free and always free.”
Some of the laws on this point are: Lunsford vs. Coquellon, 2 Mar-
tin, 40; Marie Louise vs. Marot, 9 L. R. 475; Smith vs. Smith, 13 L.
R. 441; Thomas vs. Generis, L. R. 483; Josephine vs. Poultney, 1
Annual R. 329; Harry vs. Decker and Hopkins, Walker, 36, (Miss.:)
Griffith vs. Fanny Gilmers, 143, (Va.;) Rankin vs. Lydia, 2 A. K.
Marshall, 468, (Ky.;) Bush’s Reps. vs. White, 3 Mon. 104.
On the Power of Congress over the Territories.
IV. The freedom of Harriet and her daughter Lizzie depends on
the validity of the 8th section of the act of 6th March, 1820, entitled
“An act to authorize the people of the Missouri Territory to form a
constitution and State government, and for the admission of such
State into the Union on an equal footing with the original States,
and to prohibit slavery in certain Territories.” (3 Stat. page 548.)
The section in question is in these words: “And be it further en-
acted, That in all that Territory, ceded by France to the United States,
which lies north of thirty-six degrees and thirty minutes north latitude,
not included within the limits of the State contemplated by this act,
slavery and involuntary servitude, otherwise than in the punishment of
crimes whereof the parties shall have been duly convicted, shall be and
the same is hereby forever prohibited; Provided always, that any per-
son 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.”
The validity of this section is denied, on the ground that Congress
possessed no power to prohibit slavery in the Territories.
This is a question of more importance, perhaps, than any which was
ever submitted to this court; and the decision of the court is looked for
with a degree of interest by the country which seldom attends its pro-
ceedings. It is, indeed, the great question of our day and times, and
is, substantially, the issue on which the great political divisions among
men is ſounded in all times and countries. It is in form here a ques-
tion on the construction of a few words in our fundamental law. But
it is the principle involved that shapes the conclusions of political men
and parties, rather than the force or meaning of the language which
constitutes properly the legal question.
We take our positions in this controversy as our forefathers in Eng-
land took theirs in 'SS, in the celebrated debate of that day respecting

27
the force of words on a foregone conclusion, formed upon considera-
tion of the political effects or consequences to result from one or the
other construction.
And it is only upon considerations drawn from the general nature
and character of the institutions which our fathers founded for us, that
a satisfactory conclusion could be formed upon such a question, or
upon which it ought to be decided. They were men who used words
with singular felicity, it is true, but we should do them and ourselves
great injustice to decide a question which may give character through
all time to their labors upon a mere verbal criticism. Our conclusions,
therefore, will depend, and ought to depend mainly, upon our views of
the character of that great design, and upon our views of the influence
which the consequences to flow from the decision of this question, one
way or the other, will have upon it.
And some consideration of the policy of the Constitution and its
founders is the more proper, as I shall endeavor to show before con-
cluding, that the question involved in the controversy is not one of
power, but merely as to the direction which shall be given to it; and
that the only conflict is between the policy of the Government, from its
foundation, which was also the actual or contemplated policy of all the
States at that day, and the present policy of some of the States.
The question is, whether Congress has the power to prohibit slavery
in the Territories; or, which is the same thing, whether the Constitu.
tion carries slavery into the Territories.
I know there was for a time, and there may be now, some persons who
suppose an intermediate position may be maintained; but the argument
In support of what is known as squatter sovereignty seems to me wholly
ad captandum, and not to rest upon any basis recognised by this court.
In the American Insurance Company vs. Canter, (1 Peters,) this court
said, what seems to me indisputable, that “the people of the Territory
do not participate in political power; they do not share in the Govern-
ment till Florida shall become a State.” They are suffered to elect
members of a Territorial legislature and enact laws, with the sanction
of Congress, as the agents of Congress, and dependent wholly on the
Will of Congress for their force, and of course with no greater force
than Congress could give; and it follows, that if there be no power
in Congress to forbid slavery, it cannot be withstood by such portions
of power as may have been committed to its agents in the Territory,
and slavery must not only enter, if it be so willed by the holders of
such property, but must be protected when it has entered, as other rights
known to the law are protected by the Constitution. The question is,
therefore, whether slavery is established by force of the Constitution in
the Territories acquired by the Government, and brought under the
Constitution. -
The natural division among men wherever born is into those who
ºmpathise with power and dread the people, on one side, and those
who dread tyranny and fear the people less, on the other. The power
P") naturally associates itself with property interests, and institu.

28
tions which create political privileges. The other naturally allies
itself with the advocates of personal rights, and opposes privileges.
The contest going on under the issue here presented is but one phase
of this ever-continued and ever-varying strife.
Slavery is an institution which vests political power in the few, by
the monopoly of the soil, wealth, and knowledge which it causes. This
is its most obvious effect on the society or States in which it exists, and
an obvious consequence is the concentration of power in the hands of
those to whom the authority of such societies or States is entrusted in
the confederacy of which they form part.
And it is the sense of inequality and privilege which it creates, which
lies at the bottom of the contest now going on to decide whether new
communities of this character shall be created on the unoccupied lands
of the confederacy. -
And the principle derives its present importance from the fact that it is
felt to involve the character of the continent as a free or slave continent,
and a revolution in the ideas on which the Government was founded,
which must subvert it if acquiesced in.
Mr. Madison, in his letter to Mr. Walsh, recently published, dated
27th November, 1819, says: “When the evistence of slavery in that
Territory [the Northwest Territory] was precluded, the importation of
slaves was rapidly going on, and the only mode of checking it was by
narrowing the space open to them.” When, therefore, the space open
to it is indefinitely widened, by the adoption of the principle that the
Constitution establishes slavery in the Territories, importations will
again rapidly go on. It is said, indeed, and I have no doubt now with
perfect sincerity, that no purpose is entertained of repealing the prohibi-
tion of the slave trade; but there was a few years ago just as little pur-
pose to repeal the Missouri Compromise. But when the one cannot
be maintained, the other cannot last long, for both depend on the same
principle, and were adopted in furtherance of the same prohibitive
policy. And it is truly said, that if one be a ban against the institu-
tions of any of the States, the other is equally so. It is a question of
degree only. Either is equally decisive of policy, and either necessa-
rily draws with it the other. The power to carry slavery into Territo-
ries so vast will necessarily draw after it importation, and importation
would of course have forced open Territories which were forced
without it. The very principle to which I have referred, which is so
controlling a passion in our people if not allowed to be satisfied in the
prohibition of slavery in those vast regions, will insist on, opening the
slave trade, that the privilege of holding such property may be ex-
tended. And the governor of the State of South Carolina, in recently
presenting his proposition for re-opening the trade, relies with well-
founded conſidence on this principle to effectuate his design.
But it is not possible to say what form the reactionary movementin-
dicated by the assent of the public mind to either of these measures
may take, nor is it material whether it be in the reopening of the
slave trade proposed by the governor of South Carolina, or the subjec-

29
tion of the poor of our race, as proposed in Mr. Fitzhugh’s work on
Southern society. It is sufficient if the policy of extending slavery be
assented to, to show that the era of the founders has passed; and that,
like our prototype, the Dutch republic, we have run the career of
greatness due to noble ideas, and now perhaps from similar causes, the
increase of wealth and its sordid influences, having abandoned our
principles, we are to share the inglorious fate of the United Provinces.
It cannot be necessary here to dwell at any length on the proposition
that the policy which is involved in this denial of the right to prohibit
the extension of slavery is antagonistic to the designs of the framers of
the Constitution and the founders of the Government.
The provision for the prohibition of the slave trade, of itself and
alone, proves conclusively that the policy of the Constitution is against
the extension of slavery, but the expressive silence of the Constitution
on the subject of slavery is yet more significant; for whilst it is true
that it contains provisions which apply to slavery, they were on purpose
contrived to apply to other relations which were not peculiar. The
implication is, that this peculiar relation was expected to cease alto-
gether in time, and that the other and general relations would alone
subsist to give meaning to the language; and this implication is sus-
tained and confirmed by “the history of the times, and the state of
things existing when it was framed,” to which this court has told us
“we must look in the construction of the Constitution;” (see 12 P.
720, and also 4. Wheat. 416; 12 [b. 364, and 4 P. 431, there referred
to;) and that history teaches us not only that this was the general design
of the framers of the Constitution, but that the particular measure which
is here questioned is borrowed from one which was framed in concert
with them by the Continental Congress, which had asked for the new
constitution in order that the Government might have greater powers
than they possessed to carry out their designs.
The fact stated by Mr. Madison in arguing for the adoption of the
Constitution, in the 38th number of the Federalist, that the measure to
which I allude was adopted “without the least color of Constitutional
*hºrity,” was not only a powerful argument for the measure for
which it was offered, the adoption of the new Constitution, but, taken
* Connection with the fact which he adds, “that no blame has been
whispered,” and the fact that the vote of the States in Congress on the
adoption of the measure was unanimous, affords the most overwhelming
Proof that the sentiment of the men of that day was universal that slavery
should be excluded from the Territories. That such men, animated
y such sentiments, should form a constitution which imposed slavery
ºn the Territories of the Union, or, which is the same thing, did not
admit of the exercise of power to prohibit its introduction, is not to be
*"PPosed; especially as the controlling spirits of both bodies—the Con-
* of '87 and the convention then sitting and framing the Constitu-
*—were the same men.
It is attempted to avoid the force of this reasoning by saying it was
"9 contemplated by the framers of the Constitution that the United

30
States should acquire any territory over which it would be required to
organize a government; and therefore they gave no power on the sub-
ject; and it is no moment what was the spirit or sentiment of those
times or of ours on the subject, if no power was given to Congress to
carry it into effect. -
But it cannot be supposed that the framers of the Constitution would
fail to see the necessity of conferring power to establish temporary gov-
ernments in the Territories. For although there was a temporary
government established by the ordinance in all the territory to which
the United States then had an undisputed title, it was contemplated by
that very ordinance that there should be several new governments
established within the limits of the territory, and it must have been
foreseen that legislation would also become necessary, immediately on
the taking effect of the Constitution, to adapt the ordinance to the ex-
isting government. The United States had also claims, which are
referred to in the Constitution itself, to the Mississippi Territory, where
it would be requisite to form one or more such governments.
Having premised so much in relation to the character of the prohib-
ited institution, and the contemporaneous opinions and acts of the fra-
mers of the Constitution and their compeers, respecting its further in-
troduction into the country, and the spread of it into the new and unoc-
cupied territory, I will now examine what provisions they made in the
Constitution for the government of the Territories, and the grounds upon
which it is contended that Congress has no power to prohibit slavery in
them.
The old government, we have seen, was found in the full exercise
of all the power claimed for the new government, and among its first
acts was that of the 7th Aug., 1789, to adopt the ordinance and adapt
its provisions to the new Constitution. Whilst it is true, as Mr. Madi-
son says, that there was not in the articles of confederation a formal
grant of authority to exercise such powers, yet it had been granted in
fact, though informally, because States which were then the constitu-
ent bodies had all, I believe, in one form or another assented—some by
making the cessions of the territory asked for by Congress for the ex-
press purpose of disposing of the land and establishing governments in
the territory, and with a view to the States formed within it joining the
confederacy, and others by demanding that such cessions should be
made. The power was therefore rightfully exercised, and “no blame
was whispered” for mere defect of form in the authority.
The resolutions of Congress of 6th Sept. and Oct. 10th, 1780, 18th
April, 1783, invited the cession of the “unappropriated lands,” among
other purposes, “to be settled and formed into distinct republican States
which shall become members of the union,” &c. See 4 Journals,
p. 535.
This language implied the cession of jurisdiction as well as soil; and
accordingly in every case the jurisdiction was ceded, and the Govern-
ment entered on the exercise of it, and in virtue of it proceeded “to
form into distinct republican States” the lands so ceded, beginning in

31
the only mode in which a State could be founded by a government,
that is, by its erecting a government over the territory.
The express grant of power in the Constitution on the subject is
contained in these words, in art. 4, § 3, cl. 1, p. 20: “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. -
“Cl. 2. 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 of
any particular State.”
It is admitted that this language explicitly confers two of the powers
exercised by the old government—the power to admit States and to
dispose of the lands—but it is denied that it confers any authority to
erect temporary governments, or “to form into distinct republican
States” the lands or territory ceded which were afterwards in proper
time to be admitted into the Union, because it is alleged that the word
“territory” in the 2d clause, as there used, is merely synonomous with
the word “lands,” and the clause therefore authorizes only needful
regulations for the disposition of the lands. It is true this Court said,
in reference to this clause, in U. S. vs. Gratiot, 14 Peters, 537, that
“the term territory, as here used, is merely descriptive of one kind of
property, and is equivalent to the word lands;” and therefore it is in-
sisted, that the power which has been so long and repeatedly exercised
to institute such temporary governments has been wholly unauthorized
by the Constitution, or, at most, that the power is only derived by in-
plication from the treaty-making or war-making power, and did not
extend beyond the making of the most necessary provisions for pre-
serving the acquisitions of the Government, and therefore did not au-
thorize any regulations discriminating against one section of the Union
by forbidding the people of that section to take with them, if they
chose to go to the new territory, every species of property they pos.
sessed at home, and recognised as property by the laws of the State
from which they removed.
But the quotation from 14 Peters, which the opponents of Congres-
sional authority make, is not all the court say, there and elsewhere, on
the subject, immediately after what is quoted this language follows:
“And Congress has the same power over it as over any other property
belonging to the United States; and this power is vested in Congress
Withºut limitation, and has been considered the foundation upon which
the Territorial governments rest. In the case of McCulloch vs. The
Slate of Maryland, (4 Wh. 422,) the chief justice, in giving the opinion
of the court, speaking of this article, and the powers of Congress
*Wing out of it, applies it to Territorial governments, and says, all
*mit their constitutionality. And again, in the case of the American

32
Insurance Company vs. Canter, (1 Peters, 542,) in speaking of the
cession of Florida, under the treaty with Spain, he says, that Florida,
until she shall become a State, continues to be a Territory of the United
States, governed by that clause in the Constitution which empowers
Congress “to make all needful regulations respecting the territory or
other property of the United States.’”
No one can read the whole passage without seeing that the quotation
of the two lines in reference to the meaning of the word “territory,”
is calculated to convey an erroneous impression as to the opinion of the
court on the subject of the power of Congress over the Territories; and
this erroneous impression is further inculcated by saying, that the case
from which it is quoted is a subsequent decision to the case of the
American Insurance Company, which the advocates of the power gen-
erally quote; whereas, it appears, that the first case is cited and approved
in the last, notwithstanding the definition given in the last of the word
territory. -
But if we construe the word by the context, and the clause with
reference to the condition of the title of the United States in the subject-
matter, it is evident that it has the two different significations of a dis-
trict of country and the public lands within it, and of land simply.
Thus, when the territory to be dealt with lies outside of the jurisdic-
tion of a State—which was the case at bar—the language conveys the
sovereignty of the district of country, and the right to dispose of the
public lands within it, because it is spoken of as territory belonging to
the United States, respecting which territory the power to make rules
and regulations is given.
To limit the meaning of the words merely to a grant of power to
make rules and regulations for disposition of the public lands in a par-
ticular region, under such circumstances, would be to grant no power
at all. The power to grant or to hold lands presupposes the existence
of a government to protect the property and the grantee in the rights
granted to him. And the possession and disposition of land by a
government, being in a region of country lying outside of the juris-
diction of any other government, cannot be conceived of, unassociated
with the idea of political sovereignty, to be exercised under the limita-
tions and according to the nature of its own constitution. To deny,
therefore, that territory under such conditions means a district of country
subject to be governed by the United States, is to deny all meaning and
effect whatever to the clause. And, therefore, when the chief justice, in
Canter’s case, (1 Peters, 546,) speaks of Congressional legislation over
such a Territory, as legislation “in virtue of the general right of sove-
reignty which exists in the Government, or in virtue of that clause
which enables Congress to make all needful rules and regulations
respecting the territory belonging to the United States,” he does not
talk “loosely,” as has been said, but with his accustomed precision.
But the word also means land; and when the United States owns
land lying within another sovereignty, the clause is so framed that it
will then enable the Government to dispose of it. This was the case
2.
~ * >
with respect to the land referred to in the United States vs. Gratiot,
(14 Peters, 537,) where, therefore, it was correctly said, “the term, as
here used, is merely descriptive of one kind of property, and is equiva-
ſent to the word lands.” And this change in the effect of words, ac-
cording to the condition of the grantor's title in the subject-matter, is
nothing remarkable. It occurs every day in individual grants, where the
same words will convey every quantity and quality of estate according
to the interest of the grantor. This construction accords with the prac-
tice of the Government and the common understanding of the people.
When a Territory, or the territory of the United States, is spoken of,
every one would understand, without further explanation, that a dis-
trict of country out of the jurisdiction of any State and under the juris-
diction of the United States, was intended; but if it were explained
that it was territory lying within a State, every one would then under-
stand that the public lands only were spoken of. -
When so construed, the clause illustrates the observation so often
made, that the Constitution is as remarkable for its literary execution
as for its political wisdom, both in respect to the comprehensiveness of
the language used, and the use of no unnecessary or unmeaning word.
If it had been intended to grant no other power than the power to dis-
pose of the Territory and other property belonging to the United States,
it would have been granted in that language simply as the power “to
lay and collect taxes,” “to regulate commerce,” “to establish post
offices and post roads;” and other great powers were granted, without
superadding the unmeaning words, “and to make all needful rules and
regulations respecting the collection of taxes, or regulation of com-
merce, or post offices and post roads,” which add nothing to the power
granted, and mar the composition. Besides, the rules and regulations
spoken of in the clause in question are not confined to rules, &c., re-
lating to the disposal of the soil; but the power granted is to make rules,
&c., relating to the territory—not to the disposal of it. And when
we remember that the United States had a political sovereignty over a
certain district of country, as well as proprietary rights within it, and
expected, in time, to yield its political sovereignty, but to retain its
lands, we see that the words were admirably adapted to the exigencies
of both conditions.
If the words had been what it is contended they are in effect, merely
to grant the power “to dispose of the property of the United States, and
to make rules and regulations respecting it,”—they would have au-
thorized the disposal of the soil; and the word “property,” which has
a sense large enough to include the Territorial right, must have been
so construed in the absence of the proper word, in order to find appli-
cation for the words “to make all needful rules and regulations respect-
ing it;” for this provision is not required, and, as already observed,
does not apply to the disposal of the soil. -
It would be, even on this reading, not a provision respecting the disposal
of property, but a provision to make rules and regulations respecting it
in every way; or, in other words, authority to deal with it according to
5


34
the requirements of its nature, for the purpose of carrying out the ob.
jects of the Government. But as Territorial rights were a class of rights
not ordinarily spoken of and classified as property, but generally desig-
nated by the word “territory,” that was the appropriate word to con-
vey the idea.
Again: if this word had stood unqualified by the words “other pro-
perty,’” besides having to make another clause to cover such other pro-
perty, the authority to dispose of the public lands would not have been
so clearly expressed. It might have been argued that it was intended
merely to authorize the disposition of the Territorial rights, and to au-
thorize the temporary government; but by coupling the word “terri-
tory” with “other property,’” the meaning is qualified, so that the
power to sell as a land-proprietor is conveyed; and by coupling it with
words which give the power to regulate it in all respects, it assumes,
also, its ordinary signification.
It was said in reply to this view of the subject, that the primary
meaning of “territory” was land, and that the use I contended for
had obtained, in consequence of the practice of the Government, and
that it was not used in the present sense before the adoption of the
Constitution. I referred to many charters, treaties, laws, &c., to show
that the meaning was always the same, and always implied sovereignty
when the word was used in respect to a possession of a government
not within the jurisdiction of any other sovereignty. It is sufficient for
my purpose, however, to refer to the ordinance itself, and to every
article in it almost. Take, for example, the 6th: “There shall be
neither slavery nor involuntary servitude in the said Territory,” &c.;
here we have the same word as in the Constitution. Does it mean
that there shall be neither slavery nor involuntary servitude on the
public lands? or does it impose that regulation on the whole district
of country comprising both the public lands and all other land?' So
Art. W provides that “there shall be formed in the said Territory not
less than three nor more than five States,” &c.
Nor is the meaning of the word in the Constitution limited to the
Northwestern Territory, but it applied then to that region of country
known as the Mississippi territory, to which Congress had a claim, and
has been applicable, and has been applied, in fact, to every country or
region which has since become definitively subject to the jurisdiction of
the United States.
These considerations demonstrate that the power contained in the
second clause of this article, to make needful rules and regulations re-
specting the territory belonging to the United States, is a power to
make provision for the government of such Territories.
What are needful rules and regulations, and whether any particular
law was indispensable as such, is a question not within the scope of
judicial inquiry. When there is a substantive power vested in Con-
gress, the laws passed in the exercise of it cannot be questioned in
the courts, unless they violate some of the constitutional limitations of
the legislative power; as, for example, provisions against “religious

35
tests,” “bills of attainder,” “trial by jury,” &c., &c. If the power is
conceded at all, whether derived from the clause I have considered, or
from the treaty-making or war-making power, it is necessarily what the
chief justice described it in Canter's case, “the combined power of a
General and a State government.”
As it is conceded generally that Congress has such a power—and it
is questioned only when applied to a particular subject—the only legal
question involved is, whether this application violates any of the ex-
press restrictive provisions of the Constitution on the legislative power.
Nothing of the sort is pretended. It is only contended that its operation
is prejudicial to one section of the country, and therefore violative of the
spirit of the Constitution, wheh recognises the equality of the States.
But this, if true in fact, is not one of those “ inevitable consequences”
which are alone the subjects of judicial consideration. If the opera-
tion of the prohibition is unequal or discriminating against any State,
or against any peculiar individual rights or institutions created or recog-
mised by the law of such State, this may be a conflict in the policy of
the two governments in reference to such institutions; but to call it a
violation of the constitution of either government would be to make
the constitution of one government dependent on the legislation of the
other; and where the policy of the States differed among themselves,
as they do on many subjects, there would of necessity result a multi-
tude of violations of the Constitution of the United States. Thus, if
it is a violation of the Constitution to forbid slavery in the Territories
because it is allowed in some of the States, it would be equally a vio-
lation of the Constitution to permit it to go there when other States
prohibit it, and it would cease to be a violation of the Constitution if
all the States should prohibit the institution, and again become so if
any of them should re-establish it. -
But a great jurist says: “Constitutions are not themes proposed for
ingenious speculation, but fundamental laws ordained for practical pur-
poses. Their meaning once ascertained by judicial interpretation and
contented acquiescence, they are laws in that meaning until the power
that made shall think proper to change them.”
If there could be a doubt either about the power, or the extent of it,
arising on the mere construction of the language of the Constitution,
the indisputable principle announced by Judge Gaston in the above
extract certainly applies to the present question.
As already shown, the prohibition of slavery was found in force,
under the ordinance of ’87, by the present Government. It was orig-
inally proposed by Mr. Jefferson on the 19th April, 1784. The propo-
sition failed then by a single vote. It was renewed by Mr. King on
16th March, 1785, as “a regulation” which should be an “article of
compact,” and “remain a fundamental principle of the Constitution
between the thirteen original States and each of the States described in
the resolve of 23d April, 1784.”
As soon almost as the Constitution took effect, early in the first session
of the first Congress, the leading men in which were the framers of the

36
Constitution, an act was passed to give effect to the ordinance, in reſer-
ence to which this Court say, in Strader vs. Graham, 10 Howard, 96,
“it is undoubtedly true that most of the material provisions and princi-
ples of the six articles, not inconsistent with the Constitution of the
United States, have been established law within this Territory ever
since the ordinance was passed, and hence the ordinance itself is some-
times spoken of as still in force. But these provisions owed their legal
validity and force, after the Constitution was adopted, and while the
territorial government continued, to the act of Congress of Aug. 7,
1789, which adopted and continued the ordinance of 1787, and car-
ried its provisions into execution with some modifications which were
necessary to adapt its form of government to the new Constitution.”
As the ordinance, therefore, owed its legal validity and force wholly
to the act of ’89, neither the 6th nor any other article could have had
any legal validity and force unless the Constitution authorized such
legislation by Congress for the government of the Territories. The
fact that this act continued in operation unquestioned till the State con-
stitutions were formed, shows the universal understanding of the Con-
stitution, which is the best proof of what it is. As in cases of disputed
boundaries, actual possession taken with the deed, by the consent of the
grantor, is conclusive; so here, where the extent or boundaries of a
grant of power is disputed, when we see that Congress entered on the
exercise of the disputed power immediately after the grant was made,
without question from any quarter, such possession is the highest evi-
dence of right. And the stipulation in the Georgia cession of 1802,
that slavery should not be prohibited in the ceded territory, was also
a contemporaneous construction to the same effect.
Then followed a series of acts to subdivide the Northwest Territory,
all of which purport to continue this regulation in force, and under
all of which it has been enforced. Nor has the exercise of the power
to exclude slavery been confined to the Northwest Territory. It was ex-
ercised so far as to prohibit the foreign importation into the Mississippi
and Louisiana territory prior to the act of 1808, which excluded in-
portation into the States, thus exercising the powers over the subject
which the State governments had exercised. All these acts, as well as
the act of 6th March, 1820, for the admission of Missouri, and the res-
olutions of March 1, 1845, for the admission of Texas, by both of
which slavery was forbidden in that part of the territory lying north of
36° 30', were passed without the expression of doubt from any quarter
as to the constitutional power of the Government to impose such a pro-
hibition. It was not until the beginning of '47 that it was broached.
It is true, that a paper was produced in the Senate during the discussion
of the subject in 1848, (see App. to Cong. Globe of that year, p. 1178,)
believed to be in the handwriting of Mr. Monroe, endorsed “Interrog-
atories, Missouri,” March 4, 1820, as follows:
“To the Heads of Departments and Attorney General:
“Has Congress a right, under the powers vested in it by the Consti-
tution, to make a regulation prohibiting slavery in a Territory !
º

37
“Is the 8th sect of the act which passed both Houses on the 3d
inst., for the admission of Missouri into the Union, consistent with the
Constitution º’’
But a letter, which is written on the same sheet with these inter-
rogatories, shows that whilst the interrogatories in terms would seem to
make the question afterwards raised, and here presented, that the real
and only question then was, whether the prohibition continued to
operate in the country to which it was applied after it had ceased to be
a Territory of the United States and had become a State, a question
which was created by the use of the word “forever” in the prohibition
As to the power of Congress to make a law to prohibit slavery in the ter-
ritory, to operate whilst the country remained a territory of the Union
and until it should come under a State government, I believe that
neither he nor any one of that day entertained or expressed a doubt.
The letter of Mr. Monroe is as follows:
“DEAR SIR: The question which lately agitated Congress has been
settled, as you have seen, by the passage of an act for the admission of
Missouri as a State, unrestrained, and Arkansas likewise, when it
reaches maturity, and the establishment of the 36° 30' north latitude
as a line north of which slavery is prohibited, and permitted to the south.
I took the opinion in writing, of the administration, as to the constitu-
tionality of restraining Territories, (and the vote of every member was
unanimous,”) which was explicit in favor of it, and as it was, that the
8th section of the act was applicable to Territories only, and not to
States when they should be admitted into the Union. On this latter
point I had, at first, some doubt; but the opinions of others, whose
opinions were entitled to weight with me, supported by the sense in
which it was viewed by all who voted on the subject in Congress, as
will appear by the Journals, satisfied me respecting it.”
Mr. Adams's Journal of the 3d, 5th and 6th March, 1820, quoted
at page 1179 of the Appendix to Globe, and Mr. Calhoun’s remarks in
the Senate on the 11th January, 1838, reported at page 70 of Appen-
dix to Globe for 1837–28, confirm this.
Mr. Adams says, all the Cabinet agreed in answering the questions
affirmatively, and there was no difference among them except as to the
reasons for the last. Some thought the prohibition would continue after
the State government was formed; others thought it would not.
Mr. Calhoun admitted, in 1838, that he had favored the measure,
but regretted that he had done so—not because he had then become
convinced it was unconstitutional, but because “he now believed that it
was a dangerous measure, and that it had done much to rouse into ac-
tion the present spirit.”
Nor does the letter of Mr. Madison of 27th November, 1819, to Mr.
Walsh, recently published, militate against this view.” This letter was
not written in reference to the question, but in reference to the restric-
tion then proposed to be put on the State of Missouri. After arguing
that the power to impose the restriction on the State could not be de-
*The words in italics are erased in the original.

3S
rived from the 9th section of article 1, which relates to the migration or
importation of persons, he says, the power to restrain the State, if it
exists, must be derived from the clause “to make all needful rules and
regulations respecting the territory or other property of the United
States,” or from that providing for the admission of new States into
the Union; and then follows the passage which is quoted as question-
ing the power here in controversy, in these words:
“The terms in which the first of these powers is expressed, though
of a ductile character, cannot well be extended beyond a power over
the territory as property, and a power to make the provisions really
needful or necessary for the government of settlers until ripe for admis-
sion as States into the Union. It may be inferred that Congress did
not regard the interdict of slavery among the needful regulations con-
templated by the Constitution, since in none of the Territorial govern-
ments created by them is such an interdict found. The power, how-
ever, be its import what it may, is obviously limited to a Territory
while remaining in that character, as distinct from that of a State.”
This concedes instead of denying the power. The statement that
it had not been exercised by Congress is founded on a misapprehension
of the effect of the act of 1789, and other acts, as shown by the decision
of this court in Strader vs. Graham, 10 Howard, 96, already quoted.
On the 1st of February, 1847, Mr. Wilmot (see Congressional Globe,
page 303) offered his proviso to the 3,000,000 appropriation bill,
prohibiting the introduction of slavery into any territory to be acquired
from Mexico. On the 19th of the same month, Mr. Calhoun intro-
duced his celebrated resolutions in the Senate, asserting that “any law
which, directly or by its effects, deprives the citizens of any of the States
of this Union from emigrating, with their property, into any of the Ter-
ritories of the United States, will be a violation of the Constitution and
the rights of the States from which such citizens emigrated,”’ &c.
(See Congressional Globe, page 455.) This I believe to be the first
announcement of this doctrine. - -
But neither he nor his friends have regarded the act as unconstitu-
tional in the legal or judicial acceptation of the term, because they
voted in a body to extend the Compromise line to the Pacific, in 1848,
when the Oregon bill was pending, and for the provision in the act of
1850, known as one of the Compromise acts of that year, establishing
a Territorial government in New Mexico, by which the prohibition
against extending slavery north of 36° 30', in Texas, was reaffirmed.
They have always felt at liberty to vote for such a provision,
as they voted for it in 1820, in 1848 and 1850, as a Compro-
mise, thus admitting, in the fullest manner, that the sense in which
they contend that such an act is unconstitutional, is not one which
would render them false to their oaths to support the Constitution, or
render an act null which had been passed by their votes. The solution
of this apparent conflict is found in the 2nd resolution of Mr. Calhoun,
of the series above referred to. The resolution is, “That Congress, as
the joint agent and representative of the States of this Union, has no
right to make any law or do any act whatever that shall directly, or by

39
its effects, make any discrimination between the States of this Union,
by which any of them shall be deprived of its full and equal right in
any territory of the United States acquired or to be acquired.”
The Government is considered a mere agent of the States—the Con-
stitution a contract with them severally, under which it must account
to them for a full and equal share in the territory acquired, as a com-
mercial agent, acting for several firms or individuals, must account to
each of them for their distributive share of the joint property coming to
his hands; where an arrangement or compromise is made, satisfactory to
those assuming to represent these sovereignties, that is deemed a compli-
ance with the contract. In this way such representatives might offer to
divide territory so as to admit of the restriction against slavery being
imposed on part of it, in consideration that another part should be open
to the institution, and then such representatives might lawfully vote
for the extension of the Missouri Compromise line to the Pacific in
1848 and 1850, and, not succeeding in obtaining a compromise on
such terms, justify themselves for retracting that made thirty years
previously, and also in holding any restrictive act unconstitutional
which they did not assent to severally—just as a refusal of a common
agent to pay over to his employers their exact share of funds in his
hands would be a breach of contract.
In this sense it is common to speak of acts of Congress as unconsti-
tutional, which no one would ever think of questioning in a court of
justice. Thus it was said the tariff acts of 1824 and 1828 were un-
constitutional, for a reason entirely analogous to the ground taken here—
the unequal operation of those laws on the south; and, I think, with
altogether better reason, as I believe the statistics did show some un-
equal operation in those laws. But here the statistics justify no such
imputation, it appearing by the census, I am informed, that the emi-
gration to the free Territories from the slave States, as compared with
the emigration from the free States, is in due proportion to population.
But if the judiciary may consider such objections, and may declare
a law void when it can be shown to work unequally, owing to adven.
titious circumstances, Government would become impracticable.
It is illustrative of the character of this controversy, and shows how
entirely it is one of policy to observe, that the power of Congress to
acquire territory by treaty or conquest, which necessarily brings with it
the duty of governing it, is not denied by those who contest the power
to legislate on a single subject after the acquisition, and yet it is not at
all necessary to acquire territory by war or treaty. The chief justice
says, that “the right to govern may be the inevitable consequence of
the right to acquire territory,” but does not say that the right to acquire
territory is the inevitable consequence of any power granted in the Con-
stitution; and it is well known that all parties agreed at the time of the
acquisition of Louisiana, that there was no warrant for it in the Con-
stitution. The objection might be made in this case, indeed, and goes
to the very point here insisted on, and is good, a fortiori, if that relied
on is good. The exercise of this power is, however, now acquiesced
in, as the legislation for the territories under the confederation was ac-

40
quiesced in, “without a whisper of blame,” though it is exercised with-
out “the shadow of constitutional authority,” and no one would be
heard to question it. This is but the adoption of the principle an-
nounced by Judge Gaston, that the Constitution is what it is shown to
be by action under it, and contented acquiescence in such action: a
principle which applies with still greater force, where there is not only
color of constitutional authority in the words of that instrument, but
language which fully warrants the exercise of all the power which has
been exerted, if the natural and common acceptation be given to the
words. -
The legislative construction of the Constitution which I am endea.
voring to sustain is sanctioned by all commentators on the Constitution.
See Story's Commentaries, vol. 3, pp. 193, 4, 25.
Kent, vol. 1, p. 360; Rawle, p. 237. -
Sergeant's Constitutional Law, p. 389.
I have already cited the decisions of this court in the cases of McCul-
loch vs. Maryland, 4. Wheat..: the Am. Ins. Co. vs. Canter, 1 Peters,
543; and the U. S. vs. Gratiot, 14 Peters, 537. The same general
doctrine as that contained in Canter’s case was announced in the case
of Pollard's Lessee vs. Hagan and al., (3 Howard.) where, at p. 223,
the court says: “Within the District of Columbia and other places
purchased and used for the purposes above mentioned, the national and
municipal powers of the Government of every description are united
in the Government of the Union. And these are the only cases within
the United States in which all the powers of Government are united
in a single government, except in the cases already mentioned of the
temporary territorial governments, and there a local government ex-
ists.’’ in Strader vs. Graham, 10 H. 96, the court refers to and adopts
this exposition.
So in Cross and al. vs. Harrison, 16 H. 193, the court says: “ The
territory had been ceded as a conquest, and was to be preserved and
governed as such until the sovereignty to which it had passed had legis-
lated for it. That sovereignty was the United States, under the Con-
stitution, by which power had been given to Congress to dispose of and
make all needful rules and regulations respecting the territory and
other property belonging to the United States. " " In confirma-
tion of what has been said in respect to the power of Congress over this
territory, * * * we refer to two decisions of this court.” The
remarks from the American Ins. Co. vs. Canter, 1 Peters, 542, 3,
above quoted, are then quoted; and also U. S. vs. Gratiot, 14 Peters,
526, with the remark, that it repeats what is said in Canter’s case.
In Harvy vs. Decker, Walker (Mississippi) Rep., p. 36; Murray vs.
Alexander, 8 Martin’s La. Rep. p. 699; Phoebe vs. Joy, Breese, (Ill.)
210; Racheſ vs. Walker, 4 Missouri, 350; even in Scott vs. Emer-
son, 15 Mo. Rep., and a multitude of other similar cases, involving
freedom, depending on the validity of Congressional prohibitions of
slavery, the power was unquestioned, and never has been questioned
till now in court.
M. BLAIR.
-- * * ,
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