/
PRICE TWENTY CENTS.
THE
DRED SCOTT DECISION
OPINION
OF
CHIEF JUSTICE ROGER R TANEY,
IN THE DRED SCOTT CASE,
WITH
AN INTRODUCTION BY DR. J. H. VAN EVRIE, ALSO AN
APPENDIX ON THE NATURAL HISTORY OF THE
PROGNATHOUS RACE OF MANKIND, BY
DR. S. A. CARTWRIGHT, OF
NEW ORLEANS.
SECOND EDITION.
NEW YORK:
VAN EVRIE, HORTON & CO
No. 162 Nassau Street.
1863.
THE DEED SCOTT DECISION.
OPINION OF CHIEF JUSTICE TANEY,
WITH
AN INTRODUCTION
BY
DR. J. H. VAN EVRIE.
AISO,
AN APPENDIX,
CONTAINING AN SSaAY ON THB
NATURAL HISTORY OP THE PROGNATHOUS RACE
dDf Mrakinfr,
ORIGINALLY WRITTEN FOR THE NEW YORK DAY-BOOK,
BY
1>K. S. A. OARTWRIGHT,
OF NEW ORLEANS.
NEW YORK:
VAN EVRIE, IIORTON & CO
No. 162 NASSAU STREET.
1 8 6 ,3 .
res- 7S86.^fc *©. 'f
Ektsset) according to Act of Congress, in the year 1859,
By VAN EVRIE, HORTON & CO.,
la the Clerk's Office of the District Court for the Southern District of New York-
INTRODUCTION
DR. J. H. VAN EVR1E.
This opinion of Chief Justice Taney and those of his eminent colleagues of the
Supreme Court of the Republic, is an epoch in our civil history, which is doubtless
destined in all future time to be a land-mark in American civilization.
The facts in the case are all very simple, distinct, common- place, and the conclu-
sions from them plain and unavoidable ; nevertheless, this decision, except the
Declaration of National Independence in 1776, is the most momentous event that has
ever occurred on this continent, and the results destined to flow from it can be
second only in importance to those which have followed that memorable event. The
Declaration of 1776 announced a truth the most stupendous that ever fell from
mere mortal lips — the Dred Scott decision confirms a principle essential t'o the pre-
servation and success of the former, and which otherwise would needs be but little bet-
ter than "sounding brass or a tinkling cymbal." Unlike the homogeneous population
of Europe, American society ismade up of diverse races, each having its own specific
wants and necessities, and therefore any social or political organism that is not in
accord with these fundamental facts— these unchanging and unchangeable ordi-
nances of the Eternal — must rest on false foundations, and work out evil only to
all concerned.
The doctrine of 1776, that all (white) men "are created free and equal," is univer-
sally accepted and made the basis of all our institutions, State and National, and
the relations of citizenship — the rights of the individual — in short, the status of the
dominant race, is thus defined and fixed for ever.
But there have been doubts . and uncertainties in regard to the negro. Indeed,
many (perhaps most) American communities have latterly sought to include him
in the ranks of citizenship, and force upon him the status of the superior race.
This confusion is now at an end, and the Supreme Court, in the Dred Scott deci-
sion, has defined the relations, and fixed the status of the subordinate race forever — ■
for that decision is in accord with the natural relations of the races, and therefore
can never perish. It is based on historical and existing facts, which are indisputable,
and it is a necessary, indeed unavoidable inference, from these facts.
A few years after Columbus had discovered and planted a Spanish colony in the
island of St. Domingo, there were some negroes (slaves) imported from Spain into
the island, and they were found to be so superior to the natives as laborers on the
Spanish plantations, that others were soon afterwards imported directly from Africa,
and finally into all or nearly all of the Spanish possessions. The British colonies
in the northern and temperate latitudes did not need this special class or kind of
labor, but as they were in possession of vast territories, and labor of every kind needed
for the conquest over these barren and boundless solitudes, they, too, imported
iv INTRODUCTION.
African negroes, and when the British dominion was overthrown, all the colonies
had more or less of this negro element in their midst.
All these negroes or their progenitors, all ever brought to America ia all the
colonies on the continent or in the islands, Spanish, Portuguese, French and English,
were in the same subordinate position, and sustained the same (slave) relation to
the whites; and such a thing as the introduction of a " free " negro is totally un-
known in the history of America.
Was there any other condition of these negroes anterior to the history of this
continent? Probably not — at all event?, history fails to record any such thing. In
the entire past in all lands, whenever and wherever white men and negroes have
been in juxtaposition, their relations — the mastery of the former and '''slavery" of the
latter — have been the same (substantially) as that which exists now at the South,
and as they were when modern history first takes cognizance of them.
There were, doubtless, as there are now, modifications in regard to detail, but
the great foundation principle, the subordination or " slavery" of this negro element
was universal, and for two hundred years and upwards unquestioned in a single in-
stance on this coutinent, or indeed any other. The various American communi-
ties legislated on the subject : they protected the " slave" from the vices or cruelty
of the master, while they provided for the welfare of the latter and the general secu-
rity of this species of property ; but all this was in view of the existing fact, the
natural relation and fundamental principle of mixed societies, the "slavery" of the
negro. They regulated, but of course did not establish or institute this so-called
slavery ; for like the relations of the sexes, of parents and children. &c, it was in-
herent, pre-existing, and sprung spontaneously from the necessities of human society.
The white man was superior — the negro was inferior — and in juxtaposition, society
could only exist, and can only exist, by placing them in natural relation to each
other, or by the social subordination, or so-called slavery of the negro.
This universal recognition of " slavery" as the natural relation of the races was
the basis of the common law, of course, wherever the common law was itself recog-
nized, and as this was the case in all the British colonies, it followed of necessity
that "freedom." "free negroism," or legal equality of negroes, was the creature of the
lex loci or municipal law. The " common law" is neither more nor less than
common sense, and the principles of justice applied to the existing condition, or in
conformity with the ordinary and universal usages of the people.
These negroes were different and subordinate beings — they were in a different
and subordinate social position, when first known or seen by the colonists — their
offspring followed the condition of the parents, and this relation to the whites was
universally recognized, and therefore being the common usage or universal custom,
it formed the basis of all common law decisions on the subject. Or, in other words,
this relation — this social subordination, or so-called " slavery," did universally exist,
and therefore in all cases where suits were brought, or the law appealed to, where
negroes were in issue, the principles of common sense and justice were applied, in
conformity with the universal usage. In some of the eastern colonies, there were
doubtless exceptions, and indeed great confusion on this subject ; but it is an histo-
rical fact that in most of the colonies there was no exception or departure from the
common usage until the time or about the time of the great revolutionary movement
in 1776, and the radical change of political institutions in the New "World. The
Spaniards, French, &c, it is supposed, were not "blessed" with the "common law,"
but this "slavery" was universally recognized as the natural position and real status
of the negro in all their American possessions, and for two hundred years after their
first introduction, no legal decision can be found in all America based on any other
assumption.
INTRODUCTION. v
Indeed, it is true, and a truth which any reflecting mind may readily under-
stand, that were the new entirely isolated from the old world, no other conception
of the negro would be possible. Oar ideas are the results of our perceptions of
external objects. The senses perceive and transmit their impressions to the brain,
which compares them and determines their character independent of the will. The
negro was brought here a " negro slave," a different and subordinate being, and in a
different and subordinate social position, harmonising with his essential nature
and the wants and welfare of the superior race; therefore the colonists, of themselves
or by themselves, of course could form no other conception of him, or rather of the
actual facts thus presented to them.
They might, it is true, conceive of modifications of this condition or regulations of
this relation, of greater latitude to the negro, or restraint upon his master; but the
modern idea of " freedom," that this different being was the same being as them-
selves, or this subordinate creature entitled to equality with themselves, would be a
mental impossibility, as palpable as that of water running up hill, or of men stand-
ing on their heads instead of their feet. The American recognition of "slavery" —
of the facts embodied in the negro being — was therefore universal' throughout
America, and among colonists, however separated in opinions, habits, and usages
in other respects.
Nor was there the slightest change of opinions or modification of usages until the
new ideas of 1776 dawned upon the world, and threatened new and startling
changes in the whole frame-work of human society. As long as the colonies re-
tained the system — the outward forms of the old political and social order, and re-
cognized the sovereignty of the mother country, the rulers of England were not dis-
posed to meddle with their domestic concerns, and therefore their relations to the
negro element of their population, like every thing else, was left to their own
control.
But the establishment of a new system on principles hitherto unrecognized among
the statesmen of Europe, and which, if successful, would endanger the social order,
as they understood it, impelled the British aristocracy of the day to make every
effort possible, moral and material, to embarrass and break down institutions so
alarming, and as they doubtless believed, so pregnant with mighty mischiefs to the
future of society. So long as the colonists conformed to the general European sys-
tem, or so long as there was no outward contradiction of American and British so-
ciety, the relation of the whites to the negro element in their midst was never a
subject of doubt or difficulty ; and it is reasonable to conclude that if this contra-
diction had never happened — if the colonies had never thrown off European do-
minion, and the relations then existing between the white men of this republic and
those of England had continued to this day, then we should never have had the
slightest trouble in regard to negroes, and such a social monstrosity as a free negro
would probably be unknown among us.
But the new notions which then sprung up in men's minds, and the new forms of
political society that followed, and which placed the institutions of America in total
and irreconcilable co/itradiction to those of the mother country, resulted in new
combinations, and other and unheard of modes of hostility to the new order.
The idea of equal rights, or of natural equality, is as old as the race itself; for
though there are slight differences in the intellectual as in the (natural) physical
powers of individuals, all have the same wants, and therefore the sentiment of
Democracy is inherent and everlasting in the very organism of the race. But
this idea, or sentiment rather, was never before incorporated into the political in-
stitutions of mankind, and when it was made the practical and fundamental prin-
ciple of the new system, it not only placed the institutions of America in direct hos-
vi INTRODUCTION.
tility to those of Europe, but it convinced the upholders of the latter that this hosti-
lity could never cease until one or the other was overthrown.
Fortunately, too, for the friends of monarchy and privilege, materials existed
which only needed to be adroitly managed to strike a felon and perhaps deadly blow
at,thenew system, without the risks of war, or even those ordinarPy dependent
on failure of any kind ; and which, if successful at all, would be wholly so, for it
was at the centre, the heart, the very sources of life itself, that the blow would be
aimed. One-sixth of our population were negroes — a subordinate social element —
which, incorporated and amalgamated with the white citizenship, would so debase
and deteriorate the latter, that equality would be undermined, lost and annihilated
altogether, and Democracy rendered impracticable and impossible for ever.
Will any one doubt this, or venture to say that we might incorporate the negro
element of our population with the white citizenship, and yet preserve our institu-
tions, the purity of our principles, the life of our democratic system ? If there are
euch, they have only to cast their eyes to the populations south of us to witness the
ruin, the degradation, the punishment, misery, and even death that follows all such
attempts to incorporate different races into the same system : and the negro ele-
ment being still further removed from us, would, were the British or abolition
theory reduced to practice, bring upon us only a more rapid and more fearful
punishment.
It is not to be supposed that English and European statesmen understood this
matter, in what way or manner the ruin and overthrow of the new ideas they so
dreaded could be accomplished by means of this negro element of our population,
but instinct, if not reason, taught them that it might be decisive and overwhelming.
It is, indeed, probable that in the first instance they merely resorted to that tradi-
tional maxim of the British aristocracy, divide and conquer, which has come down
from the old Norman nobility, and which has been and is now the leading principle
of British policy.
Here was one-sixth of the population shut out from all the chances and enjoy-
ments of political and social intercourse, and which, though they were unable to ap-
peal to it, or to use it as a national instrument for attacking the republic in the
ordinary way, might be wielded in some mode or form, perhaps equally or even
more effective, though that mode or form was indefinite and impalpable to the Bri-
tish mind. But be this as it may, or whatever may have been the reasonings
of the enemies of democratic institutions, the motives and the results arrived at
admit of no doubt whatever. Their system, if it may be called thus, rested on wrong,
on falsehood, on the ignorance, poverty, and degradation of the masses — ours on
the principles of eternal truth, on the natural and inalienable right of all (white)
men to the same political privileges and legal rights; and the instinctive hostility
of opposing systems, the innate and irreconcilable conflict of hostile principles,
the necessary warfare of truth and falsehood, of right and wrong, of light
and darkness, impelled them, and now impels them, and always will impel
them, to make war upon us openly or secretly, in the battle-field, or the still more
dangerous field of opinion, until one or the other is overthrown, until Democracy
and Democratic institutions are the recognized order of European society, or cor-
rupted by European opinion and enfeebled by monarchical influences, we adopt
their dogma of a single race, and in vain and impious efforts to reduce it to prac-
tice, collapse into the ruin, degradation, and social destruction of our neighbors,
the heterogeneous and amalgamated hordes of Mexico, Central America, &c.
This instinctive hostility, blind as it may have been at first, therefore impelled
the enemies of liberty to avail themselves of this negro element for the overthrow
of liberty. British and European writers set up the theory or dogma of a single
INTRODUCTION. vii
race; that the negro, Indian, &c, of America had the same nature, the same wants,
and therefore the same rights as white men; and the British government, under
the younger Pitt, followed close upon the heels of these writers to reduce
the dogma to practice. They began the warfare by an attack on the African
"slave" trade ; and under the lead of Wilberforce, perhaps the sleekest and most
adroit hypocrite the world ever saw, they enlisted nearly the entire moral and re-
ligious sentiment of England, and with the close connection and almost absolute
submission of the same classes among ourselves to British opinion, they obtained
at the very beginning the support and sympathy of the religious world in behalf
of a cause not merely founded on falsehood, but which, if successful, would work
out evils to human kind and to all concerned so stupendous as to be beyond, the
possibilities of our language to measure or to express them. Wilberforce was a
narrow-minded bigot, of the most bigoted school of British Toryism, and in his long
parliamentary career, probably never missed a vote when new burthens were to
be imposed upon the people, or any chance offered for strengthening the tyranny
under which the millions groped their way through a dark and cheerless exist-
ence; and the simple fact that such aman was the leader and champion of the cause
of " humanity " and " liberty," was itself an unmistakable proof of its false-
hood. But here, too, as in the subsequent phases of the mighty imposture, multi-
tudes of good, honest, and well-meaning people labored under a misconception.
The African "slave" trade, when isolated or viewed by itself, seemed, and perhaps
was in many respects, cruel and inhuman, and therefore it was natural that moral
and religious people were anxious to put it down and interdict it altogether ; but
while this was the professed object of the British government, it was, in fact, a
mere incident in the British (negro) policy. That policy is now, if it was not
then, perfectly clear and distinct. It was, and it is, to reduce to practice the
teachings of British and monarchical writers, to equalize races — to "abolish" the
distinctions that separate negroes from white men— in short, to carry out in prac-
tice the dogma or doctrine of a single race, and putting down the " slave" trade
was only an incident, a single step in the monstrous programme. There were
other causes also in operation at the time which compelled the British government
to make its anti-" slavery" or free negro efforts in America one of the most pro-
minent features of its general policy. The teachings of Voltaire and the Encyclo-
pediasts had borne their fruits, and the long-suffering and voiceless millions in
France had risen with a strength as terrible as it was irresistible, sweeping away
kings and nobles, and every form of wrong and oppression almost in a single day;
and the spirit thus aroused threatened to spread over all Europe, and to accom-
plish the same results in every nation. The British aristocracy then became the
rallying point for the enemies of the people — the centre of hope, the very sheet
anchor of the old oppressions, which for centuries had crushed and brutalized the
millions, and this pretended love of liberty in America served to blind and delude
the masses in England, and thus to reconcile them to the warfare carried on against
liberty in Europe. But the five hundred millions wrung from the sweat and toil
and degradation and misery of English laborers, to put down the " slave trade,"
and give liberty to negroes in America, was expended for crushing out liberty as
absolutely, though not so directly, as the three thousand millions expended in
Europe. Indeed it was infinitely worse and infinitely more atrocious in the results
worked out, for to simply crush out the rights of the people in Europe was kind-
ness and mercy in comparison with the evils dependent on the success of their
"free" negro policy in America.
With our mental habits borrowed from Europe, and the almost abject submis-
sion to British opinion, it is to be expected that these stupendous efforts to delude
vili INTRODUCTION.
as into the adoption of British "anti-slavery" ideas, and the support of their "anti-
elavery" policy, would be measurably successful. On a hasty and superficial view,
it seemed to be the cause of morality and religion, and therefore the Church, the
ministry, the entire religious body among us became infected, more or less, with this
moral leprosy— a leprosy a thousand times over more fatal, and, when disclosed in
its real character, more hideous than ever cursed Jew or Syrian in the days of
old. It pervaded all classes and poisoned all minds, and, strangest of all, it per-
verted the Judiciary; and though lawyers as a class are usually literal and mat-
ter-of-fact in their mental habits, they have been led by this world-wide deluson to
utterly ignore fact, and distort reason itself into the grossest folly. An English
judge had decided that by the common law all white men were free in England, and
therefore discharged a negro from the control of his master, who had brought him
ftd London! 'fhis English precedent, like most British precedents, was accepted by
our Courts as th." rule, unquestioned and unquestionable, and therefore " slavery"
became with American jurists, as well as politicians, the creature of the lex loci,
without name or habitation in the world, except that given it by municipal law ;
.and yet no such law could be found, or can now be found in all America ! And
"this, ruling of Chief Justice Mansfield, until quite recently, has been univer-
sally admitted. Mr. Clay, Mr. Webster, Colonel Benton— all the great lawyers and
i eminent legislators, have assumed that " slavery," the social subordination of the
negro, the natural relation of the diverse elements that compose our population,
was established by municipal law, and therefore could have no existence beyond
, the sphere of such law !
Such had been the British precedent, and their opinions, already perverted by
British and European writers. They never doubted its soundness, though it obvi-
ously: has no foundation of fact, and therefore involves a palpable absurdity. For
many years but little mischief attended the false theories and absurd assumptions
prevailing on the subject as far as these States were concerned, though the practi-
cal anti-" slavery" policy of England has demoralized and destroyed the countries
.south of our limits.
But a time has now come when this falsehood and folly can be indulged no
"longer without carrying with it infinite danger — indeed, the certainty of destruc-
tion to the Union itself— in fact, the least of evils, in comparison with the practical
=Bacce$f';£f the British or anti-slavery theory. The negro element has expanded
into four millions— every one knows that it must remain here forever — it is rapidly
ittoreasjp.gj!.and the time, therefore, is at hand when the false theories so long im-
pOMdipLOgrj people must be exploded, and the true status of this race fixed be-
yomdjauff ti<mv It .therefore was no accident, still less was it by management of
any S^ Jfaftt 'thisJDred Scott case was brought before the Supreme Court for a
final dec>wn, by the highest legal authority in the Republic or on^he continent.
The facts m the -case, as stated elsewhere, were perfectly simple, and the inference
from ^gs^jfaqts' unavoidable. A master had carried his "slave" (Dred Scott) into
the fiSera^'Territories, and as there was no local or municipal law establishing
"slaver^, in these Territories, according to the rule laid down by the English chief
justice, Snjfjso long and disgracefully submitted to by American courts, the "slave"
was ffljdpeSlS'' freedom! But the Supreme Court, confining itself to the actual,
historical' and material facts involved, reversed the foreign and monarchical rule.
The progenitors of this negro (Dred Scott) were brought here "slaves;" the off-
^pring^Mlowed the condition of the parents — there was no local law or municipal
regulation altering this condition in the present instance — therefore Dred Scott
remained m that cqndiiiop; a so^calle^ s.laye.r . ^ ..
Could ^anything; be cieiirer^m^M 'lo^cal bf tlii&ful, than this decision? Of
INTRODUCTION. ix
course, slavery or freedom has nothing to do with the matter. They are terms of
comparison, having reference to conditions of our own race, and are utter per-
versions, misapplications, absurdities, when applied to negroes ; hut as we have no
other terms familiar to the common mind, we must, for the present at least, con-
tinue to employ them in this connection. The court simply called on the
other side to show any law, if it could, altering the status of this negro, and as that
did not exist, or was not forthcoming, of course it decided that Dred Scott's condi-
tion remained the same as his progenitors', and therefore directed him to be re-
turned to his master. But the anti-"slavery zealots insist that the "Missouri
Compromise" was such law; that Congress, having enacted a law forbid-
ding the introduction of negro "slaves," that those carried into the Territory became
ipsofacto free men. This is simply absurd, so far as the status of the negro is con-
cerned, whatever may be the political question involved. If Congress had power
to exclude " slave" owners from the Territories, it no more followed that the
"slave" should become a "freeman" than that his skin should become white ; but
the court also held that as this was a federation of States, Congress had no power
to exclude any class of citizens, and therefore that the Missouri compromise was
unconstitutional.
At last, then, and in conclusion, we have reached the culminating point of the
wildest, the most senseless, the most disgusting, and withal the most dangerous de-
lusion that ever afflicted an intelligent people, or threatened to destroy the
peace, order, and safety of human society.
Whatever the course or the legislation of sovereign States, henceforth and for-
ever the status of the negro, his relation to the white citizens, and the rights of
the latter in respect to "slave" property, are now clearly defined within the Federal
jurisdiction. And this decision must be accepted and sustained by the northern
masses, or there must be disunion and dismemberment of the Union ; for the
States and people having this negro element in their midst, cannot, even if they
would, consent to any compromise in this respect, and therefore if the northern
people, led astray by the agents and dupes of the enemies of Democracy, refuse
to abide by it, there is for the south no alternative but disunion and the esta-
blishment of a new confederacy in conformity with the wants and necessities of
southern society. It remains, then, for the honest and patriotic citizens of the
North who would avoid this calamity of disunion, and save for their offspring the
glorious institutions won by the blood and sacrifices of their fathers, to abandon
the false mental habits imposed on them by the enemies of these institutions,
and, accepting the fixed and immutable truths of the Dred Scott decision, to
regard as enemies to the peace of the country, and indeed to the safety of
society, all those who, under the pretence of negro liberty, would render liberty
for the white man impossible.
SUPREME COURT OF THE UNITED STATES,
DECEMBER TERM, 1856.
DEED SCOTT
versus
JOHN F. A. SANDPORD.
Dred Scott, Plaintiff in Error, v. John P. A. Sandford.
1. Upon a writ of error to a Circuit Court of the United States, the transcript of the record of all
the proceedings in the case is brought before this court, and is open to its inspection and revision.
2. When a p'ea to the jurisdiction, in abatement, is overruled by the court upon demurrer, and the
defendant pleads in bar, and upon these pleas the final judgment of the court is in his favor — •
if the plaintiff brings a writ of error, the judgment of the court upon the plea in. abatement
is before this court, although it was in favor of the plaintiff — and if the court eried in overruling
it, the judgment must be reversed, and a mandate issued to the Circuit Court to dismiss the case
for want of jurisdiction.
8. In the Circuit Courts of the United States, the record must show that the case is one in which
by the Constitution and laws of the United Slates, the court had jurisdiction — and if this does not
appear, and the court gives judgment either for plaintiff or defendant, it is error, and the judg-
ment must be reversed by this court — and the parties cannot by consent waive the objection to
the jur.sdiction of the Circuit Court.
4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves,
is not a " Citizen '■ within the meaning of the Constitution of the United States.
5. When the Constitution was adopted, they were not regarded in any of the States as members of the
community which constituted the State, and were not numbered among its " people or citizens."
Consequently, the special rights and immunities guarantied to citizens do not apply to them. And
not being " citizens " within the meaning of the Constitution, they are not entitled to sue in that
character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.
6. The only two clauses in the Constitution which point to this race, treat them as persons whom it
was morally lawful to deal in as articles of property and to hold as slaves.
7. Since the adoption of the Constitution of the United States, no state can by any subsequent law
make a foreigner or any other description of person-; citizens of the United States, nor entitle them
to the rights and privileges secured to citizens by that instrument.
8. A State, by its laws passed since the adoption of the Constitution, may piit a foreigner or any-
other description of persons upon a footing with its own citizens, as to all the rights and privileges
enjoyed by them within its dominion, and by its laws. But that will not make him a citizen of the
United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities ot
a citizen in another State.
9. The change in public opinion and feeling in relation to the African race, which has taken place
since the adoption of the Constitution, cannot change its construction and meaning, and it niusfr
be construed and administered now according to its true meaning and intention when it was for*
rned and adopted.
10. The plaintiff having admitted, by his demurrer to the plea in abatement, that his ancestors were
imported from Africa and sold as slaves, he is not a citizen of the Slate of Missouri according to the
Constitution of the United States, and was not entitled to sue in that character in the Circuit
Court.
11. This being the case, the judgment of the court below, in favor of the plaintiff on the plea in
abatement, was erroneous.
12 THE DEED SCOTT DECISION.
n.
1. But if the plea in abatement is not brought up by this writ of error, the objection to the citiz-
enship of the plaintiff is still apparent on the record, as he himself, in making out his case, states
that he is of African descent, was born a slave, and claims that he and his family became entitled
to freedom by being taken by their owner to reside in a territory where slavery is prohibited by act
of Congress — and that, in addition to this claim, he himself became entitled to freedom b„ being
taken to Rock Island, in the State of Illinois — and being free when he was brought back to Missouri,
he was by the laws of that State a citizen,
2. If, therefore, the facts he states do not give him or his family a right to freedom, the plaintiff is
still a slave, and not entitled to sue as a " citizen," and the judgment of the Circuit Court was
erroneous on that ground also, without any reference to the plea in abatement.
3. The Circuit Court can give no judgment for plaintiff or defendant in a case where it has not juris-
diction, no matter whether there be a plea in abatement or not. And unless it appears upon the
face of the reeord, when brought here by writ of error, that the Circuit Court had jurisdiction, the
judgment must be reversed.
The case of Capron v. Van Noorden ( 2 Cranch, 126 ) examined, and the principles thereby decided,
reaffirmed.
4. When the record, as brought here by writ of error, does not show that the Circuit Court had ju-
risdiction, this court has jurisdiction to revise and correct the error, like any other error in the
court below. It does not and cannot dismiss the case for want of jurisdiction here ; for that would
leave the erroneous judgment of the court below m fall force, and the party injured without rem-
edy. Rut it must reverse the judgment, and, as in any other case of reversal, send a mandate to
the Circuit Court to conform its judgment to the opinion of this court.
5. The difference of the jurisdiction in this court in the cases of writs of error to State courts and to
Circuit Courts of the United States, pointed out ; and the mistakes made as to tbe jurisdiction of
this court in the latter case, by confounding it with its limited j urisdiction in the former.
6. If the court reverses a judgment upon the ground that it appears by a particular part of the re-
cord that the Circuit Court had not jurisdiction, it does not take away the jurisdiction of this court
to examine into and correct, by a reversal of the judgment, any other errors, either as to the ju-
risdiction or any other matter, where it appears from other parts of the record that the Circuit
Court had fallen into error. On the contrary, it is the daily and familiar practice of this court to
reverse on several grounds, where more than one error appears to have been committed. And the
error of a Circuit Court in its jurisdiction stands on the same ground, and is to be treated in the
same manner as any other error upon which its judgment is founded.
7. The decision, therefore, that the judgment of the Circuit Court upon the plea in abatement is er-
roneous, is no reason why the alleged error apparent in the exception should not also be examined,
and the judgment reversed on that ground also, if it discloses a want of jurisdiction in the Cir-
cuit Court.
It is often the duty of this court, after having decided that a particular decision of the Circuit
Court was erroneous, to examine into other alleged errors, and to correct them if they are found to
exist. And this has been uniformly done by this court, when the questions are in any degree con-
nected with the controversy, and the silence of the court might create doubts which would lead to
further and useless litigation .
in.
1. The facts upon which the plaintiff relies did not give him hi3 freedom, and make him a citizen of
Missouri.
2. The clause in the Constitution authorising Congress to make all needful rules and regulations for
the government of the territory and other property of the United States, applies only to territory
within the chartered limits of some one of the States when they were colonies of Great Britain,
and which was surrendered b|y the British Government to the old Confederation of the States, in tho
treaty of peace. It does not apply to territory acquired by the present Federal Government, by
treaty or conquest, from a foreign nation.
The case of the American and Ocean Insurance Companies v. Canter ( 1 Peters, 511 ) referred to and
examined, showing that the decision in this case is not in conflict with that opinion, and that the
court did not, in the case referred to, decide upon the construction of the clause of the Constitution
above mentioned, because the case before them did not make it necessary to decide the question.
3. The United States, under the present Constitution, cannot acquire territory to be held as a colony ,
to be governe I at its will and pleasure. But it may acquire territory which, at the time, has not a
population that fits it to become a State, and may govern it as a Territory^ until it has a popula-
tion which, in the judgment of Congress, entitles it to be admitted as a State of the Union.
4. During the time it remains a Territory, Congress may legislate over it within the scope of its con-
stitutional powers in relation to citizens of the United States — and may establish a Territorial Gov-
ernment— and the form of this local Government must be regulated by the discretion of Con-
gress, but with powers not exceeding those which Congress itself, by the Constitution, is authorised
to exercise over citizens of the United States, in respect to their rights of persons or rights of pro-
perty.
IV.
1. The territory thus acquired, is acquired by the paople of the United States for their common and
equal benefit, through their agent and trustee, the Federal Government. Congress can exercise no
power over the ngnts of persons or property of a citizen in the Territory which is prohibited by the
Constitution. The Government and the citizen, whenever the Territory is open to settlement, both
enter it with their respective rights defined and limited by the Constitution.
% Congress have no right to prohibit the citizens of any particular State or States from taking up
their home there, while it permits citizens of other States to do so. Nor has it a right to give priv-
ileges to one class of citizens which it refuses to another. The territory is acquired for their equal
and common benefit — and if open to any, it must be open to all upon equal and the same terms.
THE DRED SCOTT DECISION. 13
3. Every citizen has a right to take -with him into the Territory any article of property which the
' Constitution of the United States recognises as property.
4 The Constitution of the United States recognises slaves as property, and pledges the Federal Gov-
" ernment to protect it. And Congress cannot exercise any more authority over property of that des-
cription than it may constitutionally exercise over property of any other kind.
6. The act of Congress, therefore, prohibiting a citizen of the United States from taking with him his
' stives when he removes to the Territory in question to reside, is an exercise of authority over pri-
vate property which is not warranted by the Constitution— and the removal of the plaintiff, by his
owner, to that Territory, gave him no title to freedom.
V
1 The plaintiff himself acquired no title to freedom by being taken, by his owner, to Rock Island, in
'Illinois and brought back to Missouri. This court has heretofore decided that the state .or con-
dition of a person of African descent depended on the laws of the State in which he resided.
2 It has been settled by the decisions of the highest court in Missouri, that by the laws of that State,
a slave does not become entitled to his freedom, where the owner takes him to reside in a State
where slavery is not permitted, and afterwards brings him back to Missouri.
Conclusion. It follows that it is apparent upon the record that the court below erred in its judg-
ment on the plea in abatement, and also erred in giving judgment for the defendant, when the ex-
ception shows that the plaintiff was not a citizen of the United States. And as the Circuit Court
had no jurisdiction, either in the case stated in the plea in abatement, or in the one stated in the
exception, its judgment in favor of the defendant is erroneous, and must be reversed.
This case was brought up, by writ of error, from the Circuit Court of the United
States for the district of Missouri.
It was an action of trespass vi et armis instituted in the Circuit Court by Scott
against Sandtord.
Prior to the institution of the present suit, an action was brought by Scott for
his freedom in the Circuit Court of St, Louis county, (State court,) where there
was a verdict and judgment in his favor. On a writ of error to the Supreme Court
of the State, the judgment below was reversed, and the case remanded to the Cir-
cuit Court, where it was continued to await the decision of the case now in question.
The declaration of Scott contained three counts: one, that Sandtord had as-
saulted the plaintiff ; one. that he had assaulted Harriet Scott, his wife ; and one,
that he had assaulted Eliza Scott and Lizzie Scott, his children.
Sandford appeared, and filed the following plea :
Dred Scott )
v. > Pica to the Jurisdiction of the Court.
John F. A. Sandford. )
April Term, 1854.
And the said John F. A. Sandford, in his own proper person, comes and says that
this court ought not to have or take further cognizance of the action aforesaid, be-
cause he says that said cause of action, and each and every of them, (if any such
have accrued to the said Dred Scott,) accrued to the said Dred Scott out of the ju-
risdiction of this court, and exclusively within the jurisdiction of the courts of the
State of Missouri, for that, to wit: the said plaintiff, Dred Scott, is not a citizen of
the State of Missouri, as alleged in his declaration, because he is a negro of African
descent ; his ancestors were of pure African blood, and were brought into this
country and sold as negro slaves, and this the said Sandford is ready to verify.
Wherefore he prays judgment whether this court can or will take further cognizance
of the action aforesaid.
John F, A. Sandford.
To this plea there was a demurrer in the usual form, which was argued in April,
1854, when the court gave judgment that the demurrer should be sustained.
In May, 1854, the defendaut, in pursuance of an agreement between counsel, and
with the leave of the court, pleaded in bar of the action:
1. Not guilty.
2. That the plaintiff was a negro slave, the lawful property of the defendaut,
and, as such, the defendant gently laid his hands upon him, and thereby had only
restrained him, as the defendant had a right to do.
3. That with respect to the wife aud daughters of the plaintiff, in the second and
third counts of the declaration mentioned, the defendant had, as to them, only acted
in the same maimer, and in virtue of the same legal right.
In the first of these pleas, the plaintiff joined issue ; and to the second and third
filed replications alleging that the defendant, of his own wrong aud without the
cause in his second and third pleas aUeged, committed the trespasses, &c.
14 THE DRED SCOTT DECISION.
The counsel then filed the following agreed statement of facts, viz :
In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who
was a surgeon in the army of the United States. In that year, 1834, said Dr. Em-
erson took the plaintiff from the State of Missouri to the military post at Rock Is-
land in the State of Illinois, and held him there as a slave until the month of April
or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff
from said military post at Rock Island to the military post at Fort Snelling, situate
on the west bank of the Mississippi river, in the Territory known as Upper Louisi-
ana, acquired by the United States of France, and situate north of the latitude of
thirty-six degrees thirty minutes north, and north of the State of Missouri. Said
Dr. Emeison'held the plaintiff in slavery at said Fort Snelling, from said last-men-
tioned date until the year 1838.
In the year 1835, Harriet whota named In tne second count of the plaintiff's dec-
laration, was the negro slave of Major Taliaferro, who belonged to the army of the
United States. In that year, 1835, said Major Taliaferro took said Harriet to said
Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as
a slave until the year 1836, and then sold and delivered her as a slave at said Fort
Snelling unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held
said Harriet in slavery at said Fort Snelling until the year 1838.
In the year 183'J, the plaintiff and said Harriet, at said Fort Snelling, with the
consent of said Dr. Emerson, who then claimed to be their master and owner, inter-
married, and took each other for husband and wife. Eliza and Lizzie, named in the
third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was bom on board the steamboat Gipsey, north of the
north line of the State of Missouri, and upon the river Mississippi. Lizzie is about
seven years old, and was born in the State of Missouri, at the military post called
Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and
their said daughter Eliza, from said Fort Snelling to the State of Missouri, where
they have ever since resided.
Before the commencement of this suit, said Dr, Emerson sold and conveyed the
plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defen-
dant has ever since claimed to hold them and each of them as slaves.
At the times mentioned in the plaintiff's declaration, the defendant claiming to be
owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza and Lizzie, and
imprisoned them, doing in this respect, however, .no more than what he might law-
fully do if they were of right his slaves at such times.
Farther proof may be given on the trial for either party.
It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of
St. Louis county ; that there was a verdict and judgment in his favor ; that on a
writ of error to the Supreme Court, the judgment below was reversed, and the
same remanded to the Circuit Court, where it has been continued to await the de-
cision of this case.
In May 1854, the cause went before a jury, who found the following verdict, viz :
" As to the first issue joined in this case, we of the jury find the defendant not guil-
ty ; and as to the issue secondly above joined, we of the jury find that before and at
the time when, &c, in the first count mentioned, the said Dred Scott was a negro
slave, the lawful 'property of the defendant ; and as to the issue thirdly above join-
ed, we, the jury, find that before and at the time when, &c, in the second and third
counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie,
the danghters of the said Dred Scott, were negro slaves, the lawful property of the
defendant. "
Whereupon the court gave judgment for the defendant.
After an ineffectual motion for a new trial, the plaintiff filed the following bill of
exceptions.
On the trial of this cause by the jury, the plaintiff, to maintain the issues on his
part, read to the jury the following agreed statement of facts, (see agreement above.)
No further testimony was given to the jury by either party. Thereupon the plain-
tiff moved the court to give to the jury the following instruction, viz :
" That upon the facts agreed to by the parties, they ought to find for the plantiff.
The court refused to give such instruction to the jury, and the plaintiff, to such re-
fusal, then and there duly excepted."
The court then gave the following instruction to the jury, on motion of the defen-
dant :
THE DRED SCOTT DECISION. 15
" The jury are instructed, that upon the facts in this case, the law is with the de-
fendant " The plaintiff excepted to this instruction.
Upon these exceptions, the case came up to this court.
It was argued at December term, 1855, and ordered to be reargued at the present
term.
It was now argued by Mr. Blair and Mr. G. F. Curtis for the plaintiff in error,
and by Mr. Geyer and Mr. Johnson for the defendant in error.
Mr. Chief Justice TANEY delivered the opinion of the court.
This case has been twice argued. After the argument of the last term, differen-
ces of opinion were found to exist among the members of the court ; and as the
questions in controversy are of the highest importance, and the court was at that
time much pressed by the ordinary business of the term, it was deemed advisable to
continue the case, and direct a reargument on some of the points, in order that we
might have an opportunity of giving to the whole subject a more deliberate consid-
eration. It has accordingly been again argued by counsel, and considered by the
court ; and I now proceed to deliver its opinion.
There are two leading questions presented by the record :
1. Had the Circuit Court of the United States jurisdiction to. hear and determine
the case between these parties? And
2. If it had jurisdiction, is the judgment it has given erroneous or not?
The plaintiff in error, who was also the plaintiff in the court below, was, with his
wife and children, held as slaves by the defendant, in the state of Missouri ; and he
brought this action in the circuit court of the United States for that district, to as-
sert the title of himself and his family to freedom.
The declaration is in the form usually adopted in that State to try questions of
this description, and contains the averment necessary to give the court jurisdiction ;
that he and the defendant are citizens of different States ; that is, that he is a citi-
zen of Missouri, and the defendant a citizen of New York.
The defendant pleaded in abatement to the jurisdiction of the court, that the
plaintiff was not a citizen of the State of Missouri, as alleged in his declaration,
beiDg a negro of African descent, whose ancestors were of pure African blood, and
who were brought into this country and sold as slaves.
To this plea the plaintiff demurred, and the defendant joined in demurrer.
The court overruled the plea, and gave judgment that the defendant should
answer over. And he therefore put in sundry pleas in bar, upon which issues
were joined ; and at the trial the verdict and judgment were in his favor.
Whereupon the plaintiff brought this writ of error.
Before we speak of the pleas in bar, it will be proper to dispose of the ques-
tions which have arisen on the plea in abatement.
That plea denies the right of the plaintiff to sue in a court of the United
States, for the reasons therein stated.
If the question raised by it is legally before us, and the court should be of
opinion that the facts stated in it disqualify the plaintiff from becoming a citi-
zen, in the sense in which that word is used in the Constitution of the United
States, then the judgment of the Circuit Court is erroneous and must be reversed.
It is suggested, however, that this plea is not before us ; and that as the
judgment in the court below on this plea was in favor of the plaintiff, he doc3
not seek to reverse it, or bring it before the court for revision by his writ of
error ; and also that the defendant waived this defence by pleading over, and
thereby admitted the jurisdiction of the court.
But in making this objection, we think the peculiar and limited jurisdiction
of courts of the United States has not been adverted to. This peculiar and
limited jurisdiction has made it necessary, in these courts, to adopt different
rules and principles of pleading, so far as jurisdiction is concerned, from those
which regulate courts of common law in England, and in the different states of
the Union which have adopted the common-law rules.
In these last-mentioned courts, where their character and rank are analogous to
that of a Circuit Court of the United States ; in other words, where they are what
the law terms courts of general jurisdiction; they are presumed to have jurisdiction,
uuless the contrary appears. No averment in the pleadings of the plaintiff is ne-
cessary, in order to give jurisdiction. If the defendant objects to it, he must plead
16 THE DRED SCOTT DECISION.
it specially, and unless the fact on which he relies is found to be true by a jury, or
admitted to be true by the plaintiff, the jurisdiction cannot be disputed iu an ap-
pellate court.
Now, it is not necessary to inquire whether in courts of that description a party
who pleads over in bar, when a plea to the jurisdiction has been ruled against him,
does or docs not waive his plea; nor whether upon a judgment in his favor on the
pleas in bar, and a writ of error brought by the plaintiff, the question upon the
plea in abatement would be open for revision in the appellate court. Cases that
may have been decided in such courts, or rules that may have been laid down by
common-law pleaders, can have no influence in the decision in this court. Because,
under the Constitution and laws of the United States, the rules which govern the
pleadings in its courts, in questions of jurisdiction, stand on different principles and
are regulated by different laws.
This difference arises, as we have said, from the peculiar character of the Gov-
ernment of the United States. For although it is sovereign and supreme in its
appropriate sphere of action, yet it does not possess all the powers which usually
belong to the sovereignty of a nation. Certain specified powers, enumerated in
the Constitution, have been conferred upon it; and neither the legislative, execu-
tive, nor judicial departments of the Government can lawfully exercise any author-
ity beyond the limits marked out by the Constitution. And in regulating the
judicial department, the cases in which the courts of the United States shall have
jurisdiction are particularly and specifically enumerated and defined; and they are
not authorized to take cognizance of any case which does not come within the des-
cription therf'i specified. Hence, when a plaintiff sues in a court of the United
States, it is accessary that he should show, in his pleadings, that the suit he brings
is within the jurisdiction of the court, and that he is entitled to sue there. And if
he omits to do this, and should, by any oversight of the Circuit Court, obtain a
judgment in his favor, the judgment would be reversed in the appellate court for
want of jurisdiction in the court below. The jurisdiction would not be presumed,
as in the case of a common-law English or State court, unless the contrary appeared.
But the record, when it comes before the appellate court, must show, affirmatively,
that the inferior court had authority, under the Constitution, to hear and deter-
mine the case. And if the plaintiff claims a right to sue in a Circuit Court of the
United States, under that provision of the Constitution which gives jurisdiction in
controversies between citizens of different States, he must distinctly aver in hia
pleadings that they are citizens of different States; and he cannot maintain his suit
without showing that fact in the pleadings.
This point was decided in the case of Bingham v. Cabot, (in 3 Dall., 382), and
ever since adhered toby the court. And in Jackson v. Ashton (8 Pet., 148), it
was held that the objection to which it was open could not be waived by the oppo-
site party, because consent of parties could not give jurisdiction.
It is needless to accumulate cases on this subject. Those already referred to, and
the cases of Capron a. Van Noorden, (in 2 Cr., 126), and Montalet v. Murray. (4
Cr., 46), are sufficient to show the rule of which we have spoken. The case of Cap-
ron v. Vau Noorden strikingly illutrates the difference between a common-law court
and a court of the United States.
If, however, the fact of citizenship is averred in the declaration, and the defen-
dant does not deny it, and put it in issue by plea in abatement, he cannot offer
evidence at the trial to disprove it, and consequently cannot avail himself of the
objection in the appellate court, unless the defect should be apparent in some other
part of the record. For if there is no plea in abatement, and the want of jurisdic-
tion does not appear in any other part of the transcript brought up by the writ of er-
ror, the undisputed averment of citizenship in the declaration must be taken in this
court to be true. In this-case, the citizenship is averred, but it is denied by the de-
fendant in the manner required by the rules of pleading, and the fact upon which
the denial is based is admitted by the demurrer. And, if the plea and demurrer,
and judgment of the court below upon it, are before us upon this record, the ques-
tion to be decided is, whether the facts stated in the plea are sufficient to show that
the plaintiff is not entitled to sue as a citizen in a court of the United States.
"We think they are before us. The plea in abatement and the judgment of the
court upon it, are a part of the judicial proceedings in the Circuit Court, and are
there recorded as such ; and a writ of error always brings up to the superior court
the whole record of the proceedings in the court below. And in the case of the
United States v Smith (11 Wheat., 172,) this court said, that the case being brought
THE DRED SCOTT DECISION. 17
up by writ of error, the whole record was under the consideration of this court.
And this being the case in the present instance, the plea in abatement is necessarily
under consideration ; and it becomes, therefore, our duty to decide whether the facts
stated in the plea are or are not sufficient to show that the plaintiff is not entitled to
sue as a citizen in a court of the United States.
This is certainly a very serious question, and one that now for the first time lias
been brought for decision before this court. But it is brought here by those who
have a right to bring it, and it is our duty to meet it and decide it.
The question is simply this : Can a negro whose ancestors were imported into
this country, and sold as slaves, become a member of the political community for-
med and brought into existence by the Constitution of the United States, and as
such become entitled to all the rights and privileges and immunities guarantied to
the citizen ? One of which rights is the privilege of suing in a court of the United
States in the cases specified in the Constitution.
It will be observed, -that the plea applies to that class of persons only whose an-
cestors were negroes of the African race, and imported into this countiy, and sold
and held as slaves. The only matter in issue before the court, therefore, is, whether
the descendants of such slaves, when they shall be emancipated, or who are born
of parents who had become free before their birih} are citizens of a State, in the
sense in which the word citizen is usedjin the Constitution of the United States. And
this being the only matter in dispute on the pleadings, the court must be under-
stood as speaking in this opinion of that class only, that is, of those persons who are
the descendants of Africans who were imported into this country, and sold as slaves.
The situation of this population was altogether unlike that of the Indian race.
The latter, it is true, formed no part of the colonial communities, and never amal-
gamated with them in social connections or in government. But although they
were uncivilized, they were yet a free and independent people, associated together
in nations or tribes, and governed by their own laws. Many of these political com-
munities were situated in territories to which the white race claimed the ultimate
right of dominion. But that claim was acknowledged to be subject to the right of
the Indians to occupy it as long as they thought proper, and neither the English nor
colonial Governments claimed or exercised any dominion over the tribe or na-
tion by whom it was occupied, nor claimed the right to the possession of the terri-
tory, until the tribe or nation consented to cede it. These Indian Governments were
regarded and treated as foreign Governments, as much so as if an ocean had separa-
ted the red man from the white ; and their freedom has constantly been acknowled-
ged, from the time of the first emigration to the English colonies to the present day,
by the different Governments which succeeded each other. Treaties have beeen ne-
gotiated with them, and their alliance sought for in war ; and the people who com-
pose these Indian political communities have always been treated as foreigners not
living under our Government. It is true that the course of events has brought the
Indian tribes within the limits of the United States under subjection to the white
race ; and it has been found necessary, for their sake as well as our own, to regard
them as in a state of pupilage, and to legislate to a certain extent over them and
the territory they occupy. But they may, without doubt, like the subjects of any
other foreign Government, be naturalized by the authority of Congress, and become
citizens of a State, and of the United States ; and if an individual should leave
his nation or tribe, and take up his abode among the white population, he would
be entitled to all the rights and privileges which would belong to an emigrant from
any other foreign people.
We proceed to examine the case as presented by the pleadings.
The words "people of theUnited States" and " citizens" are synonymous terms,
and mean the same thing. They both describe the political body who, according to
our republican institutions, form the sovereignty, and who hold the power and con-
duct the Government through their representatives. They are what we familiarly
call the " sovereign people," and every citizen is one of this people and a constitu-
ent member of this sovereignty. The question before us is, whether the class of
persons described in the plea in abatement compose a portion of this people, and are
constituent members of this sovereignty ? We think they are not, and that they are
not included, and were not intended to be included, under the word " citizens " in
the Constitution, and can therefore claim none of the rights and privileges which
that instrument provides for and secures to citizens of the United States. On the
contrary, they were at that time considered as a subordinate and inferior class of
beings, who had been subjugated by the dominant race, and, whether emancipated
18 THE DRED SCOTT DECISION.
or not, yet remained subject to their authority, and had no rights or privileges bat
such as those who held the power and the government might choose to grant them.
It is not the province of the court to decide upon the justice or injustice, the po-
licy or impolicy, of these laws. The decision of that question belonged to the
poliiical or law-making power; to those who formed the sovereignty and framed the
Constitution. The duty of the court is, to interpret the instrument they have
framed, with the best lights we can obtain on the subject, and to administer it as we
find it, according to its true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights of citizenship which a
State may confer within its own limits, and the rights of citizenship as a member of
the Union. It does not by any means follow, because he has all the rights and
privileges of a citizen of a State, that he must be a citizen of the United States. He
may have all the rights and privileges of the citizen of a State, and yet not be en-
titled to the rights and privileges of a citizen in any other State. For, previous to the
adoption of the Constitution of the United States, every State had the undoubted
right to confer on whomsoever it pleased the character of citizen, and to endow him
with all its rights. But this character of course was confined to the boundaries of the
State, and gave him no rights or privileges in other States beyond those secured to him
by the laws of nations and the comity of States. Nor have the several States surren-
dered the power of conferring these rights and privileges by adopting the Constitu-
tion of the United States. Each State may still confer them upon an alien, or any
one it thinks proper, or upon any class or description of persons; yet he would not
be a citizen in the sense in which that word is used in the Constitution of the
United States, nor entitled to sue as such in one of its courts, nor to the privileges
and immunities of a citizen in the other States. The rights which he would acquire
would be restricted to the State which gave them. The Constitution has conferred
on Congress the right to establish an uniform rule of naturalization, and this right
is evidently exclusive, and has always been held by this court to be so. Conse-
quently, no State, since the adoption of the Constitution, can by naturalizing an
alien invest him with the rights and privileges secured to a citizen of a State under
the Federal Government, although, so far as the State alone was concerned, he
would undoubtedly be entitled to the rights of a citizen, and clothed with all the
rights and immunities which the Constitution and laws of the State attached to that
character.
It is very clear, therefore, that no State can, by any act or law of its own, passed
since the adoption of the Constitution, introduce a new member into the political
community created by the Constitution of the United States. It cannot make him
a member of this community by making him a member of its own. And for the
same reason it cannot introduce any person or description of persons, who were not
intended to be embraced in this new political family, which the Constitution brought
into existence, but were intended to be excluded from it.
The question then arises, whether the provisions of the Constitution, in relation
to the personal rights and privileges to which the citizen of a State should be en-
titled, embraced the negro African race, at that time in this country, or who might
afterwards be imported, who had then or should afterwards be made free in any
State; and to put it in the power of a single State to make him a citizen of the
United States, and endue him with the full rights of citizenship in every other
State" without their consent ? Does the Constitution of the United States act upon
him whenever he shall be made free under the laws of a State, and raised there to
the rank of a citizen, and immediately clothe him with all the privileges of a citi-
zen in every other State, and in its own courts ?
The court think the affirmative of these propositions cannot be maintained. And
if it cannot, the plaintiff in error could not be a citizen of the State of Missouri,
within the meaning of the Constitution of the United States, and, consequently, was
not entitled to sue in its courts.
It is true, every person, and every class and description of persons, who were at
the time of the adoption of the Constitution recognized as citizens in the several
States, became also citizens of this new political body ; but none other; it was for-
med by them, and for them and their posterity, but for no one else. And the per-
sonal rights and privileges guarantied to citizens of this new sovereignty were
intended to embrace those only who were then members of the several State com-
munities, or who should afterwards by birthright or otherwise become members,
according to the provisions of the Constitution and the principles on which it was
founded. It was the union of those who were at that time members of distinct and
THE DEED SCOTT DECISION. 19
separate political communities into one political family, whose power, for certain
specified purposes, was to extend over the whole territory of the United States.
And it gave to each citizen rights and privileges outside of his State which he did
not before possess, and placed him in every other State upou a periect equality
with its own citizens as to rights of person and rights of property; it made him a
citizen of the United States.
It becomes necessary, therefore, to determine who were citizens of the several
States when the Constitution was adopted. And in order to do this, we must recur
to the governments and institutions of the thirteen colonies, when they separated
from Great Britain and formed new sovereignties, and took their places in the fam-
ily of independent nations. We must enquire who, at that time, were recognized
as the people or citizens of a State, whose rights and liberties had been outraged
by the English Government ; and who declared their independence, and assumed the
powers of Government to defend their rights by force of arms.
In the opinion of the court, the legislation aud histories of the times, and the lan-
guage used in the Declaration of Independence, show, that neither the class of per-
sons who had been imported as slaves, nor their descendants, whether they had be-
come free or not, were then acknowledged as a part of the people, nor intended to
be included in the general words used in that memorable instrument.
It is difficult at this day to realize the state of public opinion in relation to that
unfortunate race, which prevailed in the civilized and enlightened portions of the
world at the time of the Declaration of Independence, and when the Constitution
of the United States was framed and adopted. But the public history of every
European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order,
and altogether unfit to associate with the white race, either in social or political re-
lations ; and so far inferior, that they had no rights which the white man was bound
to respect ; and that the negro might justly and lawfully be reduced to slavery for his
benefit. He was bought and sold, and treated as an ordinary article of merchandise
and traffic, whenever a profit could be made by it. This opinion was at that time fixed
and universal in the civilized portion of the white race. It was regarded as an
axiom in morals as well as in politics, which no one thought of disputing, or sup-
posed to be open, to dispute ; and men in every grade and position in society daily
and habitually acted upon it in their private pursuits, as well as in matters of pub-
lic concern, without doubting for a moment the correctness of this opinion.
And in no nation was this opinion nore firmly fixed or more uniformly acted up-
on than by the English Government and English people. They not only seized
them on the coast of Africa, and sold them or held them in slavery for their own
use ; but they took them as ordinary articles of merchandise to every country
where they could make a profit on them, and were far more extensively engaged
iu this commerce, than any other nation in the world.
The opinion thus entertained and acted upon in England was naturally impres-
sed upon the colonies they founded on this side of the Atlantic. And, accordingly,
a negro of the African race was regarded by them as an article of property, and
held, and bought and sold as such, in every one of the thirteen colonies which united
in the Declaration of Independence, and afterwards formed the Constitution of the
United States. The slaves were more or less numerous in the different colonies, as
slave labor was found more or less profitable. But no one seems to have doubted
the correctness of the prevailing opinion of the time.
The legislation of the different colonies furnishes positive and indisputable proof
of this fact.
It would be tedious, in this opinion, to enumerate the various laws they passed
upon this subject. It will be sufficient, as a sample of the legislation which then
generally prevailed throughout the British colonies, to give the laws of two of
them ; one being still a large slaveholding State, and the other the first State in
which slavery ceased to exist.
The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law declaring "that
if any free negro or mulatto intermarry with any white woman, or if any white
man shall intermarry with any negro or mulatto woman, such negro or mulatto
shall become a slave during life, excepting mulattoes born of white women, who,
for such intermarriage, shall only become servants for seven years, to be disposed
of as the justices of the county court, where such marriage so happens, shall think
fit ; to be applied by them towards the support of a public^ school within the said
county. And any white man or white woman who shall intermarry as aforesaid,
20 THE DEED SCOTT DECISION.
with any negro or mulatto, such white man or white woman shall become servants
during the term of seven years, and shall be disposed of by the justices as atore
said, and be applied to the uses aforesaid."
The otber colonial law to which we refer was passed by Massachusetts in 1705,
( chap. 6.) It is entitled " An act for the better preventing of a spurious and mix-
ed issue," &c; and it provides, that " if any negro or mulatto shall presume to smite
or strike any person of the English or other Christian nation, such negro or mulatto
shall be severely whipped, at the discretion of the justices before whom the offender
shall be convicted."
And "that none of her Majesty's English or Scottish subjects, nor of any other
Christian nation, within this province, shall contract matrimony with any negro or
mulatto ; nor shall any person, duly authorised to solemnize marriage, presume to
join any such in marriage, on pain of forfeiting the sum of fifty pounds ; one
moiety thereof to her Majesty, for and towards the support of the Government with-
in this province, and the other moiety to him or them that shall inform and sue for
the same in any of her Majesty's courts of record within the province, by bill, plaint,
or information."
We give both of these laws in the words used by the respective legislative bodies,
because the language in which they are framed, as well as the provisions contained
in them, show, too plainly to be misunderstood, the degraded condition of this un-
happy race. They were still in force when the Revolution began, and are a faithful
index to the state of feeling towards the class of persons of whom they speak, and
of the position they occupied throughout the thirteen colonies, in the eyes and
thoughts of the men who framed the Declaration of Independence and established
the State Constitutions and Governments. They show that a perpetual and impas-
sable barrier was intended to be erected between the white race and the one which
they had reduced to slavery, and governed as subjects with absolute aud despotic
power, and which they then looked upon as so far below them in the scale of created
beings, that intermarriages between white persons and negroes or mulattoes were
regarded as unnatural and'immoral, and punished as crimes, not only in the parties,
hut in the person who joined them in marriage. And no distinction in this respect
was made between the free negro or mulatto and the slave, but this stigma, of the
deepest degradation, was fixed upon the whole race.
We refer to these historical facts for the purpose of showing the fixed opinions
concerning that race, upon which the statesmen of that day spoke and acted. It
is necessary to do this, in order to determine whether the general terms used in the
Constitution of the United States, as to the rights of man and the rights of the
people, was intended to include them, or to give to them or their posterity the ben-
efit of any of its provisions.
The language of the Declaration of Independence is equally conclusive :
It begins by declaring " that when in the course of human events it becomes neces-
sary for one people to dissolve the political bands which have connected them with
another, and to assume among the powers of the earth the separate and equal
station to which the laws of nature and nature's God entitle them, a decent respect
for the opinions of mankind requires that they should declare the causes which im-
pel them to the separation."
It then proceeds to say : " We hold these truths to be self-evident : that all men
are created equal ; that they are endowed by their Creator with certain unalienable
rights ; that among them is life, liberty, and the pursuit of happiness ; that to se-
cure these rights, Governments are instituted, deriving their just powers from the
consent of the governed."
The general words above quoted would seem to embrace the whole human fam-
ily, and if they were used in a similar instrument at this day would be so under-
stood. But it is too clear for dispute, that the enslaved African race were not
in^e%'ded;to be included, .and formed no part of the people who framed and adopted
tMs'-'d'eraaratfoh";! foFif the language, as understood in that day, would embrace
them, the. conduct of the distinguished men who framed the Declaration of Inde-
pe'tidlenBS wtfttlk h'avei:b^eii ii'ttefly and flagrantly inconsistent with the principlea
tBey^ass^e'aj'^nd^iWsMJ'ciPthei^ympathy of mankind, to which they so confi-
d^W:app*lMV^e^j^<Mfa°l&v'ei%eserved and received universal rebuke and
,»<fiHHP" tiin-n lo mod ?ooli*'
re'broba^ibn^ j
^^fl'lffieMeft1 wMi'^frSnlfe^tMs declaration were great men— high in literary ac-
qlfremeHtg^Ptfrt' ffleifi'm§8i of honor, and incapable of asserting principles
injioiisM^nl/witn W^oji'Wfiatf liey were acting. They perfectly understood the
,DrsiOioiG s« YTO3frnotr!i Hum omraSi
THE DRED SCOTT DECISION. 21
meaning of the language they used, and bow it would he understood by others ;
and they knew that it would not in any part of the civilized world be supposed to
embrace the negro race, which by common consent, had been excluded from civil-
ized Governments and the family of nations, and doomed to slavery. They spoke
and acted according to the then established doctrines and principles, and in the
ordinary language of the day, and no one misunderstood them. The unhappy black
race were separated from the white by indelible marks, and laws long before estab-
lished, and were never thought of or spoken of except as property, and when the
claims of the owner or the profit of the trader were supposed to need protection.
This state of public opinion had undergone no change when the Constitution was
adopted, as is equally evident from its provisions and language.
The brief preamble sets forth by whom it was formed, for what purposes, and for
whose benefit and protection. It declares that it is formed by the people of the
United States ; that is to say, by those who were members of the different political
communities in the several States ; and its great object is declared to be to secure
the blessings of liberty to themselves and their posterity. It speaks in general
terms of the people of the United States, and of citizens of the several States, when
it is providing for the exercise of the powers granted or the privileges secured to
the citizen. It does not define what description of persons are intended to be in-
cluded under these terms, or who shall be regarded as* a citizen and one of the
people. It uses them as terms so well understood, that no further description or
definition was necessary.
But there are two clauses in the Constitution which point directly and specifically
to the negro race as a separate class of persons, and show clearly that they were not
regarded as a portion of the people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the right to import
slaves until the year 1808, if it thinks proper. And the importation which it thus
sanctions was unquestionably of persons of the race of which we are speaking, as
the traffic in slaves in the United States had always been confined to them. And
by the other provision the States pledge themselves to each other to maintain the
right of property of the master, by delivering up to him any slave who may have
escaped from his service, and be found within their respective territories. By the
first above-mentioned clause, therefore, the right to purchase and hold this property
is directly sanctioned and authorized for twenty years by the people who framed
the Constitution. And by the second, they pledge themselves to maintain and up-
hold the right of the master in the manner specified, as long as the Government
they then iormed should endure. And these two provisions show, conclusively,
that neither the description of persons therein referred to, nor their descendants,
were embraced in any of the other provisions of the Constitution ; for certainly these
two clauses were not intended to confer on them or their posterity the blessings of
liberty, or any of the personal rights so carefully provided for the citizen.
No one of that race had ever migrated to the United States voluntarily ; all of
them had been brought here as articles of merchandise. The number that had been
emancipated at that time were but few in comparison with those held in slavery ;
and they were identified in the public mind with the race to which they belonged,
and regarded as a part of the slave population rather than the free. It is obvious
that they were not even in the minds of the framers of the Constitution when they
were conferring special rights and privileges upou the citizens of a state in every
other part of the Union.
Indeed, when we look to the condition of this race in the several States at the
time, it is impossible to believe that these rights and privileges were intended to be
extended to them.
It is very true, that in that portion of the Union where the labor of the negro
race was found to beunsuitedto the climate and unprofitable to the master, but few
slaves were held at the time of the Declaration of Independence ; and when the
Constitution was adopted, ft had entirely worn out in one of them, and measures had
been taken for its gradual abolition iu several others. But this change had not
been produced by any change of opinion in relation to this race ; but because it
was discovered, from experience, that slave labor was unsuiied to the climite and
productions of these States : for some of the States, where it had ceas"d or nearly
ceased to exist, were actively engaged in the slave trade, procuring cargoes on the
coast of Africa, and transporting them for sale to those parts of the Union where
their labor was found to be profitable, and suited to the climate and productions.
A.nd this traffic w.is openly carried on, and forluaes accumulated by it, without re-
22 THE DRED SCOTT DECISION.
proach from the people of the States where they resided. And it can hardly be
supposed that, in the States where it was then countenanced in its worst form — that
is, in the seizure and transportation — the people could have regarded those who
were emancipated as entitled to equal rights with themselves.
And we may heie again refer, in support of this proposition, to the plain and
unequivocal language of the laws of the several States, some passed after the Dec-
laration of Independence and before the Constitution was adopted, and some since
the Government went into operation.
We need not refer, on this point, particularly to the laws of the present slave-
holding States. Their statute books are full of provisions in relation to this class,
in the same spirit with the ^Maryland law which we have before quoted. They
have continued to treat them 'as an inferior class, and to subject them to strict po-
lice regulations, drawing a broad line of distinction between the citizen and the
slave races, and legislating in relation to them upon the same principle which pre-
vailed at the time of the Declaration of Independence. As relates to these States,
it is too plain for argument, that they have never been regarded as a part of the
people or citizens of the State, nor supposed to possess any political rights which
the dominant race might not withhold or grant at their pleasure. And as long ago
as 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes
were not citizens within the meaning of the Constitution of the United States 5 and
the correctness of this decision is recognized, and the same doctrine affirmed, in
1 Meigs's Tenn. Reports, 331.
And if we turn to the legislation of the States where slavery had worn out, 01
measures taken for its speedy abolition, we shall find the same opinions and princi-
ples equally fixed and equally acted upon.
Thus, Massachusetts, in 1786. passed a law similar to the colonial one of which
we have spoken. The law of 1786, like the law of 1705, forbids the marriage of
any white person with any negro, Indian, or mulatto, and inflicts a penalty of fifty
pounds upon any one who shall join them in marriage; and declares all such
marriages absolutely null and void, and degrades thus the unhappy issue of the
marriage by fixing upon it the stain of bastardy. And this mark of degradation
was renewed and again impressed upon the race, in the careful and deliberate prep-
aration of their revised code published in 1836. This code forbids any person from
joining in marriage any white person with any Indian, negro, or mulatto, and sub-
jects the party who shall offend in this respect, to imprisonment, not exceeding six
months in the common jail, or to hard labor, and to a fine of not less than fifty nor
more than two hundred dollars ; and like the law of 1786, it declares the marriage
to be absolutely null and void. It will be seen that the punishment is increased
by the code upon the person who shall marry them, by adding imprisonment to a
pecuniary penalty.
So, too, in Connecticut. We refer more particularly to the legislation of this
State, because it was not only among the first to put an end to slavery within its
own territory, but was the first to fix a mark of reprobation upon the African slave
trade. The law last mentioned was passed iu October, 1788, about nine months after
the State had ratified and adopted the present Constitution of the United States ;
and by that law it prohibited its own citizens, under severe penalties, from enga-
ging in the trade, and declared all policies of insurance on the vessel or cargo made
in the State to be null and void. But up to the time of the adoption of the
Constitution, there is nothing in the legislation of the State indicating any change
of opinion as to the relative rights and position of the white and black races in this
country, or indicating that it meant to place the latter, when free, upon a level with
its citizens. And certainly nothing which would have led the slaveholding States
to suppose that Connecticut designed to claim for them, under the new Constitution,
the equal rights and privileges and rank of citizens in every other State.
The first step taken by Connecticut upon this subject was as early as 1774, when
it passed an act forbidding the further importation of slaves into the State. But
the section containing the prohibition is introduced by_ the following preamble :
" And whereas the increase of slaves in this State is injurious to the poor, and
inconvenient."
This recital would appear to have been carefully introduced, in order to prevent
any misunderstanding of the motive which induced the Legislatureto pass the law,
and places it distinctly upon the interest and convenience of the white population —
excluding the inference that it might have been intended in any degree for the
benefit of the other.
THE DRED SCOTT DECISION. 23
And in the act of 1784, by which the issue of slaves, born after the time therein
mentioned, were to be free at a certain age, the section is again introduced by a
preamble assigning a similar motive for the act. It is in these words :
" Whereas sound policy requires that the abolition of slavery should be effected
as soon as may be consistent with the rights of individuals, and the public safety
and welfare " — showing that the right of property in the master was to be protected,
and that the measure was one of policy, and to prevent the injury and inconve^
nience, to the whites, of a slave population in the State.
And still further pursuing its legislation, we find that in the same statute passed
in 1774, which prohibited the further importation of slaves into the State, there is
also a provision by which any negro, Indian, or mulatto servant, who was found
wandering out of the town or place to which he belonged, without a written pass
such as is therein described, was made liable to be seized by any one, and taken
before the next authority to be examined and delivered up to his master — who was
required to pay the charge which had accrued thereby. And a subsequent section
of the same law'prOTkles, that if any free negro shall travel without such pass,
and shall be stopped, seized, or taken up, he shall pay all charges arising thereby.
And this law was in full operation when the Constitution of the United States was
adopted, and was not repealed till 1797. So that up to that time free negroes and
mulattoes were associated with servants and slaves in the police regulations estab-
lished by the laws of the State.
And again, in 1833, Connecticut passed another law, which made it penal to set
up^or establish any school in that State for the instruction of persons of the African
race not inhabitants of the State, or to instruct or teach in any such school or in-
stitution, or board or harbor for that purpose, any such person, without the previous
consent in writing of the civil authority of the town in which such school or insti-
tution might be.
And it appears by the case of Crandall v. the State, reported in 10 Conn. Rep.,
340, that upon an information filed against Prudence Crandall for a violation of this
law, one of the points raised in the defence was, that the law was a violation of the
Constitution of the United States ; and that the persons instructed, although of the
African race, were citizens of other States, and therefore entitled to the rights and
privileges of citizens in the State of Connecticut. But Chief Justice Dagget, before
whom the case was tried, held, that persons of that description were not citizens of
a State, within the meaning of the word citizen in the Constitution of the United
States, and were not therefore entitled to the privileges and immunities of citizens
in other States.
The case was carried up to the Supreme Court of Errors of the State, and the ques-
tion fully argued there. But the case went off upon another point, and no opinion
was expressed on this question.
We have made this particular examination into the legislative and judicial action
of Connecticut, because, from the early hostility it displayed to the slave trade on
the coast ot Africa, we may expect to find the laws of that State as lenient and
favorable to the subject race as those of any other State in the Union; and if we find
that at the time the Constitution was adopted, they were not even there raised to
the rank of citizens, but were still held and treated as property, and the laws rela-
ting to them passed with reference altogether to the interest and convenience of the
white race, we shall hardly find them elevated to a higher rank anywhere else.
A brief notice of the laws of two other States, and we shall pass on to other
considerations.
By the laws of New Hampshire, collected and finally passed in 1815, no one was
permitted to be enrolled in the militia of the State but free white citizens ; and the
same provision is found in a subsequent collection of the laws, made in 1855.
Nothing could more strongly mark the entire repudiation of the African race. The
alien is excluded, because, being born in a foreign country, he cannot be a member
of the community until he is naturalized. But why are the African race, born in
the State, not permitted to share in one of the highest duties of the citizen ? The an-
swer is obvious; he is not, by the institutions and laws of the State, numbered
among its people. He forms no part of the sovereignty of the State and is not
therefore called on to uphold and defend it.
Again, in 1822, Rhode Island, in its revised code, passed a law forbidding persons
who were authorized to join persons in marriage, from joining in marriage auy
white person with any negro, Indian, or mulatto, uuder the penalty of two hundred
dollars, and declaring all such marriages absolutely null and void; and the same law
24 THE DRED SCOTT DECISION.
was again re-enacted in its revised code of 1844. So that, down to the last -men-
tioned period, the strongest mark of inferiority and degradation was fastened upon
the African race in that State,
It would be impossible to enumerate and compress in the space usually allotted
to an opinion of a court, the various laws, marking the condition of this race,
which were passed from time to time after the Revolution, and before and since the
adoption of the Constitution of the United States. In addition to those already refer-
red to, it is sufficient to say, that Chancellor Kent, whose accuracy and research no
one will question, states in the sixth edition of his Commentaries (published in 1848,
2 vols., 258, note b,) that in no part of the country except Maine, did the African
race, in point of fact, participate equally with the whites in the exercise of civil and
political rights.
The legislation of the States therefore shows, in a manner not to be mistaken, the
inferior and subject condition of that race at the time the Constitution was adopted,
and long afterwards, throughout the thirteen States by which that instrument was
framed; and it is hardly consistent with the respect due to these States, to suppose
that they regarded at that time, as fellow-citizens and members of the sovereignty,
a class of beings whom they had thus stigmatized; whom, as we are bound, out of
respect to the State sovereignties, to assume they had deemed it just and necessary
thus to stigmatize, and upon whom they had impressed such deep and enduring
marks of inferiority and degradation; or, that when they met in convention to form
the Constitution, they looked upon them as a portion of their constituents, or designed
to include them in the provisions so carefully inserted for the security and protec-
tion of the liberties and rights of their citizens. It cannot be supposed that they
intended to secure' to them rights, and privileges, and rank, in the new political
body throughout the Union, which every one of them denied within the limits of its
own dominion. More especially, it cannot be believed that the large slaveholding
States regarded them as included in the word citizens, or would have consented to
a Constitution which might compel them to receive them in that character from
another State. For if they were so received, and entitled to the privileges and im-
munities of citizens, it would exempt them from the operation of the special laws
and from the police regulations which they considered to be necessary for their own
safety. It would give to persons of the negro race, who were recognized as citizens
in any one State of the Union, the right to enter every other State whenever they
pleased, singly or in companies, without pass or passport, and without obstruction,
to sojourn there as long as they pleased, to go where they pleased at every hour of
the day or night without molestation, unless they committed some violation of
law for which a white man would be punished ; and it would give them the full
liberty of speech in public and in private upon all subjects upon which its own
citizens might speak ; to hold public meetings upon political affairs, and to keep
and carry arms wherever they went. And all of this would be done in the face of
the subject race of the same color, both free and slaves, and inevitably producing
discontent and insubordination among them, and endangering the peace and safety
of the State.
It is impossible, it would seem, to believe that the great men of the slaveholding
States, who took so large a share in framing the Constitution of the United States,
and exercised so much influence in procuring its adoption, could have been so for-
getful or regardless of their own safety and the safety of those who trusted and
confided in them.
Besides, this want of foresight and care would have been utterly inconsistent with
the caution displayed in providing for the admission of new members into this polit-
ical family. For, when they gave to the citizens of each State the privileges and
immunities of citizens in the several States, they at the same time took from the
several States the power of naturalization, and confined that power exclusively
to the Federal Government. No State was willing to permit another State to de-
termine who should or should not be admitted as one of its citizens, and entitled
to demand equal rights and privileges with their own people, within their own ter-
ritories. The right of naturalization was therefore, with one accord, surrendered
by the States, and confided to the Federal Government. And this power granted
to Congress to establish an uniform rule of naturalization is, by the well understood
meaning of the word, confined to persons born in a foreign country, under a foreign
Government. It is not a power to raise to the rank of a citizen any one born in the
United States, who, from birth or parentage, by the laws of the country, belongs
to an inferior and subordinate class. And when we find the States guarding them-
THE DEED SCOTT DECISION. 25
selves from the indiscreet or improper admission by other States of emigrants from
other countries, by giving the power exclusively to Congress, we cannot fail to see
that they could never have left with the States a much more important power-
that is, the power of transforming into citizens a numerous class of persons, who in
that character would be much more dangerous to the peace and safety of a large por-
tion of the Union, than the few foreigners one of the States might improperly naturalize.
The Constitution upon its adoption obviously took from the States all power
by any subsequent legislation to introduce as a citizen into the political family of
the United States any one, no matter where he was born, or what might be hi3
character or condition ; and it gave to Congress the power to confer this character
upon those only who were born outside of the dominions of the United States.
And no law of a State, therefore, passed since the Constitution was adopted, can
give any right of citizenship outside of its own territory.
A clause similar to the one in the Constitution, in relation to the rights and im-
munities of citizens of one State in the other States, was contained in the Articles
of Confederation. But there is a difference of language, which is worthy of note.
The provision in the Articles of Confederation was " that the free inhabitants of
each of the States, paupers, vagabonds, and fugitives from justice, excepted, should
be -entitled to all the privileges and immunities of free citizens in the several States."
It will be observed, that under this Confederation, each State had the right to de-
cide for itself, and in its own tribunals, whom it would acknowledge as a free inhab-
itant of another State. The term free inhabitant, in the generality of its terms,
would certainly include one of the African race who had been manumitted. But no
example, we think, can be found of his admission to all the privileges of citizenship
in any State of the Union after these Articles were formed, and while they contin-
ued in force. And, notwithstanding the generality of the words " free inhabitants,"
it is very clear that, according to their accepted meaning in that day, they did not
include the African race, whether free or not: for the fifth section of the ninth
article provides that Congress should have the power " to agree upon the number
ot land forces to be raised, and to make requisitions from each Stale for its quota
in proportion to the number of white inhabitants in such State, which requisition
should be binding."
Words could hardly have been used wbich more strongly mark the line of dis-
tinction between the citizen and the subject ; the free and the subjugated races.
The latter were not even counted when the inhabitants of a State were to be em-
bodied in proportion to its numbers for the general* defence. And it cannot for a
moment be supposed, that a class of persons thus separated and rejected from those
who formed the sovereignty of the States, were yet intended to be included under
the words " free inhabitants," in the preceding article, to whom privileges and
immunities were so carefully secured in every State.
But although this clause of the Articles of Confederation is the same in principle
with that inserted in the Constitution, yet the comprehensive word inhabitant,
which might be construed to include an emancipated slave, is omitted; and the
privilege is confined to citizens of the State. And this alteration in words would
hardly have been made, unless a different meaning was intended to be conveyed, or
a possible doubt removed. The just and fair inference is, that as this privilege was
about to be placed under the protection of the General Government, and the words
expouuded by its tribunals, and all power in relation to it taken from the State and
its courts, it was deemed prudent to describe with precision and caution the persons
to whom this high privilege was given— and the word citizen was on that account
substituted for the words/We inhabitant. The word citizen excluded, and no doubt
intended to exclude, foreigners who had not become citizens of some one of the
States when the Constitution was adopted; and also every description of persons
who were not fully recognised as citizens in the several States. This, upon any fair
construction of the instruments to which we have referred, was evidently the object
and purpose of this change of words.
To all this mass of proof we have still to add, that Congress has repeatedly legis-
lated upon the same construction of the Constitution that we have given. Three
laws, two of which were passed almost immediately after the Government went into
operation, will be abundantly sufficient to show this. The two first are particularly
worthy of notice, because many of the men who assisted in framing the Constitution,
and took an active part in procuring its adoption, were then in the halls of legisla-
tion, and certainly understood what they meant when they used the words "people
of the United States " and " citizen " in that well-considered instrument.
\
2G THE DRED SCOTT DECISION,
The first of these acts is the naturalization law, which was passed at the second
session of the first Congress, March 26, 1790, and confines the right of becoming citi-
zens " to aliens being free white persons "
Now, the Constitution does not limit the power of Congress in this respect to
white persons. And they may, if they think proper, authorize the naturalization of
any one of any color, who was born under allegiance to another Government. But
the language of the law above quoted, shows that citizenship at that time was per-
fectly understood to be confined to the white race ; and that they alone constituted
the sovereignty in the government.
Congress might, as we before said, have authorized the naturalization of Indians,
because they were aliens and foreigners. But, in their then untutored and savage
state, no one would have thought of admitting them as citizens in a civilized com-
munity. And, moreover, the atrocities they had but recently committed, when they
were the allies of Great Britain in the Revolutionary war, were yet fresh in the recol-
lection of the people of the United States, and they were even then guarding them-
selves against the threatened renewal of Indian hostilities. No one supposed then
that any Iudian would ask for, or was capable of enjoying the privileges of an
American citizen, and the word white was not used with any particular reference to
them.
Neither was it used with any reference to the African race imported into or born
in this country; because Congress had no power to naturalize them, and therefore
there was no necessity for using particular words to exclude them.
It would seem to have been used merely because it followed out the line of divi-
sion which the Constitution has drawn between the citizen race, who formed and
held the Government, and the African race, which they held in subjection and
slavery, and governed at their own pleasure.
Another of the early laws of which we have spoken, is the first militia law, which
was passed in 1792, at the first session of the second Congress. The language of
this law is equally plain and significant with the one just mentioned. It directs that
every "free able-bodied white male citizen" shall be enrolled in the militia. The
word white is evidently used to exclude the African race, and the word "citizen "
to exclude unnaturalized foreigners ; the latter forming no part of the sovereignty,
owing it no allegiance, and therefore under no obligation to defend it. The African
race, however, born in the country, did owe allegiance to the Government, whether
they were slaves or free; but it is repudiated, and rejected from the duties and obli-
gations of citizenship in marked language.
The third act to which we have alluded is even still more decisive; it was passed
as late as 1813, (2 Stat, 809,) and it provides: " that from and after the termina-
tion of the war in which the United States are now engaged with Great Britain, it
shall not be lawful to employ, on board of any public or private vessels of the
United States, auy person or persons except citizens of the United States, or persons
of color, natives of the United States."
Here the line of distinction is drawn in express words. Persons of color, in the
judgment of Congress, were not included in the word citizens, and they are described
as another and different class of persons, and authorized to be employed, if born in
the United States.
And even as late as 1820, (chap. 104, sec. 8,) in the charter to the city of Wash-
ington, the corporation is authorized " to restrain and prohibit the nightly aud
other disorderly meetings of slaves, free negroes, and mulattoes," thus associating
them together in its legislation; and after prescribing the punishment that may be
inflicted on the slaves, proceeds in the following words: " And to punish such free
negroes and mulattoes by penalties not exceeding twenty dollars for any one offence;
and in case of the inability of any such free negro or mulatto to pay any such pen-
alty and cost thereon, to cause him or her to be confined to labor for any time not
exceeding six calendar months." And in a subsequent part of the same section,
the act authorizes the corporation " to prescribe the terms and conditions upon
wb*r,h free negroes and mulattoes may reside in the city."
This law, like the laws of the States, shows that this class of persons were gov-
erned by special legislation directed expressly to them, and always connected with
provisions for the government of slaves, and not with those for the government of
free white citizens. Aud after such an uniform course of legislation as we have
stated, by the colonies, by the States, and by Congress, running through a period of
more than a century, it would seem that to call persons thus marked and stigmati-
zed, " citizens " of the United States, " fellow-citizens," a constituent part of the
THE DRED SCOTT DECISION. 27
sovereignty, would be an abuse of terms, and not calculated to exalt the character
or an American citizen in the eyes of other nations.
The conduct of the Executive Department of the Government has been in per-
fect harmony upon this subject with this course of legislation. The question was
brought officially before the late William Wirt, when he was the Attorney General
of the United States, in 1821, and he decided that the words '■' citizens of the United
States " were used in the acts of Congress in the same sense as in the Constitution;
and that free persons of color were not citizens, within the meaning of the Consti-
tution and laws; and this opinion has been confirmed by that of the late Attorney
General, Caleb dishing, in a recent case, and acted upon by the Secretary of
State, who refused to grant passports to them as " citizens of the United States."
But it is said that a person may be a citizen, and entitled to that character, al-
though he does not possess all the rights which may belong to other citizens; as, for
example, the right to vote, or to hold particular offices ; and that yet, when he
goes into another State, he is entitled to be recognized there as a citizen, although
the State may measure his rights by the rights which it allows to persons of a like
character or class resident in the State, and refuse to him the full rights of citizen •
This argument overlooks the language of the provision in the Constitution of
which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of the community who
form the sovereignty, although he exercises no share of the political power, and is
incapacitated from holding particular office. Women and minors, who form apart
of the political family, cannot vote ; and when a property qualification is required
to vote or hold a particular office, those who have not the necessary qualification
cannot vote or hold the office, yet they are citizens.
So. too, a person may be entitled to vote by the law of the State, who is not a
citizen even of the State itself. And in some of the States of the Union foreigners
not naturalized are allowed to vote. And the State may give the right to free
negroes and mulattoes, but that does not make them citizens of the State, and still
less of the United States. And the provision in the Constitution giving privileges
and immunities in other States, does not apply to them.
Neither does it apply to a person who, being the citizen of a State, migrates to
another State. For then he becomes subject to the laws of the State in which he
lives, and he is no longer a citizen of the State from which he removed. And the
State in which he resides may then, unquestionably, determine his status or condi-
tion, and place him among the class of persons who are not recognized as citizens,
but belong to an inferior and subject race ; and may deny him the privileges and
immunities enjoyed by its citizens. • ...
But so far as mere rights of persons are concerned, the provision in question is
confined to citizens of a State who are temporarily in another Si ate without taking
up their residence there. It gives them no'political rights in the State, as to voting
or holding office, or in any other respect. For a citizen of one State has no right
to participate in the government of another. But if he ranks as a citizen inthe
State to which he belongs, within the meaning,, of the Constitution of the United
States, then, whenever he goes into another State, the Constitution clothes hhn. as
to the rights of person, with all the privileges and immunities which belong to citi-
zens of the State. And if persons of the African race are citizens of a State, and
of the United States, they would be entitled to all these privileges and immunities
in every State, and the State could not restrict them ; for they would hold these
privileges and immunities under the paramount authority of the Federal Govern-
ment, and its courts would be bound to maintain and enforce them, the Constitu-
tion and laws of the State to the contrary notwithstanding. And if the States could
limit or restrict them, or place the party in an inferior grade, this clause of the
Constitution would be unmeaning, and could have no operatiou ; and would give
no rights to the citizen when in another State. He would have none but what the
State"itself chose to allow him. This is evidently not the construction or meaniug
of the clause in question. It guaranties rights, to the citizen, and the State cannot
withhold them. And these rights are of a character and would lead to consequences
which make it absolutely certain that the African race were not included under the
name of citizens of a State, and were not in the contemplation of the framers of
the Constitution when these privileges and immunities were provided for the protec-
tion of the citizen in other States.
The case of Legrand v. Darnall ( 2 Peters, 664 ) has been referred to for the pur-
28 THE DRED SCOTT DECISION.
pose of showing that this court has decided that the descendant of a slave may sua
as a citizen in a court of the United States ; but the case itself shows that the ques-
tion did not arise and could not have arisen in the case.
It appears from the report, that Darnall was born in Maryland, and was the son
of a white man by one of his slaves, and his father executed certain instruments to
manumit him, and devised to him some lauded property in the State. This property
Darnall afterwards sold to Legrand, the appellant, who gave his notes for the pur-
chase-money. But becoming afterwards apprehensive that the appellee had not
been emancipated according to the laws of Maryland, he refused to pay the notes
until he could be better satisfied as to Darnall's right to convey. Darnall, in the
mean time, had taken up his residence in Pennsylvania, and brought suit on the
notes, and recovered judgment in the Circuit Court for the district of Maryland.
The whole proceeding, as appears by the report, was an amicable one ; Legrand
being perfectly willing to pay the money, if he could obtain a title, and Darnall
not wishing him to pay unless he could make him a good one. In point of fact, the
whole proceeding was under the direction of the counsel who argued the case for
the appellee, who was the mutual friend of the parties, and confided in by both of
them, and whose only object was to have the rights of both parties established by
judicial decision in the most speedy and least expensive manner.
'Legrand, therefore, raised no objection to the jurisdiction of the court in the suit*
at law, because he was himself anxious to obtain the judgment of the court upon
his title. Consequently, there was nothing in the record before the court to show
that Darnall was of African descent, and the usual judgment and award of execu-
tion was entered. And Legrand thereupon filed his bill on the equity side of the
Circuit Court, stating that Darnall was born a slave, and had not been legally em-
ancipated, and could not therefore take the land devised to him, nor make Legrand
a good title ; and praying an injunction to restrain Darnall from proceeding to ex-
ecution on the judgment, which was granted. Darnall answered, averring in his
answer that he was a free man, and capable of conveying a good title. Testimony
was taken on this point, and at the hearing the Circuit Court was of opinion that
Darnall was a free man and his title good, and dissolved the injunction and dismiss-
ed the bill ; and that decree was affirmed here, upon the appealof Legrand.
Now, it is difficult to imagine how any question about the citizenship of Darnall,
or his right to sue in that character, can be supposed to have arisen or been decided
in that case. The fact that he was of African descent was first brought before the
court upon the bill in equity. The suit at law had then passed into judgment and
award of execution, and the Circuit Court, as a court of law, had no longer any
authority over it. It was a valid and legal judgment, which the court that rendered
it had not the power to reverse or set aside. And unless it had jurisdiction as a
court of equity to restrain him from using its process as a court of law, Darnall, if
he thought proper, would have been at liberty to proceed on his judgment, and
compel the payment of the money, although the allegations in the bill were true,
and he was incapable of making a title. No other court could have enjoined him,
for certainly no State equity court could interfere in that way with the judgment
of a Circuit Court of the United States.
But the Circuit Court as a court of equity certainly had equity jurisdiction over
its own judgment as a court of law, without regard to the character of the parties ;
and had not only the right, but it was its duty — no matter who were the parties in
the judgment— to prevent them from proceeding to enforce it by execution, if the
court was satisfied that the money was not justly and equitably due. The ability
of Darnall to convey did not depend upon his citizenship, but upon his title to free-
dom. And if he was free, he could hold and convey property, by the laws of Mary-
land, although he was not a citizen. But if he was by law still a slave, he could
not. It was therefore the duty of the court, sitting as a court of equity in the latter
case, to prevent him from using its process, as a court of common law, to compel
the payment of the purchase-money, when it was evident that the purchaser must
lose the land. But if he was free, and could make a title, it was equally the duty
of the court not to suffer Legrand to keep the land, and refuse the payment of the
money, upon the, ground that Darnall was incapable of suing or beiug sued as_ a
citizen in a court of the United States. The character or citizenship of the parties
had no connection with the question of jurisdiction, and the matter in dispute had
no relation to the citizenship of Darnall. Nor is such a question alluded to in the
opinion of the Court. .
Besides, we are by no means prepared to say that there are not many cases, civil
THE URED SCOTT DECISION. 29
as well as criminal, in which a Circuit Court of the United States may exercise ju-
risdiction, although one of the African race is a party ; tbat broad question is not
before the court. The question with which we are now dealing is, whether a person
of the African race can be a citizen of the United States, and become thereby en-
titled to a special privilege, by virtue of his title to that character, and which, un-
der the Constitution, no one but a citizen can claim. It is manifest that the case of
Legrand and Darnall has no bearing on that question, and can have no application
to the case now before the court.
This case, however, strikingly illustrates the consequences that would follow the
construction of the Constitution which would give the power contended for to a
State. It would in effect give it also to au individual. For if the father of young
Darnall had manumitted him in his lifetime, and sent him to reside in a State which
recognized him as a citizen, he might have visited and sojourned in Maryland when
he pleased, and as long as he pleased, as a citizen of the JJnited States; and the
State officers and tribunals would be compelled, by the paramount authority of the
Constitution, to receive him and treat him as one of its citizens, exempt from the
laws and police of the State in relation to a person of that description, and allow
him to enjoy all the rights and privileges of citizenship without respect to the laws
of Maryland, although such laws were deemed by it absolutely essential to its own
safety.
The only two provisions which point to them and include them, treat them as
property, and make it the duty of the Government to protect it ; no other power,
in relation to this race, is to be found in the Constitution ; and as it is a Gov-
ernment of special, delegated, powers, no authority beyond these two provisions
can be constitutionally exercised. The Government of the United States had no
right to interfere for any other purpose but that of protecting the rights of the owner,
leaving it altogether with the several States to deal with this race, whether eman-
cipated or not, as each State may think justice, humanity, and the iuterests and
safety of society, require. The States evidently intended to reserve this power ex-
clusively to themselves.
No one, we presume, supposes that any change in public opinion or feeling, in
relation to this unfortunate race, in the civilized nations of Europe or in this country,
should induce the court to give to the words of the Constitution a more liberal
construction in their favor than they were intended to bear when the instrument
was framed and adopted. Such an argument would be altogether inadmissible in
any tribunal called on to interpret it. If any of its provisions are deemed unjust,
there is a mode prescribed in the instrument itself, by which it may be amended ; but
while it remains unaltered, it must be construed now as it was understood at the
time of its adoption. It is not only the same in words, but the same in meaning,
and delegates the same powers to the Government, and reserves and secures the
same rights and privileges to the citizen ; and as long as it continues to exist in its
present form, it speaks not only in the same words, but with the same meaning and
intent with which it spoke when it came from the hands of its framers, and was
voted on and adopted by the people of the United States. Any other rule of con-
struction would abrogate the judicial character of this court, and make it the mere
reflex of the popular opinion or passion of the day. This court was not created by
the Constitution for such purposes. Higher and graver trusts have been confided
to it, and it must not falter in the path of duty.
What the construction was at that time, we think can hardly admit of doubt.
We have the language of the Declaration of Independence and of the* Articles of
Confederation, in addition to the plain words of the Constitution itself; we have
the legislation of the different States, before, about the time, and since, the Consti-
tution was adopted ; we have the legislation of Congress, from the time of its
adoption to a recent period ■ and we have the constant and uniform action of the
Executive Department, all concurring together, and leading to the same result.
And if anything in relation to the construction of the Constitution can be regarded
as settled, it is that which we now give to the word " citizen " and the word "people."
And upon a full and careful consideration of the subject, the court is of opinion,
that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen ot
Missouri within the meaning of the Constitution of the United States, and not enti-
tled as such to sue in its courts; and, consequently, that the Circuit Court had no
jurisdiction of the case, and that the judgment on the plea in abatement is erroneous.
We are aware that doubts are entertained by some of the members of the court,
whether the plea in abatement is legally before the court upon this writ of error X
30 THE DRED SCOTT DECISION.
but if that plea is regarded as waived, or out of the case upon any other ground,
yet the question as to the jurisdiction of the Circuit Court is presented oa the face
of the bill of exception itself, taken by the plaintiff at the trial; for he admits that
he and his wife were born slaves, but endeavors to make out his title to freedom
and citizenship by showing that they were taken by their owner to certain places,
hereinafter mentioned, where slavery could not by law exist, and that they thereby
became free, and upon their return to Missouri became citizens of that State.
Now, if the removal of which he speaks did not give them their freedom, then by
his own admission he is still a slave; and whatever opinions may be entertained in
favor of the citizenship of a free person of the African race, no one supposes that a
slave is a citizen of the State or of the United States. If, therefore, the acts done
by his owner did not make them free persons, he is still a slave, and certainly inca-
pable of suing in the character of a citizen.
The principle of law is too well settled to be disputed, that a court can give no
judgment for either party, where it has no jurisdiction; and if, upon the showing of
Scott himself, it appeared that he was still a slave, the case ought to have been dis-
missed, and the judgment against him and in favor ot the defendant for costs, is, like
that on the plea in abatement, erroneous, and the suit ought to have been dismissed
by the Circuit Court for want of jurisdiction, in that court.
But, before we proceed to examine this part of the case, it may be proper to no-
tice an objection taken to the judicial authority of this court to decide it; and it has
been said, that as this court has decided against the jurisdiction of the Circuit Court
on the plea in abatement, it has no right to examine any question presented by the
exception; and that anything it may say upon that part of the case will be extra-ju
dicial, and mere obiter dicta. • .
This is a manifest mistake ; there can be no doubt as to the jurisdiction of this
court to revise the judgment of a Circuit Court, and to reverse it for any error ap
parent on the record, whether it be the error of giving judgment in a case ovei
which it had no jurisdiction, or any other material error; and this, too, whethei
there is a plea in abatement or not.
The objection appears to have arisen from confounding writs of error to a State
court, with writs of error to a Circuit Court of the United States. Undoubtedly,
upon a writ of error to a State court, unless the record shows a case that gives ju
risdiction, the case must be dismissed for want of jurisdiction in this court. And if
it is dismissed on that ground, we have no right to examine and decide upon any
question presented by the bill of exceptions, or any other part of the record. But
writs of error to a State court, and to a Circuit Court of the United States, are reg-
ulated by different laws, and stand upon entirely different principles. And in a
writ of error to a Circuit Court of the United States, the whole record is before this
court for examination and decision; and if the sum in controversy is large enough
to give jurisdiction, it is not only the right, but it is the judicial duty of the court, to
examine the whole case as presented by the record; and if it appears upon its face
that any material error or errors have been committed by the court below, it is the
duty of this court to reverse the judgment, and remand the case. And certainly an
error in passing a judgment upon the merits in favor of either party,_ in a case
which it was not authorized to try, and over which it had no jurisdiction, is as grave
an error as a court can commit.
The plea in abatement is not a plea to the jurisdiction of this court, but to the ju-
risdiction of the Circuit Court. And it appears by the record before us, that the
Circuit Court committed an error, in deciding that it had jurisdiction, upon the facts
in the case, admitted by the pleadings. It fs the duty of the appellate tribunal to
correct this error; but that could not be done by dismissing thecase for want of
jurisdiction here— for that would leave the erroneous judgment in full force, and
the injured party without remedy. And the appellate court therefore exercises the
power for which alone appellate courts are constituted, by reversing the judg-
ment of the court below for this error., It exercises its proper and appropriate
jurisdiction over the judgment and proceedings of the Circuit Court, as they appear
upon the record brought up by the writ of error.
The correction of one error in the court below does not deprive the appellate
court of the power of examining further into the record, and correcting any other ma-
terial errors which may have been committed by the inferior court. There is c«r-
tainly no rule of law — nor any practice— nor any decision of a court— which even
questions this power in the appellate tribunal. On the contrary, it is the daily
practice of this court, and of all appellate courts where they reverse the judgment of
THE DRED SCOTT DECISION. 31
an inferior court for error, to correct by its opinions whatever errors may appear
on the record material to the case; and they have always held it to be their duty to
do so where the silence of the court might lead to misconstruction or future contro-
versy, and the point has been relied on by either side, and argued before the court.
In the case before us, we have already decided that the Circuit Court erred in
deciding that it had jurisdiction upon the facts admitted by the pleadings. And it
appears that, in the further progress of the case, it acted upon the erroneous princi-
ple it had decided on the pleadings, and gave judgment for the defendant, where,
upon the facts admitted in the exception, it had no jurisdiction.
We are at a loss to understand upon what principle of law, applicable to appellate
jurisdiction, it can be supposed that this court has not judicial authority to correct
the last-mentioned error, because they had before corrected the former; or by what
process of reasoning it can be made out, that the error of an inferior court in actu-
ally pronouncing judgment for one of the parties, in a case in which it had no juris-
diction, cannot be looked into or corrected by this court, because we have decided
a similar question presented in the pleadings. The last point is distinctly presented
by the facts contained in the plaintiff's own bill of exceptions, which he himself
brings here by this writ of error. It was the point which chiefly occupied the atten-
tion of the counsel on both sides in the argument — and the judgment which this court
must render upon both errors is precisely the same. It must, in each of them, exer-
cise jurisdiction over the judgment, and reverse it for the errors committed by the
court below; and issue a mandate to the Circuit Court to conform its judgment to
the opinion pronounced by this court, by dismissing the case for want of jurisdiction
in the Circuit Court. This is the constant and invariable practice ©f this court,
where it reverses a judgment for want of jurisdiction in the Circuit Court.
It can scarcely be necessary to pursue such a question further. The want of
jurisdiction in the court below may appear on the record without any plea in abate-
ment. This is familiarly the case where a court of" chancery has exercised jurisdic-
tion in a case where the plaintiff had a plain and adequate remedy at law, and it so
appears by the transcript when brought here by appeal. So also where it appears
that a court of admiralty has exercised jurisdiction in a case belonging exclusively
to a court of common law. In these cases there is no plea in abatement. And for
the same reason, and upon the same principles, where the defect of jurisdiction is
patent on the record, this court is bound to reverse the judgment, although the de-
fendant has not pleaded in abatement to the jurisdiction of the inferior court.
The cases of Jackson v. Ashton and of Caprou v. Van Noorden, to which we have
referred in a previous part of thi3 opinion, are directly in point. In the last-men-
tioned case, Capron brought an action against Van Noorden in a Circuit Court of
the United States, without showing, by the usual averments of citizenship, that the
court had jurisdiction. There was no plea in abatement put in, and the parties went
to trial upon the merits. The court gave judgment in favor of the defendant with
costs. The plaintiff thereupon brought his writ of error, and this court reversed the
judgment given in favor of the defendant, and remanded the case with directions to
dismiss it, because it did not appear by the transcript that the Circuit Court had
jurisdiction.
The case before us still more strongly imposes upon this court the duty of examin-
ing whether the court below has not committed an error, in taking jurisdiction and
giving a judgment for costs in favor of the defendant; for in Capron v. Van Noorden
the judgment was reversed, because it did not appear that the parties were citizens
of different States. They might or might not be. But in this case it does appear
that the plaintiff was born a slave; and if the facts upon which he relies have not
made him free, then it appears affirmatively on the record that he is not a citizen,
and consequently his suit against Sandford was not a suit between citizens of diffe-
rent States, and the court had no authority to pass any judgment between the par-
ties. The suit ought, in this view of it, to have been dismissed by the Circuit Court,
and its judgment in favor of Sandford is erroneous, and must be reversed.
It is true that the result either way, by dismissal or by a judgment for the defen-
dant, makes very little, if any, difference in a pecuniary or personal point of view
to either party. But the fact that the result would be very nearly the same to the par-
ties in either form of judgment, would not justify this court in sanctioning an error in
the judgment which is patent on the record, and which, if sanctioned, might be
drawn into precedent, and lead to serious mischief and injustice in some future suit.
We proceed, therefore, to inquire whether the facts relied on by the plaintiff en-
titled him to his freedom.
32 THE DRED SCOTT DECISION.
The case, as he himself states it, on the record brought here by his writ of error,
is this :
The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon
in the army of the United States. In the year 1834, he took the plaintiff from the
State of Missouri to the military post at Rock Island, in the State of Illinois,
and held hitn there as a slave until the month of April or May, 1836. At the time
last mentioned, said Dr. Emerson removed the plaintiff from said military post at
liock Island to the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the territory known as Upper Louisiana, acquired by the Uni-
ted States of France, and situate north of the latitude of thirty-six degrees thirty
minutes north, and north of the State of Missouri. Said Dr. Emerson held the
plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the
year 1838.
In the year 1835, Harriet, who is named in the second count of the plaintiff's
declaration, was the negro slave of Major Taliaferro, who belonged to the army of
the United States. In that year, 1835, said Major Taliaferro took said Harriet to
said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there
as a slave until the year 1836, and then sold and delivered her as a slave, at said
Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson
held said Harriet in slavery at said Fort Snelling until the year 1838.
In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with
the consent of Dr. Emerson, who then claimed to be their master and owner. Eliza
and Lizzie, named ia the third count of the plaintiff's declaration, are the fruit of
that marriage. Eliza is about fourteen years old, and was born on board the steam-
boat Gipsey, north of the north line of the State of Missouri, and upon the river
Mississippi. Lizzie is about seven years old, and was born in the State of Missouri,
at the military post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and
their said daughter Eliza, from said Fort Snelling to the State of Missouri, where
they have ever since resided.
Before the commencement of this suit, said Dr. Emerson sold and conveyed the
plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defen-
dant has ever since claimed to hold them, and each of them, as slaves.
In considering this part of the controversy, two questions arise : 1. Was he,
together with his family, free in Missouri by reason of the stay in the territory of
the United States hereinbefore mentioned ? And, 2. If they were not, is Scott him-
self free by reason of his removal to Rock Island, in the State of Illinois, as stated
in the above admissions?
We proceed to examine the first question.
The act of Congress, upon which the plaintiff relies, declares that slavery and in-
voluntary servitude, except as a punishment for crime, shall be forever prohibited
in all that part of the territory ceded by France, under the name of Louisiana,
which lies north of thirty-six degrees thirty minutes north latitude, and not included
within the limits of Missouri. And the difficulty which meets us at the threshold
of this part of the inquiry is, whether Congress was authorised to pass this law
under any of the powers granted to it by the Constitution ; for if the authority is
not given by that instrument, it is the duty of this court to declare it void and in-
operative, and incapable of conferring freedom upon any one who is held as a slave
under the laws of any one of the States.
The counsel for the plaintiff has laid much stress upon that article in the Consti-
tution which confers on Congress the power " to dispose of and make all needful
rules and regulations respecting the territory or other property belonging to the
United States ;" but, in the judgment of the court, that provision has no bearing
on the present controversy, and the power there given, whatever it may be, is con-
fined, and was intended to be confined, to the territory which at that time belonged
to, or was claimed by, the United States, and was within their boundaries as settled
by the treaty with Great Britain, and can have no influence upon a territory after-
wards acquired from a foreign Government. It was a special provision for a known
and particular territory, and to- meet a present emergency, and nothing more.
A brief summary of the history of the times, as well as the careful and measured
terms in which the article is framed, will show the correctness of this proposition.
It will be remembered that, from the commencement of the Revoluntionary war,
eerious difficulties existed between the States, in relation to the disposition of large
THE DREI) SCOTT DECISION. 33
and unsettled territories wbich were included in the chartered limits of some of tbo
States. And some of the other States and more especially Maryland, which bad
no unsettled lands, insisted that as the unoccupied lands, if wrested from Great
Britain, would owe their preservation to the common purse and the common sword,
the money arising from them ought to be applied in just proportion among the sev-
eral States to pay the expenses of the war, and ought not to be appropriated to
the use of the State in whose chartered limits they might happen to lie, to the ex-
clusion of the other States, by whose combined efforts and common expense the
territory was defended and preserved against the claim of the British Government.
These difficulties caused much uneasiness during the war, while the issue wag in
some degree doubtful, and the future boundaries of the United States yet to be
defined by treaty, if we achieved our independence.
The majority of the Congress of ihe Confederation obviously concurred in opin-
ion with the State of Maryland, and desired to obtain from the States which claimed
it a cession of this territory, in order that Congress might raise money on this
security to carry on the war. This appears by the resolution passed on the 6th of
September, 17S0, strongly urging the States to cede these lands to the United
States, both for the sake of peace and union among themselves, and to maintain the
public credit; and this was followed by the resolution of October 10th, 1780, by
which Congress pledged itself, that if the lands were ceded, as recommended by
the resolution above mentioned, they should be disposed of for Ihe common benefit
of the United States, and be settled and formed into distinct republican States, which,
should become members of the Federal Union, and have the same rights of sover-
eignty, and freedom, and independence, as other States.
But these difficulties became much more serious after peace took place, and the
boundaries of the United States were established. Every State, at that time, felt
severely the pressure of its war debt ; but in Virginia, and some other States, there
were large territories of unsettled lands, the sale of which would enable them to
discharge their obligations without much inconvenience ; while other States, which
had no such resource, saw before them many years of heavy and burdensome tax-
ation; and the latter insisted, for the reasons before stated, that these unsettled lands
should be treated as the common properly of the States, and the proceeds applied
to their common benefit.
The letters from the statesmen of that day will show how much this controversy
occupied (heir thoughts, and the dangers that were apprehended from it. It waa
the disturbing element of the time, and fears were entertained that it might dissolve
the Confederation by which the States were then united.
These fears and dangers were, however, at once removed, when the State of
Virginia, in 1784, voluntarily ceded to the United States the immense tract of coun-
try lying northwest of the river Ohio, and which was within the acknowledged limits
of the State. The only object of the State, in making this cession, was to put an
end to the threatening /ind exciting controversy, and to enable the Congress of
that time to dispose of the lands, and appropriate the proceeds as a common fund
for the common benefit of the States, It was not ceded because it was inconvenient
to the State to hold and govern it, nor from any expectation that it could be better
or more conveniently governed by the United States.
The example of Virginia was soon afterwards followed by other States, and, at
the time of the adoption of the Constitution, all of the States, similarly situated,
had ceded their unappropriated lands, except North Carolina and Georgia. The
main object for which thesecessions were desired and made, was on account of their
money value, and to put an end to a dangerous controversy, as to who was justly
entitled to the proceeds when the laud should be sold. It is necessary to bring this
part of the history of these cessions thus distinctly into view, because it will enable
us the better to comprehend the phraseology of the article in the Constitution, so
often referred to in the argument.
Undoubtedly the powers of sovereignty and the eminent domain were ceded with
the land. This was essential, in order to make it effectual, and to accomplish its
objects. But it must be remembered that, at that time, there was no Goverument
of the United States in existence with enumerated and limited powers; what was
then called the United States, were thirteen separate, sovereign, independent States,
which had entered into a league or confederation for their mutual protection and
advantage, and the Congress of the United States was composed of the representa-
tives of these separate sovereignties, meeting together, as equals, to discuss and
S4 THE DRED SCOTT DECISION.
decide on certain measures which the States, by the Articles of Confederation, had
agreed to submit to their decision. But this Confederation had none of the attri-
butes of sovereignty in legislative, executive, or judicial power. It was little more
than a congress of ambassadors, authorised to represent separate nations, in matters
in which tliey had a common concern. "
It was this congress that accepted the cession from Virginia. They had no power
to accept it under the Articles of Confederation. But they bad an undoubted right,
as independent sovereignties, to accept any cession of territory for their common
benefit, which all of them assented to ; and it is equally clear, that as their common
property, and having no superior to control them, they had Ihe right to exercise ab-
solute dominion over it, subject only to the restrictions which Virginia had imposed
in her act of cession. There was, as we have said, no Government of ihe Un'ted
States then in existence M'ith special enumerated and limited powers. The terri-
tory belonged to sovereignties, who, subject to the limitations above mentioned,
had a right to establish any form of Government they pleased, by compactor treaty
among themselves, and to regulate rights of person and rights of property in the
territory, as they might deem proper. It was by a Congress, representing the author-
ity of these several and separate sovereignties, and acting under their authority
and command (but not from any authority derived from the Articles of Confedera-
tion,) that the instrument usually called the ordinance of 1787 was adopted; regu-
lating in much detail the principles and the laws by which this territory should be
governed; and among other provisions, slavery is prohibited in it. We do not ques-
tion the power of the States, by agreement among themselves, to pass this ordin-
ance, nor its obligatory force in the territory, while the confederation or league of the
States in their separate sovereign character continued to exist.
This was the state of things when the Constitution of the United States was form-
ed. The territory ceded by Virginia belonged to the several confederated States as
common property, and they had united in establishing in it a system of government
and jurisprudence, in order to prepare it for admission as States, according to the
terms of the cession. They were about to dissolve this federative Union, and to sur-
render a portion of their independent sovereignty to a new Government, which, for
certain purposes, would make the people of the several States one people, and which
was to be supreme and controlling within its sphere of action throughout the United
States; but this Government was to be carefully limited in its powers, and to exer-
cise no authority beyond those expressly granted by the Constitution, or necessarily
to be implied from the language of the instrument, and the objects it was
intended to accomplish; and as this league of States would, upon the adoption of
the new Government, cease to have any power over the territory, and the ordinance
they had agreed upon be incapable of execution and a mere nullity, it was obvious
that some provision was necessary to give the new Government sufficient power to
enable it to carry into effect the objects for which it was ceded, and the compacts
and agreements which the States had made with each other in the exercise of their
powers of sovereignty. It was necessary that the lands should be sold to pay the
war debt; that a Government and system of jurisprudence should be maintained in
it, to protect the citizens of the United States who should migrate to the territory,
in their rights of person and of property. It was also necessary that the new Gov-
ernment, about to be adopted, should be authorized to maintain the claim of the
United States to the unappropriated lands in North Carolina and Georgia, which had
not then been ceded, but the cession of which was confidently anticipated upon
eome terms that would be arranged between the General Government and these
two States. And, moreover, there were many articles of value besides this pro-
perty in land, such as arms, military stores, munitions, and ships of war, which
were the common property of the States, when acting in their independent charac-
ters as confederates, which neither the new Government nor any one else would
have a right to take possession of, or control, without authority from them; and it
was to place these thing3 under the guardianship and protection of the new Govern-
ment, and to clothe it with the necessary powers, that the clause was inserted in the
Constitution which gives Congress the power " to dispose of and make all needful
rules and regulations respecting the territory or other property belonging to_ the
United States." It was intended for a specific purpose, to provide for the things
we have mentioned. It was to transfer to the new Government the property then
held In common by the States, and to give to that Government power to apply it to
the objects for which it had been'' destined by mutual agreement among the States
before their league was dissolved. It applied only to the property which the States
THE DRED SCOTT DECISION. 35
held in common at that time, and has no reference whatever to any territory or
other property which the new sovereignty might afterwards itself acquire.
The language used in the clause, the arrangement and combination of the power.",
and the somewhat unusual phraseology it uses, when it speaks of the political power
to be exercised in the government of the territory, all indicate the design and mean-
ing of the clause to be such as we have mentioned. It does not speak of any ter-
ritory, nor of Terri'orics, but uses language which, according to its legitimate mean-
ing, points to a particular thing. The power is given in relation only to the
territory of the United States — that is, to a territory then in existence, and then
known or claimed as the territory of the United States. It begins its enumeration
of powers by that of disposing, in other words, making sale of the lands, or raising
money from them, which, as we have already said, was the main object of the ces-
sion, and which is accordingly the first thing provided for in the article. It then
gives the power which was necessarily associated with the disposition and sale of
the lands — that is, the power of making needful rules and regulations respecting the
territory. And whatever construction may now be given to these words, every one,
we think, must admit that they are not the words usually employed by statesmen
in giving supreme power of legislation. They are certainly very unlike the words
used in the power granted to legislate over territory which the new Government
might afterwards itself obtain by cession from a State, either for its seat of Govern-
ment, or for forts, magazines, arsenals, dock yards, and other needful buildings.
And the same power of making needful rules respecting the territory is, in pre-
cisely the same language, applied to the other property belonging to the United-
States — associating the power over the territory in this respect with the power over
movable or pergonal property— that is, the ships, arms, and munitions of war, which
then belonged in common to the State sovereignties. And it will hardly be said,
that this power, in relation to the last-mentioned objects, was deemed necessary to
be thus specially given to the new Government, in order to authorize it to make
needful rules and regulations respecting the ships it might itself build, or arms and
munitions of war it might itself manufacture or provide for the public service.
No one. it is believed, would think a moment of deriving the power of Congress to
make needful rules and regulations in relation to property of this kind from thia
clause of the Constitution. Nor can it, upon any fair construction, be applied to
any property, but that which the new Government was about to receive from the
confederated States. And if this be true as to this property, it must be equally
true and limited as to the territory, ' which is so carefully and precisely coupled
with it — and like it referred to as property in the power granted. The concluding
words of the clause appear to render this construction irresistible ; for, after the
provisions we have mentioned, it proceeds to say, " that nothing in the Constitution
shall be so construed as to prejudice any claims of the United States, or of any par-
ticular State."
Now, as we have before said, all of the States, except North Carolina and Georgia,
had made the cession before the Constitution was adopted, according to the reso-
lution of Congress of October 10, 1780. The claims of other States, that the unap-
propriated lands in these two States should be applied to the common benefit, in
like manner, was still insisted on, but refused by the States. And this member of
the clause in question evidently applies to them, and can apply to nothing else. It
was to exclude the conclusion that either party, by adopting the Constitution, would
surrender what they deemed their rights. And when the latter provision relates so
obviously to the unappropriated lands not yet ceded by the States, and the first
clause makes provision for those then actually ceded, it is impossible, by any just
rule of construction, to make the first provision general, and extend to all terri-
tories, which the Federal Government might in any way afterwards acquire, when
the latter is plainly and unequivocally confined to a particular territory; which was
a part of the same controversy, and involved in the same dispute, aud depended
upon the same principles. The union of the two provisions in the same clause
shows that they were kindred subjects; and that the whole clause is local, and re-
lates only to lands, within the limits of the United States, which had been or then
were claimed by a State; and that no other territory was in the mind of the fra-
mers of the Constitution, or intended to be embraced in it. Upon any other con-
struction it would be impossible to account for the insertion of the last provision in
the place where it is found, or to comprehend why, or for what object, it was asso-
ciated with the previous provision.
Thia view of the subject is confirmed by the manner in which the present Govern
36 THE DEED SCOTT DECISION.
merit of the United Statea dealt with the subject aa soon a3 it came into existence.
It must be borne in mind that the aame States that formed the Confederation also
formed and adopted the new Government, to which so large a portion of their for-
mer sjvereign powers were surrendered. It must also be borne in mind that all of
these same Statea which had then ratified the new Constitution were represented in
the Congress which passed the first law for the government of this territory; and
many of the members of that legislative body had been deputies from the Statea
under the Confederation — had united in adopting the ordinance of 1787, and assist-
ed in forming the new Government under which they were then acting, and whose
powers they were then exercising. And it is obvious from the law they passed to
carry into effect the principles and provisions of the ordinance, that they regarded
it as the act of the States done in the exercise of their legitimate powers at the time.
The new Government took the territory as it fouud it, and in the condition in which
it was transferred, and did not attempt to undo anything that had been done. And,
among the earliest laws passed under the new Government, is one reviving the or-
dinance of 1787, which had become inoperative and a nullity upon the adoption of
the Constitution. This law introduces no new form or principles for its govern-
ment, but recites, in the preamble, that it is passed in order that this ordinance
may continue to have full effect, and proceeds to make only those rules and regula-
tions which were needful to adapt it to the new Government, into whose hands the
power had fallen. It appears, therefore, that this Congress regarded the purpose3
to which the land in this Territory was to be applied, and the form of government
and principles of jurisprudence which were to prevail there, while it remained in
the Territorial State, as already determined on by the States when they had full
power and right to make the decision; and that the new Government, having re-
ceived it in this condition, ought to carry substantially into effect the plans and
principles which had been previously adopted by the States, and which, no doubt,
the States anticipated when they surrendered their power to the new Government.
And if we regard this clause of the Constitution as pointing to this Territory, with a
Territorial Government already established in it, which had been ceded to the States
for the purposes hereinbefore mentioned — every word in it is perfectly appropriate
and easily understood, and the provisions it contains are in perfect harmony with
the objects for which it was ceded, and with the condition of its government as a Ter-
ritory at the time. We can, then, easily account for the manner in which the first
Congress legislated on the subject — and can also understand why this power over
the territory was associated in the same clause with the other property of the United
States, and subjected to the like power of making needful rules and regulations.
But if the clause is construed in the expanded sense contended for, so as to embrace
any territory acquired from a foreign nation by the present Government, and to give
it in such territory a despotic and unlimited power over persons and property, such
as the confederated States might exercise in their common property, it would be
difficult to account for the phraseology used, when compared with other grants of
power — and also for its association with the other provisions in the same clause.
The Constitution has always been remarkable for the felicity of its arrangement
of different subjects, and the perspicuity and appropriateness of the language it
uses. But if this clause is construed to extend to territory acquired by the present
Government from a foreign nation, outside of the limits of any charter from the
British Government to a colony, it would be difficult to say, why it was deemed
necessary to give the Government the power to sell any vacant lands belonging to
the sovereignty which might be found within it; and if this was necessary, why the
grant of this power should precede the power to legislate over it and establish a
Government there ; and still more difficult to say, why it was deemed necessary so
specially and particularly to grant the power to make needful rules and regulations
in relation to any personal or movable property it might acquire there. For the
words, other property, necessarily, by every known rule of interpretation, must mean
property of a different description from territory or land. And the difficulty
would perhaps be insurmountable in endeavoring to account for the last member of
the sentence, which provides that ,; nothing in this Constitution shall be so con-
strued as to prejudice any claims of the United States or any particular State,"
or to say how any particular State could have claims in or to a territory ceded bj
a foreign Government, or to account for associating this provision with the prece-
ding provisions of the clause, with which it would appear to have no connection.
The words " needful rules and regulations " would seem, also, to have been cau-
tiously used for some definite object. They are not the words usually employed by
THE DRED SCOTT DECISION. 37
statesmen, when they mean to give the powers of sovereignty, or to establish a
Government, or to authorise its establishment. Thus, in the law to renew and keep
alive the ordinance of 1787, and to re-establish the Government, the title of the
law is : "An act to provide for the government of the territory northwest of the
river Ohio." And in the Constitution, when granting the power to legislate over
the territory that may be selected for the seat of Government independently of a
State, it does not say Congress shall have power " to make all needful rules and
regulations respecting the territory ;" but it declares that " Congress shall have
power to exercise exclusive legislation in all cases whatsoever over such District
( not exceeding ten miles square ) as may, by cession of particular States and the
acceptance of Congress, become the seat of the Government of the United States.
The words " rules and regulations " are usually employed in the Constitution in
speaking of some particular specified power which it means to confer on the Gov-
ernment, and not, as we have seen, when granting general powers of legislation.
As, for example, in the particular power to Congress "to make rules for the govern-
ment and regulation of the land and naval forces, or the particular and specific
power to regulate commerce ;" " to establish an uniform rule of naturalization;"
" to coin money and regulate the value thereof." And to construe the words of
which we are speaking as a general and unlimited grant of sovereignty over terri-
tories which the Government might afterwards acquire, is to use them in a sense and
for a purpose for which they were not used in any other part of the instrument
But if confined to a particular Territory, in which a Government and laws had al-
ready been established, but which would require some alterations to adapt it to the
new Government, the words are peculiarly applicable and appropriate for that
purpose.
The necessity of this special provision in relation to property and the rights or
property held in common by the confederated States, is illustrated by the first
clause of the sixth article. This clause provides that "all debts, contracts, and en-
gagements entered into before the adoption of this Constitution, shall be as valid a-
gainst the United States under this Government as under the Confederation." This
provision, like the one uuder consideration, was indispensable if the new Constitution
was adopted. The new Government was not a mere change in a dynasty, or in a
form of government, leaving the nation or sovereignty the same, and clothed with
all the rights, and bound by all the obligations of the preceding one. But, when
the present United States came into existeuce under the new Government, it was a
new political body, a new nation, then for the first time taking its place in the fami-
ly of nations. It took nothing by succession from the Confederation. It had no
right, as its successor, to any property or rights of property which it had acquired,
and was not liable for any of its obligations. It was evidently viewed in this light
by the framers of the Constitution. And as the several States would cease to exist
in their former confederated character upon the adoption of the Constitution, and
could not, in that character, again assemble together, special provisions were indis-
pensable to transfer to the new Government the property and rights which at that
time they held in common; and at the same time to authorize it to lay taxes and
appropriate money to pay the common debt which they had contracted ; and this
power could only be given to it by special provisions in the Constitution. The
clause in relation to the territory and other property of the United States provided
for the first, and the clause last quoted provides for the other. They have no con-
nection with the general powers and rights of sovereignty delegated to the new
Government, and can neither enlarge nor diminish them. They were inserted to
meet a present emergency, and not to regulate its powers as a Government.
Indeed, a similar provision was deemed necessary, in relation to treaties made by
the Confederation ; and when in the clause next succeeding the one of which we
have last spuken, it is declared that treaties shall be the supreme law of the land,
care is taken to include, by express words, the treaties made by the confederated
States. The language is : " aud all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land."
Whether, therefore, we take the particular clause in question, by itself, or in con-
nection with the other provisions of the Constitution, we think it clear, that it applies
ouly to the particular territory of which we have spoken, and cannot, by any just
rule of interpretation, be extended to territory which the new Government might
afterwards obtain from a foreign nation. Consequently, the power which Congress
may have lawfully exercised in this Territory, while it remained under a Territorial
Government, and which may have been sanctioned by judicial decision, can furnish
38 THE DRED SCOTT DECISION.
no justification and no argument to support a similar exercise of power over terri-
tory afterwards acquired by the Federal Government. We put aside, therefore,
any argument, drawn from precedents, showing the extent of the power which the
General Government exercised over slavery in this Territory, as altogether inap-
plicable to the case before us.
But the ease of the American and Ocean Insurance Companies v. Canter (1 Pet.,
511) has been quoted as establishing a different construction of this clause of the
Constitution. There is, however, not the slightest conflict between the opinion now
given and the one referred to; and it is only by taking a single sentence out of the
latter and separating it from the context, that even an appearance of conflict can be
shown. We need not comment on such a mode of expounding an opinion of the
court. Indeed it most commonly misrepresents instead of expounding it. And thia
is fully exemplified in the case referred to, where, if one sentence is taken by itself,
the opinion would appear to be in direct conflict with that now given; but the
words which immediately follow that sentence show that the court did not mean to
decide the point, but merely affirmed the power of Congress to establish a Govern-
ment iu the Territory, leaving it an open question, whether that power was derived
from this clause in the Constitution, or was to be necessarily inferred from a power
to acquire territory by cession from a foreign Government. The opinion on this
part of the case is short, and we give the whole of it to show how well the selection
of a single sentence is calculated to mislead.
The passage referred to is in page 542, in which the court, in speaking of the
power of Congress to establish a Territorial Government in Florida until it should
become a State, uses the following language :
" In the mean time Florida continues to be a Territory of the United States, gov-
erned by that clause of the Constitution which empowers Congress to make all
needful rules and regulations respecting the territory or other property of the United
States. Perhaps the power of governing a Territory belonging to the United States,
which has not, by becoming a State, acquired the means of self government, may
result, necessarily, from the facts that it is not within the jurisdiction of auy partic-
ular State, and is within the power and jurisdiction of the United States. The right
to govern may be the inevitable consequence of the right to acquire territory.
Whichever may be the source from which the power is derived, the possession of it is
unquestionable."
It is thus clear, from the whole opinion on this point, that the court did not mean
to decide whether the power was derived from the clause in the Constitution, or was
the necessary consequence of the right to acquire. They do decide that the power
in Congress is unquestionable, and in this we entirely concur, and nothing will be
found in this opinion to the contrary. The power stands firmly on the latter alter-
native put by the court — that is, as " the inevitable consequence of the right to acquire
territory."
And what still more clearly demonstrates that the court did not mean to decide
the question, but leave it open for future consideration, is the fact that the case was
decided in the Circuit Court by Mr. Justice Johnson, and his decision was affimied
by the Supreme Court. His opinion at the circuit is given in full in a note to the
case, and in that opinion he states, in explicit terms, that the clause of the Consti-
tution applies only to the territory then within the limits of the United States, and not
to Florida, which had been acquired by cession from Spain. This part of his opinion
will be found in the note in page 517 of the report. But he does not dissent from the
opinion of the Supreme Court; thereby showing that, in his judgment, as well as that
of the court, the case before them did aot call for a decision on that particular point,
and the court abstained from deciding it. And in a part of its opiuion subsequent
to the passage we have quoted, where the court speak of the legislative power of
Congress in Florida, they still speak with the same reserve. And in page 546,
speaking of the power of Congress to authorise the Territorial Legislature to estab-
lish courts there, the court say: " They are legislative courts, created in virtue of
the general right of sovereignty which exists in the Government, or in virtue of
that clause which enables Congress to make all needful rules and regulations respec-
ting the territory belonging to the United States.'-"
It has been said that the construction given to this clause is new, and now for the
first time brought forward. The case of whicb we are speaking, and which has
been so much discussed, shows that the fact is otherwise. It shows that precisely
the same question came before Mr. Justice Johnson, at his circuit, thirty years
ago war fully considered by him, and the same construction given to the clause
THE DRED SCOTT DECISION. 39
in the Constitution which is now given by this court. And that upon an appeal
from his decision the same question was brought before this court, but was not
decided because a decision upon it wa* not required by the case before the court.
There is another sentence in the opinion which has been commented on, which
even in a still more striking manner shows how one may mislead or be misled by
taking out a single sentence from the opinion of a court, and leaving out of view
what precedes and follows. It is in page 546, near the close of the opinion, in
which the court say: "In legislating lor them," (the territories of the United
States,) "Congress exercises the combined powers of the General and of a State
Government." And it is said, that as a State may unquestionably prohibit slavery
within its territory, this sentence decides in effect that Congress may do the same
in a territory of the United States, exercising there the powers of a State, as well
as the power of the General Government.
The examination of this passage in the case referred to, would be more appropri-
ate when we come to consider in another part of this opinion what power Congress
can cons'.iturionally exercise in a Territory, over the rights of person or rights of
property of a citizen. But, as it is in the same case with the pa-sage we have be-
fore commeuted on, we dispose of it now, as it will save the court from the necessity
of referring again to the case. Audit will be seen upon reading the page in which
this sentence is found, that it has no reference whatever to the power of Congress
over rights of persoh or rights of property — but relates altogether to the power of
establishing judicial tribunals to administer the laws constitutionally passed, and
defining the jurisdiction they may exercise.
The law of Congress establishing a Territorial Government in Florida, provided
that the Legislature of the Territory should have legislative powers over '■ all right-
ful objects of legislation ; but no law should be valid which was inconsistent with
the laws and Constitution of the United States.'-'
Under the power thus conferred, the Legislature of Florida passed an act, erec-
ting a tribunal at Key West to decide cases of salvage. And in the case of which
we are speaking, the question arose whether the Territorial Legislature could ba
authorised by Congress to establish such a tribunal, with such powers; and one ol
the parties, among other objections, insisted that Congress could not under the Con-
stitution authorise the Legislature of the Territory to establish such a tribunal
with such powers, but that it must be established by Congress itself; aud that a sale
of cargo made under its order, to pay salvors, was void, as made without legal au-
thority, and passed no property to the purchaser.
It is in disposing of this objection that the sentence relied on occurs, and the
court begin that part of the opinion by stating with great precision the point which
they are about to decide.
They say : " It has been contended that by the Constitution of the United States,
the judicial power of the United States extends to all cases of admiralty and mari-
time jurisdiction; and that the whole of the judicial power must be vested 'in ono
Supreme Court, and in such inferior courts as Congress shall from time to time or-
dain aud establish.' Hence it has been argued that Congress cannot vest admiralty
jurisdiction iuGourts created by the Territorial Legislature."
And after thus clearly stating the point,, before them, and which they were about
to decide, they proceed to show that these Territorial tribunals were not constitu-
tional courts, but merely legislative, and that Congress might, therefore, delegate
the power to the Territorial Government to establish the court in question ; and
they conclude that part of the opinion in the following words: "Although admiralty
jurisdiction can be exercised in tue States in those courts only which are established
in pursuance of the third article of the Constitution, the same limitation does not
extend to the Territories. In legislating for them, Congress exercises the com-
bined powers of the General and State Governments."
Thus it will be seen by these quotations from the opinion, that the court, after
stating the question it was about to decide in a manner too plain to be misunder-
stood, proceeded to decide it, and announced, as the opinion of the tribunal, that
in organizing the judicial department of the Government in a Territory of the
United States, Congress does not act under, and is not restricted by. the third ar-
ticle in the Constitution, and is not bound, in a Territory, to ordain and establish
courts in which the judges hold their offices during good behaviour, but may ex-
ercise the discretionary power which a State exercises in establishing its judicial
department, and regulating the jurisdiction of its courts, and may authorize the
Territorial Government to establish, or may itself establish, courts in which the
40 THE DRED SCOTT DECISION.
judges hold their offices for a terra of years only; and may vest in them judicial
power upon subjects confided to the judiciary of the United States. And in doing
this, Congress undoubtedly exercises the combined power of the General and a
State Government. It exercises the discretionary power of a State Governtnent in
authorizing the establishment of a court in which the judges hold their appoint-
ments for a term of years only, and not during good behaviour; and it exercises the
power of the General Government in invesiing that court with admiralty jurisdic-
tion, over which the General Government had exclusive jurisdiction in the Territory.
No one, we presume, will question the correctness of that opinion; nor is (here
anything in conflict with it in the opinion now given. The point decided in the case
cited has no relation to the question now before the court. That depended on the
construction of. the third article of the Constitution, in relation to the judiciary of
the United States, and the power which Congress might exercise in a Territory in
organizing the judicial department of the Government. The case before us depends
upon other and different provisions of the Constitution, altogether separate and
apart from the one above mentioned. The question as to what courts Congress may
ordain or establish in a Territory to administer laws which the Constitution author-
izes it to pass, and what laws it is or is not authorized by the Constitution to pass,
are widely different — are regulated by different and separate articles of the Consti-
tution, and stand upon different principles. And we are satisfied that no one who
reads attentively the page in Peters's Reports to which we have referred, can sup-
pose that the attention of the court was drawn for a moment to the question now
before this court, or that it meant in that case to say that Congress had a right to
prohibit a citizen of the United States from taking any property which he lawfully
held into a Territory of the United States.
This brings us to examine by what provision of the Constitution the present
Federal Government, under its delegated and restricted powers, is authorized to ac-
quire territory outside of the original limits of the United States, and what powers
it may exercise thereiu over the person or property of a citizen of the United States,
while it remains a Territory, and until it shall be admitted as one of the States of
the Union.
There is certainly no power given by the Constitution to the Federal Govern-
ment to establish or maintain colonies bordering on the United States or at a dis-
tance, to be ruled and governed at its own pleasure; nor to enlarge its territorial
limits iu any way, except by the admission of new States. That power is plainly
given; and if a new State is admitted, it needs no further legislation from Congress,
because the Constitution itself defines the relative rights and powers, and duties of
the State, and the citizens of the State, and the Federal Government. But no pow-
er is given to acquire a Territory to be held and governed permanently in that
character.
And indeed the power exercised by Congress to acquire territory and establish a
Government there, according to its own unlimited discretion, was viewed with
great jealousy by the leading statesmen of the day. And in the Federalist, (No. 38,)
written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory
by the confederated States, by the cession from Virginia, and the establishment of
a Government there, as an exercise of power not warranted by the Articles of Con-
federation, and dangerous to the liberties of the people. And he urges the adop-
tion of the Constitution as a security and safeguard against such an exercise of
power.
We do not mean, however, to question the power of Congress in this respect.
The power to expand the territory of the United States by the admission of new
States is plainly given; and in the construction of this power by all the depart-
ments of the Government, it has been held to authorize the acquisition of territory,
not fit for admission at the time, bat to be admitted as soon as its population and
Bituation would entitle it to admission. It is acquired to become a State, and not
to beheld as a colony and governed by Congress with absolute authority; and as the
propriety of admitting a new State is committed to the sound discretion of Congress,
the power to acquire territory for that purpose, to be held by the United States
until it is in a suitable condition to become a State upon an equal footing with the
other States, must rest upon the same discretion. It is a question for the political
department ol the Government, and not the judicial; and whatever the political
department of the Government shall recognize as within the limits of the United
States, the judicial department is also bound to recognize, and to administer in it
the laws of the United States, so far as they apply, and to maintain in the Territory
THE DRED SCOTT DECISION. 41
the authority and rights of the Government, and also the pergonal rights and
rights of property of individual citizens, as secured by the Constitution. All we
mean to say on this point is, that, as there is no express regulalion in the Constitu-
tion defining the power which the General Government may exercise over the person
or property of a citizen in a Territory thus acquired, ihe court must necessarily
look to the provisions and principles of the Constitution, and its distribution of
powers, for the rules and principles by which its decisiou must be governed.
Taking (his rule to guide us, it may be safely assumed that citizens of the United
States who migrate to a Territory belonging to the people of the United States, cannot
be ruled as mere colonists, dependent upon the will of the General Government, and to
be governed by any laws it may think proper to impose. The priuciple upon which
our Governments rest, and upon which alone they continue to exist, is the union of
States, sovereign and independent within their own limits in their internal and do-
mestic concerns, and bound together as one people by a General Government, pos-
sessing certain enumerated aud restricted powers, delegated to it by the people of
the several States, and exercising supreme authority within the scope of the powers
granted to it, throughout the dominion of the United States. A power, therefore,
in the General Government to obtain and hold colonies and dependent territories,
over which they might legislate without restriction, would be inconsistent with its
own existence in its present form. Whatever it acquires, it acquires for the benefit
of the people of the several States who created it. It is their trustee acting for
them, and charged with the duty of promoting the interests of the whole people of
the whole Union in the exercise of the powers specifically granted.
At the time when the Territory in question was obtained by cession from France,
it contained no population fit to be associated together and admitted as a State;
and it therefore was absolutely necessary to hold possession of it, as a Territory be-
longing to the United States, until it was settled and inhabited by a civilized com-
munity capable of self-government, and in a condition to be admitted on equal
terms with the other States as a member of the Union. But, as we have before said,
it was acquired by the General Government, as the representative and trustee of
the people of the United States, and it must therefore be held in that character for
their common and equal benefit; for it was the people of the several States, acting
through their agent and representative, the Federal Government, who in fact acquired
theTerritory in question, aud the Government holds it for their common use until
it shall be associated with the other States as a member of the Union.
But until that time arrives, it is undoubtedly necessary that some Government
should be established in order to organize society, and to protect the inhabitants in
their persons and property; and as the people of the United States could act in this
matter only through the Government which represented them, and through which
they spoke and acted when the Territory was obtained, it was not only within the
scope of its powers, but it was its duty to pass such laws and establish such a Gov-
ernment as would enable those by whose authority they acted to reap the advantages
anticipated from its acquisition, and to gather there a population which would ena-
ble it to assume the position to which it was destined among the States of the Union.
The power to acquire necessarily carries with it the power to preserve and apply to
the purposes for which it was acquired. The form of government to be established
necessarily rested in the discretion of Congress. It was their duty to establish the
one that would be best suited for the protection and security of the citizens of the
United States, and other inhabitants who might be authorized to take up their abode
there, and that must always depend upon the existing condition of the Territory, as
to the number and character of its inhabitants, and their situation in the Territory.
In some cases a Government, consisting of persons appointed by the Federal Gov-
ernment, would best subserve the interests of the Territory, when the inhabitants
were few and scattered, and new to one another. In other instances, it would be
more advisable to commit the powers of self-government to the people who had set-
tled in the Territory, as being the most competent to determine what was best for
their own interests. But some form of civil authority would be absolutely neces-
sary to organize and preserve civilized society, and prepare it to become a State ;
and what is the best form must always depend on the condition of the territory at
the time, and the choice of the mode must depend upon the exercise of a discretion-
ary power by Congress, acting within the scope of its constitutional authority, and
not infringing upon the rights of person or rights of property of the citizen who
might go there to reside, or for any other lawful purpose. It was acquired by the
42
THE DRED SCOTT DECISION.
exercise of this discretion, and it must be held and governed in like manner until
it is fitted to be a State.
But the power of Congress over the person or properly of a citizen can never
be a mere d;screlionary power under our Constitution and form of Government.
The powers of the Government and the rights and privileges of the citizen are reg-
ulated and plainly defined by the Constitution itself. And when the Territory
becomes a part of the United States, the Federal Government enters into possession
in the character impressed upon it by those who created it. It enters upon it with
its powers over the citizen strictly defined, and limited by the Constitution, from
which it derives its own existence, and by virtue of which alone it continues to
exist and act as a Government and sovereignty. It has no power of any kind be-
yond it; and it cannot, when it enters a Territory of the United States, put off its
character, and assume discretionary or despotic powers which the Constitution has
denied to it. It cannot create for itself a new character separated from the citizens
of the United States, and the duties it owes them under the provisions of the Con-
stitution. The Territory being a part of the United States, the Government and
the citizen both enter it under the authority of the Constitution, with their respec-
tive rights defined and marked out; and the Federal Government can exercise no
power over his person or property, beyond what that instrument confers, nor law-
fully deny any right which it has reserved.
A reference to a few of the previsions of the Constitution will illustrate this
proposition.
For example, no one, we presume, will contend that Congress can make any law
in a Territory respecting the establishment of religion, or the free exercise thereof,
or abridging the Ireedom of speech or of the press, or the right of the people of the
Territory peaceably to assemble, and to petition the Government for the redress
of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the
right to trial by jury, nor compel any one to be a witness against himself in a crim-
inal proceeding.
These powers, and others, in relation to rights of person, which it is not neces-
sary here to enumerate, are, in express and positive terms, denied to the General
Government; and the rights of private property have been guarded with equal care.
Thus the rights of property are united with the rights of person, and placed on the
same ground by the fifth amendment to the Constitution, which provides that no
person shall be deprived of life, liberty, and property, without due process of law.
And an act of Congress which deprives a citizen of the United States of his liberty
or property, merely because he came himself or brought his property into a partic-
ular Territory of the United States, and who had committed no offence against the
laws, could hardly be dignified with the name of due process of law.
So, too, it will hardly be contended that Congress could by law quarter a soldier
in a house in a Territory without the consent of the owner, in time of peace; nor
in time of war, but in a manner prescribed by law. Nor could they by law forfeit
the property of a citizen in a Territory who was convicted of treason, for a longer
period than the life of the person convicted; nor take private property for public
use without just compensation.
The powers over person and property of which we speak are not only not granted
to Congress, but are in express terms denied, and they are forbidden to exercise
them. And this prohibition is not confined to the States, but the words are general,
and extend to the whole territory over which the Constitution gives it power to
legislate, including those portions of it remaining under Territorial Government, as
well as that covered by States. It is a total absence of power everywhere within
the dominion of the United States, and places the citizens of a Territory, so far -as
these rights are concerned, on the same footing with citizens of the States, and
guards them as firmly and plainly against any inroads which the General Govern-
ment might attempt, under the plea of implied or incidental powers. And if Con-
gress itself cannot do this — if it is beyond the powers conferred on the Federal
Government — it will be admitted, we presume, that it could not authorise a Terri-
torial Government to exercise them. It could confer no power on any local Gov-
ernment, established by its authority, to violate the provisions of the Constitution.
It seems, however, to be supposed, that there is a difference between property in
a slave and other property, and that different rules may be applied to it in expoun-
ding the Constitution of the United States. And the laws and usages of nations,
THE DRED SCOTT DECISION. 43
and the writings of eminent jurists upon the relation of master and slave and their
mutualjights and duties, aud the powers which Governments may exercise over it
have been dwelt upon iu the argument. '
But in considering the question before us, it must be borne in mind that there is
no law of nations standing between the people of the United States and their Gov-
ernment, and interfering with their relation to each other. The powers of the Gov-
ernment, and the rights of the citizen under it, are positive and practical regulations
plainly written down. The people of the United States have delegated to it certain
enumerated powers, and forbidden it to exercise others. It has no power over the
person or property of a citizen but what the citizens of the United States have
granted. And no laws or usages of other nations, or reasoning of statesmen or iu-
riats upon the relations of master and slave, can enlarge the powers of the Govern-
ment, or take from the citizens the rights they have referred. And if the Consti-
tution recognizes the right of property of the master in a slave, and makes no
distinction between that description of property and other property owned bv a
citizen no tribunal, acting under the authority of the United States, whether it be
legislative, executive, or judicial, has a right to draw such a d:stinction, or deny
to it the benefit of the provisions and guarantees which have been piovided for the
protection of private property against the encroachments of the Government
Now as we have already said in an earlier part of this opinion, upon a different
po:nt, the right of property in a slave is distinctly and expressly affirmed in the
Constitution. The right to traffic in it, like an ordinary article of merchandise and
property, was guarantied to the citizens of the United States, in every Slate that
might desire it, for twenty years. And the Government in express terms is pledged
to protect it in all future time, if the slave escapes from his owner. This is done in
plain words— top plain to be misunderstood. And no word can be found in the
Constitution which gives Congress a greater power over slave property, or which
entitles property of that kind to less protection than property of any olher des-
cription. The only power conferred is the power coupled with the duty of guarding
and protecting the owner in his rights.
Upon these considerations, it is the op'nion of the court that the act of Congress
which prohibited a citizen from holding and owning property of this kind in the
territory of the United States north of the line therein mentioned, is not warranted
by the Constitution, and is therefore void; and that neither Dred Scott himself, nor
any of his family, were made free by being carried into this territory; even if 'they
had been carried there by the owner, with the intention of becoming a permanent
resident.
We have so far examined the case, as it stands under the Constitution of the
United States, and the powers thereby delegated to the Federal Government.
But there is another point in the case which depends on State power and' State
law. And it is contended, on the part of the plaintiff, that he is made free by being
taken to Rock Island, in the State of Illinois, independently of his residence in the
territory of the United States; and being so made free, he was not again reduced to
a state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief; for the principle on which
it depends was decided in this court, upon much consideration in the case of S tra-
der et al. v. Graham, reported in 10th Howard, 82. In that case, the slaves bad been
taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought
back to Kentucky. And this court held that their status or condition, as free°or
slave, depended upon the laws of Kentucky, when they were brought back into that
State, and not of Ohio: and that this court had no jurisdiction to revise Ihe judg-
ment of a State court upon its own laws. This was the point directly before the
court, and the decision that this court had not jurisdiction turned upon it as will
be seen by the report of the case.
So in this case. As Scott was a slave when taken into the State of Illinois by hi3
owner, and wns there held as such, and brought back in that character, his status as
free or slave, depended on the laws of Missouri, and not of Illinois.
It has, however, been urged in the argument, that by the laws of Missouri he was
free on his return, and that this case, therefore, cannot be governed by the case of
Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the
plaintiffs continued to be slaves on their return from Ohio. But whatever doubts
or opinions may, at one time, have been entertained upon this subject, we are sat-
isfied, upon a careful examination of all the cases decided in the State courts ot
U THE DRED SCOTT DECISION.
Missouri referred to, that it is now firmly settled by the decisions of the highest
court in the State, that Scott and his family upou their return were not free, but
were, by the laws of Missouri, the property of the defendant; and that the Circuit
Court of the United States had no jurisdiction, wheu, by the laws of the State, the
plaintiff was a slave, and not a citizen.
Moreover, the plaintiff, it appears, brought a similar action against the defendant
in the State Court of Missouri, claiming the freedom of himself and his family upon
the same grounds and the same evidence upon which he relies in the case before the
court. The case was carried before the Supreme Court of the State; was fully ar-
gued there; and that court decided that neither the plaintiff nor his family were
entitled to freedom, and were still the slaves of the defendant; and reversed the
judgment of the inferior State court, which had given a different decision. If the
plaintiff supposed that this judgment of the Supreme Court of the State was erron-
eous, and that this court had jurisdiction to revise and reverse it, the only mode
by which he could legally bring it before this court was by writ of error directed to
the Supreme Court of the State, requiring it to transmit the record to this court.
If this had been done, it is too plain for argument that the writ must have been
dismissed for want of jurisdiction in this court. The case of Strader and others v.
Graham is directly in point; and, indeed, independent of any decision, the language
of the 25th section of the act of 1789 is too clear and precise to admit of controversy.
But the plaintiff did not pursue the mode prescribed by law for bringing the
judgment of a State court before this court for revision, but suffered the case to be
remanded to the inferior State court, where it is still continued, and is, by agree-
ment of parties, to await the judgment of this court on the point. All of this ap-
pears on the record before us, and by the printed report of the case.
And while the case is yet open and pending in the inferior State court, the plain-
tiff goes into the Circuit Court of the United States, upon the same case and the
same evidence, and against the same party, and proceeds to judgment, and then
brings here the same case from the Circuit Court, which the law would not have
permitted him to bring directly from the State court. And if this court takes juris-
diction in this form, the result, so far as the rights of the respective parties are
concerned, is in every respect substantially the same as if it had in open violation
of law entertained jurisdiction over the judgment of the State court upon a writ of
error, and revised and reversed its judgment upon the ground that its opinion upon
the question ot law was erroneous. It would ill become this court to sanction such
an attempt to evade the law, or to exercise an appellate power in this circuitous
way, which it is forbidden to exercise in the direct and regular and invariable forms
of judicial proceedings.
Upon the whole, therefore, it is the judgment of this court, that it appears by the
record before us that the plaintiff in error is not a citizen of Missouri, in the sense
in which that word is used in the Constitution; and -that the Circuit Court of the
United States, for that reason, had no jurisdiction in the case, and could give no
judgment in it. Its judgment for the defendant must, consequently, be reversed,
and a mandate issued, directing the suit to be dismissed for want of jurisdiction.
APPENDIX.
•
[From the New York Day-Book, Nov. 10, 1857.]
NATURAL HISTORY OF THE PROGNATHOUS SPECIES OF MANKIND.
BT DR. SAMUEL A. CARTWRIGHT, OF NEW ORLEANS.
It is not intended by the use of the term Prognathous to call in question the
black man's humanity or the unity of the human races as a genus, but to prove
that the species of the genus homo are not a unity, but a plurality, each essen-
tially different from the others — one of them being so unlike the other two—
the oval-headed Caucasian and the pyramidal-headed Mongolian — as to be ac-
tually prognathous, like the brute creation; not that the negro is a' brute, or
half man and half brute, but a genuine human being, anatomically constructed,
about the head and face, more like the monkey tribes and the lower order of
animals than any other species of the genus man. Prognathous is a technical
term derived from pro, before, and gnathos, the jaws, indicating that the muzzle
or mouth is anterior to the brain. The lower animals, according to Cuvier, are
distinguished from the European and Mongol man by the mouth and face projec-
ting further forward in the profile than the brain. He expresses the rule thus :
face anterior, cranium posterior. The typical negroes of adult age, when tried by
this rule, are proved to belong to a different species from the man of Europe or
Asia, because the head and face are anatomically constructed more affc»r the fash-
ion of the simiadiae and the brute creation than the Caucasian and Mongolian species
of- mankind, their mouth and jaws projecting beyond the forehead containing the
anterior lobes of the brain. Moreover, their faces are proportionally larger than
their crania, instead of smaller, as in the other two species of the genus man.
Young monkeys and young negroes, however, are not prognathous like their par-
ents, but become so as they grow older. The head of the infant ourang outang is
like, that of a well formed Caucasian child in the projection and height of the fore-
head and the convexity of the vertea. The brain appears to be larger than it re-
ally is, because the face, at birth, has not attained its proportional size. The face
of the Caucasian infant is a little under it3 proportional size when compared with
the cranium. In the infant negro and ourang outang it is greatly so. Although
so much smaller in infancy than the cranium, the face of the young monkey ulti-
mately outgrows the cranium; so, also, does the face of the young negro, whereas
in the Caucasian, the face always continues to be smaller than the cranium. The
superfice3 of the face at puberty exceeds that of the hairy scalp both in the negro
and the monkey, while it is always less in the white man. Young monkeys and
young negroes are superior to white children of the same age in memory and other
intellectual faculties. The white infant comes into the world with its brain inclos-
ed by fifteen disunited bony plates— the occipital bone being divided into four parts,
the sphenoid into three, the frontal into two, each of the two temporals into two,
which, with the two parietals, make fifteen plates in all — the vomer and ethmoid
not being ossified at birth. The bones of the head are not only disunited, but are
more or less overlapped at birth, in consequence of the largeness of the Caucasian
child's head and the smallness of its mother's pelvis, giving the head an elongated
form, and an irregular, knotty feel to the touch. The negro infant, however, is^born
with a small, hard, smooth, round head like a gourd. Instead of the frontal aud tem-
poral bones being divided into six plates, as in the white child, they form but one bone
in the negro infant. The head is not only smaller than that of the white child, but the
pelvis of the negress is wider than that of the white woman— its greater obliquity
also favors parturition and prevents miscarriage.
Negro children and white children are alike at birth in one remarkable particu-
lar— they are both born white, and so much alike, as far as color is concerned, as
scarcely to be distinguished from each other. In a very short time, however, the
skin of the negro infant begins to darken and continues to grow darker until it be-
comes of a shining black color, provided the child be healthy. The skin will become
black whether exposed to the air and light or not. The blackness is not of as deep
a shade during the first years of life, as afterwards. The black color is not so deep
in the female as in the male, nor in the feeble, sickly negro as in the robust and
46 APPENDIX
healthy. Blackness is a characteristic of the prognathous species of the genus homo,
but all the varie ies of all the prognathous species are not equally black. Nor are
the individuals of the same family or variety equally so. The lighter shades of
color, when not derived from admixture with Mongolian or Caucasian blood, indi-
cate degeneration iu the prognathous species. The Hottentots, Bushmen and abori-
gines of Australia are inferior in mind and body to the typical African of Guinea
and the Niger.
The typical negroes themselves are more or less superior or inferior to one
another precisely as they approximate to or recede from the typical standard in
color and form, due allowance being made for age and sex. The standard is an
oily, shining black, and as far as the conformation of the head and face is concerned
and the relative proportion of nervous matter outside of the cranium to the quan-
tity of cerebral matter within it, Is found between the simiadise and the Caucasian.
Thus, in the typical negro, a perpendicular line, let fall from the forehead, cuts off a
large portion of the face, throwing the mouth, the thick lips, and the projecting
teeth anterior to the cranium, but not the entire face, as in the lower animals and
monkey tribes. When all, or a greater part of the face is thrown anterior to the
line, the negro approximates th 2 monkey anatomically more than he does the true
Caucasian; and when little or none of the face is anterior to the line, he approxi-
mates that mythical being of Dr. Van Evrie, a black white man, and almost ceases to
be a negro. The black man occasionally seen in Africa, called the Bature Dudu,
with high nose, thin lips, and long straight hair, is not a negro at all, but a Moor
tanned by the climate — because his children, not exposed to the sun, do not become
black like himself. The typical negro's nervous system is modelled a little diffe-
rent from the Caucasian and somewhat like the ourang outang. The medullary
Epinal cord is larger and more developed than in the white man, but less so than ill
the monkey tribes. The occipital foramen, giving exit to the spinal cord, is a third
longer, says Cuvier, in proportion to its breadth, than in the Caucasian, and is so
oblique as to form an angle of 30° with the horizon, yet not so oblique as in the
simiadise, but sufficiently so to throw the head somewhat backwards and the face
upwards in the erect position. Hence, from the obliquity of the head and the pelvis,
the negro walks steadier with a weight on his head, as a pail of water for instance,
than without it; whereas, the white man, with a weight on his head, has great diffi-
culty in maintaining his centre of gravity, owing to the occipital foramen forming
no angle with the cranium, the pelvis, the spine, or the thighs — all forming a
straight line from the crown of the head to the sole of the foot without any of the
obliquities seen in the negro's knees, thighs, pelvis and head — and still more evi-
dent in the ourang outang.
The nerves of organic life are larger in the prognathous species of mankind than
in the Caucasian species, but not so well developed as in the simiadiaa. The brain
is about i tenth smaller in the prognathous man than in the Frenchman, as proved
by actual measurement of skulls by the French savans, Palisot and Virey. Hence,
from the small brain and the larger nerves, the digestion of the prognathous species
is better than that of the Caucasian and its animal appetites stronger, approaching
the rimiadse but stopping short of their beastiality. The nostrils of the prognathoua
species of mankind opci higher up than they do in the white or olive species, but
not so high up as in the monkey tribes. In the gibbon, for instance, they open be-
tween the orbits. Although the typical negro's nostrils open high up, yet owing to
the nasal bones being short and flat, there is no projection or prominence formed
between his orbits by the bones of the nose, as in the Caucasian species. The nos-
trils, however, are much wider, about as wide from wing to wing, as the white man's
mouth from corner to corner, and the internal bones, called the turbinated, on which
the olfactory nerves are spread, are larger and project nearer to the opening of the
nostrils than in the white man. Hence the negro approximates the lower a;iimals in
his sense of smell, and can detect snakes by that sense alone. All the senses are
more acute, but less delicate and discriminating, than the white man's. He has a
good ear for melody but not for harmony, a keen taste and relish for food but less
discriminating between the different kinds of esculent substances than the Cauca-
sian. His lips are immensely thicker than any of the white race, his nose broader
and flatter, his chin smaller and more retreating, his foot flatter, broader, larger,
and the heel longer, while he has scarcely any calves at all to his legs when com-
Eared to an equally healthy and muscular white man. He does not walk flat on
is feet but on the outer sides, in consequence of the sole of the foot having a di-
rection inwards, from the legs and thighs being arched outwards and the knees bent.
The verb, from which his Hebrew name is derived, points out thi? Here? poa'tio" of
APPENDIX. 47
the knees, and also clearly expresses the servile type of his mint!. Ham, the father
of Canaan, when translated into plain English, reads that a black man was the fa-
ther of the slave or knee-bending species of mankind.
The blackness of the prognathous race, known in the world's history as Ca-
naanites, Cushites, Ethiopians, black men or negroes, is not confined to the skin,
but pervades, in a greater or less degree, the whole inward man down to the bones
themselves, giving the flesh and the blood, the me mbraues and every organ and
part of the body, except the bones, a darker hue than in the white race. Who
knows but what Canaan's mother may have been a genuine Cushite, as black inside
as out, and that Cush, which means blackness, was the mark put upon Cain?
Whatever may have been the mark set upon Cain, the negro, in all ages of the
world, has carried with him a mark equally efficient in preventing him from being
slain — the mark of blackness. The wild Arabs and hostile American Indians in-
variably catch the black wanderer and make a slave of him instead of killing him,
as they do the white man.
Nich. Pechlin, in a work written last century entitled " De cute Athinpum," Albinus, in another
work, entitled " De sede et causa coloris Athiop," as aLo the great German anatomists, Meiners, Ebel,
and Soemmering, all bear witness to the fact that the muscles, blood, membranes, and all the inter-
nal organs of the body, (the bones alone excepted.) are of a darker hue in the negro than in the
white man. They estimate the difference in color to be equal to that which exists between the hare
and the rabbit. Who ever doubts the fact, or has none of those old and impartial authorities at
hand — impartial because they were written before England adopted the policy of pressing religion
and science in her service to place white American republican freemen and Guinea negroes upon the
same platform — has only to look into the mouth of the first healthy typical negro he meets to be
convinced of the truth, that the entire membraneous lining of the inside of the cheeks, lips and
gums is of a much darker color than in the white man.
The negro, however, must be healthy and in good condition — sickness, hard usage and chronic
ailments, particularly that cachescia, improperly called consumption, speedily extracts the color-
ing matter out of the mucous men branes, leaving them paler and whiter than in the Caucasian.
The bleaching process o( bad health or degeneration begins in the blood, membranes and muscles,
and finally extracts so much of the coloring pigment out of the skin, as to give it a dull, ashy
appearance, sometimes extracting the whole of it, converting the negro into the albino. Albi-
noism or cucosis does not necessarily imply hybridi-.m. It occurs among the pure Africans from
any cause producing a degeneration of the species. Hybridism, however, is the most prolific source
of that degeneration. Sometimes the degeneration shows itself by white spots, like the petals of
flowers, covering different parts of the skin. The Mexicans are subject to a similar degeneration,
only thatthespots and stripes are black instead of white. It is called the pinto with them. Even the
pigment of the iris and the coloring matter of the Albino's hair absorbed, giving it a silvery white ap-
pearance, and converting him into a clairvoyant at night. According to Professors Brown, Seidy and
Gibbs, the negro's hair is not tubular, like the white man's, but it is excentrically eliptical with flatten-
ed edges, the coloring matter residing in the epidermis and not in tubes. In the place of a tube, the
shaft of each hair is surrounded with a scaly covering like sheep's wool, and, like wool, is capable of
being felled. True hair does not possess that property. The degeneration called Albinoism has a
remarkable influence upon the hair, destroying its "coarse, nappy, wooly appearance, and converting
it into fine, long, soft, silky, curly threads. Often, the whole external skin, so remarkably void of
hair in the healthy negro, becomes covered with a very fine, silky down, scarcely perceptible to
the naked eye, when transformed into the Albino.
Mr. Bo wen, the celebrated Baptist missionary, (see his work entitled Central Africa and Missionary
Labors from 1849 to 1856, by T. J. Bowen, Charleston, Southern Baptist Publication Society, 1857,)
met with a great many eases of leucosis in Soudan or Negroland back of Liberia, and erroneously
concluded that these people had very little, if any negro blood in them, and would be better subjects
for missionary labors than the blacks of the same country. They are, however, nothing but white
black men, a degeneration of the negro proper, and are even less capable of perpetuating themselves
than the hybrids or mulattoes. Mr. Bowen is at a loss to account for the depopulation, which he
verifies has been going on in Soudan the last fifty years, threatening to leave the country, at no dis-
tant time, bare of inhabitants, unless roads be constructed by the Christians of the southern States
for commercial intercourse, and double exertions made to civilise and Christianise the waning popu-
lation of Central Africa before it entirely disappears. The good missionary, though sent out from
Georgia, was evidently taught in that British school which assumes that there is only a single species
in the genus homo, in opposition to the Bible, that clearly designates three. That school quotes
the relerences in the sacred volume, implying unity in the genus — a unity which no one denies— to
disprove the existence of distinct species, and upon this fallacy builds the theory that negro, Indian
and white men are beings exactly alike, because they are human beings. Ergo, the liberty so bene-
ficial to the white man, would be equally so to the negro— disiegarding as a fable those words of the
Bible expressly declaring that the latter shall be servant of servants to the former — words which
would not have been there if that kind of subordination called slavery was not the normal condition
of the race of Ham. To expect to civilise or Christianise the negro without the intervention of
slavery is to expect an impossibility.
Mr. Bowen's experience and natural good cense occasionally got the better of his theoretical
views. Thus, at page 90, we find him confessing that "the native African negroes ought to have
master* in obedifnce to the demands of natural justice." At page 149 he lets us into the secret
of the depopulating process which has been going on in Central Africa the last fifty years. While
standing among some negroes in Ikata, a town in Central Africa, a capricious mulatto chief sent
some officers among the company, who singled out a poor fellow who had offended the chief by
saying that as he let a white man into town, he might let in a Dahomey man also, and presented
him with an empty bag with the message, " The Icing says you must send me your head." The Rev.
missionary, who was present at the beheading, made no commeut further than to state the fact.
But he might haia added that the blood of that negro, and millions of others, will be lequired at
48 APPENDIX
the hands of Victoria Regina and the United States for having officiously destroyed the value of
negro property in Africa by breaking up the only trade that ever protected the native Africans
against the butcheries, cruelties and oppressions of their mulatto, Moorish and Mahommedan
tyrants It is i hese butcheries and cruelties, and the little care taken of the black man in Africa,
the last fifty years, since he became valueless through British and American philanthropy, that
lie at the root of the depopulating process which is going on in the dark laod of the Niger.
Empty bags are now filled with heads instead of cowries. Mr. Bowen was surprised to see bo
few black men in Soudan, where, halt a century ago, he says they were so numerous. But he
rather regards it as a fortunate circumstance, as he has no hope of christianisiog the typical
negro, except through slavery to Christian masters — and that idea is abhorrent to the school in
which he was taught ; but he has more hope from the mixed races, and these, he confesses, can-
not be effectually christianised until civilised. He deplores the bad example of the black
race, among them, their polygamy, &c, as greatly in the way of civilising the mulattoes. But
he has overlooked the important fact, as many do, that the existence of the hybrids themselves
depends upon the existence of the typical Africans. The extinction of the latter must, of neces-
sity, be sood followed by the extinction of the former, as they cannot, for any length of time, pro-
pagate among themselves.
Mr. Bowen inferred that the negroes of Central Africa, although diminishing in numbers, are
rising higher in the scale of humanity, from the very small circumstance that they do not emit
from their bodies so strong and so offensive an odor as the negro slaves of Georgia and theCaro
Unas do, nor are their skins of so deep a black. This is a good illustration of the important tru'-h,
that all the danger of the slavery question lies in the ignorance of Scripture and the natural his-
tory of the negro. A little acquaintance with the negro's natural history would prove to Mr,
Bowen that the strong odor emitted by the negro, like the deep pigment of the skin, is an indica
tion of high health, happiness, and good treatment, while its deficiency is a Eure sign of unhap
piness, disease, bad treatment, or degeneration. The skin of a happy, healthy negro is not only
blacker and more oily than an unhappy, unhealthy one, but emits the strongest odor when the
body is warmed by exercise and the soul is filled with the most pleasurable emotions. _ In the
dance called patting juber, the odor emitted from the men, intoxicated with pleasure, is often
bo powerful as to throw the negro women into paroxysms of unconsciousness, vulgo hysterics.
On another point of much importance there is no practical difference between the Rev. missionary
and that clear-headed, bold, and eccentric old Methodist, Dr. McFarlane. Both believe that the
Bible can do ignorant, sensual savages no good; both believethat njcniDg but compulsatory
power can restrain uncivilised barbarians from polygamy, inebriety, an (other sinful practices.
The good missionary, however, believes in the possibility of civilisin ; the inferior races by the
money and means of the Christian nations lavishly bestowed, after wh.ch he thinks it will be no
difficult matter to convert them to Christianity. Whereas the veneraile Methodist believes in
the impossibility of civilisng them, and therefore concludes that the Written Word was not in-
tended for those inferior races who cannot read it. When the philosophy of the prognathous
species of mankind is better understood, it will be seen how they, the lowest of the human spe-
cies, can be made partakers, equally with the highest, in the blessings and benefits of the Written
Word of God. The plantation laws against polygamy, intoxicating drinks and other besetting sins
of the negro race in the savage state, are gradually and silently converting the African barbarian in-
to a moral , rational and civilised being, thereby rendering the heart a fit tabernacle for the reception
of Gospel truths. The prejudices of many, perhaps the majority of the southern people, against
educating the negroes they hold in subjection, arise from some vague and indefinite fears of its con-
sequences, suggested by the Abolition and British theories built on the false assumption that the
negro is a white man with a black skin. If such an assumption had the smallest degree of truth in
it, the more profound the ignorance and the deeper sunk in barbarism the slaves were kept, the
better it would be for them and their masters. But experience proves that masters aod overseers
have nothing at all to fear from civilised and intelligent negroes and no trouble whatever in manag-
ing them that all the trouble, insubordination and danger arise from the uncivilised, immoral, rude,
and grossly ignorant portion of the servile race. It is not the ignorant semi -barbarian that the
master or overseer entrusts with his keys, his money, his horse or his gun, but the most intelligent
on the plantation — one whose intellect and morals have undergone the best training. An educated
negro, one whose intellect and morals have been cultivated, is worth double the price of the wild,
uncultivated, black barbarian of Cuba, and will do twice as much work, do it better and with less
trouble. ...
The prejudices against educating the negroes may also be traced to the neglect of American div-
ines in making themselves acquainted with Hebrew literature. What little the most of them know
of the meaning of the untranslated terms occuring in the Bible, and the signification of the verbs
from which they are derived, is mostly gathered from British commentators and glossary makers,
who have blinked the facts that disprove the Exeter Hall dogma, that negro slavery is sin against
God. Hence, even in the South, the important biblical truth, that the white man derives his au-
thority to govern the negro from the Great Jehovah, is seldom proclaimed from the pulpit. If it
were proclaimed, the master race would see deeper into their responsibilities and look closer into the
duties they owe to the people whom God has given them as an inheritance, and their children after
them, so long as time shall last. That man has no faith in the Scriptures who believes that educa-
tion could defeat God's purposes, in subjecting the black man to the government of the white. On
the contrary, experience proves its advantages, to both parties. Aside and apart from Scripture au-
thority, natural history reveals most of the same facts, in regard to the negro that the Bible does.
It proves the existence of at least three distinct species of the genus man, differing in their instincts,
form, habits and color. The white species having qualities denied to the black — one with a free
and the other with a servile mind — one a thinking and reflective being, the other a creature of feeling
and imitation, almost void of reflective faculties, and consequently unable to provide for and take
care of himself. The relation of master and slave would naturally spring up between two such diff-
erent species of men, even if there was no Scripture authority to support it. The relation thus es-
tablished, being natural, would be drawn closer together, instead of severed, by the inferior imit*«
ting the superior in all his ways, or in other words, acquiring an education
SECOND EDITION NOW READY.
&T All who -would understand the Philosophy of the Negro
Question, and see the horrors and evils of
Abolition, should read this work.
NEGROES AND NEGRO "SLAVERY:"
The First an Inferior Race — the Latter its Normal Condition.
By J. H. VAN EVRIE, M.D.
\ Vol., lamo., pp. 339. Price One Dollar.
ILLUSTRATED WITH FOUR CUTS, SHOWING THE DIFFERENCE
BETWEEN WHITE MEN AND THE NEGRO.
The second edition of this work, so steady has been its sale, is already
called for. The author has thoroughly revised it, and re-written an entire
chapter. He assumes, as a starting point, that the subordinate position of
the Negro, as always existing in American society, is not a condition of
slavery at all, but the natural relation of an inferior to a superior race, and
that whatever evils, if any, exist in Southern society, are referable to a fail-
ure to strictly embody the natural inferiority of the negro in the civil law, and
not to any error in the fundamental organism or theory of that society,
which is based on a great and everlasting truth. His work is divided into
two parts. First, the specific and radical differences of the races are exam-
ined. The color, figure, hair, features, language, senses, brain, &c, of the
Negro are shown to be only the more palpable specialities, out of a thousand
similar ones, separating the Negro from the White Man. 'Why, when, or how
the Creator saw fit to thus order things, the author regards as immaterial.
He simply starts with the facts as they exist. After the Negro is shown to
be a different human being, physically and mentally, his proper relations to
the White Man are discussed ; also, Mulattoism and its ultimate extinction,
showing the impossibility of interunion, like cognate branches of the white
race, a very important, and but little understood branch of the subject. The
position assumed in this work is entirely new and distinct trom that pre-
sented by any other writer ; and founded, as it is, upon facts and unavoid-
able inferences from them, it is believed presents at last the true phil-
osophy of this distracting question.
This work will be sent by mail, postage paid, for One Dollar.
Address,
VArY EVRIE, HORTOfl «fc CO.,
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ftoto-ffurk Wtdiij Caucasian
THE WHITYllAirS PAPER.
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the place of which paper it will take for the present. Through the long
and dreary "reign of terror" it has been regularly issued, though at
great loss. During that period its proprietors have received a multitude
of inquiries for it which they could not supply. That time, however,
being now passed, they will be glad to furnish all with the paper who
desire it.
The principles of The Caucasian are the principles of White Mens'
Liberties, opposition to Negro Equality, and in favor of an appeal to
peaceful agencies to restore the Union and the Constitution. It opposes
the outrageous system of arbitrary arrests, the suspension of the writ
of habeas corpus, and all assaults upon the freedom of speech or of the
press. It is also devoted to an explanation of the so-called Slavery
Question, and stands firmly for White Supremacy, and a defense of
the rights and welfare of the Producing and Working Classes, now im-
perilled by the doctrine of Negro Equality, High Tariffs, Paper Cur-
rency and Excessive Taxation.
With the principles of our forefathers as its platform, The Caucasian
confidently appeals to all lovers of their country for support, and, sub-
jected as it has been to the persecution of the misguided men now in
office, it would request that earnest efforts be made, in every locality, to
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