 Part 3 of Dread Scott versus Sanford. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. Dread Scott versus Sanford. An opinion of the United States Supreme Court. Part 3. It was this Congress that accepted the session from Virginia. They had no power to accept it under the Articles of Confederation. But they had an undoubted right as independent sovereignties to accept any session of territory for their common benefit, which all of them assented to. And it is equally clear that as their common property and having no superior to control them, they had the right to exercise absolute dominion over it. Subject only to the restrictions which Virginia had imposed in her act of session. There was, as we have said, no government of the United States than in existence, with special enumerated and limited powers. The territory belonged to sovereignties, who, subject to the limitations above mentioned, had a right to establish any form of government they pleased by compact or treaty among themselves, and to regulate rights of person and rights of property in the territory as they might deem proper. It was by a Congress representing the authority of these several and separate sovereignties and acting under their authority and command, but not from any authority derived from the Articles of Confederation that the instrument usually called the Ordinance of 1787 was adopted, regulating in much detail the principles and the laws by which this territory should be governed. And among other provisions, slavery is prohibited in it. We do not question the power of the states by agreement among themselves to pass this ordinance, nor its obligatory force in the territory while the Confederation or League of the States in their separate sovereign character continued to exist. This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated states as common property, and they had united in establishing in it a system of government and jurisprudence in order to prepare it for admission as states, according to the terms of the session. They were about to dissolve this federative union and to surrender a portion of their independent sovereignty to a new government, which for certain purposes would make the people of the several states one people, and which was to be supreme and controlling within its sphere of action throughout the United States. But this government was to be carefully limited in its powers and to exercise no authority beyond those expressly granted by the Constitution or necessarily to be implied from the language of the instrument and the objects it was intended to accomplish. And as this League of States would, upon the adoption of the new government, cease to have any power over the territory and the ordinance they had agreed upon be incapable of execution and a mere nullity, it was obvious that some provision was necessary to give the new government sufficient power to enable it to carry into effect the objects for which it was seated and the compacts and agreements which the states had made with each other in the exercise of their powers of sovereignty. It was necessary that the lands should be sold to pay the war debt, that a government and system of jurisprudence should be maintained in it to protect the citizens of the United States who should migrate to the territory in their rights of person and of property. It was also necessary that the new government about to be adopted should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been seated, but the session of which was confidently anticipated upon some terms that would be arranged between the general government and these two states. And moreover, there were many articles of value besides this property and land such as arms, military stores, munitions and ships of war, which were the common property of the states when acting in their independent characters as Confederates, which neither the new government nor anyone else would have a right to take possession of or control without authority from them. And it was to place these things under the guardianship and protection of the new government and to clothe it with the necessary powers that the clause was inserted in the Constitution which 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 common by the states, to provide for the things we have mentioned. It was to transfer to the new government the property then held in common by the states and to give to that government power to apply it to the objects for which it had been destined by mutual agreement among the states before their league was dissolved. It applied only to the property which the states held in common at that time and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire. The language used in the clause, the arrangement and combination of the powers and the somewhat unusual phraseology it uses when it speaks of the political power to be exercised in the government of the territory all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of any territory nor of territories but uses language which according to its legitimate meaning points to a particular thing. The power is given in relation only to the territory of the United States that is to a territory then in existence and then known or claimed as the territory of the United States. It begins its enumeration of powers by that of disposing in other words making sale of the lands or raising money from them which as we have already said was the main object of the session 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 session from a state either for its seat of government or for forts, magazines, arsenals, dockyards and other needful buildings and the same power of making needful rules respecting the territory is and precisely the same language applied to the other property belonging to the United States associating the power over the territory in this respect with the power over movable or personal property that is the ships, arms and munitions of war which then belonged in common to the state sovereignty and it will hardly be said that this power in relation to the last mentioned objects was deemed necessary to be thus specially given to the new government in order to authorize it to make needful rules and regulations respecting the ships it might itself build or arms and munitions of war it might itself manufacture or provide for the public service no one it is believed would think a moment of deriving the power of Congress to make needful rules and regulations in relation to property of this kind from this clause of the constitution nor can it upon any fair construction be applied to any property but that which the new government was about to receive from the confederated states and if this be true as to this property it must be equally true and limited as to the territory which is so carefully and precisely coupled with it and like it referred to as property in the power granted the concluding words of the clause appear to render this construction irresistible for after the provisions we have mentioned it proceeds to say that nothing in the constitution shall be so construed as to prejudice any claims of the United States or of any particular state now as we have before said all of the state except North Carolina and Georgia had made the session before the constitution was adopted according to the resolution of Congress of October 10th 1780 the claims of other states that the unappropriated lands in these two states should be applied to the common benefit in like manner was still insisted on but refused by the states and this member of the clause in question evidently applies to them and can apply to nothing else it was to exclude the conclusion that either party by adopting the constitution would surrender what they deemed their rights and when the latter provision relates so obviously to the unappropriated lands not yet seated by the states and the first clause makes provision for those then actually seated it is impossible by any gestural of construction to make the first provision general and extend to all territories which the federal government might in any way afterwards acquire when the latter is plainly and unequivocally confined to a particular territory which was a part of the same controversy and involved in the same dispute and depended upon the same principles the union of the two provisions in the same clause shows that they were kindred subjects and that the whole clause is local and relates only to lands within the limits of the United States which had been or then were claimed by a state and that no other territory was in the mind of the framers of the constitution or intended to be embraced in it upon any other construction it would be impossible to account for the insertion of the last provision in the place where it is found or to comprehend why or for what object it was associated with the previous provision this view of the subject is confirmed by the manner in which the present government of the United States dealt with the subject as soon as it came into existence it must be borne in mind that the same states that form the confederation also formed and adopted the new government to which so large a portion of their former sovereign powers were surrendered must also be borne in mind that all of these same states which had then ratified the new constitution were represented in the Congress which passed the first law for the government of this territory and many of the members of that legislative body had been deputies from the states under the confederation had united in adopting the ordinance of 1787 and assisted informing the new government under which they were then acting and whose powers they were then exercising and it is obvious from the law they passed to carry into effect the principles and provisions of the ordinance that they regarded it as the act of the states done in the exercise of their legitimate powers at the time the new government took the territory as it found it and in the condition in which it was transferred and did not attempt to undo anything that had been done and among the earliest laws passed under the new government is one reviving the ordinance of 1787 which had become inoperative and a nullity upon the adoption of the constitution this law introduced no new form or principles for its government but recites in the preamble that it is passed in order that this ordinance may continue to have full effect and proceeds to make only those rules and regulations which were needful to adapt it to the new government into whose hands the power had fallen it appears therefore that this Congress regarded the purposes to which the land in this territory was to be applied and the form of government and principles of jurisprudence which were to prevail there while it remained in the territorial state as already determined on by the states when they had full power and right to make the decision and that the new government having received it in this condition ought to carry substantially into effect the plans and principles which had been previously adopted by the states in 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 while the territorial government already established in it which had been ceded to the states for the purposes here and before mentioned every word in it is perfectly appropriate and easily understood and the provisions it contains are in perfect harmony with the objects for which it was ceded and with the condition of its government as a territory at the time we can then easily account for the manner in which the First Congress legislated on the subject and can also understand why this power over the territory was associated in the same clause with the other property of the United States and subjected to the like power of making needful rules and regulations but if the clause is construed in the expanded sense contended for so as to embrace any territory acquired from a foreign nation by the present government and to give it in such territory a despotic and unlimited power over persons and property such as the confederated states might exercise in their common property it would be difficult to account for the phraseology used when compared with other grants of power and also for its association with the other provisions in the same clause the Constitution has always been remarkable for the felicity of its arrangement of different subjects and the perspicuity and appropriateness of the language it uses but if this clause is construed to extend to territory acquired by the present government from a foreign nation outside of the limits of any charter from the British government to a colony it would be difficult to say why it was deemed necessary to give the government the power to sell any vacant lands belonging to the sovereignty which might be found within it and if this was necessary why the grant of this power should precede the power to legislate over it and establish a government there and still more difficult to say why it was deemed necessary so specially and particularly to grant the power to make needful rules and regulations in relation to any personal or movable property 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 construed as to prejudice any claims of the United States or any particular state or to say how any particular state could have claims in or to a territory ceded by a foreign government or to account for associating this provision with the preceding provisions of the clause with which it would appear to have no connection the words needful rules and regulations would seem almost to have been cautiously used for some definite object they are not the words usually employed by statesmen when they mean to give the powers of sovereignty or to establish a government or to authorize its establishment thus in the law to renew and keep alive the ordinance of 1787 and to reestablish the government the title of the law is an act to provide for the government of the territory northwest of the river Ohio and in the constitution when granting the power to legislate over the territory that may be selected for the seat of government independently of a state it does not say congress shall have power to make all needful rules and regulations respecting the territory but it declares that congress shall have power to exercise exclusive legislation in all cases whatsoever over such district not exceeding 10 miles square as may by session of particular states and the acceptance of congress become the seat of the government of the united states the words rules and regulations are usually employed in the constitution in speaking of some particular specified power which it means to confer on the government and not as we have seen when granting general powers of legislation as for example in the particular power to congress to make rules for the government and regulation of the land and naval forces or the particular and specific power to regulate commerce to establish a uniform rule of naturalization to coin money and regulate the value thereof and to construe the words of which we are speaking as a general and unlimited grant of sovereignty over territories which the government might afterwards acquire is to use them in a sense and for a purpose for which they were not used in any other part of the instrument but if confined to a particular territory in which a government and laws had already been established but which would require some alterations to adapt it to the new government the words are peculiarly applicable and appropriate for that purpose the necessity of the special provision in relation to property and the rights or property held in common by the confederated states is illustrated by the first clause of the sixth article this clause provides that all debts contracts and engagements entered into before the adoption of this constitution shall be as valid against the united states under this government as under the confederation this provision like the one under consideration was indispensable if the new constitution was adopted the new government was not a mere change in a dynasty or in a form of government leaving the nation or sovereignty the same and clothed with all the rights and bound by all the obligations of the preceding one but when the present united states came into existence under the new government it was a new political body a new nation then for the first time taking its place in the family of nations it took nothing by succession from the confederation it had no right as its successor to any property or rights of property which it had acquired and was not liable for any of its obligations it was evidently viewed in this light by the framers of the constitution and as the several states would cease to exist in their former confederated character upon the adoption of the constitution and could not in that character again assemble together special provisions were indispensable to transfer to the new government the property and rights which at that time they held in common and at the same time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted and this power could only be given to it by special provisions in the constitution the clause in relation to the territory and other property of the United States provided for the first and the clause last quoted provided for the other they have no connection with the general powers and rights of sovereignty delegated to the new government and can neither enlarge nor diminish them they were inserted to meet a present emergency and not to regulate its powers as a government indeed a similar provision was deemed necessary in relation to treaties made by the confederation and when in the clause next succeeding the one of which we have last spoken it is declared that treaties shall be the supreme law of the land care is taken to include by express words the treaties made by the confederated states the language is and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land whether therefore we take the particular clause in question by itself or in connection with the other provisions of the constitution we think it clear that it applies only to the particular territory of which we have spoken and cannot by any just rule of interpretation be extended to territory which the new government might afterwards obtain from a foreign nation consequently the power which congress may have lawfully exercised in this territory while it remained under a territorial government and which may have been sanctioned by judicial decision can furnish no justification and no argument to support a similar exercise of power over territory afterwards acquired by the federal government we put aside therefore any argument drawn from precedence showing the extent of the power which the general government exercised over slavery in this territory as altogether in applicable to the case before us but the case of the American and ocean insurance companies versus canter 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 ladder and separating it from the context that even an appearance of conflict can be shown we need not comment on such a mode of expounding an opinion of the court indeed it most commonly misrepresents instead of expounding it and this is fully exemplified in the case referred to where if one sentence is taken by itself the opinion would appear to be indirect conflict with that now given but the words which immediately follow that sentence show that the court did not mean to decide the point but merely affirmed the power of Congress to establish a government in the territory leaving it an open question whether that power was derived from this clause in the Constitution or was to be necessarily inferred from a power to acquire territory by session 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 five hundred and forty two in which the court in speaking of the power of Congress to establish a territorial government in Florida until it should become a state uses the following language in the meantime Florida continues to be a territory of the United States governed by that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other properties of the United States perhaps the power of governing a territory belonging to the United States which has not by becoming a state acquired the means of self-government may result necessarily from the facts that it is not within the jurisdiction of any particular state and is within the power and jurisdiction of the United States the right to govern may be the inevitable consequence of the right to acquire territory whichever may be the source from which the power is derived the possession of it is unquestionable it is thus clear from the whole opinion on this point that the court did not mean to decide whether the power was derived from the clause in the Constitution or was the necessary consequence of the right to acquire they do decide that the power in Congress is unquestionable and in this we entirely concur and nothing will be found in this opinion to the contrary the power stands firmly on the latter alternative put by the court that is as the inevitable consequence of the right to acquire territory and what still more clearly demonstrates that the court did not mean to decide the question but leave it open for future consideration is the fact that the case was decided in the circuit court by Mr. Justice Johnson and his decision was affirmed by the Supreme Court his opinion at the circuit is given in full and a note to the case and in that opinion he states in explicit terms that the clause of the Constitution applies only to the territory then within the limits of the United States and not to Florida which had been acquired by session from Spain this part of his opinion will be found in the note in page 517 of the report but he does not dissent from the opinion of the Supreme Court thereby showing that in his judgment as well as that of the court the case before them did not call for a decision on that particular point and the court abstained from deciding it and in a part of its opinion subsequent to the passage we have quoted where the courts 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 legislative courts created in virtue and in page 546 speaking of the power of Congress to authorize the territorial legislature to establish courts there the courts say they are legislative courts created in virtue of the general right of sovereignty which exists in the government or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States and it has been said that the construction given to this clause is new and now for the first time brought forward the case of which we are speaking in 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 30 years ago was fully considered by him and the same construction given to the clause in the Constitution which is now given by this court and that upon an appeal from his decision the same question was brought before this court but was not decided because a decision upon it was not required by the case before the court there is another sentence in the opinion which has been commented on which even in a still more striking manner shows how one may mislead or be misled by taking out a single sentence from the opinion of a court and leaving out of view what precedes and follows it is in page 546 near the close of the opinion in which the court say and legislating for them the territories of the United States Congress exercises the combined powers of the general and of a state government and it is said that as a state may unquestionably prohibit slavery within its territory this sentence decides in effect that Congress may do the same in a territory of the United States exercising there the powers of a state as well as the power of the general government the examination of this passage in the case referred to would be more appropriate when we come to consider in another part of this opinion what power Congress can constitutionally exercise in a territory over the rights of person or rights of property of a citizen but as it is in the same case with the passage we have before commented on we dispose of it now as it will save the court from the necessity of referring again to the case and it will be seen upon reading the page in which the sentence is found that it has no reference whatever to the power of Congress of a rights of person or rights of property but relates all together to the power of establishing judicial tribunals to administer the laws constitutionally passed and defining the jurisdiction they may exercise the law of Congress establishing a territorial government in Florida provided that the legislature of the territory should have legislative powers over all rightful objects of legislation but no law should be valid which was inconsistent with the laws and constitution of the United States under the power thus conferred the legislature of Florida passed an act erecting a tribunal at Key West to decide cases of salvage and in the case of which we are speaking the question arose whether the territorial legislature could be authorized by Congress to establish such a tribunal with such powers and one of the parties among other objections insisted that Congress could not under the constitution authorize the legislature of the territory to establish such a tribunal with such powers but that it must be established by Congress itself and that a sale of cargo made under its order to pay salvers was void as made without legal authority and passed no property to the purchaser it is in disposing of this objection that the sentence relied on occurs and the court begins that part of the opinion by stating with great precision the point which they are about to decide they say it has been contended that by the constitution of the United States the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction and that the whole of the judicial power must be vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish hence it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the territorial legislature and after thus clearly stating the point before them and which they were about to decide they proceed to show that these territorial tribunals were not constitutional courts but merely legislative and that Congress might therefore delegate the power to the territorial government to establish the court in question and they conclude that part of the opinion in the following words although admiralty jurisdiction can be exercised in the states in those courts only which are established in pursuance of third article of the constitution the same limitation does not extend to the territories in legislating for them Congress exercises the combined powers of the general and state governments thus it will be seen by these quotations from the opinion that the court after stating the question it was about to decide in a manner too plain to be misunderstood proceeded to decide it and announced as the opinion of the tribunal that in organizing the judicial department of the government in a territory of the United States Congress does not act under and is not restricted by the third article in the constitution and is not bound in a territory to ordain and establish courts in which the judges hold their offices during good behavior but may exercise the discretionary power which a state exercises in establishing its judicial department and regulating the jurisdiction of its courts and may authorize the territorial government to establish or may itself establish courts in which the judges hold their offices for a term of years only and may vest in them judicial power upon subjects confided to the judiciary of the United States and in doing this Congress undoubtedly exercises the combined power of the general and a state government it exercises the discretionary power of a state government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only and not during good behavior and it exercises the power of the general government in investing that court with Admiralty jurisdiction over which the general government had exclusive jurisdiction in the territory no one we presume will question the correctness of that opinion nor is there anything in conflict with it in the opinion now given the point decided in the case cited has no relation to the question now before the court that depended on the construction of the third article of the Constitution in relation to the judiciary of the United States and the power which Congress might exercise in a territory in organizing the judicial department of the government the case before us depends upon other and different provisions of the Constitution altogether separate and apart from the one above mentioned the question as to what courts Congress may ordain or establish in a territory to administer laws which the Constitution authorizes it to pass and what laws it is or is not authorized by the Constitution to pass are widely different are regulated by different and separate articles of the Constitution and stand upon different principles and we are satisfied that no one who reads attentively the page in Peter's reports to which we have referred can suppose that the attention of the court was drawn for a moment to the question now before this court or that it meant in that case to say that Congress had a right to prohibit a citizen of the United States from taking any property which he lawfully held into a territory of the United States this brings us to examine by what provision of the Constitution the present federal government under its delegated and restricted powers is authorized to acquire territory outside of the original limits of the United States and what powers it may exercise therein over the person or property of a citizen of the United States while it remains a territory and until it shall be admitted as one of the states of the Union there is certainly no power given by the Constitution to the federal government to establish or maintain colonies bordering on the United States or at a distance to be ruled and governed at its own pleasure nor to enlarge its territorial limits in any way except by the admission of new states that power is plainly given and if a new state is admitted it needs no further legislation by Congress because the Constitution itself defines the relative rights and powers and duties of the state and the citizens of the state and the federal government but no power is given to acquire a territory to be held and governed permanently in that character and indeed the power exercised by Congress to acquire territory and establish a government there according to its own unlimited discretion was viewed with great jealousy by the leading statesman of the day and in the Federalist number 38 written by Mr. Madison he speaks of the acquisition of the Northwestern territory by the Confederated States by the session from Virginia and the establishment of a government there as an exercise of power not warranted by the Articles of Confederation and dangerous to the liberties of the people and he urges the adoption of the Constitution as a security and safeguard against such an exercise of power we do not mean however to question the power of Congress in this respect the power to expand the territory of the United States by the admission of new states is plainly given and in the construction of this power by all the departments of the government it has been held to authorize the acquisition of territory not fit for admission at the time but to be admitted as soon as its population and situation would entitle it to admission it is acquired to become a state and not to be held as a colony and governed by Congress with absolute authority and as the propriety of admitting a new state is committed to the sound discretion of Congress the power to acquire territory for that purpose to be held by the United States until it is in a suitable condition to become a state upon an equal footing with the other states must rest upon the same discretion it is a question for the political department of the government and not the judicial and whatever the political department of the government shall recognize as within the limits of the United States the judicial department is also bound to recognize and to administer in it the laws of the United States so far as they apply and to maintain in the territory the authority and rights of the government and also the personal rights and rights of property of individual citizens as secured by the Constitution all we mean to say on this point is that as there is no express regulation in the Constitution defining the power which the general government may exercise over the person or property of a citizen in a territory thus acquired the court must necessarily look to the provisions and principles of the Constitution and its distribution of powers for the rules and principles by which its decision must be governed taking this rule to guide us it may be safely assumed that citizens of the United States who migrate to a territory belonging to the people of the United States cannot be ruled as mere colonists dependent upon the will of the general government and to be governed by any laws it may think proper to impose the principle upon which our governments rest and upon which alone they continue to exist is the Union of States sovereign and dependent within their own limits in their internal and domestic concerns and bound together as one people by a general government possessing certain enumerated and restricted powers delegated to it by the people of the several states and exercising supreme authority within the scope of the powers granted to it throughout the Dominion of the United States a power therefore in the general government to obtain and hold colonies and dependent territories over which they might legislate without restriction would be inconsistent with its own existence in its present form whatever it acquires it acquires for the benefit of the people of the several states who created it it is their trustee acting for them and charged with the duty of promoting the interests of the whole people of the Union in the exercise of the powers specifically granted at the time when the territory in question was obtained by session from France it contained no population fit to be associated together and admitted as a state and it therefore was absolutely necessary to hold possession of it as a territory belonging to the United States until it was settled and inhabited by a civilized community capable of self-government and in a condition to be admitted on equal terms with the other states as a member of the Union but as we have before said it was acquired by the general government as the representative and trustee of the people of the United States and it must therefore be held in that character for their common and equal benefit for it was the people of the several states acting through their agent and representative the federal government who in fact acquire the territory in question and the government holds it for their common use until it shall be associated with the other states as a member of the Union but until that time arrives it is undoubtedly necessary that some government should be established in order to organize society and to protect the inhabitants in their persons and property and as the people of the United States could act in this manner only through the government which represented them and through which they spoke and acted when the territory was obtained it was not only within the scope of its powers but it was its duty to pass such laws and establish such a government as would enable those by whose authority they acted to reap the advantages anticipated from its acquisition and to gather there a population which would enable it to assume the position to which it was destined among the states of the Union the power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired the form of government to be established 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 boat there and that must always depend upon the existing condition of the territory as to the number and character of its inhabitants and their situation in the territory in some cases a government consisting of persons appointed by the federal government would best subserve the interests of the territory when the inhabitants were few and scattered and new to one another in other instances it would be more advisable to commit the powers of self-government to the people who had settled in the territory as being the most competent to determine what was best for their own interests but some form of civil authority would be absolutely necessary to organize and preserve civilized society and prepare it to become a state and what is the best form must always depend on the condition of the territory at the time and the choice of the mode must depend upon the exercise of a discretionary power by Congress acting within the scope of its constitutional authority and not infringing upon the rights of persons or rights of property of the citizen who might go there to reside or for any other lawful purpose it was acquired by the exercise of this discretion and it must be held and governed in light manner until it is fitted to be a state but the power of Congress over the person or property of a citizen can never be a mere discretionary power under our constitution in form of government powers of the government and the rights and privileges of the citizen are regulated and plainly defined by the constitution itself and when the territory becomes a part of the United States the federal government enters into possession in the character and pressed upon it by those who created it it enters upon it with its powers over the citizen strictly defined and limited by the constitution from which it derives its own existence and by virtue of which alone it continues to exist and act as a government and sovereignty it has no power of any kind beyond it and it cannot when it enters a territory of the United States put off its character and assume discretionary or despotic powers which the constitution has denied to it it cannot create for itself a new character separated from the citizens of the United States and the duties it owes them under the provisions of the constitution the territory being a part of the United States the government and the citizen both enter it under the authority of the constitution with their respective rights defined and marked out and the federal government can exercise no power over his person or property beyond what that instrument confers nor lawfully deny any right which it has reserved a reference to a few of the provisions of the constitution will illustrate this proposition for example no one we presume will contend that congress can make any law in a territory respecting the establishment of religion or the free exercise thereof or abridging the freedom of speech or of the press or the right of the people of the territory peaceably to assemble and to petition the government for the redress of grievances nor can congress deny to the people the right to keep and bear arms nor the right to trial by jury nor compel anyone to be a witness against himself in a criminal proceeding these powers and others in relation to rights of person which it is not necessary here to enumerate are in express and positive terms denied to the general government and the rights of private property have been guarded with equal care thus the rights of property are united with the rights of person and placed on the same ground by the fifth amendment to the constitution which provides that no person shall be deprived of life liberty and property without due process of law and an act of congress which deprives a citizen of the united states of his liberty or property merely because he came himself or brought his property into a particular territory of the united states and who had committed no offense 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 he was convicted of treason for a longer period than the life of the person convicted nor take private property for public use without just compensation the powers over person and property of which we speak are not only not granted to congress but are in express terms denied and they are forbidden to exercise them and this prohibition is not confined to the states but the words are general and extend to the whole territory over which the constitution gives it power to legislate including those portions of it remaining under territorial government as well as that covered by states it is a total absence of power everywhere within the dominion of the united states and places the citizens of a territory so far as these rights are concerned on the same footing with citizens of the states and guards them as firmly and plainly against any inroads which the general government might attempt under the plea of implied or incidental powers and if congress itself cannot do this if it is beyond the powers conferred on the federal government it will be admitted we presume that it could not authorize a territorial government to exercise them it could confer no power on any local government established by its authority to violate the provisions of the constitution it seems however to be supposed that there is a difference between property and a slave and other property and that different rules may be applied to it in expounding the constitution of the united states and the laws and usages of nations and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties and the powers which governments may exercise over it have been dwelt upon in the argument but in considering the question before us it must be borne in mind that there is no law of nation standing between the people of the united states and their government and interfering with their relation to each other the powers of the government and the rights of the citizen under it are positive and practical regulations plainly written down the people of the united states have delegated to it certain enumerated powers and forbidden it to exercise others it has no power over the person or property of a citizen but what the citizens of the united states have granted and no laws or usages of other nations or reasoning of statesmen or jurists upon the relations of master and slave can enlarge the powers of the government or take from the citizens the rights they have reserved and if the constitution recognizes the right of property of the master and a slave and makes no distinction between that description of property and other property owned by a citizen no tribunal acting under the authority of the united states whether it be legislative, executive, or judicial has a right to draw such a distinction or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the government now, as we have already said in an earlier part of this opinion upon a different point the right of property and 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 guaranteed to the citizens of the united states in every state that might desire it for 20 years and the government and express terms is pledged to protect it in all future time if the slave escapes from his owner this is done in plain words, too plain to be misunderstood and no word can be found in the constitution which gives congress a greater power over slave property or which entitles property of that kind to less protection than property of any other description the only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights upon these considerations it is the opinion of the court that the 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 straighter versus Graham reported in 10th Howard 82 in that case the slaves had been taken from Kentucky to Ohio with the consent of the owner and afterwards brought back to Kentucky and this court held that their status or condition as free or slave depended upon the laws of Kentucky when they were brought back into that state and not of Ohio and that this court had no jurisdiction to revise the judgment of a state court upon its own laws this was the point directly before the court and the decision that this court had not jurisdiction turned upon it as will be seen by the report of the case so in this case as Scott was a slave when taken into the state of Illinois by his owner and was there held as such and brought back in that character his status as free or slave depended on the laws of Missouri and not of Illinois it has however been urged in the argument that by the laws of Missouri he was free on his return and that this case therefore cannot be governed by the case of straighter versus Graham where it appeared by the laws of Kentucky that the plaintiffs continued to be slaves on their return from Ohio but whatever doubts or opinions may at one time have been entertained upon this subject we are satisfied upon a careful examination of all the cases decided in the state courts of Missouri referred to that it is now firmly settled by the decisions of the highest court in the state that Scott and his family upon their return were not free but were by the laws of Missouri the property of the defendant and that the circuit court of the United States had no jurisdiction when by the laws of the state the plaintiff was a slave and not a citizen moreover the plaintiff it appears brought a similar action against the defendant in the state court of Missouri claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court the case was carried before the Supreme Court of the state was fully argued there and that court decided that neither the plaintiff nor his family were entitled to freedom and were still the slaves of the defendant and reverse the judgment of the inferior state court which had given a different decision if the plaintiff suppose that this judgment of the Supreme Court of the state was erroneous and that this court had jurisdiction to revise and reverse it the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the state requiring it to transmit the record to this court if this had been done it is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court the case of Strader and others versus Graham is directly in point and indeed independent of any decision the language of the 25th section of the Act of 1789 is too clear and precise to admit of controversy but the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a state court before this court for revision but suffered the case to be remanded to the inferior state court where it is still continued and is by agreement of parties to await the judgment of this court on the point all of this appears on the record before us and by the printed report of the case and while the case is yet open and pending in the inferior state court plaintiff goes into the circuit court of the United States upon the same case and the same evidence and against the same party and proceeds to judgment and then brings here the same case from the circuit court which the law would not have permitted him to bring directly from the state court and if this court takes jurisdiction in this form the results so far as the rights of the respective parties are concerned is in every respect substantially the same as if it had an open violation of law entertained jurisdiction over the judgment of the state court upon a writ of error and revised and reversed its judgment upon the ground that its opinion upon the question of law was erroneous it would ill become this court to sanction such an attempt to evade the law or to exercise an appellate power in the 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 an 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 end of part three end of Dred Scott versus Sanford an opinion of the United States Supreme Court Strouder versus West Virginia this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama Strouder versus West Virginia an opinion of the United States Supreme Court decided in the October term 1879 please note this is a reading of the opinion of the court only this reading does not include the syllabus or justice fields dissent for ease of listening this reading omits legal citations found within the text of the court's opinion Mr. Justice Strong delivered the opinion of the court the plaintiff in error a colored man was indicated for murder in the circuit court of Ohio County in West Virginia on the 20th of October 1874 and upon trial was convicted and sentenced the record was then removed to the Supreme Court of the state and there the judgment of the circuit court was affirmed the present case is a writ of error to that court and it is now in substance a word that at the trial in the state court the defendant now plaintiff in error was denied rights to which he was entitled under the Constitution and laws of the United States in the circuit court of the state before the trial of the indictment was commenced the defendant presented his petition verified by his oath praying for a removal of the cause into the circuit court of the United States assigning as ground for the removal that by virtue of the laws of the state of West Virginia no colored man was eligible to be a member of the grand jury or to serve on the petty jury in the state that white men are so eligible and that by reason of his being a colored man and having been a slave he had reason to believe and did believe he could not have the full and equal benefit of all laws and proceedings in the state of West Virginia for the security of his person as is enjoyed by white citizens and that he had less chance of enforcing in the courts of the state his rights on the prosecution as a citizen of the United States and that the probabilities of a denial of them to him as such citizen on every trial which might take place on the indictment in the courts of the state were much more enhanced than if he was a white man this petition was denied by the state court and the cause was forced to trial motions to quash the venerate because the law under which it was issued was unconstitutional null and void and successive motions to challenge the array of the panel for a new trial and an arrest of judgment were then made all of which were overruled and made by exceptions parts of the record the law of the state to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March 1873 and it is as follows all white male persons who are 21 years of age and who are citizens of this state shall be liable to service jurors except as herein provided the persons accepted are state officials in this court several errors have been assigned and the controlling questions underlying them all are first whether by the constitution and laws of the united states every citizen of the united states has a right to a trial of an indictment against him by a jury selected and impaneled without discrimination against his race or color because of race or color and second if he has such a right and is denied its enjoyment by the state in which he is indicted may he cause the case to be removed into the circuit court of the united states it is to be observed that the first of these questions is not whether a colored man when an indictment has been preferred against him has a right to a grand or petty jury composed in whole or in part of persons of his own race or color but it is whether in the composition or selection of jurors by whom he is to be indicted or tried all persons of his race or color may be excluded by law solely because of their race or color so that by no possibility can any colored man sit upon the jury the questions are important for they demand a construction of the recent amendments of the constitution if the defendant has a right to have a jury selected for the trial of his case without discrimination against all persons of his race or color because of their race or color the right if not created is protected by those amendments and the legislation of congress under them the 14th amendment ordains that all persons born or naturalized in the united states and subject to the jurisdiction thereof are citizens of the united states and of the state wherein they reside no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the united states nor shall any state deprive any person of life liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws this is one of a series of constitutional provisions having a common purpose namely securing to a race recently emancipated a race that through many generations had been held in slavery all the civil rights that the superior race enjoy the true spirit and meaning of the amendments as we said in the slaughterhouse cases cannot be understood without keeping in view the history of the times when they were adopted and the general objects they plainly sought to accomplish at the time when they were incorporated into the constitution it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would when suddenly raised to the rank of citizenship be looked upon with jealousy and positive dislike and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed discriminations against them had been habitual it was well known that in some states laws making such discriminations then existed and others might well be expected the colored race as a race was abject and ignorant and in that condition was unfitted to command the respect of those who had superior intelligence their training had left them mere children and as such they needed the protection which a wise government extends to those who are unable to protect themselves they especially needed protection against unfriendly action in the states where they were resident it was in view of these considerations the 14th amendment was framed and adopted it was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the states it not only gave citizenship and the privileges of citizenship to persons of color but it denied to any state the power to withhold from them the equal protection of the laws and authorized congress to enforce its provisions by appropriate legislation to quote the language used by us in the slaughterhouse cases no one can fail to be impressed with the one pervading purpose found in all the amendments lying at the foundation of each and without which none of them would have been suggested we mean the freedom of the slave race the security and firm establishment of that freedom and the protection of the newly made free man and citizen from the oppressions of those who had formally exercised unlimited dominion over them so again the existence of laws in the states where the newly emancipated negroes resided which discriminated with gross injustice and hardship against them as a class was the evil to be remedied and by it the fourteenth amendment such laws were forbidden if however the states did not conform their laws to its requirements then by the fifth section of the article of amendment congress was authorized to enforce it by suitable legislation and it was added we doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class will ever be held to come within the purview of this provision if this is the spirit and meaning of the amendment whether it means more or not it is to be construed liberally to carry out the purposes of its framers it ordains that no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the united states evidently referring to the newly made citizens who being citizens of the united states are declared to be also citizens of the state in which they reside it ordains that no state shall deprive any person of life liberty or property without due process of law or deny to any person within its jurisdiction the equal protection of the laws what is this but declaring that the law in the states shall be the same for the black as for the white that all persons whether colored or white shall stand equal before the laws of the states and in regard to the colored race for whose protection the amendment was primarily designed that no discrimination shall be made against them by law because of their color the words of the amendment it is true are prohibitory but they contain a necessary implication of a positive immunity or right most valuable to the colored race the right to exemption from unfriendly legislation against them distinctively as colored exemption from legal discriminations implying inferiority in civil society lessening the security of their enjoyment of the rights which others enjoy and discriminations which are steps towards reducing them to the condition of a subject race that the West Virginia statute respecting juries the statute that control the selection of the grand and petty jury in the case of the plaintiff and error is such a discrimination ought not to be doubted nor would it be if the persons excluded by it were white men if in those states where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service thus denying them the privilege of participating equally with the blacks in the administration of justice we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws nor if a law should be passed excluding all naturalized Celtic Irish men would there be any doubt of its inconsistency with the spirit of the amendment the very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law as jurors because of their color though they are citizens and may be in other respects fully qualified is practically a brand upon them affixed by the law an assertion of their inferiority and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others the right to a trial by jury is guaranteed to every citizen of West Virginia by the constitution of that state and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure the very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine that is of his neighbors fellows associates persons having the same legal status in society as that which he holds Blackstone in his commentaries says the right of trial by jury or the country is a trial by the peers of every Englishman and is the grand bulwark of his liberties and is secured to him by the great charter it is also guarded by statutory enactments intended to make impossible what Mr. Bentham called packing juries it is well known that prejudices often exist against particular classes in the community which sway the judgment of jurors and which therefore operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy prejudice in a local community is held to be a reason for a change of venue the framers of the constitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race and that knowledge was doubtless emotive that led to the amendment by their manumission and citizenship the colored race became entitled to the equal protection of the laws of the states in which they resided in the apprehension that through prejudice they might be denied that equal protection that is that there might be discrimination against them was the inducement to bestow upon the national government the power to enforce the provision that no state shall deny to them the equal protection of the laws without the apprehended existence of prejudice that portion of the amendment would have been unnecessary and it might have been left to the states to extend equality of protection in view of these considerations it is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he has put upon trial for an alleged criminal offense against the state it is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color or rather selected without discrimination against his color and a negro is not the latter is equally protected by the law with the former is not protection of life and liberty against race or color prejudice a right a legal right under the constitutional amendment and how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the state has expressly excluded every man of his race because of color alone however well qualified in other respects is not a denial to him of equal legal protection we do not say that within the limits from which it is not excluded by the amendment a state may not prescribe the qualifications of its jurors and in so doing make discriminations it may confine the selection to males to freeholders to citizens to persons within certain ages or to persons having educational qualifications we do not believe the 14th amendment was ever intended to prohibit this looking at its history it is clear it had no such purpose its aim was against discrimination because of race or color as we have said more than once its design was to protect an emancipated race and to strike down all possible legal discriminations against those who belong to it to quote further in giving construction to any of these articles amendments it is necessary to keep the main purpose steadily in view it is so clearly a provision for that race and that emergency that a strong race would be necessary for its application to any other we are not now called upon to affirm or deny that it had other purposes the 14th amendment makes no attempt to enumerate the rights it designed to protect it speaks in general terms and those are as comprehensive as possible its language is prohibitory but every prohibition implies the existence of rights and immunities prominent among which is an immunity from inequality of legal protection either for life, liberty or property any state action that denies this immunity to a colored man is in conflict with the constitution concluding therefore that the statute of West Virginia discriminating in the selection of jurors as it does against Negroes because of their color amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offense against the state it remains only to be considered whether the power of Congress to enforce the provisions of the 14th amendment by appropriate legislation is sufficient to justify the enactment of section 641 of the revised statutes a right or an immunity whether created by the constitution or only guaranteed by it even without any express delegation of power may be protected by Congress so in United States versus Reese it was said by the chief justice of this court rights and immunities created by or dependent upon the constitution of the United States can be protected by Congress the form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide these may be varied to meet the necessities of the particular right to be protected but there is express authority to protect the rights and immunities referred to in the 14th amendment and to enforce observance of them by appropriate congressional legislation and one very efficient and appropriate mode of extending such protection and securing to a party the enjoyment of the right or immunity is a law providing for the removal of his case from a state court in which the right is denied by the state law into a federal court where it will be upheld this is an ordinary mode of protecting rights and immunities conferred by the federal constitution and laws section 641 is such provision it enacts that when any civil suit or criminal prosecution is commenced in any state court for any cause whatsoever against any person who is denied or cannot enforce in the judicial tribunals of the state or in the part of the state where such prosecution is pending any rights secured to him by any law providing for the equal civil rights of citizens of the United States or of all persons within the jurisdiction of the United States such suit or prosecution may upon the petition of such defendant filed in said state court at any time before the trial or final hearing of the case stating the facts and verified by oath be removed before trial into the next circuit court of the United States to be held in the district where it is pending this act plainly has reference to sections 1977 and 1978 of the statutes which partially enumerate the rights and immunities intended to be guaranteed by the constitution the first of which declares that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make an enforced contracts to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind and to no other this act puts in the form of a statute what had been substantially ordained by the constitutional amendment it was a step towards enforcing the constitutional provisions section 641 was an advanced step fully warranted we think by the fifth section of the 14th amendment we have here to for considered and affirmed the constitutional power of Congress to authorize the removal from state courts into the circuit courts of the United States before trial of criminal prosecutions for alleged offenses against the laws of the state when the defense presents a federal question or when a right under the federal constitution or laws is involved it is unnecessary now to repeat what we there said that the petition of the plaintiff and error filed by him in the state court before the trial of his case made a case for removal into the federal circuit court under section 641 is very plain if by the constitutional amendment and section 1977 of the revised statutes he was entitled to immunity from discrimination against him in the selection of jurors because of their color as we have endeavored to show that he was it set forth sufficient facts to exhibit a denial of that immunity and a denial by the statute law of the state there was error therefore in proceeding to the trial of the indictment against him after his petition was filed as also in overruling his challenge to the array of the jury and in refusing to quash the panel the judgment of the Supreme Court of West Virginia will be reversed and the case remitted with instructions to reverse the judgment of the circuit court of Ohio County and it is so ordered end of Strouder versus West Virginia an opinion of the United States Supreme Court Yicuo versus Hopkins this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama Yicuo versus Hopkins an opinion of the United States Supreme Court decided on May 10th, 1886 please note this reading includes a reading of the syllabus followed by a reading of the Supreme Court's unanimous opinion for ease of listening this reading omits legal citations found within the text of the court's opinion these two cases Yicuo versus Hopkins and Woe Lee versus Hopkins were argued as one and depend upon precisely the same state of facts the first coming here upon a writ of error to the Supreme Court of the state of California the second on appeal from the circuit court of the United States for that district the plaintiff and error Yicuo on August 24th, 1885 petitioned the Supreme Court of California for the writ of habeas corpus alleging that he was illegally deprived of his personal liberty by the defendant as sheriff of the city and county of San Francisco the sheriff made return to the writ that he held the petitioner in custody by virtue of a sentence of the police judge's court number two of the city and county of San Francisco whereby he was found guilty of a violation of certain ordinances of the board of supervisors of that county and a judge to pay a fine of $10 and in default of payment be imprisoned in the county jail at the rate of one day for each dollar of fine until said fine should be satisfied and a commitment in consequence of non-payment of said fine the ordinances for the violation of which he had been found guilty are set out as follows order number 1569 passed May 26th, 1880 prescribing the kind of buildings in which laundries may be located the people of the city and county of San Francisco do ordain as follows section one it shall be unlawful from and after the passage of this order for any person or persons to establish, maintain or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors except the same be located in a building constructed either of brick or stone section two it shall be unlawful for any person to erect, build or maintain or cause to be erected, built or maintained over or upon the roof of any building now erected or which may hereafter be erected within the limits of said city and county any scaffolding without first obtaining the written permission of the board of supervisors which permit shall state fully for what purpose said scaffolding is to be erected and used and such scaffolding shall not be used for any other purpose than that designated in such permit section three any person who shall violate any of the provisions of this order shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars or by imprisonment in the county jail not more than six months or by both such fine and imprisonment order number one thousand five hundred and eighty seven past July twenty eight eighteen eighty the following section section sixty eight it shall be unlawful from and after the passage of this order for any person or persons to establish maintain or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors except the same may be located in a building constructed either of brick or stone the following facts are also admitted on the record that petitioner is a native of China and came to California in eighteen sixty one and is still a subject of the emperor of China that he has been engaged in the laundry business in the same premises and building for twenty two years last past that he had a license from the board of fire wardens dated March third eighteen eighty four from which it appeared that the above described premises have been inspected by the board of fire wardens and upon such inspection said board found all proper arrangements for carrying on the business that the stoves washing and drying apparatus and the appliances for heating smoothing irons are in good condition and that their use is not dangerous to the surrounding property from fire and that all proper precautions have been taken to comply with the provisions of order number one thousand six hundred and seventeen defining the fire limits of the city and county of San Francisco and making regulations concerning the erection and use of buildings and said city and county and of order number one thousand six hundred and seventy prohibiting the kindling maintenance and use of open fire and houses that he had certificate from the health officer that the same premises had been inspected by him and that he found that they were properly and sufficiently drained and that all proper arrangements for carrying on the business of a laundry without injury to the sanitary condition of the neighborhood had been complied with that the city license of the petitioner was in force and expired October first eighteen eighty five and that the petitioner applied to the board of supervisors June first eighteen eighty five for consent of said board to maintain and carry on his laundry but that said board on July first eighteen eighty five refused said consent it is also admitted to be true as alleged in the petition that on February twenty fourth eighteen eighty there were about three hundred and twenty laundries in the city and county of San Francisco of which about two hundred and forty were owned and conducted by subjects of china and of the whole number three hundred and twenty about three hundred and ten were constructed of wood the same material that constitutes nine tenths of the houses in the city of San Francisco the capital thus invested by the subjects of china was not less than two hundred thousand dollars and they paid annually for rent license taxes gas and water about one hundred and eighty thousand dollars it is alleged in the petition that your petitioner and more than one hundred and fifty of his countryman have been arrested upon the charge of carrying on business without having such special consent while those who are not subjects of china and who are conducting eighty odd laundries under similar conditions are left unmolested and free to enjoy the enhanced trade and profits arising from this hurtful and unfair discrimination the business of your petitioners and of those of his countrymen similarly situated is greatly impaired and in many cases practically ruined by this system of oppression to one kind of men and favoritism to all others the statement therein contained as to the arrest etc is admitted to be true with the qualification only that the eighty odd laundries referred to are in wooden buildings without scaffolds on the roofs it is also admitted that petitioner and two hundred of his countrymen similarly situated petitioned the board of supervisors for permission to continue their business in the various houses which they have been occupying and using for laundries for more than twenty years and such petitions were denied and all the petitions of those who were not chinese with one exception of mrs. mary meagles were granted by section eleven of article eleven of the constitution of california it is provided that any county city town or township may make and enforce within its limits all such local police sanitary and other regulations as are not in conflict with general laws by section seventy four of the act of april nineteen eighteen fifty six usually known as the consolidation act the board of supervisors isn't powered among other things to provide by regulation for the prevention and summary removal of nuisances to public health the prevention of contagious diseases to prohibit the erection of wooden buildings within any fixed limits where the streets shall have been established and graded to regulate the sale storage and use of gunpowder or other explosive or combustible materials and substances and make all needful regulations for protection against fire to make such regulations concerning the erection and use of buildings as may be necessary for the safety of the inhabitants the supreme court of california in the opinion pronouncing the judgment in this case said the board of supervisors under the several statutes conferring authority upon them has the power to prohibit or regulate all occupations which are against good morals contrary to public order and decency or dangerous to the public safety clothes washing is certainly not opposed to good morals or subversive of public order or decency but when conducted in given localities it may be highly dangerous to the public safety of this fact the supervisors are made the judges and having taken action in the premises we do not find that they have prohibited the establishment of laundries but they have as they well might do regulated the places at which they should be established the character of the buildings in which they are to be maintained etc. the process of washing is not prohibited by thus regulating the places at which and the surroundings by which it must be exercised the order number one thousand five hundred and sixty nine and section sixty eight of order number one thousand five hundred and eighty seven are not in contravention of common right or unjust an equal partial or oppressive in such sense as authorizes us in this proceeding to pronounce them invalid after answering the position taken in behalf of the petitioner that the ordinances in question had been repealed the court adds we have not deemed it necessary to discuss the question in the light of supposed infringement of petitioner's rights under the constitution of the united states for the reason that we think the principles upon which contention on that head can be based have in effect been set at rest by the cases of barbie versus Connolly and soon Hing versus Crowley the writ was accordingly discharged and the prisoner remanded in the other case the appellant woe Lee petitioned for his discharge from an alleged illegal imprisonment upon a state of facts shown upon the record precisely similar to that in the case of yick woe in disposing of the application the learned circuit judge Sawyer in his opinion after quoting the ordinance in question proceeded at length as follows thus in a territory some 10 miles wide by 15 or more miles long much of it still occupied as mere farming and pastureage lands and much of it unoccupied sandbanks in many places without a building within a quarter or half a mile of each other including the isolated and almost wholly unoccupied goat island the right to carry on this when properly guarded harmless and necessary occupation in a wooden building is not made to depend upon any prescribed conditions giving a right to anybody complying with them but upon the consent or arbitrary will of the board of supervisors in three fourths of the territory covered by the ordinance there is no more need of prohibiting or regulating laundries than if they were located in any portion of the farming regions of the state hitherto the regulation of laundries has been limited to the thickly settled portions of the city why this unnecessary extension of the limits affected if not designed to prevent the establishment of laundries after compulsory removal from their present locations within practicable reach of the customers or their proprietors and the uncontradicted petition shows that all Chinese applications are in fact denied and those of Caucasians granted thus in fact making the discriminations in the administration of the ordinance which its terms permit the fact that the right to give consent is reserved in the ordinance shows that carrying on the laundry business in wooden buildings is not deemed of itself necessarily dangerous it must be apparent to every well-informed mind that a fire properly guarded for laundry purposes in a wooden building is just as necessary and no more dangerous than a fire for cooking purposes or for warming a house if the ordinance under consideration is valid then the Board of Supervisors can pass a valid ordinance preventing the maintenance in a wooden building of a cooking stove heating apparatus or restaurant within the boundaries of the city and county of San Francisco without the consent of that body arbitrarily giving or withheld as their prejudices or other motives may dictate if it is competent for the Board of Supervisors to pass a valid ordinance prohibiting the inhabitants of San Francisco from following any ordinary proper and necessary calling within the limits of the city and county except at its arbitrary and unregulated discretion and special consent and it can do so if this ordinance is valid then it seems to us that there has been a wide departure from the principles that have here to fore been supposed to guard and protect the rights, property and liberties of the American people and if by an ordinance general in its terms and form like the one in question by reserving an arbitrary discretion in the enacting body to grant or deny permission to engage in a proper and necessary calling a discrimination against any class can be made in its execution thereby evading and in effect nullifying the provision of the national constitution then the insertion of provisions to guard the rights of every class and person in that instrument was a vain and futile act the effect of the execution of this ordinance in the manner indicated in the record would seem to be necessarily to close up the many Chinese laundries now existing or compel their owners to pull down their present buildings and reconstruct of brick or stone or to drive them outside the city and county of San Francisco to the adjoining counties beyond the convenient reach of the customers either of which results would be little short of absolute confiscation of the large amount of property shown to be now and to have been for a long time invested in these occupations if this would not be depriving such parties of their property without due process of law it'd be difficult to say what would affect that prohibited result the necessary tendency if not the specific purpose of this ordinance and of enforcing it in the manner indicated in the record is to drive out of business all the numerous small laundries especially those owned by Chinese and give a monopoly of the business to the large institutions established and carried on by means of large associated Caucasian capital if the facts appearing on the face of the ordinance on the petition in return and admitted in the case and shown by the notorious public in municipal history of the times indicate a purpose to drive out the Chinese laundry men and not merely to regulate the business for the public safety does it not disclose a case of violation of the provisions of the 14th amendment to the national constitution and of the treaty between the United States and China in more than one particular if this means prohibition of the occupation and a destruction of the business and property of the Chinese laundry men in San Francisco as it seems to us this must be the effect of executing the ordinance and not merely the proper regulation of the business then there is discrimination and a violation of other highly important rights secured by the 14th amendment and the treaty that it does mean prohibition as to the Chinese seems to us must be apparent to every citizen of San Francisco who has been here long enough to be familiar with the course of an active and aggressive branch of public opinion and of public notorious events can a court be blind to what must be necessarily known to every intelligent person in the state but in deference to the decision of the Supreme Court of California in the case of Yikwo and contrary to his own opinion as thus expressed the circuit judge discharged the writ and remanded the prisoner Mr. Justice Matthews delivered the opinion of the court in the case of the petitioner brought here by writ of error to the Supreme Court of California our jurisdiction is limited to the question whether the plaintiff in error has been denied a right in violation of the Constitution laws or treaties of the United States the question whether his imprisonment is illegal under the Constitution and laws of the state is not open to us and although that question might have been considered in the circuit court in the application made to it and by this court on appeal from its order yet judicial propriety is best consulted by accepting the judgment of the state court upon the points involved in that inquiry that however does not preclude this court from putting upon the ordinances of the supervisors of the county and city of San Francisco and independent construction for the determination of the question whether the proceedings under these ordinances and enforcement of them are in conflict with the Constitution and laws of the United States necessarily involves the meaning of the ordinances which for that purpose we are required to ascertain in a judge we are consequently constrained at the outset to differ from the Supreme Court of California upon the real meaning of the ordinances in question that court considered these ordinances as vesting in the board of supervisors a not unusual discretion in granting or withholding their assent to the use of wooden buildings as laundries to be exercised in reference to the circumstances of each case with a view to the protection of the public against the dangers of fire we are not able to concur in that interpretation of the power conferred upon the supervisors there is nothing in the ordinances which points to such a regulation of the business of keeping and conducting laundries they seem intended to confer and actually to confer not a discretion to be exercised upon a consideration of the circumstances of each case but a naked in arbitrary power to give or withhold consent not only as to places but as to persons so that if an applicant for such consent being in every way a competent and qualified person and having complied with every reasonable condition demanded by any public interest should failing to obtain the requisite consent of the supervisors to the prosecution of his business apply for redress by the judicial process of mandamus to require the supervisors to consider and act upon his case it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent without reason and without responsibility the power given to them is not confided to their discretion in the legal sense of that term but is granted to their mere will it is purely arbitrary and acknowledges neither guidance nor restraint this erroneous view of the ordinances in question led the supreme court of california into the further error of holding that they were justified by the decisions of this court in the cases of barbie versus connelly and soon hang versus Crowley in both of these cases the ordinance involved was simply a prohibition to carry on the washing and ironing of clothes in public laundries and wash houses within certain prescribed limits of the city and county of san francisco from 10 o'clock at night until six o'clock in the morning of the following day this provision was held to be purely a police regulation within the competency of any municipality possessed of the ordinary powers belonging to such bodies a necessary measure of precaution in a city composed largely of wooden buildings like san francisco in the application of which there was no invidious discrimination against anyone within the prescribed limits all persons engaged in the same business being treated alike and subject to the same restrictions and entitled to the same privileges under similar conditions for these reasons that ordinance was adjudged not to be within the prohibitions of the 14th amendment to the constitution of the united states which it was said in the first case cited undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoilation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights that all persons should be equally entitled to pursue their happiness and acquire and enjoy property that they should have like access to the courts of the country for the protection of their persons and property the prevention and redress of wrongs and the enforcement of contracts that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances that no greater burdens should be laid upon one than are laid upon others in the same calling and condition and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses class legislation discriminating against some and favoring others is prohibited but legislation which in carrying out a public purpose is limited in its application if within the sphere of its operation it affects alike all persons similarly situated is not within the amendment the ordinance drawn in question in the present case is of a very different character it does not prescribe a rule and conditions for the regulation of the use of property for laundry purposes to which all similarly situated may conform it allows without restriction the use for such purposes of buildings of brick or stone but as to wooden buildings constituting nearly all those in previous use it divides the owners or occupiers into two classes not having respect to their personal character and qualifications for the business nor the situation and nature and adaptation of the buildings themselves but merely by an arbitrary line on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors and on the other those from whom that consent is withheld at their mere will and pleasure and both classes are alike only in this that they are tenets at will under the supervisors of their means of living the ordinance therefore also differs from the not unusual case where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns or places for the sale of spiritual liquors and the like when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege because in such cases the fact of fitness is submitted to the judgment of the officer and calls for the exercise of a discretion of a judicial nature the rights of the petitioners as affected by the proceedings of which they complain are not less because they are aliens and subjects of the emperor of China by the third article of the treaty between this government and that of China concluded November 17th, 1880 it is stipulated if Chinese laborers or Chinese of any other class now either permanently or temporarily residing in the territory of the United States meet with ill treatment at the hands of any other persons the government of the United States will exert all its powers to devise measures for their protection and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation and to which they are entitled by treaty the 14th amendment to the constitution is not confined to the protection of citizens it says nor shall any state deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction an equal protection of the laws these provisions are universal in their application to all persons within the territorial jurisdiction without regard to any differences of race, of color, or of nationality and the equal protection of the laws is a pledge of the protection of equal laws it is accordingly enacted by section 1977 of the revised statutes that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make an enforced contracts to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishments, pains, penalties, taxes, licenses and exactions of every kind and to no other the questions we have to consider and decide in these cases therefore are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court it is contended on the part of the petitioners that the ordinances for violations of which they are severely sentenced to imprisonment are void on their face as being within the prohibitions of the 14th amendment and in the alternative, if not so that they are void by reason of their administration operating unequally so as to punish in the present petitioners what is permitted to others as lawful without any distinction of circumstances an unjust and illegal discrimination it is claimed which though not made expressly by the ordinances is made possible by them when we consider the nature and the theory of our institutions of government the principles upon which they are supposed to rest and review the history of their development we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power sovereignty itself is of course not subject to law for it is the author and source of law but in our system while sovereign powers are delegated to the agencies of government sovereignty itself remains with the people by whom and for whom all government exists and acts and the law is the definition and limitation of power it is indeed quite true that there must always be lodged somewhere and in some person or body the authority of final decision and in many cases of mere administration the responsibility is purely political no appeal lying except to the ultimate tribunal of the public judgment exercise either in the pressure of opinion or by means of the suffrage but the fundamental rights to life, liberty and the pursuit of happiness considered as individual possessions are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race and securing to men the blessings of civilization under the reign of just and equal laws so that in the famous language of the massachusetts bill of rights the government of the commonwealth may be a government of laws and not of men for the very idea that one man may be compelled to hold his life or the means of living or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails as being the essence of slavery itself there are many illustrations that might be given of this truth which would make manifest that it was self-evident in the light of our system of jurisprudence the case of the political franchise of voting is one though not regarded strictly as a natural right but as a privilege merely conceded by society according to its will under certain conditions nevertheless it is regarded as a fundamental political right because preservative of all rights in reference to that right it was declared by the supreme judicial court of massachusetts in capon versus foster in the words of chief justice shaw that in all cases where the constitution has conferred a political right or privilege and where the constitution has not particularly designated the manner in which that right is to be exercised it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations in regard to the time and mode of exercising that right which are designed to secure and facilitate the exercise of such right in a prompt orderly and convenient manner nevertheless such a construction would afford no warrant for such an exercise of legislative power as under the pretense and color of regulating should subvert or injuriously restrain the right itself it has accordingly been held generally in the states that whether the particular provisions of an act of legislation establishing means for ascertaining the qualifications of those entitled to vote and making previous registration in lists of such a condition precedent to the exercise of the right were or were not reasonable regulations and accordingly valid or void was always open to inquiry as a judicial question the same principle has been more freely extended to the quasi legislative acts of inferior municipal bodies in respect to which it is an ancient jurisdiction of judicial tribunals to pronounce upon the reasonableness and consequent validity of their bylaws in respect to these it was the doctrine that every bylaw must be reasonable not inconsistent with the charter of the corporation nor with any statute of parliament nor with the general principles of the common law of the land particularly those having relation to the liberty of the subject or the rights of private property accordingly in the case of state v. Cincinnati gas light and coke company in ordinance of the city council purporting to fix the price to be charged for gas under an authority of law giving discretionary power to do so was held to be bad if passed in bad faith fixing an unreasonable price for the fraudulent purpose of compelling the gas company to submit to an unfair appraisement of their works and a similar question very pertinent to the one in the present cases was decided by the court of appeals of Maryland in the case of city of Baltimore versus Reddick in that case the defendant had erected and used a steam engine in the prosecution of his business as a carpenter and box maker in the city of Baltimore under a permit from the mayor and city council which contained a condition that the engine was to be removed after six months notice to that effect from the mayor after such notice and refusal to conform to it a suit was instituted to recover the penalty provided by the ordinance to restrain the prosecution of which a bill in equity was filed the court holding the opinion that there may be a case in which an ordinance passed under grants of power like those we have cited is so clearly unreasonable so arbitrary, oppressive, or partial as to raise the presumption that the legislature never intended to confer the power to pass it and to justify the courts in interfering and setting it aside as a plain abuse of authority it proceeds to speak with regard to the ordinance in question in relation to the use of steam engines as follows it does not profess to prescribe regulations for their construction, location, or use nor require such precautions and safeguards to be provided by those who own and use them as are best calculated to render them less dangerous to life and property nor does it restrain their use in box factories and other similar establishments within certain defined limits not in any other way attempt to promote their safety and security without destroying their usefulness but it commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam engine in the prosecution of any business in the city of Baltimore to cease to do so and by providing compulsory fines for every day's disobedience of such notice and order of removal renders his power over the use of steam in that city practically absolute so that he may prohibit its use altogether but if he should not choose to do this but only to act in particular cases there is nothing in the ordinance to guide or control his action it lays down no rules by which its impartial execution can be secured or partiality and oppression prevented it is clear that giving and enforcing these notices may and quite likely will bring ruin to the business of those against whom they are directed while others from whom they are withheld may be actually benefited by what is thus done to their neighbors and when we remember that this action of non-action may proceed from enmity or prejudice from partisan zeal or animosity from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed it becomes unnecessary to suggest or comment upon the injustice capable of being wrought under cover of such a power for that becomes apparent to everyone who gives to the subject a moment's consideration in fact an ordinance which clothes a single individual with such power hardly falls within the domain of law and we are constrained to pronounce it in operative and void this conclusion and the reasoning on which it is based are deductions from the face of the ordinance as to its necessary pendency and ultimate actual operation in the present cases we are not obliged to reason from the probable to the actual and pass upon the validity of the ordinance complained of as tried merely by the opportunities which their terms afford of unequal and unjust discrimination in their administration for the cases present the ordinance in actual operation and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinances as adopted they are applied by the public authorities charged with their administration and thus representing the state itself with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws which is secured to the petitioners as to all other persons by the broad and benign provisions of the 14th Amendment to the Constitution of the United States though the law itself be fair on its face and impartial in appearance yet if it is applied and administered by public authority with an evil eye and an unequal hand so as practically to make unjust and illegal discriminations between persons in similar circumstances material to their rights the denial of equal justice is still within the prohibition of the Constitution this principle of interpretation has been sanctioned by this court in Henderson v. Mayor of New York Chai Looney v. Freeman Ex parte Virginia Neal v. Delaware and Sun Hing v. Crowley the present cases as shown by the facts disclosed in the record are within this class it appears that both petitioners have complied with every requisite deemed by the law or by the public officers charged with its administration necessary for the protection of neighboring property from fire or as a precaution against injury to the public health no reason whatever except the will of the supervisors is assigned why they should not be permitted to carry on in the accustomed manner their harmless and useful occupation on which they depend for a livelihood and while this consent of the supervisors is withheld from them and from 200 others who have also petitioned all of whom happen to be Chinese subjects 80 others not Chinese subjects are permitted to carry on the same business under similar conditions the fact of this discrimination is admitted no reason for it is shown and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong and which in the eye of the law is not justified the discrimination is therefore illegal and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the 14th amendment of the constitution the imprisonment of the petitioners is therefore illegal and they must be discharged to this end the judgment of the Supreme Court of California in the case of Yic Wo and that of the circuit court of the United States for the district of California in the case of Wo Lee are severally reversed and the cases remanded each to the proper court with directions to discharge the petitioners from custody and imprisonment end of Yic Wo versus Hopkins an opinion of the United States Supreme Court