 Part one of Dred 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. Dred Scott versus Sanford. An opinion of the United States Supreme Court. Part one. Decided on March 6th, 1857. Please note, this is a reading of the opinion of the court only. This reading does not include the syllabus or any concurring or dissenting opinion. For ease of listening, this reading omits legal citations found within the text of the court's opinion. Mr. Chief Justice Taney delivered the opinion of the court. This case has been twice argued. After the argument at the last term, differences of opinion were found to exist among the members of the court. And as the questions and controversy are of the highest importance, and the court was at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case and direct a re-argument on some of the points in order that we might have an opportunity of giving to the whole subject a more deliberate consideration. It has, accordingly, been again argued by counsel and considered by the court, and I now proceed to deliver its opinion. There are two leading questions presented by the record. Number one. Had the circuit court of the United States jurisdiction to hear and determine the case between these parties? And number two. If it had jurisdiction, is the judgment it has given erroneous or not? The plaintiff in error, who was also the plaintiff in the court below, was with his wife and children held as slaves by the defendant in the state of Missouri. And he brought this action in the circuit court of the United States for that district to assert the title of himself and his family to freedom. The declaration is in the form usually adopted in that state to try questions of this description, and contains the averment necessary to give the court jurisdiction that he and the defendant are citizens of different states, that is, that he is a citizen of Missouri and the defendant a citizen of New York. The defendant pleaded in abatement to the jurisdiction of the court that the plaintiff was not a citizen of the state of Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood and who were brought into this country and sold as slaves. To this plea, the plaintiff demurred. And the defendant joined in demurr. The court overruled the plea and gave judgment that the defendant should answer over. And he thereupon put in sundry pleas in bar, upon which issues were joined. And at the trial, the verdict and judgment were in his favor, whereupon the plaintiff brought this writ of error. Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement. That plea denies the right of the plaintiff to sue in a court of the United States for the reasons therein stated. If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the circuit court is erroneous and must be reversed. It is suggested, however, that this plea is not before us, and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it or bring it before the court for revision by his writ of error. And also that the defendant waived this defense by pleading over and thereby admitted the jurisdiction of the court. But in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been averted to this peculiar and limited jurisdiction has made it necessary in these courts to adopt different rules and principles of pleading. So far as jurisdiction is concerned, from those which regulate courts of common law in England and in the different states of the Union, which have adopted the common law rules. And these last mentioned courts, where their character and rank are analogous to that of a circuit court of the United States, in other words, where they are what the law terms courts of general jurisdiction, they are presumed to have jurisdiction unless the contrary appears. No averment in the pleadings of the plaintiff is necessary in order to give jurisdiction. If the defendant objects to it, he must plead it specially. And unless the fact on which he relies is found to be true by a jury, or admitted to be true by the plaintiff, the jurisdiction cannot be disputed in an appellate court. Now, it is not necessary to inquire whether in courts of that description, a party who pleads over in bar, when a plea to the jurisdiction has been ruled against him, does or does not waive his plea, nor whether upon a judgment in his favor on the pleas in bar and a writ of error brought by the plaintiff, the question upon the plea in abatement would be open for revision in the appellate court cases that may have been decided in such courts or rules that may have been laid down by common law leaders can have no influence in the decision in this court, because under the Constitution and laws of the United States, the rules which govern the pleadings in its courts in questions of jurisdiction stand on different principles and are regulated by different laws. This difference arises as we have said from the peculiar character of the government of the United States, for although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers enumerated in the Constitution have been conferred upon it and neither the legislative, executive, nor judicial departments of the government can lawfully exercise any authority beyond the limits marked out by the Constitution. And in regulating the judicial department, the cases in which the courts of the United States shall have jurisdiction are particularly and specifically enumerated and defined, and they are not authorized to take cognizance of any case which does not come within the description they're in specified. Hence, when a plaintiff sues in a court of the United States, it is necessary that he should show in his pleading that the suit he brings is within the jurisdiction of the court and that he is entitled to sue there. And if he omits to do this and should by any oversight of the circuit court obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not be presumed as in the case of a common law, English or state court, unless the contrary appeared. But the record when it comes before the appellate court must show affirmatively that the inferior court had authority under the Constitution to hear and determine the case. And if the plaintiff claims a right to sue in a circuit court of the United States, under that provision of the Constitution, which gives jurisdiction in controversies between citizens of different states, he must distinctly avert in his pleading that they are citizens of different states, and he could not maintain his suit without showing that fact in the pleadings. This point was decided in the case of Bingham versus Cabot and ever since adhered to by the court. And in Jackson versus Ashton, it was held that the objection to which it was open could not be waived by the opposite party because consent to parties could not give jurisdiction. It is needless to accumulate cases on this subject. Those already referred to and the cases of Capron versus Van Neurden and Montelet versus Murray are sufficient to show the rule of which we have spoken. The case of Capron versus Van Neurden strikingly illustrates the difference between a common law court and a court of the United States. If, however, the fact of citizenship is avert in the declaration and the defendant does not deny it and put it in issue by plea and abatement, he cannot offer evidence at the trial to disprove it and consequently cannot avail himself of the objection in the appellate court unless the defect should be apparent in some other part of the record. For if there is no plea and abatement and the want of jurisdiction does not appear in any other part of the transcript brought up by the writ of error, the undisputed averment of citizenship in the declaration must be taken in this court to be true. In this case the citizenship is avert but it is denied by the defendant in the manner required by the rules of pleading and the fact upon which the denial is based is admitted by the demurrer. And if the plea and the demurrer and judgment of the court below upon it are before us upon this record, the question to be decided is whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States. We think they are before us. The plea and abatement and the judgment of the court upon it are a part of the judicial proceedings in the circuit court and are there recorded as such and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of the United States v. Smith this court said that the case being brought up by writ of error the whole record was under the consideration of this court and this being the case in the present instance the plea and abatement is necessarily under consideration and it becomes therefore our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States. This is certainly a very serious question and one that now for the first time has been brought for decision before this court but it is brought here by those who have a right to bring it and it is our duty to meet it and decide it. The question is simply this. Kenny Negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States and as such become entitled to all the rights and privileges and immunities guaranteed by that instrument to the citizen one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution. It will be observed that the plea applies to that class of persons only whose ancestors were Negroes of the African race and imported into this country and sold and held as slaves. The only matter in issue before the court therefore is whether the descendants of such slaves when they shall be emancipated or who are born a parents who have become free before their birth are citizens of a state in the sense in which the word citizen is used in the Constitution of the United States and this being the only matter in dispute on the pleadings the court must be understood as speaking in this opinion of that class only that is of those persons who are the descendants of Africans who were imported into this country and sold as slaves. The situation of this population was altogether unlike that of the Indian race the latter it is true formed no part of the colonial communities and never amalgamated with them and social connections or in government but although they were uncivilized they were yet a free and independent people associated together in nations or tribes and governed by their own laws many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion but that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper and neither the English nor colonial governments claimed or exercised any dominion over the tribe or nation by whom it was occupied nor claim the right to the possession of the territory until the tribe or nation consented to cede it these Indian governments were regarded and treated as foreign governments as much so as if an ocean had separated the red man from the white and their freedom has constantly been acknowledged from the time of the first emigration to the English colonies to the present day by the different governments which succeeded each other treaties have been negotiated with them and their alliance sought for in war and the people who compose these Indian political communities have always been treated as foreigners not living under our government it is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race and it has been found necessary for their sake as well as our own to regard them as in a state of pupillage and to legislate to a certain extent over them and the territory they occupy but they may without doubt like the subjects of any other foreign government be naturalized by the authority of congress and become citizens of a state and of the united states and if an individual should leave his nation or tribe and take up his abode among the white population he would be entitled to all the rights and privileges which would belong to an immigrant from any other foreign people we proceed to examine the case as presented by the pleadings the words people of the united states and citizens are synonymous terms and mean the same thing they both describe the political body who according to our republican institutions form the sovereignty and who hold the power and conduct the government through their representatives they are what we familiarly call the sovereign people and every citizen is one of this people and a constituent member of the sovereignty the question before us is whether the class of persons described in the plea and abatement compose a portion of this people and are constituent members of the sovereignty we think they are not and that they are not included and were not intended to be included under the word citizens in the constitution and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the united states on the contrary they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race and whether emancipated or not yet remained subject to their authority and had no rights or privileges but such as those who held the power and the government might choose to grant them it is not the province of the court to decide upon the justice or injustice the policy or impolicy of these laws the decision of that question belonged to the political or lawmaking power to those who formed the sovereignty and frame the constitution the duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject and to administer it as we find it according to its true intent and meaning when it was adopted in discussing this question we must not confound the rights of citizenship which a state may confer within its own limits and the rights of citizenship as a member of the union it does not by any means follow because he has all the rights and privileges of a citizen of a state that he must be a citizen of the united states he may have all of the rights and privileges of the citizen of a state and yet not be entitled to the rights and privileges of a citizen in any other state for previous to the adoption of the constitution of the united states every state had the undoubted right to confer on whom so ever it pleased the character of citizen and to endow him with all its rights but this character of course was confined to the boundaries of the state and gave him no rights or privileges in other states beyond those secured to him by the laws of nations and the comedy of states nor have the several states surrendered the power of conferring these rights and privileges by adopting the constitution of the united states each state may still confer them upon an alien or anyone it thinks proper or upon any class or description of persons yet he would not be a citizen in the sense in which that word is used in the constitution of the united states nor entitled to sue as such in one of its courts nor to the privileges and immunities of a citizen in the other states the rights which he would acquire would be restricted to the state which gave them the constitution has conferred on congress the right to establish a uniform rule of naturalization and this right is evidently exclusive and has always been held by this court to be so consequently no state since the adoption of the constitution can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a state under the federal government although so far as the state alone was concerned he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the constitution and laws of the state attached to that character it is very clear therefore that no state can by an act or law of its own past since the adoption of the constitution introduce a new member into the political community created by the constitution of the united states it cannot make him a member of this community by making him a member of its own and for the same reason it cannot introduce any person or description of persons who were not intended to be embraced in this new political family which the constitution brought into existence but were intended to be excluded from it the question then arises whether the provisions of the constitution in relation to the personal rights and privileges to which the citizen of a state should be entitled embraced the negro african race at that time in this country or who might afterwards be imported who had then or should afterwards be made free in any state and to put it in the power of a single state to make him a citizen of the united states and induce him with the full rights of citizenship in every other state without their consent does the constitution of the united states act upon him whenever he shall be made free under the laws of a state and raise there to the rank of a citizen and immediately clothe him with all the privileges of a citizen in every other state and in its own courts the court think the affirmative of these propositions cannot be maintained and if it cannot the plaintiff in error could not be a citizen of the state of Missouri within the meaning of the constitution of the united states and consequently was not entitled to sue in its courts it is true every person in every class and description of persons who were at the time of the adoption of the constitution recognized as citizens in the several states became also citizens of this new political body but none other it was formed by them and for them and their posterity but for no one else and the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several state communities or who should afterwards by birthright or otherwise become members according to the provisions of the constitution and the principles on which it was founded it was the union of those who were at that time members of distinct and separate political communities into one political family whose power for certain specified purposes was to extend over the whole territory of the united states and it gave to each citizen rights and privileges outside of his state which he did not before possess and placed him in every other state upon a perfect equality with its own citizens as to rights of person and rights of property it made him a citizen of the united states it becomes necessary therefore to determine who were citizens of the several states when the constitution was adopted and in order to do this we must recur to the governments and institutions of the thirteen colonies when they separated from great britain informed new sovereignty and took their places in the family of independent nations we must inquire who at that time were recognized as the people or citizens of a state whose rights and liberties had been outraged by the english government and who declared their independence and assumed the powers of government to defend their rights by force of arms in the opinion of the court the legislation and histories of the times and the language used in the declaration of independence show that neither the class of persons who had been imported as slaves nor their descendants whether they had become free or not were then acknowledged as a part of the people nor intended to be included in the general words used in that memorable instrument it is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the declaration of independence and when the constitution of the united states was framed and adopted but the public history of every european nation displays it in a manner too plain to be mistaken they had for more than a century before been regarded as beings of an inferior order and altogether unfit to associate with the white race either in social or political relations and so far inferior they had no rights which the white man was bound to respect and that the negro might justly and lawfully be reduced to slavery for his benefit he was bought and sold and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it this opinion was at that time fixed and universal in the civilized portion of the white race it was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute and men in every grade and position in society daily and habitually acted upon it in their private pursuits as well as in matters of public concern without doubting for a moment the correctness of this opinion and in no nation was this opinion more firmly fixed or more uniformly acted upon than by the english government and english people they not only seized them on the coast of africa and sold them or held them in slavery for their own use but they took them as ordinary articles of merchandise to every country where they could make a profit on them and were far more extensively engaged in this commerce than any other nation in the world the opinion thus entertained and acted upon in england was naturally impressed upon the colonies they founded on this side of the atlantic and accordingly a negro of the african race was regarded by them as an article of property and held and bought and sold as such in every one of 13 colonies which united in the declaration of independence and afterwards formed the constitution of the united states the slaves were more or less numerous in the different colonies as slave labor was found more or less profitable but no one seems to have doubted the correctness of the prevailing opinion of the time the legislation of the different colonies furnishes positive and indisputable proof of this fact it would be tedious in this opinion to enumerate the various laws they passed upon this subject it will be sufficient as a sample of the legislation which then generally prevailed throughout the british colonies to give the laws of two of them one being still a large slave holding state and the other the first state in which slavery ceased to exist the province of mariland in 1717 passed a law declaring that if any free negro or mulatto intermarry with any white woman or if any white man shall intermarry with any negro or mulatto woman such negro or mulatto shall become a slave during life accepting mulatto's born of white women who for such intermarriage shall only become servants for seven years to be disposed of as the justices of the county court where such marriage so happens shall think fit to be applied by them towards the support of a public school within the sed county and any white man or white woman who shall intermarry as a fore said with any negro or mulatto such white man or white woman shall become servants during the term of seven years and shall be disposed of by the justices as a fore said and be applied to the uses of fore said the other colonial law to which we refer was passed by massachusetts in 1705 it is entitled an act for the better preventing of a spurious and mixed issue and it provides that if any negro or mulatto shall presume to smite or strike any person of the english or other christian nation such negro or mulatto shall be severely whipped at the discretion of the justices before whom the offender shall be convicted and that none of her majesty's english or scottish subjects nor of any other christian nation within this province shall contract matrimony with any negro or mulatto nor shall any person duly authorized to solemnize marriage presume to join any such in marriage on pain of forfeiting the sum of 50 pounds one moiety thereof to her majesty for and towards the support of the government within this province and the other moiety to him or them that shall inform and sue for the same in any of her majesty's courts of record within the province by bill, plaint, or information we give both of these laws in the words used by the respective legislative bodies because the language in which they are framed as well as the provisions contained in them show too plainly to be misunderstood the degraded condition of this unhappy race they were still in force when the revolution began and are a faithful index to the state of feeling towards the class of persons of whom they speak and of the position they occupy throughout the 13 colonies in the eyes and thoughts of the men who frame the Declaration of Independence and established the state constitutions and governments they show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery and governed as subjects with absolute and despotic power in which they then looked upon as so far below them in the scale of created beings that intermarriages between white persons and negroes or mulatos were regarded as unnatural and immoral and punished as crimes not only in the parties but in the person who joined them in marriage and no distinction in this respect was made between the free negro or mulato and the slave but this stigma of the deepest degradation was fixed upon the whole race we refer to those historical facts for the purpose of showing the fixed opinions concerning that race upon which the statesmen of that day spoke and acted it is necessary to do this in order to determine whether the general terms used in the Constitution of the United States as to the rights of man and the rights of the people was intended to include them or to give to them or their posterity the benefit of any of its provisions the language of the Declaration of Independence is equally conclusive it begins by declaring that when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature's god entitle them a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation it then proceeds to say we hold these truths to be self-evident that all men are created equal that they are endowed by their creator with certain unalienable rights that among them is life, liberty, and the pursuit of happiness that to secure these rights governments are instituted deriving their just powers from the consent of the governed the general words above quoted would seem to embrace the whole human family and if they were used in a similar instrument at this day would be so understood but it is too clear for dispute that the enslaved African race were not intended to be included and form no part of the people who framed and adopted this declaration for if the language as understood in that day would embrace them the conduct of the distinguished men who frame the declaration of independence would have been utterly and flagrantly inconsistent with the principles they asserted and instead of the sympathy of mankind to which they so confidently appealed they would have deserved and received universal rebuke and reprobation yet the men who framed this declaration were great men high in literary requirements high in their sense of honor and incapable of asserting principles inconsistent with those on which they were acting they perfectly understood the meaning of the language they used and how it would be understood by others and they knew that it would not in any part of the civilized world be supposed to embrace the Negro race which by common consent had been excluded from civilized governments and the family of nations and doomed to slavery they spoke and acted according to the then established doctrines and principles and in the ordinary language of the day and no one misunderstood them the unhappy black race were separated from the white by indelible marks and laws long before established and were never thought of or spoken of except as property and when the claims of the owner or the profit of the trader were supposed to need protection this state of public opinion had undergone no changes when the constitution was adopted as is equally evident from its provisions and language the brief preamble sets forth by whom it was formed for what purposes and for whose benefit and protection it declares that it is formed by the people of the united states that is to say by those who remembers of the different political communities in the several states and its great object is declared to be to secure the blessings of liberty to themselves and their posterity it speaks in general terms of the people of the united states and of citizens of the several states when it is providing for the exercise of the powers granted or the privileges secured to the citizen it does not define what description of persons are intended to be included under these terms or who shall be regarded as a citizen and one of the people it uses them as terms so well understood that no further description or definition was necessary but there are two clauses in the constitution which point directly and specifically to the Negro race as a separate class of persons and show clearly that they were not regarded as a portion of the people or citizens of the government then formed one of these clauses reserves to each of the 13 states the right to import slaves until the year 1808 if it thinks proper and the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking as the traffic and slaves in the united states had always been confined to them and by the other provision the states pledged themselves to each other to maintain the right of property of the master by delivering up to him any slave who may have escaped from his service and be found within their respective territories by the first above mentioned clause therefore the right to purchase and hold this property is directly sanctioned and authorized for 20 years by the people who frame the constitution and by the second they pledged themselves to maintain and uphold the right of the master in the manner specified as long as the government they then formed should endure and these two provisions show conclusively that neither the description of persons therein referred to nor their descendants were embraced in any of the other provisions of the constitution for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty or any of the personal rights so carefully provided for the citizen no one of that race had ever migrated to the united states voluntarily all of them had been brought here as articles of merchandise the number that had been emancipated at that time were but few in comparison with those held in slavery and they were identified in the public mind with the race to which they belonged and regarded as a part of the slave population rather than the free it is obvious that they were not even in the minds of the framers of the constitution when they were conferring special rights and privileges upon the citizens of a state and every other part of the union indeed when we look to the condition of this race in the several states at the time it is impossible to believe that these rights and privileges were intended to be extended to them it is very true that in that portion of the union where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master but few slaves were held at the time of the declaration of independence and when the constitution was adopted it had entirely worn out in one of them and measures had been taken for its gradual abolition and several others but this change had not been produced by any change of opinion in relation to this race but because it was discovered from experience that slave labor was unsuited to the climate and productions of these states for some of the states where it had ceased or nearly ceased to exist were actively engaged in the slave trade procuring cargoes on the coast of Africa and transporting them for sale to those parts of the union where their labor was found to be profitable and suited to the climate and productions and this traffic was openly carried on and fortunes accumulated by it without reproach from the people of the states where they resided and it can hardly be supposed that in the states where it was then countenanced in its worst form that is in the seizure and transportation the people could have regarded those who were emancipated as entitled to equal rights with themselves and we may hear again refer in support of this proposition to the plain and unequivocal language of the laws of the several states some passed after the declaration of independence and before the constitution was adopted and some since the government went into operation we need not refer on this point particularly to the laws of the present slave holding states their statute books are full of provisions in relation to this case in the same spirit with the Maryland law which we have before quoted they have continued to treat them as an inferior class and to subject them to strict police regulations drawing a broad line of distinction between the citizen and the slave races and legislating in relation to them upon the same principle which prevailed at the time of the declaration of independence as relates to these states it is too plain for argument that they have never been regarded as a part of the people or citizens of the state nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure and as long ago as 1822 the court of appeals of Kentucky decided that freed Negroes and mulattoes were not citizens within the meaning of the constitution of the United States and the correctness of this decision is recognized and the same doctrine affirmed in one mix's Tennessee reports 331 and if we turn to the legislation of the states where slavery had worn out or measures taken for its speedy abolition we shall find the same opinions and principles equally fixed and equally acted upon thus Massachusetts in 1786 passed a law similar to the colonial one of which we have spoken the law of 1786 like the law of 1705 forbids the marriage of any white person within a Negro Indian or mulatto and inflicts a penalty of 50 pounds upon anyone who shall join them in marriage and declares all such marriage absolutely null and void and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy and this mark of degradation was renewed and again impressed upon the race and the careful and deliberate preparation of their revised code published in 1836 this code forbids any person from joining in marriage any white person within the Indian Negro or mulatto and subjects the party who shall offend in this respect to imprisonment not exceeding six months in the common jail or to hard labor and to a fine of not less than 50 no more than 200 dollars and like the law of 1786 it declares the marriage to be absolutely null and void it will be seen that the punishment is increased by the code upon the person who shall marry them by adding imprisonment to a pecuniary penalty so too in Connecticut we refer more particularly to the legislation of this state because it was not only among the first to put an end to slavery within its own territory but was the first to fix a mark of reprobation upon the African slave trade the law last mentioned was passed in October 1788 about nine months after the state had ratified and adopted the present constitution of the United States and by that law it prohibited its own citizens under severe penalties from engaging in the trade and declared all policies of insurance on the vessel or cargo made in the state to be null and void but up to the time of the adoption of the constitution there is nothing in the legislation of the state indicating any change of opinion as to the relative rights and position of the white and black races in this country or indicating that it meant to place the ladder when free upon a level with its citizens and certainly nothing which would have led the slave holding states to suppose that Connecticut designed to claim for them under the new constitution the equal rights and privileges and rank of citizens in every other state the first step taken by Connecticut upon the subject was as early as 1774 when it passed an act forbidding the further importation of slaves into the state but the section containing the prohibition is introduced by the following preamble and whereas the increase of slaves in this state is injurious to the poor and inconvenient this recital would appear to have been carefully introduced in order to prevent any misunderstanding of the motive which induced the legislature to pass the law and places it distinctly upon the interest and convenience of the white population excluding the inference that it might have been intended in any degree for the benefit of the other and in the act of 1784 by which the issue of slaves born after the time there and mentioned were to be free at a certain age the section is again introduced by a preamble assigning a similar motive for the act it is in these words whereas sound policy requires that the abolition of slavery should be affected as soon as may be consistent with the rights of individuals and the public safety and welfare showing that the right of property in the master was to be protected and that the measure was one of policy and to prevent the injury and inconvenience to the whites of a slave population in the state and still further pursuing its legislation we find that in the same statute passed in 1774 which prohibited the further importation of slaves into the state there is also provision by which any negro indian or mulatto servant who was found wandering out of the town or place to which he belonged without a written pass such as is there in described was made liable to be seized by anyone and taken before the next authority to be examined and delivered up to his master who was required to pay the charge which had accrued thereby and a subsequent section of the same law provides that if any free negro shall travel without such pass and shall be stopped seized or taken up he shall pay all charges arising thereby and this law was in full operation when the constitution of the united states was adopted and was not repealed till 1797 so that up to that time free negros and mulattas were associated with servants and slaves and the police regulations established by the laws of the state and again in 1833 connecticut passed another law which made it penal to set up or establish any school in that state for the instruction of persons of the african race not inhabitants of the state or to instruct or teach in any such school or institution or board or harbor for that purpose any such person without the previous consent in writing of the civil authority of the town in which such school or institution might be and it appears by the case of krandall versus the state that upon an information filed against prudence krandall for a violation of this law one of the points raised in the defense was that the law was a violation of the constitution of the united states and that the persons instructed although of the african race were citizens of other states and therefore entitled to the rights and privileges of citizens in the state of connecticut but chief justice daggett before whom the case was tried held that persons of that description were not citizens of a state within the meaning of the words citizen in the constitution of the united states and were not therefore entitled to the privileges and immunities of citizens in other states the case was carried up to the supreme court of errors of the state and the question fully argued there but the case went off upon another point and no opinion was expressed on this question we have made this particular examination into the legislative and judicial action of connecticut because from the early hostility it displayed to the slave trade on the coast of africa we may expect to find the laws of that state as lenient and favorable to the subject race as those of any other state in the union and if we find that at the time the constitution was adopted they were not even there raised to the rank of citizens but were still held and treated as property and the laws relating to them passed with reference altogether to the interest and convenience of the white race we shall hardly find them elevated to a higher rank anywhere else a brief notice of the laws of two other states and we shall pass on to other considerations by the laws of new hampshire collected and finally passed in 1815 no one was permitted to be enrolled in the militia of the state but free white citizens and the same provision is found in a subsequent collection of the laws made in 1855 nothing could more strongly mark the entire repudiation of the african race the alien is excluded because being born in a foreign country he cannot be a member of the community until he is naturalized but why are the african race born in the state not permitted to share in one of the highest duties of the citizen the answer is obvious he is not by the institutions and laws of the state numbered among its people he forms no part of the sovereignty of the state and is not therefore called on to uphold and defend it again in 1822 road island in its revised code passed a law forbidding persons who were authorized to join persons in marriage from joining in marriage any white person with any negro indian or mulatto under the penalty of two hundred dollars and declaring all such marriages absolutely null and void and the same law was again reenacted in its revised code of 1844 so that down to the last mentioned period the strongest mark of inferiority and degradation was fastened upon the african race in that state end of part one part two of dread scott versus sanford this is a libra vox recording all libra vox recordings are in the public domain for more information or to volunteer please visit libra vox.org recording by kelly robinson in birmingham alabama dread scott versus sanford an opinion of the united states supreme court part two it would be impossible to enumerate and compress in the space usually allotted to an opinion of a court the various laws marking the condition of this race which were passed from time to time after the revolution and before and since the adoption of the constitution of the united states in addition to those already referred to it is sufficient to say that chancellor kent whose accuracy and research no one will question states in the sixth edition of his commentaries that in no part of the country except main did the african race in point of fact participate equally with the whites in the exercise of civil and political rights the legislation of the states therefore shows in a manner not to be mistaken the inferior and subject condition of that race at the time the constitution was adopted and long afterwards throughout the 13 states by which that instrument was framed and it is hardly consistent with the respect due to these states to suppose that they were guarded at that time as fellow citizens and members of the sovereignty class of beings whom they had thus stigmatized whom as we are bound out of respect to the state's sovereignty's to assume they had deemed it just and necessary thus to stigmatize and upon whom they had impressed such deep and enduring marks of inferiority and degradation or that when they met in convention to form the constitution they looked upon them as a portion of their constituents or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens it cannot be supposed that they intended to secure to them rights and privileges and rank in the new political body throughout the union which every one of them denied within the limits of its own dominion more especially it cannot be believed that the large slaveholding states regarded them as included in the word citizens or would have consented to a constitution which might compel them to receive them in that character from another state for if they were so received and entitled to the privileges and immunities of citizens it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety it would give to persons of the negro race who were recognized as citizens in any one state of the union the right to enter every other state whenever they pleased singly or in companies without pass or passport and without obstruction to sojourn there as long as they pleased to go where they pleased at every hour of the day or night without molestation unless they committed some violation of law for which a white man would be punished and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak to hold public meetings upon political affairs and to keep and carry arms wherever they went and all of this would be done in the face of the subject race of the same color both free and slaves and inevitably producing discontent and insubordination among them and endangering the peace and safety of the state it is impossible it would seem to believe that the great men of the slave holding states who took so large a share in framing the constitution of the united states and exercised so much influence in procuring its adoption could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them besides this want of foresight and care would have been utterly inconsistent with the caution displayed in providing for the admission of new members into this political family for when they gave to the citizens of each state the privileges and immunities of citizens in the several states they at the same time took from the several states the power of naturalization and confined that power exclusively to the federal government no state was willing to permit another state to determine who should or should not be admitted as one of its citizens and entitled to demand equal rights and privileges with their own people within their own territories the right of naturalization was therefore with one accord surrendered by the states and confided to the federal government and this power granted to congress to establish a uniform rule of naturalization is by the well understood meaning of the word confined to persons born in a foreign country under a foreign government it is not a power to raise to the rank of a citizen anyone born in the united states who from birth or parentage by the laws of the country belongs to an inferior and subordinate class and when we find the states guarding themselves from the indiscreet or improper admission by other states of immigrants from other countries by giving the power exclusively to congress we cannot fail to see that they could never have left with the states a much more important power that is the power of transforming into citizens a numerous class of persons who in that character would be much more dangerous to the peace and safety of a large portion of the union than the few foreigners one of the states might improperly naturalize the constitution upon its adoption obviously took from the states all power by any subsequent legislation to introduce as a citizen into the political family of the united states anyone no matter where he was born or what might be his character or condition and it gave to congress the power to confer this character upon those only who were born outside of the dominions of the united states and no law of a state therefore passed since the constitution was adopted can give any right of citizenship outside of its own territory a clause similar to the one in the constitution in relation to the rights and immunities of citizens of one state in the other states was contained in the articles of confederation but there is a difference of language which is worthy of note the provision in the articles of confederation was that the free inhabitants of each of the states poppers vagabonds and fugitives from justice accepted should be entitled to all the privileges and immunities of free citizens in the several states it will be observed that under this confederation each state had the right to decide for itself and in its own tribunals whom it would acknowledge as a free inhabitant of another state the term free inhabitant in the generality of its terms would certainly include one of the african race who had been manumitted but no example we think can be found of his admission to all the privileges of citizenship in any state of the union after these articles were formed and while they continued in force and notwithstanding the generality of the words free inhabitants it is very clear that according to their accepted meaning in that day they did not include the african race whether free or not for the fifth section of the ninth article provides that congress should have the power to agree upon the number of land forces to be raised and to make requisitions from each state for its quota in proportion to the number of white inhabitants in such state which requisition should be binding words could hardly have been used which more strongly marked the line of distinction between the citizen and the subject the free and the subjugated races the latter were not even counted when the inhabitants of a state were to be embodied in proportion to its numbers for the general defense and it cannot for a moment be supposed that a class of persons thus separated and rejected from those who formed the sovereignty of the states were yet intended to be included under the words free inhabitants in the preceding article to whom privileges and immunities were so carefully secured in every state but although this clause of the articles of confederation is the same in principle with that inserted in the constitution yet the comprehensive word inhabitant which might be construed to include an emancipated slave is omitted and the privilege is confined to citizens of the state and this alteration in words would hardly have been made unless a different meaning was intended to be conveyed or a possible doubt removed the just and fair inference is that as this privilege was about to be placed under the protection of the general government and the words expounded by its tribunals and all power in relation to it taken from the state in its courts it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given and the word citizen was on that account substituted for the words free inhabitant the word citizen excluded and no doubt intended to exclude foreigners who had not become citizens of some one of the states when the constitution was adopted and also every description of persons who were not fully recognized as citizens in the several states this upon any fair construction of the instruments to which we have referred was evidently the object and purpose of this change of words to all this massive proof we have still to add that congress has repeatedly legislated upon the same construction of the constitution that we have given three laws two of which were passed almost immediately after the government went into operation will be abundantly sufficient to show this the two first are particularly worthy of notice because many of the men who assisted in framing the constitution and took an active part in procuring its adoption were then in the halls of legislation and certainly understood what they meant when they used the words people of the united states and citizen in that well considered instrument the first of these acts is the naturalization law which was passed at the second session of the first congress march 26th 1790 and confines the right of becoming citizens to aliens being free white persons now the constitution does not limit the power of congress in this respect to white persons and they may if they think proper authorize the naturalization of anyone of any color who was born under allegiance to another government but the language of the law above quoted shows that citizenship at that time was perfectly understood to be confined to the white race and that they alone constituted the sovereignty in the government congress might as we before said have authorized the naturalization of Indians because they were aliens and foreigners but in their then untutored and savage state no one would have thought of admitting them as citizens in a civilized community and moreover the atrocities they had but recently committed when they were the allies of great britain in the revolutionary war were yet fresh in the recollection of the people of the united states and they were even then guarding themselves against the threatened renewal of indian hostilities no one supposed then that any indian would ask for or was capable of enjoying the privileges of an american citizen and the word white was not used with any particular reference to them neither was it used with any reference to the african race imported into or born in this country because congress had no power to naturalize them and therefore there was no necessity for using particular words to exclude them it would seem to have been used merely because it followed out the line of division which the constitution has drawn between the citizen race who formed and held the government and the african race which they held in subjection and slavery and governed at their own pleasure another of the early laws of which we have spoken is the first militia law which was passed in 1792 at the first session of the second congress the language of this law is equally plain and significant with the one just mentioned it directs that every free able-bodied white male citizen shall be enrolled in the militia the word white is evidently used to exclude the african race and the word citizen to exclude unnaturalized foreigners the latter forming no part of the sovereignty owing it no allegiance and therefore under no obligation to defend it the african race however born in the country did owe allegiance to the government whether they were slave or free but it is repudiated and rejected from the duties and obligations of citizenship in marked language the third act to which we have alluded is even still more decisive it was passed as late as 1813 and it provides that from and after the termination of the war in which the united states are now engaged with great britain it shall not be lawful to employ on board of any public or private vessels of the united states any person or persons except citizens of the united states or persons of color natives of the united states here the line of distinction is drawn in express words persons of color and the judgment of congress were not included in the word citizens and they are described as another and different class of persons and authorized to be employed if born in the united states and even as late as 1820 in the charter to the city of washington the corporation is authorized to restrain and prohibit the nightly and other disorderly meetings of slaves free negroes and mulattoes thus associating them together in its legislation and after prescribing the punishment that may be inflicted on the slaves proceeds in the following words and to punish such free negroes and mulattoes by penalties not exceeding twenty dollars for any one offense and in case of the inability of any such free negro or mulatto to pay any such penalty and cost there on to cause him or her to be confined to labor for any time not exceeding six calendar months and in a subsequent part of the same section the act authorizes the corporation to prescribe the terms and conditions upon which free negroes and mulattoes may reside in the city this law like the laws of the states shows that this class of persons were governed by special legislation directed expressly to them and always connected with provisions for the government of slaves and not with those for the government of free white citizens and after such a uniform course of legislation as we have stated by the colonies by the states and by congress running through a period of more than a century it would seem that to call persons thus marked and stigmatized citizens of the united states fellow citizens a constituent part of the sovereignty would be in abusive terms and not calculated to exalt the character of an american citizen in the eyes of other nations the conduct of the executive department of the government has been in perfect harmony upon the subject with this course of legislation the question was brought officially before the late william worked when he was the attorney general of the united states in 1821 and he decided that the words citizens of the united states were used in the acts of congress in the same sense as in the constitution and that free persons of color were not citizens within the meaning of the constitution and laws and this opinion has been confirmed by that of the late attorney general calib cushing in a recent case and acted upon by the secretary of state who refused to grant passports to them as citizens of the united states and it is said that a person may be a citizen and entitled to that character although he does not possess all the rights which may belong to other citizens as for example the right to vote or to hold particular offices and that yet when he goes into another state he is entitled to be recognized there as a citizen although the state may measure his rights by the rights which allows to persons of a light character or class resident in the state and refuse to him the full rights of citizenship this argument overlooks the language of the provision in the constitution of which we are speaking undoubtedly a person may be a citizen that is a member of the community who form the sovereignty although he exercises no share of the political power and is incapacitated from holding particular offices women and minors who form a part of the political family cannot vote and when property qualification is required to vote or hold a particular office those who have not the necessary qualification cannot vote or hold the office yet they are citizens so too a person may be entitled to vote by the law of the state who is not a citizen even of the state itself and in some of the states of the union foreigners not naturalized are allowed to vote and the state may give the right to free negroes and mulattoes but that does not make them citizens of the state and still less of the united states and the provision in the constitution giving privileges and immunities in other states does not apply to them neither does it apply to a person who being the citizen of a state migrates to another state for then he becomes subject to the laws of the state in which he lives and he is no longer a citizen of the state from which he removed and the state in which he resides may then unquestionably determine his status or condition and place him among the class of persons who are not recognized as citizens but belong to an inferior and subject race and may deny him the privileges and immunities enjoyed by its citizens but so far as mere rights of person are concerned provision in question is confined to citizens of a state who are temporarily in another state without taking up their residence there it gives them no political rights in the state as to voting or holding office or in any other respect for a citizen of one state has no right to participate in the government of another but if he ranks as a citizen in the state to which he belongs within the meaning of the constitution of the united states then whenever he goes into another state the constitution clothes him as the rights of person with all the privileges and immunities which belong to citizens of the state and if persons of the african race are citizens of a state and of the united states they would be entitled to all of these privileges and immunities in every state and the state could not restrict them for they would hold these privileges and immunities under the paramount authority of the federal government and its courts would be bound to maintain and enforce them the constitution and laws of the state to the contrary notwithstanding and if the states could limit or restrict them or place the party in an inferior grade this clause of the constitution would be unmeaning and could have no operation and would give no rights to the citizen when in another state he would have none but what the state itself chose to allow him this is evidently not the construction or meaning of the clause in question it guarantees rights to the citizen and the state cannot withhold them and these rights are of a character and would lead to consequences which make it absolutely certain that the african race were not included under the name of citizens of a state and were not in the contemplation of the framers of the constitution when these privileges and immunities were provided for the protection of the citizen in other states the case of le grand versus darnall has been referred to for the purpose of showing that this court has decided that the descendant of a slave may sue as a citizen in a court of the united states but the case itself shows that the question did not arise and could not have arisen in the case it appears from the report that darnall was born in maryland and was the son of a white man by one of his slaves and his father executed certain instruments to manumit him and devised to him some landed property in the state this property darnall afterwards sold to le grand the appellant who gave his notes for the purchase money but becoming afterwards apprehensive that the appellee had not been emancipated according to the laws of maryland he refused to pay the notes until he could be better satisfied as to darnall's right to convey darnall in the meantime had taken up his residence in pennsylvania and brought suit on the notes and recovered judgment in the circuit court for the district of maryland the whole proceeding as appears by the report was an amicable one le grand being perfectly willing to pay the money if he could obtain a title and darnall not wishing him to pay unless he could make him a good one and point of fact the whole proceeding was under the direction of the council who argued the case for the appellee who was the mutual friend of the parties and confided in by both of them and whose only object was to have the rights of both parties established by judicial decision in the most speedy and least expensive manner le grand therefore raised no objection to the jurisdiction of the court in the suited law because he was himself anxious to obtain the judgment of the court upon his title consequently there was nothing in the record before the court to show that darnall was of african descent and the usual judgment and a word of execution was entered and le grand there upon filed his bill on the equity side of the circuit court stating that darnall was born a slave and had not been legally emancipated and could not therefore take the land devised to him nor make le grand a good title and praying an injunction to restrain darnall from proceeding to execution on the judgment which was granted darnall answered a verring in his answer that he was a free man and capable of conveying a good title testimony was taken on this point and at the hearing the circuit court was of opinion that darnall was a free man and his title good and dissolved the injunction and dismissed the bill and that decree was affirmed here upon the appeal of le grand now it is difficult to imagine how any question about the citizenship of darnall or his right to sue in that character can be supposed to have arisen or been decided in that case the fact that he was of african descent was first brought before the court upon the bill in equity the suited law had then passed into judgment and a word of execution and the circuit court as a court of law had no longer any authority over it it was a valid and legal judgment which the court that rendered it had not the power to reverse or set aside and unless it had jurisdiction as a court of equity to restrain him from using its process as a court of law darnall if he thought proper would have been at liberty to proceed on his judgment and compel the payment of the money although the allegations in the bill were true and he was incapable of making a title no other court could have enjoined him for certainly no state equity court could interfere in that way with the judgment of a circuit court of the united states but the circuit court as a court of equity certainly had equity jurisdiction over its own judgment as a court of law without regard to the character of the parties and had not only the right but it was its duty no matter who were the parties in the judgment to prevent them from proceeding to enforce it by execution if the court was satisfied that the money was not justly and equitably due the ability of darnall to convey did not depend upon his citizenship but upon his title to freedom and if he was free he could hold and convey property by the laws of maryland although he was not a citizen but if he was by law still a slave he could not it was therefore the duty of the court sitting as a court of equity in the latter case to prevent him from using its process as a court of common law to compel the payment of the purchase money when it was evident that the purchaser might lose the land but if he was free and could make a title it was equally the duty of the court not to suffer le grand to keep the land and refuse the payment of the money upon the ground that darnall was incapable of suing or being sued as a citizen in a court of the united states the character or citizenship of the parties had no connection with the question of jurisdiction and the matter in dispute had no relation to the citizenship of darnall nor is such a question alluded to in the opinion of the court besides we are by no means prepared to say that there are not many cases civil as well as criminal in which a circuit court of the united states may exercise jurisdiction although one of the african race is a party that broad question is not before the court the question with which we are now dealing is whether a person of the african race can be a citizen of the united states and become thereby entitled to a special privilege by virtue of his title to that character and which under the constitution no one but a citizen can claim it is manifest that the case of le grand and darnall has no bearing on that question and can have no application to the case now before the court this case however strikingly illustrates the consequences that would follow the construction of the constitution which would give the power contended for to a state it wouldn't affect to give it also to an individual if the father of young darnall had manumitted him in his lifetime and sent him to reside in a state which recognized him as a citizen he might have visited and sojourned in maryland when he pleased and as long as he pleased as a citizen of the united states and the state officers and tribunals would be compelled by the paramount authority of the constitution to receive him and treat him as one of its citizens exempt from the laws and police of the state in relation to a person of that description and allow him to enjoy all the rights and privileges of citizenship without respect to the laws of maryland although such laws were deemed by it absolutely essential to its own safety the only two provisions which point to them and include them treat them as property and make it the duty of the government to protect it no other power in relation to this race is to be found in the constitution and as it is a government of special delegated powers no authority beyond these two provisions can be constitutionally exercised the government of the united states had no right to interfere for any other purpose but that of protecting the rights of the owner leaving it all together with the several states to deal with this race whether emancipated or not as each state may think justice humanity and the interests and safety of society require the states evidently intended to reserve this power exclusively to themselves no one we presume supposes that any change in public opinion or feeling in relation to this unfortunate race in the civilized nations of europe or in this country should induce the court to give to the words of the constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted such an argument would be altogether inadmissible in any tribunal called on to interpret it if any of its provisions are deemed unjust there is a mode prescribed in the instrument itself by which it may be amended but while it remains unaltered it must be construed now as it was understood at the time of its adoption it is not only the same in words but the same in meaning and delegates the same powers to the government and reserves and secures the same rights and privileges to the citizen and as long as it continues to exist in its present form it speaks not only in the same words but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the united states any other rule of construction would abrogate the judicial character of this court and make it the mere reflex of the popular opinion or passion of the day this court was not created by the constitution for such purposes higher and graver trusts have been confided to it and it must not falter in the path of duty what the construction was at that time we think can hardly admit of doubt we have the language of the declaration of independence and of the articles of confederation in addition to the plain words of the constitution itself we have the legislation of the different states before about the time and since the constitution was adopted we have the legislation of congress from the time of its adoption to a recent period and we have the constant and uniform action of the executive department all concurring together and leading to the same result and if anything in relation to the construction of the constitution can be regarded as settled it is that which we now give to the word citizen and the word people and upon a full and careful consideration of the subject the court is of the opinion that upon the fact stated in the plea and abatement dred Scott was not a citizen of Missouri within the meaning of the constitution of the united states and not entitled as such to sue in its courts and consequently that the circuit court had no jurisdiction of the case and that the judgment on the plea and abatement is erroneous we are aware that doubts are entertained by some of the members of the court whether the plea and abatement is legally before the court upon this writ of error but if that plea is regarded as waived or out of the case upon any other ground yet the question as to the jurisdiction of the circuit court is presented on the face of the bill of exception itself taken by the plaintiff at the trial for he admits that he and his wife were born slaves but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places here and after mentioned where slavery could not by law exist and that they thereby became free and upon their return to Missouri became citizens of that state now if the removal of which he speaks did not give them their freedom then by his own admission he is still a slave and whatever opinions may be entertained in favor of the citizenship of a free person of the African race no one supposes that a slave is a citizen of the state or of the united states if therefore the acts done by his owner did not make them free persons he is still a slave and certainly incapable of suing in the character of a citizen the principle of law is too settled to be disputed that a court can give no judgment for either party where it has no jurisdiction and if upon the showing of scott himself it appears that he was still a slave the case ought to have been dismissed and the judgment against him and in favor of the defendant for costs is like that on the plein abatement erroneous and the suit ought to have been dismissed by the circuit court for want of jurisdiction in that court but before we proceed to examine this part of the case it may be proper to notice an objection taken to the judicial authority of this court to decide it and it has been said that as this court has decided against the jurisdiction of the circuit court on the plein abatement it has no right to examine any question presented by the exception and that anything it may say upon that part of the case will be extra judicial and mere obiter dicta this is a manifest mistake there can be no doubt as to the jurisdiction of this court to revise the judgment of a circuit court and to reverse it for any error apparent on the record whether it be the error of giving judgment in a case over which it had no jurisdiction or any other material error and this too whether there is a plein abatement or not the objection appears to have arisen from confounding writs of error to a state court with writs of error to a circuit court of the united states undoubtedly upon a writ of error to a state court unless the record shows a case that gives jurisdiction the case must be dismissed for want of jurisdiction in this court and if it is dismissed on that ground we have no right to examine and decide upon any question presented by the bill of exceptions or any other part of the record but writs of error to a state court and to a circuit court of the united states are regulated by different laws and stand upon entirely different principles and in a writ of error to a circuit court of the united states the whole record is before this court for examination and decision and if the sum and controversy is large enough to give jurisdiction it is not only the right but it is the judicial duty of the court to examine the whole case as presented by the record and if it appears upon its face that any material error or errors have been committed by the court below it is the duty of this court to reverse the judgment and remand the case and certainly an error in passing a judgment upon the merits in favor of either party in a case which it was not authorized to try and over which it had no jurisdiction is as grave an error as a court can commit the plea and abatement is not a plea to the jurisdiction of this court but to the jurisdiction of the circuit court and it appears by the record before us that the circuit court committed an error in deciding that it had jurisdiction upon the facts in the case admitted by the pleadings it is the duty of the appellate tribunal to correct this error but that could not be done by dismissing the case for want of jurisdiction here for that would leave the erroneous judgment in full force and the injured party without remedy and the appellate court therefore exercises the power for which alone appellate courts are constituted by reversing the judgment of the court below for this error it exercises its proper and appropriate jurisdiction over the judgment and proceedings of the circuit court as they appear upon the record brought up by the writ of error the correction of one error in the court below does not deprive the appellate court of the power of examining further into the record and correcting any other material errors which may have been committed by the inferior court there is certainly no rule of law nor any practice nor any decision of a court which even questions this power in the appellate tribunal on the contrary it is the daily practice of this court and of all appellate courts where they reverse the judgment of an inferior court for error to correct by its opinions whatever errors may appear on the record material to and they have always held it to be their duty to do so where the silence of the court might lead to misconstruction or future controversy and the point has been relied on by either side and argued before the court in the case before us we have already decided that the circuit court aired in deciding that it had jurisdiction upon the facts admitted by the pleadings and it appears that in the further progress of the case it acted upon the erroneous principle it had decided on the pleadings and gave judgment for the defendant where upon the facts admitted in the exception it had no jurisdiction we are at a loss to understand upon what principle of law applicable to appellate jurisdiction it can be supposed that this court has not judicial authority to correct the last mentioned error because they had before corrected the former or by what process of reasoning it can be made out that the error of an inferior court in actually pronouncing judgment for one of the parties in a case in which it had no jurisdiction cannot be looked into or corrected by this court because we have decided a similar question presented in the pleadings the last point is distinctly presented by the facts contained in the plaintiff's own bill of exceptions which he himself brings here by this writ of error it was the point which chiefly occupy the attention of the council on both sides in the argument and the judgment which this court must render upon both errors is precisely the same it must in each of them exercise jurisdiction over the judgment and reverse it for the errors committed by the court below and issue a mandate to the circuit court to conform its judgment to the opinion pronounced by this court by dismissing the case for want of jurisdiction in the circuit court this is the constant and invariable practice of this court where it reverses a judgment for want of jurisdiction in the circuit court it can scarcely be necessary to pursue such a question further the want of jurisdiction in the court below may appear on the record without any plea and abatement this is familiarly the case where a court of chancery has exercised jurisdiction in a case where the plaintiff had a plain and adequate remedy at law and it so appears by the transcript when brought here by appeal so also where it appears that a court of admiralty has exercised jurisdiction in a case belonging exclusively to a court of common law in these cases there is no plea and abatement and for the same reason and upon the same principles where the defect of jurisdiction is patent on the record this court is bound to reverse the judgment although the defendant has not pleaded in abatement to the jurisdiction of the inferior court the cases of Jackson versus Ashton and of Capron versus Van Norden to which we have referred in a previous part of this opinion are directly in point in the last mentioned case Capron brought an action against Van Norden in a circuit court of the united states without showing by the usual averments of citizenship that the court had jurisdiction there was no plea and abatement put in and the parties went to trial upon the merits the court gave judgment in favor of the defendant with costs the plaintiff there upon brought his writ of error and this court reversed the judgment given in favor of the defendant and remanded the case with directions to dismiss it because it did not appear by the transcript that the circuit court had jurisdiction the case before us still more strongly imposes upon this court the duty of examining whether the court below has not committed an error in taking jurisdiction and giving a judgment for costs in favor of the defendant for in Capron versus Van Norden the judgment was reversed because it did not appear that the parties were citizens of different states they might or might not be but in this case it does appear that the plaintiff was born a slave and if the facts upon which he relives have not made him free then it appears affirmatively on the record that he is not a citizen and consequently his suit against sanford was not a suit between citizens of different states and the court had no authority to pass any judgment between the parties the suit ought in this view of it to have been dismissed by the circuit court and its judgment in favor of sanford is erroneous and must be reversed it is true that the result either way by dismissal or by a judgment for the defendant makes very little if any difference in a pecuniary or personal point of view to either party but the fact that the result would be very nearly the same to the parties in either form of judgment would not justify this court in sanctioning an error in the judgment which is patent on the record and which if sanctioned might be drawn into precedent and lead to serious mischief and injustice in some future suit we proceed therefore to inquire whether the facts relied on by the plaintiff entitled him to his freedom the case as he himself states it on the record brought here by his rid of error is this the plaintiff was a Negro slave belonging to dr emerson who was a surgeon in the army of the united states in the year 1834 he took the plaintiff from the state of Missouri to the military post at rock island in the state of illinois and held him there as a slave until the month of april or may 1836 at the time last mentioned said dr emerson removed the plaintiff from said military post at rock island to the military post at fort situate on the west bank of the mississippi river in the territory known as upper louisiana acquired by the united states of france and situate north of the latitude of 36 degrees 30 minutes north and north of the state of Missouri said dr emerson held the plaintiff in slavery at said fort snelling from said last mentioned date until the year 1838 in the year 1835 harriet who was named in the second count of the plaintiff's declaration was the negro slave of major tally afaro who belonged to the army of the united states in that year 1835 said major tally afaro took said harriet to said fort snelling a military post situated as here and before stated and kept her there as a slave until the year 1836 and then sold and delivered her as a slave at said fort snelling unto the said dr emerson here and before named said dr emerson held said harriet in slavery at said fort snelling until the year 1838 in the year 1836 the plaintiff and harriet intermarried at fort snelling with the consent of dr emerson who then claimed to be their master and owner aliza and lizzie named in the third count of the plaintiff's declaration are the fruit of that marriage aliza is about 14 years old and was born on board the steamboat gypsy north of the north line of the state of missouri and upon the river mississippi lizzie is about seven years old and was born in the state of missouri at the military post called jefferson barracks in the year 1838 said dr emerson removed the plaintiff and said harriet and their said daughter aliza from said fort snelling to the state of missouri where they have ever since resided before the commencement of the suit said dr emerson sold and conveyed the plaintiff and harriet aliza and lizzie to the defendant as slaves and the defendant has ever since claimed to hold them and each of them as slaves in considering this part of the controversy two questions arise number one was he together with his family free in missouri by reason of the stay in the territory of the united states here and before mentioned and number two if they were not scott himself free by reason of his removal to rock island in the state of illinois as stated in the above admissions we proceed to examine the first question the act of congress upon which the plaintiff relies declares that slavery and involuntary servitude except as a punishment for crime shall be forever prohibited and all that part of the territory ceded by france under the name of louisiana which lies north of 36 degrees 30 minutes north latitude and not included within the limits of missouri and the difficulty which meets us at the threshold of this part of the inquiry is whether congress was authorized to pass this law under any of the powers granted to it by the constitution for if the authority is not given by that instrument it is the duty of this court to declare it void and inoperative and incapable of conferring freedom upon anyone who is held as a slave under the have of any one of the states the council for the plaintiff has laid much stress upon the article in the constitution which confers on congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states but in the judgment of the court that provision has no bearing on the present controversy and the power they're given whatever it may be is confined and was intended to be confined to the territory which at that time belonged to or was claimed by the united states and was within their boundaries as settled by the treaty with great britain and can have no influence upon a territory afterwards acquired from a foreign government it was a special provision for a known in particular territory and to meet a present emergency and nothing more a brief summary of the history of the times as well as the careful and measured terms in which the article is framed will show the correctness of this proposition it will be remembered that from the commencement of the revolutionary war serious difficulties existed between the states in relation to the disposition of large and unsettled territories which were included in the chartered limits of some of the states and some of the other states and more especially maryland which had no unsettled lands insisted that as the unoccupied lands if rested from great britain would owe their preservation to the common purse and the common sword the money arising from them ought to be applied in just proportion among the several states to pay the expenses of the war and ought not to be appropriated to the use of the state in whose chartered limits they might happen to lie to the exclusion of the other states by whose combined efforts and common expense the territory was defended and preserved against the claim of the british government these difficulties caused much uneasiness during the war while the issue was in some degree doubtful and the future boundaries of the united states yet to be defined by treaty if we achieved our independence the majority of the congress of the confederation obviously concurred in opinion with the state of maryland and desire to obtain from the states which claimed it a session of this territory in order that congress might raise money on this security to carry on the war this appears by the resolution passed on the 6th of september 1780 strongly urging the states to seed these lands to the united states both for the sake of peace and union among themselves and to maintain the public credit and this was followed by the resolution of october 10th 1780 by which congress pledged itself that if the lands were seated as recommended by the resolution above mentioned they should be disposed of for the common benefit of the united states and be settled and formed into distinct republican states which should become members of the federal union and have the same rights of sovereignty and freedom and independence as other states but these difficulties became much more serious after peace took place and the boundaries of the united states were established every state at that time felt severely pressure of its war debt but in virginia and some other states there were large territories of unsettled lands the sale of which would enable them to discharge their obligations without much inconvenience while other states which had no such resource saw before them many years of heavy and burdensome taxation and the latter insisted for the reasons before stated that these unsettled lands should be treated as the common property of the states and the proceeds applied to their common benefit the letters from the statesmen of that day will show how much this controversy occupied their thoughts and the dangers that were apprehended from it it was the disturbing element of the time and fears were entertained that it might dissolve the confederation by which the states were then united these fears and dangers were however at once removed when the state of virginia in 1784 voluntarily seated to the united states the immense tract of land lying northwest of the river Ohio and which was within the acknowledged limits of the state the only object of the state in making this session was to put an end to the threatening and exciting controversy and to enable the congress of that time to dispose of the lands and appropriate the proceeds as a common fund for the common benefit of the states it was not seated because it was inconvenient to the state to hold and govern it nor from any expectation that it could be better or more conveniently governed by the united states the example of virginia was soon afterwards followed by other states and at the time of the adoption of the constitution all of the states similarly situated had seated their unappropriated lands except north carolina and georgia the main object for which these sessions were desired and made was on account of their money value and to put an end to a dangerous controversy as to who was justly entitled to the proceeds when the lands should be sold it is necessary to bring this part of the history of these sessions thus distinctly into view because it will enable us the better to comprehend the phraseology of the article in the constitution so often referred to in the argument undoubtedly the powers of sovereignty in the eminent domain were seated with the land this was essential in order to make it effectual and to accomplish its objects but it must be remembered that at that time there was no government of the united states in existence with a enumerated and limited powers what was then called the united states were 13 separate sovereign independent states which had entered into a league or confederation for their mutual protection and advantage and the congress of the united states was composed of the representatives of these separate sovereignty's meeting together as equals to discuss and decide on certain measures which the states by the articles of confederation had agreed to submit to their decision but this confederation had none of the attributes of sovereignty in legislative, executive, or judicial power it was little more than a congress of ambassadors authorized to represent separate nations in matters in which they had a common concern. End of part two