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[Cite as Dred Scott v. Sandford, 60 U.S. 393,
417, 450-451 (1857). NOTE: This decision concerned whether
African-Americans could be considered United States citizens and capable of
bringing suit in federal courts. The Court relied upon historic discrimination
which denied African-Americans the rights of citizens. The Court's most
conclusive example (their terms) was New Hampshire's 1815 laws which denied
militia participation to African-Americans: "Nothing could more strongly mark
the entire repudiation of the African race." (P. 415) Among the
resulting parade of horribles should African-Americans be considered
citizens, the Court enumerated the rights of citizens and included the right to
arms: "It would give to persons of the negro race, ... the right to enter every
other State whenever they pleased, ... 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." (P. 417) Asserting the
federal government had no power to enact Territorial laws which would infringe
property rights (slaves as property), the court listed rights individuals
possess upon entering a Territory destined to become a state and again mentioned
the right to arms: "... no one, we presume, will contend that Congress can make
any law in a Territory respecting the establishment of religion, or the free
exercise thereof, or abridging the freedom of speech or of the press, or the
right of the people of the Territory peaceably to assemble, and to petition the
Government for the redress of grievances." "Nor can Congress deny to the people
the right to keep and bear arms, nor the right to trial by
jury, nor compel any one to be a witness against himself in a criminal
proceeding.... The powers over person and property of which we speak are not
only not granted to Congress, but are in express terms denied, and they are
forbidden to exercise them." (Pp. 450-51) In this
respect the Dred Scott decision is similar to its contemporary, Cooper and Warsham v. Savannah, 4 Ga. 68, 72 (1848). It is likewise similar
to other Supreme Court decisions which list individual rights and include the
right to arms. (Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897); United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)) Other
points of interest could be the Court's profession of duty to interpret the
Constitution "according to its true intent and meaning when it was adopted."
(p. 405); quoting
"an American patriot" for the point that "European sovereigns give lands to
their colonists, but reserve power to control their property and liberty"
whereas the "American government sells lands belonging to the people of the
several states ... to their citizens, who are already in possession of personal
and political rights, which the Government did not give, and cannot take away."
concurring) For further information on Dred Scott, visit Sonja's
Dred Scott page (includes a photo of Mr. Scott) and Lisa Cozzens' Dred Scott:
Dred Scott, Plaintiff in Error, v. John F. A. Sandford
1. Upon a writ of error to a Circuit Court of the
United States, the transcript of the record of all the proceedings of the case
is brought before this court, and is open to its inspection and revision.
2. When a plea to the jurisdiction, in abatement,
is overruled by the court upon demurrer, and the defendant pleads in bar, and
upon these pleas the final judgment of the court is in his favor--if the
plaintiff brings a writ of error, the judgment of the court upon the plea in
abatement is before this court, although it was in favor of the plaintiff--and
if the court erred in overruling it, the judgment must be reversed, and a
mandate issued to the Circuit Court to dismiss the case for want of
3. In the Circuit Courts of the United States, the
record must show that the case is one in which, by the Constitution and laws of
the United States, the court had jurisdiction--and if this does not appear, and
the court gives judgment either for plaintiff or defendant, it is error, and the
judgment must be reversed by this court--and the parties cannot by consent waive
the objection to the jurisdiction of the Circuit Court.
4. A free negro of the African race, whose
ancestors were brought to this country and sold as slaves, is not a "citizen"
within the meaning of the Constitution of the United States.
5. When the Constitution was adopted, they were not
regarded in any of the States as members of the community which constituted the
State, and were not numbered among its "people or citizens." Consequently, the
special rights and immunities guarantied to citizens do not apply to them. And
not being "citizens" within the meaning of the Constitution, they are not
entitled to sue in that character in a court of the United States, and the
Circuit Court has not jurisdiction in such a suit.
6. The only two clauses in the Constitution which
point to this race, treat them as persons whom it was morally lawful to deal in
as articles of property and to hold as slaves.
7. Since the adoption of the Constitution of the
United States, no State can by any subsequent law make a foreigner or any other
description of persons citizens of (p.394)the
United States, nor entitle them to the rights and privileges secured to citizens
by that instrument.
8. A State, by its laws passed since the adoption
of the Constitution, may put a foreigner or any other description of persons
upon a footing with its own citizens, as to all the rights and privileges
enjoyed by them within its dominion and by its laws. But that will not make him
a citizen of the United States, nor entitle him to sue in its courts, nor to any
of the privileges and immunities of a citizen in another State.
9. The change in public opinion and feeling in
relation to the African race, which has taken place since the adoption of the
Constitution, cannot change its construction and meaning, and it must be
construed and administered now according to its true meaning and intention when
it was formed and adopted.
10. The plaintiff having admitted, by his demurrer
to the plea in abatement, that his ancestors were imported from Africa and sold
as slaves, he is not a citizen of the State of Missouri according to the
Constitution of the United States, and was not entitled to sue in that character
in the Circuit Court.
11. This being the case, the judgment of the court
below, in favor of the plaintiff on the plea in abatement, was erroneous.
1. But if the plea in abatement is not brought up
by this writ of error, the objection to the citizenship of the plaintiff is
still apparent on the record, as he himself, in making out his case, states that
he is of African descent, was born a slave, and claims that he and his family
became entitled to freedom by being taken, by their owner, to reside in a
Territory where slavery is prohibited by act of Congress--and that, in addition
to this claim, he himself became entitled to freedom by being taken to Rock
Island, in the State of Illinois--and being free when he was brought back to
Missouri, he was by the laws of that State a citizen.
2. If, therefore, the facts he states do not give
him or his family a right to freedom, the plaintiff is still a slave, and not
entitled to sue as a "citizen," and the judgment of the Circuit Court was
erroneous on that ground also, without any reference to the plea in
3. The Circuit Court can give no judgment for
plaintiff or defendant in a case where it has not jurisdiction, no matter
whether there be a plea in abatement or not. And unless it appears upon the face
of the record, when brought here by writ of error, that the Circuit Court had
jurisdiction, the judgment must be reversed.
The case of Capron v. Van
Noorden (2 Cranch, 126) examined, and the principles thereby decided,
4. When the record, as brought here by writ of
error, does not show that the Circuit Court had jurisdiction, this court has
jurisdiction to revise and correct the error, like any other error in the court
below. It does not and cannot dismiss the case for want of jurisdiction here;
for that would leave the erroneous judgment of the court below in full force,
and the party injured without remedy. But it must reverse the judgment, and, as
in any other case of reversal, send a mandate to the Circuit Court to conform
its judgment to the opinion of this court.
5. The difference of the jurisdiction in this
court in the cases of writs of error to State courts and to Circuit Courts of
the United States, pointed out; and the mistakes made as to the jurisdiction of
this court in the latter case, by confounding it with its limited jurisdiction
in the former.
6. If the court reverses a judgment upon the
ground that it appears by a particular part of the record that the Circuit Court
had not jurisdiction, it does not take away the jurisdiction of this court to
examine into and correct, by a reversal of the judgment, any other errors,
either as to the jurisdiction or any other matter, where it appears from other
parts of the record that the Circuit Court had fallen into error. On the
contrary, it is the daily and familiar practice of this court to reverse on
several grounds, where more than one error appears to have been committed. And
the error of a Circuit Court in its jurisdiction (p.395)stands on the same ground, and is to be treated in the
same manner as any other error upon which its judgment is founded.
7. The decision, therefore, that the judgment of
the Circuit Court upon the plea in abatement is erroneous, is no reason why the
alleged error apparent in the exception should not also be examined, and the
judgment reversed on that ground also, if it discloses a want of jurisdiction in
the Circuit Court.
8. It is often the duty of this court, after
having decided that a particular decision of the Circuit Court was erroneous, to
examine into other alleged errors, and to correct them if they are found to
exist. And this has been uniformly done by this court when the questions are in
any degree connected with the controversy, and the silence of the court might
create doubts which would lead to further and useless litigation.
1. The facts upon which the plaintiff relies, did
not give him his freedom, and make him a citizen of Missouri.
2. The clause in the Constitution authorizing
Congress to make all needful rules and regulations for the government of the
territory and other property of the United States, applies only to territory
within the chartered limits of some one of the States when they were colonies of
Great Britain, and which was surrendered by the British Government to the old
Confederation of the States, in the treaty of peace. It does not apply to
territory acquired by the present Federal Government, by treaty or conquest,
from a foreign nation.
The case of the American and Ocean
Insurance Companies v. Canter (1 Peters, 511) referred to and
examined, showing that the decision in this case is not in conflict with that
opinion, and that the court did not, in the case referred to, decide upon the
construction of the clause of the Constitution above mentioned, because the case
before them did not make it necessary to decide the question.
3. The United States, under the present
Constitution, cannot acquire territory to be held as a colony, to be governed at
its will and pleasure. But it may acquire territory which, at the time, has not
a population that fits it to become a State, and may govern it as a Territory
until it has a population which, in the judgment of Congress, entitles it to be
admitted as a State of the Union.
4. During the time it remains a Territory,
Congress may legislate over it within the scope of its constitutional powers in
relation to citizens of the United States--and may establish a Territorial
Government--and the form of this local Government must be regulated by the
discretion of Congress--but with powers not exceeding those which Congress
itself, by the Constitution, is authorized to exercise over citizens of the
United States, in respect to their rights of persons or rights of property.
1. The territory thus acquired, is acquired by the
people of the United States for their common and equal benefit, through their
agent and trustee, the Federal Government. Congress can exercise no power over
the rights of persons or property of a citizen in the Territory which is
prohibited by the Constitution. The Government and the citizen, whenever the
Territory is open to settlement, both enter it with their respective rights
defined and limited by the Constitution.
2. Congress have no right to prohibit the citizens
of any particular State or States from taking up their home there, while it
permits citizens of other States to do so. Nor has it a right to give privileges
to one class of citizens which it refuses to another. The territory is acquired
for their equal and common benefit--and if open to any, it must be open to all
upon equal and the same terms.
3. Every citizen has a right to take with him into
the Territory any article of property which the Constitution of the United
States recognizes as property.
4. The Constitution of the United States
recognizes slaves as property, and pledges the Federal Government to protect it.
And Congress cannot exercise any more authority over property of that
description than it may constitutionally exercise over property of any other
5. The act of Congress, therefore, prohibiting a
citizen of the United States from (p.396)taking
with him his slaves when he removes to the Territory in question to reside, is
an exercise of authority over private property which is not warranted by the
Constitution--and the removal of the plaintiff, by his owner, to that Territory,
gave him no title to freedom.
1. The plaintiff himself acquired no title to
freedom by being taken, by his owner, to Rock Island, in Illinois, and brought
back to Missouri. This court has heretofore decided that the status or condition
of a person of African descent depended on the laws of the State in which he
2. It has been settled by the decisions of the
highest court in Missouri, that, by the laws of that State, a slave does not
become entitled to his freedom, where the owner takes him to reside in a State
where slavery is not permitted, and afterwards brings him back to Missouri.
Conclusion. It follows that it is apparent upon
the record that the court below erred in its judgment on the plea in abatement,
and also erred in giving judgment for the defendant, when the exception shows
that the plaintiff was not a citizen of the United States. And as the Circuit
Court had no jurisdiction, either in the case stated in the plea in abatement,
or in the one stated in the exception, its judgment in favor of the defendant is
erroneous, and must be reversed.
This case was brought up,
by writ of error, from the Circuit Court of the United States for the district
It was an action of trespass vi et armis instituted in the
Circuit Court by Scott against Sandford.
Prior to the institution of the present suit, an action was brought
by Scott for his freedom in the Circuit Court of St. Louis county, (State
court,) where there was a verdict and judgment in his favor. On a writ of error
to the Supreme Court of the State, the judgment below was reversed, and the case
remanded to the Circuit Court, where it was continued to await the decision of
the case now in question.
The declaration of Scott contained three counts: one, that Sandford
had assaulted the plaintiff; one, that he had assaulted Harriet Scott, his wife;
and one, that he had assaulted Eliza Scott and Lizzie Scott, his children.
Sandford appeared, and filed the following plea:
v. ) Plea
to the Jurisdiction of the Court.
John F. A.
April Term, 1854.
And the said John F. A. Sandford, in his own proper
person, comes and says that this court ought not to have or take further
cognizance of the action aforesaid, because he says that said cause of action,
and each and every one of them, (if any such have accrued to the said Dred
Scott,) accrued to the said Dred Scott out of the jurisdiction of this court,
and exclusively within the jurisdiction of the courts of the State of Missouri,
for that, to wit: the said plaintiff, Dred Scott, is not a citizen of the State
of Missouri, as alleged in his declaration, because (p.397)he is a negro of African descent; his ancestors were of
pure African blood, and were brought into this country and sold as negro slaves,
and this the said Sandford is ready to verify. Wherefore, he prays judgment
whether this court can or will take further cognizance of the action
John F. A. Sandford.
To this plea there was a demurrer in the usual
form, which was argued in April, 1854, when the court gave judgment that the
demurrer should be sustained.
In May, 1854, the defendant, in pursuance of an agreement between
counsel, and with the leave of the court, pleaded in bar of the action:
1. Not guilty.
2. That the plaintiff was a negro slave, the lawful property of the
defendant, and, as such, the defendant gently laid his hands upon him, and
thereby had only restrained him, as the defendant had a right to do.
3. That with respect to the wife and daughters of the plaintiff, in
the second and third counts of the declaration mentioned, the defendant had, as
to them, only acted in the same manner, and in virtue of the same legal
In the first of these pleas, the plaintiff joined issue; and to the
second and third filed replications alleging that the defendant, of his own
wrong and without the cause in his second and third pleas alleged, committed the
The counsel then filed the following agreed statement of facts,
In the year 1834, the plaintiff was a negro slave belonging to Dr.
Emerson, who was a surgeon in the army of the United States. In that year, 1834,
said Dr. Emerson took the plaintiff from the State of Missouri to the military
post at Rock Island, in the State of Illinois, and held him there as a slave
until the month of April or May, 1836. At the time last mentioned, said Dr.
Emerson removed the plaintiff from said military post at Rock Island to the
military post at Fort Snelling, situate on the west bank of the Mississippi
river, in the Territory known as Upper Louisiana, acquired by the United States
of France, and situate north of the latitude of thirty-six degrees thirty
minutes north, and north of the State of Missouri. Said Dr. Emerson held the
plaintiff in a slavery at said Fort Snelling, from said last-mentioned date
until the year 1838.
In the year 1835, Harriet, who is named in the second count of the
plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged
to the army of the United States. (p.398)In
that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling,
a military post, situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave at said Fort
Snelling unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held
said Harriet in slavery at said Fort Snelling until the year 1838.
In the year 1836, the plaintiff and said Harriet at said Fort
Snelling, with the consent of said Dr. Emerson, who then claimed to be their
master and owner, intermarried, and took each other for husband and wife. Eliza
and Lizzie, named in the third count of the plaintiff's declaration, are the
fruit of that marriage. Eliza is about fourteen years old, and was born on board
the steamboat Gipsey, north of the north line of the State of Missouri, and upon
the river Mississippi. Lizzie is about seven years old, and was born in the
State of Missouri, at the military post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and said
Harriet and their said daughter Eliza, from said Fort Snelling to the State of
Missouri, where they have ever since resided.
Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as
slaves, and the defendant has ever since claimed to hold them and each of them
At the times mentioned in the plaintiff's declaration, the
defendant, claiming to be owner as aforesaid, laid his hands upon said
plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this
respect, however, no more than what he might lawfully do if they were of right
his slaves at such times.
Further proof may be given on the trial for either party.
It is agreed that Dred Scott brought suit for his freedom in the
Circuit Court of St. Louis county; that there was a verdict and judgment in his
favor; that on a writ of error to the Supreme Court, the judgment below was
reversed, and the same remanded to the Circuit Court, where it has been
continued to await the decision of this case.
In May, 1854, the cause went before a jury, who found the following
verdict, viz: "As to the first issue joined in this case, we of the jury find
the defendant not guilty; and as to the issue secondly above joined, we of the
jury find that before and at the time when, &c., in the first count
mentioned, the said Dred Scott was a negro slave, the lawful property of the
defendant; and as to the issue thirdly above joined, we, the jury, find that
before and at the time when, &c., in the second and third counts mentioned,
the said Harriet, wife of (p.399)said Dred
Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro
slaves, the lawful property of the defendant."
Whereupon, the court gave judgment for the defendant.
After an ineffectual motion for a new trial, the plaintiff filed the
following bill of exceptions.
On the trial of this cause by the jury, the plaintiff, to maintain
the issues on his part, read to the jury the following agreed statement of
facts, (see agreement above.) No further testimony was given to the jury by
either party. Thereupon the plaintiff moved the court to give to the jury the
following instruction, viz:
"That, upon the facts agreed to by the parties, they ought to find
for the plaintiff. The court refused to give such instruction to the jury, and
the plaintiff, to such refusal, then and there duly excepted."
The court then gave the following instruction to the jury, on motion
of the defendant:
"The jury are instructed, that upon the facts in this case, the law
is with the defendant." The plaintiff excepted to this instruction.
Upon these exceptions, the case came up to this court.
It was argued at December term, 1855, and ordered to be reargued at
the present term.
It was now argued by Mr. Blair and Mr.
G. F. Curtis for the plaintiff in error, and by Mr. Geyer and Mr.
Johnson for the defendant in error.
The reporter regrets that want of room will not
allow him to give the arguments of counsel; but he regrets it the less, because
the subject is thoroughly examined in the opinion of the court, the opinions of
the concurring judges, and the opinions of the judges who dissented from the
judgment of the court.
Mr. Chief Justice TANEY delivered the opinion of
This case has been twice argued. After the argument at the last
term, differences of opinion were found to exist among the members of the court;
and as the questions in controversy are of the highest importance, and the court
was at that time much pressed by the ordinary business of the term, it was
deemed advisable to continue the case, and direct a re-argument on some of the
points, in order that we might have an opportunity of giving to the whole
subject a more deliberate (p.400)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:
1. Had the Circuit Court of the United States jurisdiction to hear
and determine the case between these parties? And
2. If it had jurisdiction, is the judgment it has given erroneous or
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
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
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
demurrer. 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 defence by pleading over,
and thereby admitted the jurisdiction of the court.(p.401)
But, in making this objection, we think the peculiar and limited
jurisdiction of courts of the United States has not been adverted to. This
peculiar and limited jurisdiction has made it necessary, in these courts, to
adopt different rules and principles of pleading, so far as jurisdiction is
concerned, from those which regulate courts of common law in England, and in the
different States of the Union which have adopted the common-law rules.
In these last-mentioned courts, where their character and rank are
analogous to that of a Circuit Court of the United States; in other words, where
they are what the law terms courts of general jurisdiction; they are presumed to
have jurisdiction, 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 pleaders, can have no influence in
the decision in this court. Because, under the Constitution and laws of the
United States, the rules which govern the pleadings in its courts, in questions
of jurisdiction, stand on different principles and are regulated by different
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 therein specified. Hence, when a plaintiff sues
in a court of the United States, it is necessary that he should (p.402)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 aver in his pleading that they are citizens of different
States; and he cannot maintain his suit without showing that fact in the
This point was decided in the case of Bingham
v. Cabot, (in 3 Dall., 382,) and ever since adhered to by the
court. And in Jackson v. Ashton, (8 Pet., 148,) it
was held that the objection to which it was open could not be waived by the
opposite party, because consent of parties could not give jurisdiction.
It is needless to accumulate cases on this subject. Those already
referred to, and the cases of Capron v. Van Noorden, (in 2
Cr., 126,) and Montalet v. Murray, (4 Cr.,
46,) are sufficient to show the rule of which we have spoken. The case of
Capron v. Van Noorden strikingly illustrates the difference between a
common-law court and a court of the United States.
If, however, the fact of citizenship is averred in the declaration,
and the defendant does not deny it, and put it in issue by plea in abatement, he
cannot offer evidence at the trial to disprove it, and consequently cannot avail
himself of the objection in the appellate court, unless the defect should be
apparent in some other part of the record. For if there is no plea in abatement,
and the want of 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 averred, 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 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 citizen in a court of the United
We think they are before us. The plea in abatement and the judgment
of the court upon it, are a part of the judicial proceedings in the Circuit
Court, and are there recorded as such; and a writ of error always brings up to
the superior court the whole record of the proceedings in the court below. And
in the case of the United States v. Smith, (11 Wheat.,
172,) this court said, that the case being brought up by writ of error,
the whole record was under the consideration of this court. And this being the
case in the present instance, the plea in abatement is necessarily under the
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
The question is simply this: Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member of the political
community formed and brought into existence by the Constitution of the United
States, and as such become entitled to all the rights, and privileges, and
immunities, guarantied by that instrument to the citizen? One of which rights is
the privilege of suing in a court of the United States in the cases specified in
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 of parents who had become free before their birth,
are citizens of a State, in the sense in which the word citizen is used in the
Constitution of the United States. And this being the only matter in dispute on
the pleadings, the court must be understood as speaking in this opinion of that
class only, that is, of those persons who are the 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 in social connections or in government. But
although they were uncivilized, they were yet a free and independent people,
associated together in nations or tribes, and governed by their own laws. Many
of these political communities were situated in territories to which the white
race claimed the ultimate (p.404)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 claimed the right to the possession of the
territory, until the tribe or nation consented to cede it. These Indian
Governments were regarded and treated as foreign Governments, as much so as if
an ocean had separated the red man from the white; and their freedom has
constantly been acknowledged, from the time of the first 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 pupilage, and to legislate to a certain extent over them and
the territory they occupy. But they may, without doubt, like the subjects of any
other foreign Government, be naturalized by the authority of Congress, and
become citizens of a State, and of the United States; and if an individual
should leave his nation or tribe, and take up his abode among the white
population, he would be entitled to all the rights and privileges which would
belong to an emigrant from any other foreign people.
We proceed to examine the case as presented by the pleadings.
The words "people of the United States" and "citizens" are
synonymous terms, and mean the same thing. They both describe the political body
who, according to our republican institutions, form the sovereignty, and who
hold the power and conduct the Government through their representatives. They
are what we familiarly call the "sovereign people," and every citizen is one of
this people, and a constituent member of this sovereignty. The question before
us is, whether the class of persons described in the plea in abatement compose a
portion of this people, and are constituent members of this 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 (p.405)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 law-making power; to those who formed the
sovereignty and framed the Constitution. The duty of the court is, to interpret
the instrument they have framed, with the best lights we can obtain on the
subject, and to administer it as we find it, according to its true intent and
meaning when it was adopted.
In discussing this question, we must not confound the rights of
citizenship which a State may confer within its own limits, and the rights of
citizenship as a member of the Union. It does not by any means follow, because
he has all the rights and privileges of a citizen of a State, that he must be a
citizen of the United States. He may have all of the rights and privileges of
the citizen of a State, and yet not be entitled to the rights and privileges of
a citizen in any other State. For, previous to the adoption of the Constitution
of the United States, every State had the undoubted right to confer on
whomsoever it pleased the character of citizen, and to endow him with all its
rights. But this character of course was confined to the boundaries of the
State, and gave him no rights or privileges in other States beyond those secured
to him by the laws of nations and the comity of States. 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 any one it thinks proper, or upon any class or description of
persons; yet he would not be a citizen in the sense in which that word is used
in the Constitution of the United States, nor entitled to sue as such in one of
its courts, nor to the privileges and immunities of a citizen in the other
States. The rights which he would acquire would be restricted to the State which
gave them. The Constitution has conferred on Congress the right to establish an
uniform rule of naturalization, and this right is evidently exclusive, and has
always been held by this court to be so. 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
(p.406)rights and immunities which the
Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any act or law of
its own, passed since the adoption of the Constitution, introduce a new member
into the political community created by the Constitution of the United States.
It cannot make him a member of this community by making him a member of its own.
And for the same reason it cannot introduce any person, or description of
persons, who were not intended to be embraced in this new political family,
which the Constitution brought into existence, but were intended to be excluded
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 endue him with the
full rights of citizenship in every other State without their consent? Does the
Constitution of the United States act upon him whenever he shall be made free
under the laws of a State, and raised there to the rank of a citizen, and
immediately cloth him with all the privileges of a citizen in every other State,
and in its own courts?
The court thinks the affirmative of these propositions cannot be
maintained. And if it cannot, the plaintiff in error could not be a citizen of
the State of Missouri, within the meaning of the Constitution of the United
States, and, consequently, was not entitled to sue in its courts.
It is true, every person, and every class and description of
persons, who were at the time of the adoption of the Constitution recognized as
citizens in the several States, became also citizens of this new political body;
but none other; it was formed by them, and for them and their posterity, but for
no one else. And the personal rights and privileges guarantied to citizens of
this new sovereignty were intended to embrace those only who were then members
of the several State communities, or who should afterwards by birthright or
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 (p.407)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 and formed new sovereignties, 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, that they had no rights
which the white man was bound to respect; and that the negro might justly and
lawfully be reduced to slavery for his benefit. He was bought and sold, and
treated as an ordinary article of merchandise and traffic, whenever a profit
could be made by it. This opinion was at that time fixed and universal in the
civilized portion of the white race. It was regarded as an axiom in morals as
well as in politics, which no one thought of disputing, or supposed to be open
to dispute; and men in every grade and position in society daily and habitually
acted upon it in their private pursuits, as well as in matters of public
concern, without doubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more (p.408)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 the thirteen
colonies which united in the Declaration of Independence, and afterwards formed
the Constitution of the United States. The slaves were more or less numerous in
the different colonies, as slave labor was found more or less profitable. But no
one seems to have doubted the correctness of the prevailing opinion of the
The legislation of the different colonies furnishes positive and
indisputable proof of this fact.
It would be tedious, in this opinion, to enumerate the various laws
they passed upon this subject. It will be sufficient, as a sample of the
legislation which then generally prevailed throughout the British colonies, to
give the laws of two of them; one being still a large slaveholding State, and
the other the first State in which slavery ceased to exist.
The province of Maryland, in 1717, (ch. 13, s.
5,) passed a law declaring "that if any free negro or mulatto intermarry
with any white woman, or if any white man shall intermarry with any negro or
mulatto woman, such negro or mulatto shall become a slave during life, excepting
mulattoes born of white women, who, for such intermarriage, shall only become
servants for seven years, to be disposed of as the justices of the county court,
where such marriage so happens, shall think fit; to be applied by them towards
the support of a public school within the said county. And any white man or
white woman who shall intermarry as aforesaid, 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 aforesaid, and be applied to the
The other colonial law to which we refer was passed by Massachusetts in 1705, (chap, 6.) It is entitled "An act for the
better preventing of a spurious and mixed issue," &c.; and it provides, that
"if any negro or mulatto shall presume to smite or strike any person of the
English or other Christian nation, such negro or mulatto shall be severely
whipped, at (p.409)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
fifty 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 occupied
throughout the thirteen colonies, in the eyes and thoughts of the men who framed
the Declaration of Independence and established the State Constitutions and
Governments. They show that a perpetual and impassable barrier was intended to
be erected between the white race and the one which they had reduced to slavery,
and governed as subjects with absolute and despotic power, and which they then
looked upon as so far below them in the scale of created beings, that
intermarriages between white persons and negroes or mulattoes 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 mulatto and the slave, but this stigma, of the
deepest degradation, was fixed upon the whole race.
We refer to these historical facts for the purpose of showing the
fixed opinions concerning that race, upon which the statesmen of that day spoke
and acted. It is necessary to do this, in order to determine whether the general
terms used in the Constitution of the United States, as to the rights of man and
the rights of the people, was intended to include them, or to give to them or
their posterity the benefit of any of its provisions.
The language of the Declaration of Independence is equally
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 (p.410)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 formed 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 framed 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
Yet the men who framed this declaration were great men--high in
literary acquirements--high in their sense of honor, and incapable of asserting
principles inconsistent with those on which they were acting. They perfectly
understood the meaning of the language they used, and how it would be 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, 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
This state of public opinion had undergone no change when the
Constitution was adopted, as is equally evident from its provisions and
The brief preamble sets forth by whom it was formed, for what
purposes, and for whose benefit and protection. It declares (p.411)that it is formed by the people of the United
States; that is to say, by those who were members of the different political
communities in the several States; and its great object is declared to be to
secure the blessings of liberty to themselves and their posterity. It speaks in
general terms of the people of the United States, and of
citizens of the several States, when it is providing for the exercise
of the powers granted or the privileges secured to the citizen. It does not
define what description of persons are intended to be 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
But there are two clauses in the Constitution which point directly
and specifically to the negro race as a separate class of persons, and show
clearly that they were not regarded as a portion of the people or citizens of
the Government then formed.
One of these clauses reserves to each of the thirteen States the
right to import slaves until the year 1808, if it thinks proper. And the
importation which it thus sanctions was unquestionably of persons of the race of
which we are speaking, as the traffic in slaves in the United States had always
been confined to them. And by the other provision the States pledge themselves
to each other to maintain the right of property of the master, by delivering up
to him any slave who may have escaped from his service, and be found within
their respective territories. By the first above-mentioned clause, therefore,
the right to purchase and hold this property is directly sanctioned and
authorized for twenty years by the people who framed the Constitution. And by
the second, they pledge themselves to maintain and 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
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 (p.412)even in the minds of the framers of the Constitution
when they were conferring special rights and privileges upon the citizens of a
State in every other part of the Union.
Indeed, when we look to the condition of this race in the several
States at the time, it is impossible to believe that these rights and privileges
were intended to be extended to them.
It is very true, that in that portion of the Union where the labor
of the negro race was found to 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 in 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 here 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 slaveholding States. Their statute books are full of provisions in
relation to this class, in the same spirit with the Maryland law which we have
before quoted. They have continued to treat them as an inferior class, and to
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 related 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. (p.413)And
as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes
and mulattoes were not citizens within the meaning of the Constitution of the
United States; and the correctness of this decision is recognized, and the same
doctrine affirmed, in 1 Meigs's Tenn. Reports, 331.
And if we turn to the legislation of the States where slavery had
worn out, or measures taken for its speedy abolition, we shall find the same
opinions and principles equally fixed and equally acted upon.
Thus, Massachusetts, in 1786, passed a law similar to the colonial
one of which we have spoken. The law of 1786, like the law of 1705, forbids the
marriage of any white person with any negro, Indian, or mulatto, and inflicts a
penalty of fifty pounds upon any one who shall join them in marriage; and
declares all such marriages absolutely null and void, and degrades thus the
unhappy issue of the marriage by fixing upon it the stain of bastardy. And this
mark of degradation was renewed, and again impressed upon the race in the
careful and deliberate preparation of their revised code published in 1836. This
code forbids any person from joining in marriage any white person with any
Indian, negro, or mulatto, and subjects the party who shall offend in this
respect, to imprisonment, not exceeding six months, in the common jail, or to
hard labor, and to a fine of not less than fifty nor more than two hundred
dollars; and, like the law of 1786, it declares the marriage to be absolutely
null and void. It will be seen that the punishment is increased by the code upon
the person who shall marry them, by adding imprisonment to a pecuniary
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 latter, when free, upon a level with its
citizens. And certainly nothing which would have led the slaveholding States to
suppose, that Connecticut designed to claim for them, under (p.414)the new Constitution, the equal rights and privileges
and rank of citizens in every other State.
The first step taken by Connecticut upon this subject was as early
as 1774, when it passed an act forbidding the further importation of slaves into
the State. But the section containing the prohibition is introduced by the
"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 therein mentioned, were to be free at a certain age, the section is
again introduced by a preamble assigning a similar motive for the act. It is in
"Whereas sound policy requires that the abolition of slavery should
be effected as soon as may be consistent with the rights of individuals, and the
public safety and welfare"--showing that the right of property in the master was
to be protected, and that the measure was one of policy, and to prevent the
injury and 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 a provision by which any negro, Indian, or mulatto
servant, who was found wandering out of the town or place to which he belonged,
without a written pass such as is therein described, was made liable to be
seized by any one, and taken before the next authority to be examined and
delivered up to his master--who was required to pay the charge which had accrued
thereby. And a subsequent section of the same law 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 negroes and mulattoes were associated
with servants and slaves in the police regulations established by the laws of
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 (p.415)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 Crandall v. The
State, reported in 10 Conn. Rep., 340, that upon an information filed
against Prudence Crandall for a violation of this law, one of the points raised
in the defence was, that the law was a violation of the Constitution of the
United States; and that the persons instructed, although of the African race,
were citizens of other States, and therefore entitled to the rights and
privileges of citizens in the State of Connecticut. But Chief Justice Dagget,
before whom the case was tried, held, that persons of that description were not
citizens of a State, within the meaning of the word citizen in the Constitution
of the United States, and were not therefore entitled to the privileges and
immunities of citizens in other States.
The case was carried up to the Supreme Court of Errors of the
State, and the 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
Again, in 1822, Rhode Island, in its revised code, passed a law
forbidding persons who were authorized to join persons in marriage, from joining
in marriage any white person with any negro, Indian, or mulatto, under the
penalty of two hundred dollars, and declaring all such marriages absolutely null
and void; and the same law was again re-enacted in its revised code of 1844. So
that, down to the last-mentioned period, the strongest mark of inferiority and
degradation was fastened upon the African race in that State.
It would be impossible to enumerate and compress in the space
usually allotted to an opinion of a court, the various laws, marking the
condition of this race, which were passed from time to time after the
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, (published in 1848, 2 vol., 258, note
b,) that in no part of the country except Maine, did the African
race, in point of fact, participate equally with the whites in the exercise of
civil and political rights.
The legislation of the States therefore shows, in a manner not to
be mistaken, the inferior and subject condition of that race at the time the
Constitution was adopted, and long afterwards, throughout the thirteen States by
which that instrument was framed; and it is hardly consistent with the respect
due to these States, to suppose that they regarded at that time, as
fellow-citizens and members of the sovereignty, a class of beings whom they had
thus stigmatized; whom, as we are bound, out of respect to the State
sovereignties, to assume they had deemed it just and necessary thus to
stigmatize, and upon whom they had impressed such deep and enduring marks of
inferiority and degradation; or, that when they met in convention to form the
Constitution, they looked upon them as a portion of their constituents, or
designed to include them in the provisions so carefully inserted for the
security and 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
[paragraph continues next page]
[Currently at pages 393-416 (Majority opinion).
page 417 (Majority
Proceed to pages 418-448 (Majority
Proceed to pages 449-453 (Majority
Proceed to pages 454-456 (Wayne
Proceed to pages 457-468 (Nelson
Proceed to pages 469-492 (Grier, Daniel
Proceed to pages 493-517 (Campbell
Proceed to pages 518-528 (Catron
Proceed to pages 529-563 (McLean
Proceed to pages 564-633 (Curtis