It is not the province of the court to decide upon the justi

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REPORT

OF

THE DECISION

OF THE

SUPREME COURT OF THE UNITED STATES,

AND THE

OPINIONS OF THE JUDGES THEREOF,

IN THE CASE OF

DRED SCOTT

VERSUS

JOHN F.A. SANDFORD.

DECEMBER TERM, 1856.

BY BENJAMIN C. HOWARD,

FROM THE NINETEENTH VOLUME OF HOWARD'S REPORTS.

WASHINGTON:

CORNELIUS WENDELL, PRINTER.

1857.

CONTENTS

Syllabus

Mr. Chief Justice Taney (majority opinion)

Mr. Justice Wayne (concurrence)

Mr. Justice Nelson (concurrence)

Mr. Justice Grier (concurrence)

Mr. Justice Daniel (concurrence)

Mr. Justice Campbell (concurrence)

Mr. Justice Catron (concurrence)

Mr. Justice McLean (dissent)

Mr. Justice Curtis (dissent)

SUPREME COURT OF THE UNITED STATES.

DECEMBER TERM, 1856.

DRED SCOTT

VERSUS

JOHN F.A. SANDFORD.

DRED SCOTT, PLAINTIFF IN ERROR, _v._ JOHN F.A. SANDFORD.

This case was brought up, by writ of error, from the Circuit

Court of the United States for the district of Missouri.

It was an action of trespass _vi et armis_ instituted in the

Circuit Court by Scott against 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:

DRED SCOTT }

_v._ } _Plea to the jurisdiction of the Court._

JOHN F.A. SANFORD. }

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 cognisance of the action aforesaid, because he says

that said cause of action, and each and every of them, (if

any such have accrued to the said Dred Scott,) accrued to

the said Dred Scott out of the 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 he is a negro of African

descent; his ancestors were of pure African blood, and were

brought into this country and sold as negro slaves, and this

the said Sandford is ready to verify. Wherefore he prays

judgment, whether this court can or will take further

cognizance of the action aforesaid.

JOHN F.A. SANDFORD.

To this plea there was a demurrer in the usual form, which

was argued in April, 1854, when the court gave judgment that

the demurrer should be sustained.

In May, 1854, the 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 right.

In the first of these pleas, the plaintiff joined issue; and

to the second and third, filed replications alleging that

the defendant, of his own wrong and without the cause in his

second and third pleas alleged, committed the trespasses,

&c.

The counsel then filed the following agreed statement of

facts, viz:

In the year 1834, the plaintiff was a negro slave belonging

to Dr. Emerson, who was a surgeon in the army of the United

States. In that year, 1834, said Dr. 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 slavery at Fort Snelling, from said last

mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count

of the plaintiff's declaration, was the negro slave of Major

Taliaferro, who belonged to the army of the United States.

In that year, 1835, said Major Taliaferro took said Harriet

to said Fort Snelling, a military post, situated as herein

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 herein 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 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, as slaves.

At the times mentioned in the plaintiff's declaration, the

defendant, claiming to be owner as aforesaid, laid his hands

upon said plaintiff, Harriet, Eliza, and Lizzie, and

imprisoned them, doing in this respect, however, no more

than what he might 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 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_

[Transcriber's Note: should be 'G.T. Curtis,' for George

Ticknor 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 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 in controversy are of the highest

importance, and the court was at that time much pressed by the

ordinary business of the term, it was deemed advisable to continue the

case, and direct a reargument on some of the points, in order that we

might have an opportunity of giving to the whole subject a more

deliberate 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

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

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.

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 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

therein 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 aver in his pleading that they are citizens of

different States; and he cannot maintain his suit without showing that

fact in the pleadings.

This point was decided in the case of Bingham _v._ Cabot, (in 3 Dall.,

382,) and ever since adhered 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 a citizen in a court of the United States.

We think they are before us. The plea in abatement and the judgment of

the court upon it, are a part of the judicial proceedings in the

Circuit Court, and are there recorded as such; and a writ of error

always brings up to the superior court the whole record of the

proceedings in the court below. And in the case of the United States

_v._ Smith, (11 Wheat., 172,) this court said, that the case being

brought up by writ of error, the whole record was under the

consideration of this court. And this being the case in the present

instance, the plea in abatement is necessarily under consideration;

and it becomes, therefore, our duty to decide whether the facts stated

in the plea are or are not sufficient to show that the plaintiff is

not entitled to sue as a citizen in a court of the United States.

This is certainly a very serious question, and one that now for the

first time 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: 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 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 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 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 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 rights and immunities which the

Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, by any act or law of

its own, passed since the adoption of the Constitution, introduce a

new member into the political community created by the Constitution of

the United States. It cannot make him a member of this community by

making him a member of its own. And for the same reason it cannot

introduce any person, or description of persons, who were not intended

to be embraced in this new political family, which the Constitution

brought into existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the Constitution,

in relation to the personal rights and privileges to which the citizen

of a State should be 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

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, and every class and description of persons,

who were at the time of the adoption of the Constitution recognised 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 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 recognised 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 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

time.

The legislation of the different colonies furnishes positive and

indisputable proof of this fact.

It would be tedious, in this opinion, to enumerate the various laws

they passed upon this subject. It will be sufficient, as a sample of

the legislation which then generally prevailed throughout the British

colonies, to give the laws of two of them; one being still a large

slaveholding State, and the other the first State in which slavery

ceased to exist.

The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law

declaring "that if any free negro or mulatto intermarry with any white

woman, or if any white man shall intermarry with any negro or mulatto

woman, such negro or mulatto shall become a slave during life,

excepting mulattoes born of white women, who, for such intermarriage,

shall only become servants for seven years, to be disposed of as the

justices of the county court, where such marriage so happens, shall

think fit; to be applied by them towards the support of a public

school within the said county. And any white man or white woman who

shall intermarry as aforesaid, 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 uses aforesaid."

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 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 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 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 and reprobation.

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, 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 change when the

Constitution was adopted, as is equally evident from its provisions

and language.

The brief preamble sets forth by whom it was formed, for what

purposes, and for whose benefit and protection. It declares that it

is formed by the _people_ of the United States; that is to say, by

those who were members of the different political communities in the

several States; and its great object is declared to be to secure the

blessings of liberty to themselves and their posterity. It speaks in

general terms of the _people_ of the United States, and of _citizens_

of the several States, when it is providing for the exercise of the

powers granted or the privileges secured to the citizen. It does not

define what description of persons are intended to be 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 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 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 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 relates to these States, it is too plain for

argument, that they have never been regarded as a part of the people

or citizens of the State, nor supposed to possess any political rights

which the dominant race might not withhold or grant at their

pleasure. And as long ago as 1822, the Court of Appeals of Kentucky

decided that free negroes and mulattoes were not citizens within the

meaning of the Constitution of the United States; and the correctness

of this decision is recognised, 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 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

latter, when free, upon a level with its citizens. And certainly

nothing which would have led the slaveholding States to suppose, that

Connecticut designed to claim for them, under the new Constitution,

the equal rights and privileges and rank of citizens in every other

State.

The first step taken by Connecticut upon this subject was as early as

1774, when it passed an act forbidding the further importation of

slaves into the State. But the section containing the prohibition is

introduced by the following preamble:

"And whereas the increase of slaves in this state is injurious to the

poor, and inconvenient."

This recital would appear to have been carefully introduced, in order

to prevent any misunderstanding of the motive which induced the

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.

Report of the Decision of the Supreme Court of the United States, and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F. A. Sandford December Term, 1856. · 第 1 / 26 段