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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.