never be a mere discretionary power under our Constitution and form of
Government. The powers of the Government and the rights and privileges
of the citizen are regulated and plainly defined by the Constitution
itself. And when the Territory becomes a part of the United States,
the Federal Government enters into possession in the character
impressed upon it by those who created it. It enters upon it with its
powers over the citizen strictly defined, and limited by the
Constitution, from which it derives its own existence, and by virtue
of which alone it continues to exist and act as a Government and
sovereignty. It has no power of any kind beyond it; and it cannot,
when it enters a Territory of the United States, put off its
character, and assume discretionary or despotic powers which the
Constitution has denied to it. It cannot create for itself a new
character separated from the citizens of the United States, and the
duties it owes them under the provisions of the Constitution. The
Territory being a part of the United States, the Government and the
citizen both enter it under the authority of the Constitution, with
their respective rights defined and marked out; and the Federal
Government can exercise no power over his person or property, beyond
what that instrument confers, nor lawfully deny any right which it has
reserved.
A reference to a few of the provisions of the Constitution will
illustrate this proposition.
For example, no one, we presume, will contend that Congress can make
any law in a Territory respecting the establishment of religion, or
the free exercise thereof, or abridging the freedom of speech or of
the press, or the right of the people of the Territory peaceably to
assemble, and to petition the Government for the redress of
grievances.
Nor can Congress deny to the people the right to keep and bear arms,
nor the right to trial by jury, nor compel any one to be a witness
against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is
not necessary here to enumerate, are, in express and positive terms,
denied to the General Government; and the rights of private property
have been guarded with equal care. Thus the rights of property are
united with the rights of person, and placed on the same ground by the
fifth amendment to the Constitution, which provides that no person
shall be deprived of life, liberty, and property, without due process
of law. And an act of Congress which deprives a citizen of the United
States of his liberty or property, merely because he came himself or
brought his property into a particular Territory of the United States,
and who had committed no offence against the laws, could hardly be
dignified with the name of due process of law.
So, too, it will hardly be contended that Congress could by law
quarter a soldier in a house in a Territory without the consent of the
owner, in time of peace; nor in time of war, but in a manner
prescribed by law. Nor could they by law forfeit the property of a
citizen in a Territory who was convicted of treason, for a longer
period than the life of the person convicted; nor take private
property for public use without just compensation.
The powers over person and property of which we speak are not only not
granted to Congress, but are in express terms denied, and they are
forbidden to exercise them. And this prohibition is not confined to
the States, but the words are general, and extend to the whole
territory over which the Constitution gives it power to legislate,
including those portions of it remaining under Territorial Government,
as well as that covered by States. It is a total absence of power
everywhere within the dominion of the United States, and places the
citizens of a Territory, so far as these rights are concerned, on the
same footing with citizens of the States, and guards them as firmly
and plainly against any inroads which the General Government might
attempt, under the plea of implied or incidental powers. And if
Congress itself cannot do this--if it is beyond the powers conferred
on the Federal Government--it will be admitted, we presume, that it
could not authorize a Territorial Government to exercise them. It
could confer no power on any local Government, established by its
authority, to violate the provisions of the Constitution.
It seems, however, to be supposed, that there is a difference between
property in a slave and other property, and that different rules may
be applied to it in expounding the Constitution of the United States.
And the laws and usages of nations, and the writings of eminent
jurists upon the relation of master and slave and their mutual rights
and duties, and the powers which Governments may exercise over it,
have been dwelt upon in the argument.
But in considering the question before us, it must be borne in mind
that there is no law of nations standing between the people of the
United States and their Government, and interfering with their
relation to each other. The powers of the Government, and the rights
of the citizen under it, are positive and practical regulations
plainly written down. The people of the United States have delegated
to it certain enumerated powers, and forbidden it to exercise others.
It has no power over the person or property of a citizen but what the
citizens of the United States have granted. And no laws or usages of
other nations, or reasoning of statesmen or jurists upon the relations
of master and slave, can enlarge the powers of the Government, or take
from the citizens the rights they have reserved. And if the
Constitution recognises the right of property of the master in a
slave, and makes no distinction between that description of property
and other property owned by a citizen, no tribunal, acting under the
authority of the United States, whether it be legislative, executive,
or judicial, has a right to draw such a distinction, or deny to it the
benefit of the provisions and guarantees which have been provided for
the protection of private property against the encroachments of the
Government.
Now, as we have already said in an earlier part of this opinion, upon
a different point, the right of property in a slave is distinctly and
expressly affirmed in the Constitution. The right to traffic in it,
like an ordinary article of merchandise and property, was guarantied
to the citizens of the United States, in every State that might desire
it, for twenty years. And the Government in express terms is pledged
to protect it in all future time, if the slave escapes from his
owner. This is done in plain words--too plain to be misunderstood. And
no word can be found in the Constitution which gives Congress a
greater power over slave property, or which entitles property of that
kind to less protection than property of any other description. The
only power conferred is the power coupled with the duty of guarding
and protecting the owner in his rights.
Upon these considerations, it is the opinion of the court that the act
of Congress which prohibited a citizen from holding and owning
property of this kind in the territory of the United States north of
the line therein mentioned, is not warranted by the Constitution, and
is therefore void; and that neither Dred Scott himself, nor any of his
family, were made free by being carried into this territory; even if
they had been carried there by the owner, with the intention of
becoming a permanent resident.
We have so far examined the case, as it stands under the Constitution
of the United States, and the powers thereby delegated to the Federal
Government.
But there is another point in the case which depends on State power
and State law. And it is contended, on the part of the plaintiff, that
he is made free by being taken to Rock Island, in the State of
Illinois, independently of his residence in the territory of the
United States; and being so made free, he was not again reduced to a
state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief; for the
principle on which it depends was decided in this court, upon much
consideration, in the case of Strader et al. _v._ Graham, reported in
10th Howard, 82. In that case, the slaves had been taken from Kentucky
to Ohio, with the consent of the owner, and afterwards brought back to
Kentucky. And this court held that their _status_ or condition, as
free or slave, depended upon the laws of Kentucky, when they were
brought back into that State, and not of Ohio; and that this court had
no jurisdiction to revise the judgment of a State court upon its own
laws. This was the point directly before the court, and the decision
that this court had not jurisdiction turned upon it, as will be seen
by the report of the case.
So in this case. As Scott was a slave when taken into the State of
Illinois by his owner, and was there held as such, and brought back in
that character, his _status_, as free or slave, depended on the laws
of Missouri, and not of Illinois.
It has, however, been urged in the argument, that by the laws of
Missouri he was free on his return, and that this case, therefore,
cannot be governed by the case of Strader et al. _v._ Graham, where it
appeared, by the laws of Kentucky, that the plaintiffs continued to be
slaves on their return from Ohio. But whatever doubts or opinions may,
at one time, have been entertained upon this subject, we are
satisfied, upon a careful examination of all the cases decided in the
State courts of Missouri referred to, that it is now firmly settled by
the decisions of the highest court in the State, that Scott and his
family upon their return were not free, but were, by the laws of
Missouri, the property of the defendant; and that the Circuit Court of
the United States had no jurisdiction, when, by the laws of the State,
the plaintiff was a slave, and not a citizen.
Moreover, the plaintiff, it appears, brought a similar action against
the defendant in the State court of Missouri, claiming the freedom of
himself and his family upon the same grounds and the same evidence
upon which he relies in the case before the court. The case was
carried before the Supreme Court of the State; was fully argued there;
and that court decided that neither the plaintiff nor his family were
entitled to freedom, and were still the slaves of the defendant; and
reversed the judgment of the inferior State court, which had given a
different decision. If the plaintiff supposed that this judgment of
the Supreme Court of the State was erroneous, and that this court had
jurisdiction to revise and reverse it, the only mode by which he could
legally bring it before this court was by writ of error directed to
the Supreme Court of the State, requiring it to transmit the record to
this court. If this had been done, it is too plain for argument that
the writ must have been dismissed for want of jurisdiction in this
court. The case of Strader and others _v._ Graham is directly in
point; and, indeed, independent of any decision, the language of the
25th section of the act of 1789 is too clear and precise to admit of
controversy.
But the plaintiff did not pursue the mode prescribed by law for
bringing the judgment of a State court before this court for revision,
but suffered the case to be remanded to the inferior State court,
where it is still continued, and is, by agreement of parties, to await
the judgment of this court on the point. All of this appears on the
record before us, and by the printed report of the case.
And while the case is yet open and pending in the inferior State
court, the plaintiff goes into the Circuit Court of the United States,
upon the same case and the same evidence, and against the same party,
and proceeds to judgment, and then brings here the same case from the
Circuit Court, which the law would not have permitted him to bring
directly from the State court. And if this court takes jurisdiction
in this form, the result, so far as the rights of the respective
parties are concerned, is in every respect substantially the same as
if it had in open violation of law entertained jurisdiction over the
judgment of the State court upon a writ of error, and revised and
reversed its judgment upon the ground that its opinion upon the
question of law was erroneous. It would ill become this court to
sanction such an attempt to evade the law, or to exercise an appellate
power in this circuitous way, which it is forbidden to exercise in the
direct and regular and invariable forms of judicial proceedings.
Upon the whole, therefore, it is the judgment of this court, that it
appears by the record before us that the plaintiff in error is not a
citizen of Missouri, in the sense in which that word is used in the
Constitution; and that the Circuit Court of the United States, for
that reason, had no jurisdiction in the case, and could give no
judgment in it. Its judgment for the defendant must, consequently, be
reversed, and a mandate issued, directing the suit to be dismissed for
want of jurisdiction.
* * * * *
Mr. Justice WAYNE.
Concurring as I do entirely in the opinion of the court, as it has
been written and read by the Chief Justice--without any qualification
of its reasoning or its conclusions--I shall neither read nor file an
opinion of my own in this case, which I prepared when I supposed it
might be necessary and proper for me to do so.
The opinion of the court meets fully and decides every point which was
made in the argument of the case by the counsel on either side of it.
Nothing belonging to the case has been left undecided, nor has any
point been discussed and decided which was not called for by the
record, or which was not necessary for the judicial disposition of it,
in the way that it has been done, by more than a majority of the
court.
In doing this, the court neither sought nor made the case. It was
brought to us in the course of that administration of the laws which
Congress has enacted, for the review of cases from the Circuit Courts
by the Supreme Court.
In our action upon it, we have only discharged our duty as a distinct
and efficient department of the Government, as the framers of the
Constitution meant the judiciary to be, and as the States of the Union
and the people of those States intended it should be, when they
ratified the Constitution of the United States.
The case involves private rights of value, and constitutional
principles of the highest importance, about which there had become
such a difference of opinion, that the peace and harmony of the
country required the settlement of them by judicial decision.
It would certainly be a subject of regret, that the conclusions of the
court have not been assented to by all of its members, if I did not
know from its history and my own experience how rarely it has happened
that the judges have been unanimous upon constitutional questions of
moment, and if our decision in this case had not been made by as large
a majority of them as has been usually had on constitutional questions
of importance.
Two of the judges, Mr. Justices McLean and Curtis, dissent from the
opinion of the court. A third, Mr. Justice Nelson, gives a separate
opinion upon a single point in the case, with which I concur, assuming
that the Circuit Court had jurisdiction; but he abstains altogether
from expressing any opinion upon the eighth section of the act of
1820, known commonly as the Missouri Compromise law, and six of us
declare that it was unconstitutional.
But it has been assumed, that this court has acted extra-judicially in
giving an opinion upon the eighth section of the act of 1820, because,
as it has decided that the Circuit Court had no jurisdiction of the
case, this court had no jurisdiction to examine the case upon its
merits.
But the error of such an assertion has arisen in part from a
misapprehension of what has been heretofore decided by the Supreme
Court, in cases of a like kind with that before us; in part, from a
misapplication to the Circuit Courts of the United States, of the
rules of pleading concerning pleas to the jurisdiction which prevail
in common-law courts; and from its having been forgotten that this
case was not brought to this court by appeal or writ of error from a
State court, but by a writ of error to the Circuit Court of the United
States.
The cases cited by the Chief Justice to show that this court has now
only done what it has repeatedly done before in other cases, without
any question of its correctness, speak for themselves. The differences
between the rules concerning pleas to the jurisdiction in the courts
of the United States and common-law courts have been stated and
sustained by reasoning and adjudged cases; and it has been shown that
writs of error to a State court and to the Circuit Courts of the
United States are to be determined by different laws and principles.
In the first, it is our duty ascertain if this court has jurisdiction,
under the twenty-fifth section of the judiciary act, to review the
case _from the State court_; and if it shall be found that it has not,
the case is at end, so far as this court is concerned; for our power
to review the case upon its merits has been made, by the twenty-fifth
section, to depend upon its having jurisdiction; when it has not, this
court cannot criticise, controvert, or give any opinion upon the
merits of a case from a State court.
But in a case brought to this court, by appeal or by writ of error
from _a Circuit Court of the United States_, we begin a review of it,
_not by inquiring if this court has jurisdiction_, but if that court
has it. If the case has been decided by that court upon its merits,
but the record shows it to be deficient in those averments which by
the law of the United States must be made by the plaintiff in the
action, to give the court jurisdiction of his case, we send it back to
the court from which it was brought, with directions to be dismissed,
though it has been decided there upon its merits.
So, in a case containing the averments by the plaintiff which are
necessary to give the Circuit Court jurisdiction, if the defendant
shall file his plea in abatement denying the truth of them, and the
plaintiff shall demur to it, and the court should _erroneously sustain
the plaintiff's demurrer, or declare the plea to be insufficient, and
by doing so require the defendant to answer over by a plea to the
merits, and shall decide the case upon such pleading_, this court has
the same authority to inquire into the jurisdiction of that court to
do so, and to correct its error in that regard, that it had in the
other case to correct its error, in trying a case in which the
plaintiff had not made those averments which were necessary to give
the court jurisdiction. In both cases the record is resorted to, to
determine the point of jurisdiction; but, as the power of review of
cases from a Federal court, by this court, is not limited by the law
to a part of the case, this court may correct an error upon the
merits; and there is the same reason for correcting an erroneous
judgment of the Circuit Court, where the want of jurisdiction appears
from any part of the record, that there is for declaring a want of
jurisdiction for a want of necessary averments. Any attempt to control
the court from doing so by the technical common-law rules of pleading
in cases of jurisdiction, when a defendant has been denied his plea to
it, would tend to enlarge the jurisdiction of the Circuit Court, by
limiting this court's review of its judgments in that particular. But
I will not argue a point already so fully discussed. I have every
confidence in the opinion of the court upon the point of jurisdiction,
and do not allow myself to doubt that the error of a contrary
conclusion will be fully understood by all who shall read the argument
of the Chief Justice.
I have already said that the opinion of the court has my unqualified
assent.
* * * * *
Mr. Justice NELSON.
I shall proceed to state the grounds upon which I have arrived at the
conclusion, that the judgment of the court below should be affirmed.
The suit was brought in the court below by the plaintiff, for the
purpose of asserting his freedom, and that of Harriet, his wife, and
two children.
The defendant plead, in abatement to the suit, that the cause of
action, if any, accrued to the plaintiff out of the jurisdiction of
the court, and exclusively within the jurisdiction of the courts of
the State of Missouri; for, that the said plaintiff is not a citizen
of the State of Missouri, as alleged in the 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.
To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court below sustained the demurrer, holding that the
plea was insufficient in law to abate the suit.
The defendant then plead over in bar of the action:
1. The general issue. 2. That the plaintiff was a negro slave, the
lawful property of the defendant. And 3. That Harriet, the wife of
said plaintiff, and the two children, were the lawful slaves of the
said defendant. Issue was taken upon these pleas, and the cause went
down to trial before the court and jury, and an agreed state of facts
was presented, upon which the trial proceeded, and resulted in a
verdict for the defendant, under the instructions of the court.
The facts agreed upon were substantially as follows:
That in the year 1834, the plaintiff, Scott, was a negro slave of Dr.
Emerson, who was a surgeon in the army of the United States; and in
that year he took the plaintiff from the State of Missouri to the
military post at Rock Island, in the State of Illinois, and held him
there as a slave until the month of April or May, 1836. At this date,
Dr. Emerson removed, with the plaintiff from the Rock Island post to
the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory of Upper Louisiana, and north of
the latitude thirty-six degrees thirty minutes, and north of the State
of Missouri. That he held the plaintiff in slavery, at Fort Snelling,
from the last-mentioned date until the year 1838.
That in the year 1835, Harriet, mentioned in the declaration, was a
negro slave of Major Taliaferro, who belonged to the army of the
United States; and in that year he took her to Fort Snelling, already
mentioned, and kept her there as a slave until the year 1836, and then
sold and delivered her to Dr. Emerson, who held her in slavery, at
Fort Snelling, until the year 1838. That in the year 1836, the
plaintiff and Harriet were married, at Fort Snelling, with the
consent of their master. The two children, Eliza and Lizzie, are the
fruit of this marriage. The first is about fourteen years of age, and
was born on board the steamboat Gipsey, north of the State of
Missouri, and upon the Mississippi river; the other, about seven years
of age, was born in the State of Missouri, at the military post called
Jefferson Barracks.
In 1838, Dr. Emerson removed the plaintiff, Harriet, and their
daughter Eliza, from Fort Snelling to the State of Missouri, where
they have ever since resided. And that, before the commencement of
this suit, they were sold by the Doctor to Sandford, the defendant,
who has claimed and held them as slaves ever since.
The agreed case also states that the plaintiff brought a suit for his
freedom, in the Circuit Court of the State of Missouri, on which a
judgment was rendered in his favor; but that, on a writ of error from
the Supreme Court of the State, the judgment of the court below was
reversed, and the cause remanded to the circuit for a new trial.
On closing the testimony in the court below, the counsel for the
plaintiff prayed the court to instruct the jury, upon the agreed state
of facts, that they ought to find for the plaintiff; when the court
refused, and instructed them that, upon the facts, the law was with
the defendant.
With respect to the plea in abatement, which went to the citizenship
of the plaintiff, and his competency to bring a suit in the Federal
courts, the common-law rule of pleading is, that upon a judgment
against the plea on demurrer, and that the defendant answer over, and
the defendant submits to the judgment, and pleads over to the merits,
the plea in abatement is deemed to be waived, and is not afterwards to
be regarded as a part of the record in deciding upon the rights of the
parties. There is some question, however, whether this rule of
pleading applies to the peculiar system and jurisdiction of the
Federal courts. As, in these courts, if the facts appearing on the
record show that the Circuit Court had no jurisdiction, its judgment
will be reversed in the appellate court for that cause, and the case
remanded with directions to be dismissed.
In the view we have taken of the case, it will not be necessary to
pass upon this question, and we shall therefore proceed at once to an
examination of the case upon its merits. The question upon the merits,
in general terms, is, whether or not the removal of the plaintiff, who
was a slave, with his master, from the State of Missouri to the State
of Illinois, with a view to a temporary residence, and after such
residence and return to the slave State, such residence in the free
State works an emancipation.