The State of Louisiana, whose courts had gone further in holding the

slave free on his return from a residence in a free State than the

courts of her sister States, has settled the law, by an act of her

Legislature, in conformity with the law of the court of Missouri in

the case before us. (Sess. Law, 1846.)

The case before Lord Stowell presented much stronger features for

giving effect to the law of England in the case of the slave Grace

than exists in the cases that have arisen in this country, for in that

case the slave returned to a colony of England over which the Imperial

Government exercised supreme authority. Yet, on the return of the

slave to the colony, from a temporary residence in England, he held

that the original condition of the slave attached. The question

presented in cases arising here is as to the effect and operation to

be given to the laws of a foreign State, on the return of the slave

within an independent sovereignty.

Upon the whole, it must be admitted that the current of authority,

both in England and in this country, is in accordance with the law as

declared by the courts of Missouri in the case before us, and we think

the court below was not only right, but bound to follow it.

Some question has been made as to the character of the residence in

this case in the free State. But we regard the facts as set forth in

the agreed case as decisive. The removal of Dr. Emerson from Missouri

to the military posts was in the discharge of his duties as surgeon in

the army, and under the orders of his Government. He was liable at any

moment to be recalled, as he was in 1838, and ordered to another post.

The same is also true as it respects Major Taliaferro. In such a case,

the officer goes to his post for a temporary purpose, to remain there

for an uncertain time, and not for the purpose of fixing his permanent

abode. The question we think too plain to require argument. The case

of the Attorney General _v._ Napier, (6 Welsh, Hurtst. and Gordon

Exch. Rep., 217,) illustrates and applies the principle in the case of

an officer of the English army.

A question has been alluded to, on the argument, namely: the right of

the master with his slave of transit into or through a free State, on

business or commercial pursuits, or in the exercise of a Federal

right, or the discharge of a Federal duty, being a citizen of the

United States, which is not before us. This question depends upon

different considerations and principles from the one in hand, and

turns upon the rights and privileges secured to a common citizen of

the republic under the Constitution of the United States. When that

question arises, we shall be prepared to decide it.

Our conclusion is, that the judgment of the court below should be

affirmed.

* * * * *

Mr. Justice GRIER.

I concur in the opinion delivered by Mr. Justice Nelson on the

questions discussed by him.

I also concur with the opinion of the court as delivered by the Chief

Justice, that the act of Congress of 6th March, 1820, is

unconstitutional and void; and that, assuming the facts as stated in

the opinion, the plaintiff cannot sue as a citizen of Missouri in the

courts of the United States. But, that the record shows a prima facie

case of jurisdiction, requiring the court to decide all the questions

properly arising in it; and as the decision of the pleas in bar shows

that the plaintiff is a slave, and therefore not entitled to sue in a

court of the United States, the form of the judgment is of little

importance; for, whether the judgment be affirmed or dismissed for

want of jurisdiction, it is justified by the decision of the court,

and is the same in effect between the parties to the suit.

* * * * *

Mr. Justice DANIEL.

It may with truth be affirmed, that since the establishment of the

several communities now constituting the States of this Confederacy,

there never has been submitted to any tribunal within its limits

questions surpassing in importance those now claiming the

consideration of this court. Indeed it is difficult to imagine, in

connection with the systems of polity peculiar to the United States, a

conjuncture of graver import than that must be, within which it is

aimed to comprise, and to control, not only the faculties and

practical operation appropriate to the American Confederacy as such,

but also the rights and powers of its separate and independent

members, with reference alike to their internal and domestic authority

and interests, and the relations they sustain to their confederates.

To my mind it is evident, that nothing less than the ambitious and

far-reaching pretension to compass these objects of vital concern, is

either directly essayed or necessarily implied in the positions

attempted in the argument for the plaintiff in error.

How far these positions have any foundation in the nature of the

rights and relations of separate, equal, and independent Governments,

or in the provisions of our own Federal compact, or the laws enacted

under and in pursuance of the authority of that compact, will be

presently investigated.

In order correctly to comprehend the tendency and force of those

positions, it is proper here succinctly to advert to the facts upon

which the questions of law propounded in the argument have arisen.

This was an action of trespass _vi et armis_, instituted in the

Circuit Court of the United States for the district of Missouri, in

the name of the plaintiff in error, _a negro_ held as a slave, for the

recovery of freedom for himself, his wife, and two children, _also

negroes_.

To the declaration in this case the defendant below, who is also the

defendant in error, pleaded in abatement that the court could not take

cognizance of the cause, because the plaintiff was not _a citizen_ of

the State of Missouri, as averred in the declaration, but was a _negro

of African descent_, and that his ancestors were of pure African

blood, and were brought into this country and sold as _negro slaves_;

and hence it followed, from the second section of the third article of

the Constitution, which creates the judicial power of the United

States, with respect to controversies between citizens of different

States, that the Circuit Court could not take cognizance of the

action.

To this plea in abatement, a demurrer having been interposed on behalf

of the plaintiff, it was sustained by the court. After the decision

sustaining the demurrer, the defendant, in pursuance of a previous

agreement between counsel, and with the leave of the court, pleaded in

bar of the action: _1st, not guilty; 2dly, 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; 3dly, 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 at the same manner, and in virtue of the same legal

right_.

Issues having been joined upon the above pleas in bar, the following

statement, comprising all the evidence in the cause, was agreed upon

and signed by the counsel of the respective parties, viz:

"In the year 1834, the plaintiff was a negro slave belonging to Doctor

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 said Fort Snelling, from

said last-mentioned date until the year 1838.

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

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

belonged to the army of the United States. In that year, 1835, said

Major Taliaferro took said Harriet to said Fort Snelling, a military

post situated as hereinbefore stated, and kept her there as a slave

until the year 1836, and then sold and delivered her as a slave at

said Fort Snelling unto the said Dr. Emerson, hereinbefore named. Said

Dr. Emerson held said Harriet in slavery at said Fort Snelling until

the year 1838.

"In the year 1836, the plaintiff and said Harriet, at said Fort

Snelling, with the consent of said Dr. Emerson, who then claimed to be

their master and owner, intermarried, and took each other for husband

and wife. Eliza and Lizzie, named in the third count of the

plaintiff's declaration, are the fruit of that marriage. Eliza is

about fourteen years old, and was born on board the steamboat Gipsey,

north of the north line of the State of Missouri, and upon the river

Mississippi. Lizzie is about seven years old, and was born in the

State of Missouri, at a 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.

"R.M. FIELD, _for Plaintiff_.

"H.A. GARLAND, _for Defendant_.

"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 cause remanded to the

Circuit Court, where it has been continued to await the decision of

this case.

"FIELD, _for Plaintiff_.

"GARLAND, _for Defendant_."

Upon the aforegoing agreed facts, the plaintiff prayed the court to

instruct the jury that they ought to find for the plaintiff, and upon

the refusal of the instruction thus prayed for, the plaintiff excepted

to the court's opinion. The court then, upon the prayer of the

defendant, instructed the jury, that upon the facts of this case

agreed as above, the law was with the defendant. To this opinion,

also, the plaintiff's counsel excepted, as he did to the opinion of

the court denying to the plaintiff a new trial after the verdict of

the jury in favor of the defendant.

The question first in order presented by the record in this cause, is

that which arises upon the plea in abatement, and the demurrer to that

plea; and upon this question it is my opinion that the demurrer should

have been overruled, and the plea sustained.

On behalf of the plaintiff it has been urged, that by the pleas

interposed in bar of a recovery in the court below, (which pleas both

in fact and in law are essentially the same with the objections

averred in abatement,) the defence in abatement has been displaced or

waived; that it could therefore no longer be relied on in the Circuit

Court, and cannot claim the consideration of this court in reviewing

this cause. This position is regarded as wholly untenable. On the

contrary, it would seem to follow conclusively from the peculiar

character of the courts of the United States, as organized under the

Constitution and the statutes, and as defined by numerous and

unvarying adjudications from this bench, that there is not one of

those courts whose jurisdiction and powers can be deduced from mere

custom or tradition; not one, whose jurisdiction and powers must not

be traced palpably to, and invested exclusively by, the Constitution

and statutes of the United States; not one that is not bound,

therefore, at all times, and at all stages of its proceedings, to look

to and to regard the special and declared extent and bounds of its

commission and authority. There is no such tribunal of the United

States as a court of _general jurisdiction_, in the sense in which

that phrase is applied to the superior courts under the common law;

and even with respect to the courts existing under that system, it is

a well-settled principle, that _consent_ can never give jurisdiction.

The principles above stated, and the consequences regularly deducible

from them, have, as already remarked, been repeatedly and unvaryingly

propounded from this bench. Beginning with the earliest decisions of

this court, we have the cases of Bingham _v._ Cabot et al., (3 Dallas,

382;) Turner _v._ Eurille, (4 Dallas, 7;) Abercrombie _v._ Dupuis et

al., (1 Cranch, 343;) Wood _v._ Wagnon, (2 Cranch, 9;) The United

States _v._ The brig Union et al., (4 Cranch, 216;) Sullivan _v._ The

Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. _v._

Torrence, (9 Wheaton, 537;) Brown _v._ Keene, (8 Peters, 112,) and

Jackson _v._ Ashton, (8 Peters, 148;) ruling, in uniform and unbroken

current, the doctrine that it is essential to the jurisdiction of the

courts of the United States, that the facts upon which it is founded

should appear upon the record. Nay, to such an extent and so

inflexibly has this requisite to the jurisdiction been enforced, that

in the case of Capron _v._ Van Noorden, (2 Cranch, 126,) it is

declared, that the plaintiff in this court may assign for error his

own omission in the pleadings in the court below, where they go to the

jurisdiction. This doctrine has been, if possible, more strikingly

illustrated in a later decision, the case of The State of Rhode Island

_v._ The State of Massachusetts, in the 12th of Peters.

In this case, on page 718 of the volume, this court, with reference to

a motion to dismiss the cause _for want of jurisdiction_, have said:

"_However late this objection has been made, or may be made, in any

cause in an inferior or appellate court of the United States_, it must

be considered and decided before any court can move one farther step

in the cause, as any movement is necessarily to exercise the

jurisdiction. Jurisdiction is the power to hear and determine the

subject-matter in controversy between the parties to a suit; to

adjudicate or exercise any judicial power over them. The question is,

whether on the case before the court their action is judicial or

extra-judicial; with or without the authority of law to render a

judgment or decree upon the rights of the litigant parties. A motion

to dismiss a cause pending in the courts of the United States, is not

analogous to a plea to the jurisdiction of a court of common law or

equity in England; there, the superior courts have a general

jurisdiction over all persons within the realm, and all causes of

action between them. It depends on the subject-matter, whether the

jurisdiction shall be exercised by a court of law or equity; but that

court to which it appropriately belongs can act judicially upon the

party and the subject of the suit, unless it shall be made apparent to

the court that the judicial determination of the case has been

withdrawn from the court of general jurisdiction to an inferior and

limited one. It is a necessary presumption that the court of general

jurisdiction can act upon the given case, when nothing to the

contrary appears; hence has arisen the rule that the party claiming an

exemption from its process must set out the reason by a special plea

in abatement, and show that some inferior court of law or equity has

the exclusive cognizance of the case, otherwise the superior court

must proceed in virtue of its general jurisdiction. A motion to

dismiss, therefore, cannot be entertained, as it does not disclose a

case of exception; and if a plea in abatement is put in, it must not

only make out the exception, but point to the particular court to

which the case belongs. There are other classes of cases where the

objection to the jurisdiction is of a different nature, as on a bill

in chancery, that the subject-matter is cognizable only by the King in

Council, or that the parties defendant cannot be brought before any

municipal court on account of their sovereign character or the nature

of the controversy; or to the very common cases which present the

question, whether the cause belong to a court of law or equity. To

such cases, a plea in abatement would not be applicable, because the

plaintiff could not sue in an inferior court. The objection goes to a

denial of any jurisdiction of a municipal court in the one class of

cases, and to the jurisdiction of any court of equity or of law in the

other, on which last the court decides according to its discretion.

"An objection to jurisdiction on the ground of exemption from the

process of the court in which the suit is brought, or the manner in

which a defendant is brought into it, is waived by appearance and

pleading to issue; but when the objection goes to the power of the

court over the parties or the subject-matter, the defendant need not,

for he cannot, give the plaintiff a better writ. Where an inferior

court can have no jurisdiction of a case of law or equity, the ground

of objection is not taken by plea in abatement, as an exception of the

given case from the otherwise general jurisdiction of the court;

appearance does not cure the defect of judicial power, and it may be

relied on by plea, answer, demurrer, _or at the trial or hearing_. As

a denial of jurisdiction over the subject-matter of a suit between

parties within the realm, over which and whom the court has power to

act, cannot be successful in an English court of general jurisdiction,

a motion like the present could not be sustained consistently with the

principles of its constitution. _But as this court is one of limited

and special original jurisdiction_, its action must be confined to the

particular cases, controversies, and parties, over which the

Constitution and laws have authorized it to act; any proceeding

without the limits prescribed is _coram non judice_, and its action a

nullity. And whether the want or excess of power is objected by a

party, or is apparent to the court, it must surcease its action or

proceed extra-judicially."

In the constructing of pleadings either in abatement or in bar, every

fact or position constituting a portion of the public law, or of known

or general history, is necessarily implied. Such fact or position need

not be specially averred and set forth; it is what the world at large

and every individual are presumed to know--nay, are bound to know and

to be governed by.

If, on the other hand, there exist facts or circumstances by which a

particular case would be withdrawn or exempted from the influence of

public law or necessary historical knowledge, such facts and

circumstances form an exception to the general principle, and these

must be specially set forth and _established_ by those who would avail

themselves of such exception.

Now, the following are truths which a knowledge of the history of the

world, and particularly of that of our own country, compels us to

know--that the African negro race never have been acknowledged as

belonging to the family of nations; that as amongst them there never

has been known or recognised by the inhabitants of other countries

anything partaking of the character of nationality, or civil or

political polity; that this race has been by all the nations of Europe

regarded as subjects of capture or purchase; as subjects of commerce

or traffic; and that the introduction of that race into every section

of this country was not as members of civil or political society, but

as slaves, as _property_ in the strictest sense of the term.

In the plea in abatement, the character or capacity of citizen on the

part of the plaintiff is denied; and the causes which show the absence

of that character or capacity are set forth by averment. The verity of

those causes, according to the settled rules of pleading, being

admitted by the demurrer, it only remained for the Circuit Court to

decide upon their legal sufficiency to abate the plaintiff's action.

And it now becomes the province of this court to determine whether the

plaintiff below, (and in error here,) admitted to be a _negro_ of

African descent, whose ancestors were of pure African blood, and were

brought into this country and sold as negro slaves--such being his

_status_, and such the circumstances surrounding his position--whether

he can, by correct legal induction from that _status_ and those

circumstances, be clothed with the character and capacities of a

citizen of the State of Missouri?

It may be assumed as a postulate, that to a slave, as such, there

appertains and can appertain no relation, civil or political, with the

State or the Government. He is himself strictly _property_, to be used

in subserviency to the interests, the convenience, or the will, of

his owner; and to suppose, with respect to the former, the existence

of any privilege or discretion, or of any obligation to others

incompatible with the magisterial rights just defined, would be by

implication, if not directly, to deny the relation of master and

slave, since none can possess and enjoy, as his own, that which

another has a paramount right and power to withhold. Hence it follows,

necessarily, that a slave, the _peculium_ or property of a master, and

possessing within himself no civil nor political rights or capacities,

cannot be a CITIZEN. For who, it may be asked, is a citizen? What do

the character and _status_ of citizen import? Without fear of

contradiction, it does not import the condition of being private

property, the subject of individual power and ownership. Upon a

principle of etymology alone, the term _citizen_, as derived from

_civitas_, conveys the ideas of connection or identification with the

State or Government, and a participation of its functions. But beyond

this, there is not, it is believed, to be found, in the theories of

writers on Government, or in any actual experiment heretofore tried,

an exposition of the term citizen, which has not been understood as

conferring the actual possession and enjoyment, or the perfect right

of acquisition and enjoyment, of an entire equality of privileges,

civil and political.

Thus Vattel, in the preliminary chapter to his Treatise on the Law of

Nations, says: "Nations or States are bodies politic; societies of men

united together for the purpose of promoting their mutual safety and

advantage, by the joint efforts of their mutual strength. Such a

society has her affairs and her interests; she deliberates and takes

resolutions _in common_; thus becoming a moral person, who possesses

an understanding and a will peculiar to herself." Again, in the first

chapter of the first book of the Treatise just quoted, the same

writer, after repeating his definition of a State, proceeds to remark,

that, "from the very design that induces a number of men to form a

society, which has its common interests and which is to act in

concert, it is necessary that there should be established a public

authority, to order and direct what is to be done by each, in relation

to the end of the association. This political authority is the

_sovereignty_." Again this writer remarks: "The authority of _all_

over each member essentially belongs to the body politic or the

State."

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 8 / 26 段