in 1785, Connecticut hers in 1786, and New York had ceded hers. In
August, 1787, South Carolina ceded to the Confederation her pretension
of claim to territory west of that State. And North Carolina was
expected to cede hers, which she did do, in April, 1790. And so
Georgia was confidently expected to cede her large domain, now
constituting the territory of the States of Alabama and Mississippi.
At the time the Constitution was under consideration, there had been
ceded to the United States, or was shortly expected to be ceded, all
the western country, from the British Canada line to Florida, and from
the head of the Mississippi almost to its mouth, except that portion
which now constitutes the State of Kentucky.
Although Virginia had conferred on the Congress of the Confederation
power to govern the Territory north of the Ohio, still, it cannot be
denied, as I think, that power was wanting to admit a new State under
the Articles of Confederation.
With these facts prominently before the Convention, they proposed to
accomplish these ends:
1st. To give power to admit new States.
2d. To dispose of the public lands in the Territories, and such as
might remain undisposed of in the new States after they were admitted.
And, thirdly, to give power to govern the different Territories as
incipient States, not of the Union, and fit them for admission. No one
in the Convention seems to have doubted that these powers were
necessary. As early as the third day of its session, (May 29th,)
Edmund Randolph brought forward a set of resolutions containing nearly
all the germs of the Constitution, the tenth of which is as follows:
"_Resolved_, That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and territory or
otherwise, with the consent of a number of voices in the National
Legislature less than the whole."
August 18th, Mr. Madison submitted, in order to be referred to the
committee of detail, the following powers as proper to be added to
those of the General Legislature:
"To dispose of the unappropriated lands of the United States." "To
institute temporary Governments for new States arising therein." (3
Madison Papers, 1353.)
These, with the resolution, that a district for the location of the
seat of Government should be provided, and some others, were referred,
without a dissent, to the committee of detail, to arrange and put them
into satisfactory language.
Gouverneur Morris constructed the clauses, and combined the views of a
majority on the two provisions, to admit new States; and secondly, to
dispose of the public lands, and to govern the Territories, in the
mean time, between the cessions of the States and the admission into
the Union of new States arising in the ceded territory. (3 Madison
Papers, 1456 to 1466.)
It was hardly possible to separate the power "to make all needful
rules and regulations" respecting the government of the territory and
the disposition of the public lands.
North of the Ohio, Virginia conveyed the lands, and vested the
jurisdiction in the thirteen original States, before the Constitution
was formed. She had the sole title and sole sovereignty, and the same
power to cede, on any terms she saw proper, that the King of England
had to grant the Virginia colonial charter of 1609, or to grant the
charter of Pennsylvania to William Penn. The thirteen States, through
their representatives and deputed ministers in the old Congress, had
the same right to govern that Virginia had before the cession.
(Baldwin's Constitutional Views, 90.) And the sixth article of the
Constitution adopted all engagements entered into by the Congress of
the Confederation, as valid against the United States; and that the
laws, made in pursuance of the new Constitution, to carry out this
engagement, should be the supreme law of the land, and the judges
bound thereby. To give the compact, and the ordinance, which was part
of it, full effect under the new Government, the act of August 7th,
1789, was passed, which declares, "Whereas, in order that the
ordinance of the United States in Congress assembled, for the
government of the Territory northwest of the river Ohio, may have full
effect, it is requisite that certain provisions should be made, so as
to adapt the same to the present Constitution of the United States."
It is then provided that the Governor and other officers should be
appointed by the President, with the consent of the Senate; and be
subject to removal, &c., in like manner that they were by the old
Congress, whose functions had ceased.
By the powers to govern, given by the Constitution, those amendments
to the ordinance could be made, but Congress guardedly abstained from
touching the compact of Virginia, further than to adapt it to the new
Constitution.
It is due to myself to say, that it is asking much of a judge, who
has for nearly twenty years been exercising jurisdiction, from the
western Missouri line to the Rocky Mountains, and, on this
understanding of the Constitution, inflicting the extreme penalty of
death for crimes committed where the direct legislation of Congress
was the only rule, to agree that he had been all the while acting in
mistake, and as an usurper.
More than sixty years have passed away since Congress has exercised
power to govern the Territories, by its legislation directly, or by
Territorial charters, subject to repeal at all times, and it is now
too late to call that power into question, if this court could
disregard its own decisions; which it cannot do, as I think. It was
held in the case of Cross _v._ Harrison, (16 How., 193-'4,) that the
sovereignty of California was in the United States, in virtue of the
Constitution, by which power had been given to Congress to dispose of
and make all needful rules and regulations respecting the territory or
other property belonging to the United States, with the power to admit
new States into the Union. That decision followed preceding ones,
there cited. The question was then presented, how it was possible for
the judicial mind to conceive that the United States Government,
created solely by the Constitution, could, by a lawful treaty, acquire
territory over which the acquiring power had no jurisdiction to hold
and govern it, by force of the instrument under whose authority the
country was acquired; and the foregoing was the conclusion of this
court on the proposition. What was there announced, was most
deliberately done, and with a purpose. The only question here is, as I
think, how far the power of Congress is limited.
As to the Northwest Territory, Virginia had the right to abolish
slavery there; and she did so agree in 1787, with the other States in
the Congress of the Confederation, by assenting to and adopting the
ordinance of 1787, for the government of the Northwest Territory. She
did this also by an act of her Legislature, passed afterwards, which
was a treaty in fact.
Before the new Constitution was adopted, she had as much right to
treat and agree as any European Government had. And, having excluded
slavery, the new Government was bound by that engagement by article
six of the new Constitution. This only meant that slavery should not
exist whilst the United States exercised the power of government, in
the Territorial form; for, when a new State came in, it might do so,
with or without slavery.
My opinion is, that Congress had no power, in face of the compact
between Virginia and the twelve other States, to _force_ slavery into
the Northwest Territory, because there, it was bound to that
"engagement," and could not break it.
In 1790, North Carolina ceded her western territory, now the State of
Tennessee, and stipulated that the inhabitants thereof should enjoy
all the privileges and advantages of the ordinance for governing the
territory north of the Ohio river, and that Congress should assume the
government, and accept the cession, under the express conditions
contained in the ordinance: _Provided_, "That no regulation made, or
to be made, by Congress, shall tend to emancipate slaves."
In 1802, Georgia ceded her western territory to the United States,
with the provision that the ordinance of 1787 should in all its parts
extend to the territory ceded, "that article only excepted which
forbids slavery." Congress had no more power to legislate slavery
_out_ from the North Carolina and Georgia cessions, than it had power
to legislate slavery in, north of the Ohio. No power existed in
Congress to legislate at all, affecting slavery, in either case. The
inhabitants, as respected this description of property, stood
protected whilst they were governed by Congress, in like manner that
they were protected before the cession was made, and when they were,
respectively, parts of North Carolina and Georgia.
And how does the power of Congress stand west of the Mississippi
river? The country there was acquired from France, by treaty, in 1803.
It declares, that the First Consul, in the name of the French
Republic, doth hereby cede to the United States, in full sovereignty,
the colony or province of Louisiana, with all the rights and
appurtenances of the said territory. And, by article third, that "the
inhabitants of the ceded territory shall be incorporated in the Union
of the United States, and admitted as soon as possible, according to
the principles of the Federal Constitution, to the enjoyment of all
the rights, advantages, and immunities, of citizens of the United
States; and, in the mean time, they shall be maintained and protected
in the free enjoyment of their liberty, property, and the religion
which they profess."
Louisiana was a province where slavery was not only lawful, but where
property in slaves was the most valuable of all personal property. The
province was ceded as a unit, with an equal right pertaining to all
its inhabitants, in every part thereof, to own slaves. It was, to a
great extent, a vacant country, having in it few civilized
inhabitants. No one portion of the colony, of a proper size for a
State of the Union had a sufficient number of inhabitants to claim
admission into the Union. To enable the United States to fulfil the
treaty, additional population was indispensable, and obviously desired
with anxiety by both sides, so that the whole country should, as soon
as possible, become States of the Union. And for this contemplated
future population, the treaty as expressly provided as it did for the
inhabitants residing in the province when the treaty was made. All
these were to be protected "_in the mean time_;" that is to say, at
all times, between the date of the treaty and the time when the
portion of the Territory where the inhabitants resided was admitted
into the Union as a State.
At the date of the treaty, each inhabitant had the right to the _free_
enjoyment of his property, alike with his liberty and his religion, in
every part of Louisiana; the province then being one country, he might
go everywhere in it, and carry his liberty, property, and religion,
with him, and in which he was to be maintained and protected, until he
became a citizen of a State of the Union of the United States. This
cannot be denied to the original inhabitants and their descendants.
And, if it be true that immigrants were equally protected, it must
follow that they can also stand on the treaty.
The settled doctrine in the State courts of Louisiana is, that a
French subject coming to the Orleans Territory, after the treaty of
1803 was made, and before Louisiana was admitted into the Union, and
being an inhabitant at the time of the admission, became a citizen of
the United States by that act; that he was one of the inhabitants
contemplated by the third article of the treaty, which referred to all
the inhabitants embraced within the new State on its admission.
That this is the true construction, I have no doubt.
If power existed to draw a line at thirty-six degrees thirty minutes
north, so Congress had equal power to draw the line on the thirtieth
degree--that is, due west from the city of New Orleans--and to declare
that north of _that line_ slavery should never exist. Suppose this had
been done before 1812, when Louisiana came into the Union, and the
question of infraction of the treaty had then been presented on the
present assumption of power to prohibit slavery, who doubts what the
decision of this court would have been on such an act of Congress;
yet, the difference between the supposed line, and that on thirty-six
degrees thirty minutes north, is only in the degree of grossness
presented by the lower line.
The Missouri compromise line of 1820 was very aggressive; it declared
that slavery was abolished forever throughout a country reaching from
the Mississippi river to the Pacific ocean, stretching over thirty-two
degrees of longitude, and twelve and a half degrees of latitude on its
eastern side, sweeping over four-fifths, to say no more, of the
original province of Louisiana.
That the United States Government stipulated in favor of the
inhabitants to the extent here contended for, has not been seriously
denied, as far as I know; but the argument is, that Congress had
authority to _repeal_ the third article of the treaty of 1803, in so
far as it secured the right to hold slave property, in a portion of
the ceded territory, leaving the right to exist in other parts. In
other words, that Congress could repeal the third article entirely, at
its pleasure. This I deny.
The compacts with North Carolina and Georgia were treaties also, and
stood on the same footing of the Louisiana treaty; on the assumption
of power to repeal the one, it must have extended to all, and Congress
could have excluded the slaveholder of North Carolina from the
enjoyment of his lands in the Territory now the State of Tennessee,
where the citizens of the mother State were the principal proprietors.
And so in the case of Georgia. Her citizens could have been refused
the right to emigrate to the Mississippi or Alabama Territory, unless
they left their most valuable and cherished property behind them.
The Constitution was framed in reference to facts then existing or
likely to arise: the instrument looked to no theories of Government.
In the vigorous debates in the Convention, as reported by Mr. Madison
and others, surrounding facts, and the condition and necessities of
the country, gave rise to almost every provision; and among those
facts, it was prominently true, that Congress dare not be intrusted
with power to provide that, if North Carolina or Georgia ceded her
western territory, the citizens of the State (in either case) could be
prohibited, at the pleasure of Congress, from removing to their lands,
then granted to a large extent, in the country likely to be ceded,
unless they left their slaves behind. That such an attempt, in the
face of a population fresh from the war of the Revolution, and then
engaged in war with the great confederacy of Indians, extending from
the mouth of the Ohio to the Gulf of Mexico, would end in open revolt,
all intelligent men knew.
In view of these facts, let us inquire how the question stands by the
terms of the Constitution, aside from the treaty? How it stood in
public opinion when the Georgia cession was made, in 1802, is apparent
from the fact that no guaranty was required by Georgia of the United
States, for the protection of slave property. The Federal Constitution
was relied on, to secure the rights of Georgia and her citizens during
the Territorial condition of the country. She relied on the
indisputable truths, that the States were by the Constitution made
equals in political rights, and equals in the right to participate in
the common property of all the States united, and held in trust for
them. The Constitution having provided that "The citizens of each
State shall be entitled to all privileges and immunities of citizens
of the several States," the right to enjoy the territory as equals was
reserved to the States, and to the citizens of the States,
respectively. The cited clause is not that citizens of the United
States shall have equal privileges in the Territories, but the citizen
of each State shall come there in right of his State, and enjoy the
common property. He secures his equality through the equality of his
State, by virtue of that great fundamental condition of the Union--the
equality of the States.
Congress cannot do indirectly what the Constitution prohibits
directly. If the slaveholder is prohibited from going to the Territory
with his slaves, who are parts of his family in name and in fact, it
will follow that men owning lawful property in their own States,
carrying with them the equality of their State to enjoy the common
property, may be told, you cannot come here with your slaves, and he
will be held out at the border. By this subterfuge, owners of slave
property, to the amount of thousand of millions, might be almost as
effectually excluded from removing into the Territory of Louisiana
north of thirty-six degrees thirty minutes, as if the law declared
that owners of slaves, as a class, should be excluded, even if their
slaves were left behind.
Just as well might Congress have said to those of the North, you shall
not introduce into the territory south of said line your cattle or
horses, as the country is already overstocked; nor can you introduce
your tools of trade, or machines, as the policy of Congress is to
encourage the culture of sugar and cotton south of the line, and so to
provide that the Northern people shall manufacture for those of the
South, and barter for the staple articles slave labor produces. And
thus the Northern farmer and mechanic would be held out, as the
slaveholder was for thirty years, by the Missouri restriction.
If Congress could prohibit one species of property, lawful throughout
Louisiana when it was acquired, and lawful in the State from whence it
was brought, so Congress might exclude any or all property.
The case before us will illustrate the construction contended for. Dr.
Emerson was a citizen of Missouri; he had an equal right to go to the
Territory with every citizen of other States. This is undeniable, as I
suppose. Scott was Dr. Emerson's lawful property in Missouri; he
carried his Missouri title with him; and the precise question here is,
whether Congress had the power to annul that title. It is idle to say,
that if Congress could not defeat the title _directly_, that it might
be done indirectly, by drawing a narrow circle around the slave
population of Upper Louisiana, and declaring that if the slave went
beyond it, he should be free. Such assumption is mere evasion, and
entitled to no consideration. And it is equally idle to contend, that
because Congress has express power to regulate commerce among the
Indian tribes, and to prohibit intercourse with the Indians, that
therefore Dr. Emerson's title might be defeated within the country
ceded by the Indians to the United States as early as 1805, and which
embraces Fort Snelling. (Am. State Papers, vol. 1, p. 734.) We _must_
meet the question, whether Congress had the power to declare that a
citizen of a State, carrying with him his equal rights, secured to him
through his State, could be stripped of his goods and slaves, and be
deprived of any participation in the common property? If this be the
true meaning of the Constitution, equality of rights to enjoy a common
country (equal to a thousand miles square) may be cut off by a
geographical line, and a great portion of our citizens excluded from
it.
Ingenious, indirect evasions of the Constitution have been attempted
and defeated heretofore. In the passenger cases, (7 How. R.,) the
attempt was made to impose a tax on the masters, crews, and passengers
of vessels, the Constitution having prohibited a tax on the vessel
itself; but this court held the attempt to be a mere evasion, and
pronounced the tax illegal.
I admit that Virginia could, and lawfully did, prohibit slavery
northwest of the Ohio, by her charter of cession, and that the
territory was taken by the United States with this condition imposed.
I also admit that France could, by the treaty of 1803, have prohibited
slavery in any part of the ceded territory, and imposed it on the
United States as a fundamental condition of the cession, in the mean
time, till new States were admitted in the Union.
I concur with Judge Baldwin, that Federal power is exercised over all
the territory within the United States, pursuant to the Constitution;
_and_, the conditions of the cession, whether it was a part of the
original territory of a State of the Union, or of a foreign State,
ceded by deed or treaty; the right of the United States in or over it
depends on the contract of cession, which operates to incorporate as
well the Territory as its inhabitants into the Union. (Baldwin's
Constitutional Views, 84.)
My opinion is, that the third article of the treaty of 1803, ceding
Louisiana to the United States, stands protected by the Constitution,
and cannot be repealed by Congress.
And, secondly, that the act of 1820, known as the Missouri
compromise, violates the most leading feature of the Constitution--a
feature on which the Union depends, and which secures to the
respective States and their citizens an entire EQUALITY of rights,
privileges, and immunities.
On these grounds, I hold the compromise act to have been void; and,
consequently, that the plaintiff, Scott, can claim no benefit under
it.
For the reasons above stated, I concur with my brother judges that the
plaintiff, Scott, is a slave, and was so when this suit was brought.
* * * * *
Mr. Justice McLEAN and Mr. Justice CURTIS dissented.
Mr. Justice McLEAN dissenting.
This case is before us on a writ of error from the Circuit Court for
the district of Missouri.
An action of trespass was brought, which charges the defendant with an
assault and imprisonment of the plaintiff, and also of Harriet Scott,
his wife, Eliza and Lizzie, his two children, on the ground that they
were his slaves, which was without right on his part, and against law.
The defendant filed a plea in abatement, "that said causes of action,
and each and every of them, if any such accrued to the said Dred
Scott, accrued out of the jurisdiction of this court, and exclusively
within the jurisdiction of the courts of the State of Missouri, for
that to wit, 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 the
court can or will take further cognizance of the action aforesaid."
To this a demurrer was filed, which, on argument, was sustained by the
court, the plea in abatement being held insufficient; the defendant
was ruled to plead over. Under this rule he pleaded: 1. Not guilty; 2.
That Dred Scott was a negro slave, the property of the defendant; and
3. That Harriet, the wife, and Eliza and Lizzie, the daughters of the
plaintiff, were the lawful slaves of the defendant.
Issue was joined on the first plea, and replications of _de injuria_
were filed to the other pleas.
The parties agreed to the following facts: In the year 1834, the
plaintiff was a negro slave belonging to Dr. Emerson, who was a
surgeon in the army of the United States. In that year, Dr. Emerson
took the plaintiff from the State of Missouri to the post of 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, Dr.
Emerson removed the plaintiff from 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 latitude thirty-six degrees thirty
minutes north, and north of the State of Missouri. Dr. Emerson held
the plaintiff in slavery, at Fort Snelling, from the last-mentioned
date until the year 1838.