answer over. He held no alternative. He could not stop the further
progress of the case in the Circuit Court by a writ of error, on which
the sufficiency of his plea to the jurisdiction could be tried in this
court, because the judgment on that plea was not final, and no writ of
error would lie. He was forced to plead to the merits. It cannot be
true, then, that he waived the benefit of his plea to the jurisdiction
by answering over. Waiver includes consent. Here, there was no
consent. And if the benefit of the plea was finally lost, it must be,
not by any waiver, but because the laws of the United States have not
provided any mode of reviewing the decision of the Circuit Court on
such a plea, when that decision is against the defendant. This is not
the law. Whether the decision of the Circuit Court on a plea to the
jurisdiction be against the plaintiff, or against the defendant, the
losing party may have any alleged error in law, in ruling such a plea,
examined in this court on a writ of error, when the matter in
controversy exceeds the sum or value of two thousand dollars. If the
decision be against the plaintiff, and his suit dismissed for want of
jurisdiction, the judgment is technically final, and he may at once
sue out his writ of error. (Mollan _v._ Torrance, 9 Wheat., 537.) If
the decision be against the defendant, though he must answer over, and
wait for a final judgment in the cause, he may then have his writ of
error, and upon it obtain the judgment of this court on any question
of law apparent on the record, touching the jurisdiction. The fact
that he pleaded over to the merits, under compulsion, can have no
effect on his right to object to the jurisdiction. If this were not
so, the condition of the two parties would be grossly unequal. For if
a plea to the jurisdiction were ruled against the plaintiff, he could
at once take his writ of error, and have the ruling reviewed here;
while, if the same plea were ruled against the defendant, he must not
only wait for a final judgment, but could in no event have the ruling
of the Circuit Court upon the plea reviewed by this court. I know of
no ground for saying that the laws of the United States have thus
discriminated between the parties to a suit in its courts.
It is further objected, that as the judgment of the Circuit Court was
in favor of the defendant, and the writ of error in this cause was
sued out by the plaintiff, the defendant is not in a condition to
assign any error in the record, and therefore this court is precluded
from considering the question whether the Circuit Court had
jurisdiction.
The practice of this court does not require a technical assignment of
errors. (See the rule.) Upon a writ of error, the whole record is open
for inspection; and if any error be found in it, the judgment is
reversed. (Bank of U.S. _v._ Smith, 11 Wheat., 171.)
It is true, as a general rule, that the court will not allow a party
to rely on anything as cause for reversing a judgment, which was for
his advantage. In this, we follow an ancient rule of the common law.
But so careful was that law of the preservation of the course of its
courts, that it made an exception out of that general rule, and
allowed a party to assign for error that which was for his advantage,
if it were a departure by the court itself from its settled course of
procedure. The cases on this subject are collected in Bac. Ab., Error
H. 4. And this court followed this practice in Capron _v._ Van
Noorden, (2 Cranch, 126,) where the plaintiff below procured the
reversal of a judgment for the defendant, on the ground that the
plaintiff's allegations of citizenship had not shown jurisdiction.
But it is not necessary to determine whether the defendant can be
allowed to assign want of jurisdiction as an error in a judgment in
his own favor. The true question is, not what either of the parties
may be allowed to do, but whether this court will affirm or reverse a
judgment of the Circuit Court on the merits, when it appears on the
record, by a plea to the jurisdiction, that it is a case to which the
judicial power of the United States does not extend. The course of the
court is, where no motion is made by either party, on its own motion,
to reverse such a judgment for want of jurisdiction, not only in cases
where it is shown, negatively, by a plea to the jurisdiction, that
jurisdiction does not exist, but even where it does not appear,
affirmatively, that it does exist. (Pequignot _v._ The Pennsylvania
R.R. Co., 16 How., 104.) It acts upon the principle that the judicial
power of the United States must not be exerted in a case to which it
does not extend, even if both parties desire to have it exerted.
(Cutler _v._ Rae, 7 How., 729.) I consider, therefore, that when there
was a plea to the jurisdiction of the Circuit Court in a case brought
here by a writ of error, the first duty of this court is, _sua
sponte_, if not moved to it by either party, to examine the
sufficiency of that plea; and thus to take care that neither the
Circuit Court nor this court shall use the judicial power of the
United States in a case to which the Constitution and laws of the
United States have not extended that power.
I proceed, therefore, to examine the plea to the jurisdiction.
I do not perceive any sound reason why it is not to be judged by the
rules of the common law applicable to such pleas. It is true, where
the jurisdiction of the Circuit Court depends on the citizenship of
the parties, it is incumbent on the plaintiff to allege on the record
the necessary citizenship; but when he has done so, the defendant must
interpose a plea in abatement, the allegations whereof show that the
court has not jurisdiction; and it is incumbent on him to prove the
truth of his plea.
In Sheppard _v._ Graves, (14 How., 27,) the rules on this subject are
thus stated in the opinion of the court: "That although, in the courts
of the United States, it is necessary to set forth the grounds of
their cognizance as courts of limited jurisdiction, yet wherever
jurisdiction shall be averred in the pleadings, in conformity with the
laws creating those courts, it must be taken, _prima facie_, as
existing; and it is incumbent on him who would impeach that
jurisdiction for causes dehors the pleading, to allege and prove such
causes; that the necessity for the allegation, and the burden of
sustaining it by proof, both rest upon the party taking the
exception." These positions are sustained by the authorities there
cited, as well as by Wickliffe _v._ Owings, (17 How., 47.)
When, therefore, as in this case, the necessary averments as to
citizenship are made on the record, and jurisdiction is assumed to
exist, and the defendant comes by a plea to the jurisdiction to
displace that presumption, he occupies, in my judgment, precisely the
position described in Bacon Ab., Abatement: "Abatement, in the general
acceptation of the word, signifies a plea, put in by the defendant, in
which he shows cause to the court why he should not be impleaded; or,
if at all, not in the manner and form he now is."
This being, then, a plea in abatement, to the jurisdiction of the
court, I must judge of its sufficiency by those rules of the common
law applicable to such pleas.
The plea was as follows: "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 cognizance 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."
The plaintiff demurred, and the judgment of the Circuit Court was,
that the plea was insufficient.
I cannot treat this plea as a general traverse of the citizenship
alleged by the plaintiff. Indeed, if it were so treated, the plea was
clearly bad, for it concludes with a verification, and not to the
country, as a general traverse should. And though this defect in a
plea in bar must be pointed out by a special demurrer, it is never
necessary to demur specially to a plea in abatement; all matters,
though of form only, may be taken advantage of upon a general demurrer
to such a plea. (Chitty on Pl., 465.)
The truth is, that though not drawn with the utmost technical
accuracy, it is a special traverse of the plaintiff's allegation of
citizenship, and was a suitable and proper mode of traverse under the
circumstances. By reference to Mr. Stephen's description of the uses
of such a traverse, contained in his excellent analysis of pleadings,
(Steph. on Pl., 176,) it will be seen how precisely this plea meets
one of his descriptions. No doubt the defendant might have traversed,
by a common or general traverse, the plaintiff's allegation that he
was a citizen of the State of Missouri, concluding to the country. The
issue thus presented being joined, would have involved matter of law,
on which the jury must have passed, under the direction of the court.
But by traversing the plaintiff's citizenship specially--that is,
averring those facts on which the defendant relied to show that in
point of law the plaintiff was not a citizen, and basing the traverse
on those facts as a deduction therefrom--opportunity was given to do,
what was done; that is, to present directly to the court, by a
demurrer, the sufficiency of those facts to negative, in point of law,
the plaintiff's allegation of citizenship. This, then, being a
special, and not a general or common traverse, the rule is settled,
that the facts thus set out in the plea, as the reason or ground of
the traverse must of themselves constitute, in point of law, a
negative of the allegation thus traversed. (Stephen on Pl., 183; Ch.
on Pl., 620.) And upon a demurrer to this plea, the question which
arises is, whether the facts, that the plaintiff is a negro, of
African descent, whose ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, _may all be true,
and yet_ the plaintiff be a citizen of the State of Missouri, within
the meaning of the Constitution and laws of the United States, which
confer on citizens of one State the right to sue citizens of another
State in the Circuit Courts. Undoubtedly, if these facts, taken
together, amount to an allegation that, at the time of action brought,
the plaintiff was himself a slave, the plea is sufficient. It has been
suggested that the plea, in legal effect, does so aver, because, if
his ancestors were sold as slaves, the presumption is they continued
slaves; and if so, the presumption is, the plaintiff was born a slave;
and if so, the presumption is, he continued to be a slave to the time
of action brought.
I cannot think such presumptions can be resorted to, to help out
defective averments in pleading; especially, in pleading in abatement,
where the utmost certainty and precision are required. (Chitty on Pl.,
457.) That the plaintiff himself was a slave at the time of action
brought, is a substantive fact, having no necessary connection with
the fact that his parents were sold as slaves. For they might have
been sold after he was born; or the plaintiff himself, if once a
slave, might have became a freeman before action brought. To aver
that his ancestors were sold as slaves, is not equivalent, in point of
law, to an averment that he was a slave. If it were, he could not even
confess and avoid the averment of the slavery of his ancestors, which
would be monstrous; and if it be not equivalent in point of law, it
cannot be treated as amounting thereto when demurred to; for a
demurrer confesses only those substantive facts which are well
pleaded, and not other distinct substantive facts which might be
inferred therefrom by a jury. To treat an averment that the
plaintiff's ancestors were Africans, brought to this country and sold
as slaves, as amounting to an averment on the record that he was a
slave, because it may lay some foundation for presuming so, is to hold
that the facts actually alleged may be treated as intended as evidence
of another distinct fact not alleged. But it is a cardinal rule of
pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even
earlier authorities therein referred to, "that evidence shall never be
pleaded, for it only tends to prove matter of fact; and therefore the
matter of fact shall be pleaded." Or, as the rule is sometimes stated,
pleadings must not be argumentative. (Stephen on Pleading, 384, and
authorities cited by him.) In Com. Dig., Pleader E. 3, and Bac.
Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this
rule are collected. In trover, for an indenture whereby A granted a
manor, it is no plea that A did not grant the manor, for it does not
answer the declaration except by argument. (Yelv., 223.)
So in trespass for taking and carrying away the plaintiff's goods, the
defendant pleaded that the plaintiff never had any goods. The court
said, "this is an infallible argument that the defendant is not
guilty, but it is no plea." (Dyer, a 43.)
In ejectment, the defendant pleaded a surrender of a copyhold by the
hand of Fosset, the steward. The plaintiff replied, that Fosset was
not steward. The court held this no issue, for it traversed the
surrender only argumentatively. (Cro. Elis., 260.)
In these cases, and many others reported in the books, the inferences
from the facts stated were irresistible. But the court held they did
not, when demurred to, amount to such inferable facts. In the case at
bar, the inference that the defendant was a slave at the time of
action brought, even if it can be made at all, from the fact that his
parents were slaves, is certainly not a necessary inference. This
case, therefore, is like that of Digby _v._ Alexander, (8 Bing., 116.)
In that case, the defendant pleaded many facts strongly tending to
show that he was once Earl of Stirling; but as there was no positive
allegation that he was so at the time of action brought, and as every
fact averred might be true, and yet the defendant not have been Earl
of Stirling at the time of action brought, the plea was held to be
insufficient.
A lawful seizin of land is presumed to continue. But if, in an action
of trespass _quare clausum_, the defendant were to plead that he was
lawfully seized of the _locus in quo_, one month before the time of
the alleged trespass, I should have no doubt it would be a bad plea.
(See Mollan _v._ Torrance, 9 Wheat., 537.) So if a plea to the
jurisdiction, instead of alleging that the plaintiff was a citizen of
the same State as the defendant, were to allege that the plaintiff's
ancestors were citizens of that State, I think the plea could not be
supported. My judgment would be, as it is in this case, that if the
defendant meant to aver a particular substantive fact, as existing at
the time of action brought, he must do it directly and explicitly, and
not by way of inference from certain other averments, which are quite
consistent with the contrary hypothesis. I cannot, therefore, treat
this plea as containing an averment that the plaintiff himself was a
slave at the time of action brought; and the inquiry recurs, whether
the facts, that he is of African descent, and that his parents were
once slaves, are necessarily inconsistent with his own citizenship in
the State of Missouri, within the meaning of the Constitution and laws
of the United States.
In Gassies _v._ Ballon, (6 Pet., 761,) the defendant was described on
the record as a naturalized citizen of the United States, residing in
Louisiana. The court held this equivalent to an averment that the
defendant was a citizen of Louisiana; because a citizen of the United
States, residing in any State of the Union, is, for purposes of
jurisdiction, a citizen of that State. Now, the plea to the
jurisdiction in this case does not controvert the fact that the
plaintiff resided in Missouri at the date of the writ. If he did then
reside there, and was also a citizen of the United States, no
provisions contained in the Constitution or laws of Missouri can
deprive the plaintiff of his right to sue citizens of States other
than Missouri, in the courts of the United States.
So that, under the allegations contained in this plea, and admitted by
the demurrer, the question is, whether any person of African descent,
whose ancestors were sold as slaves in the United States, can be a
citizen of the United States. If any such person can be a citizen,
this plaintiff has the right to the judgment of the court that he is
so; for no cause is shown by the plea why he is not so, except his
descent and the slavery of his ancestors.
The first section of the second article of the Constitution uses the
language, "a citizen of the United States at the time of the adoption
of the Constitution." One mode of approaching this question is, to
inquire who were citizens of the United States at the time of the
adoption of the Constitution.
Citizens of the United States at the time of the adoption of the
Constitution can have been no other than citizens of the United States
under the Confederation. By the Articles of Confederation, a
Government was organized, the style whereof was, "The United States of
America." This Government was in existence when the Constitution was
framed and proposed for adoption, and was to be superseded by the new
Government of the United States of America, organized under the
Constitution. When, therefore, the Constitution speaks of citizenship
of the United States, existing at the time of the adoption of the
Constitution, it must necessarily refer to citizenship under the
Government which existed prior to and at the time of such adoption.
Without going into any question concerning the powers of the
Confederation to govern the territory of the United States out of the
limits of the States, and consequently to sustain the relation of
Government and citizen in respect to the inhabitants of such
territory, it may safely be said that the citizens of the several
States were citizens of the United States under the Confederation.
That Government was simply a confederacy of the several States,
possessing a few defined powers over subjects of general concern, each
State retaining every power, jurisdiction, and right, not expressly
delegated to the United States in Congress assembled. And no power was
thus delegated to the Government of the Confederation, to act on any
question of citizenship, or to make any rules in respect thereto. The
whole matter was left to stand upon the action of the several States,
and to the natural consequence of such action, that the citizens of
each State should be citizens of that Confederacy into which that
State had entered, the style whereof was, "The United States of
America."
To determine whether any free persons, descended from Africans held in
slavery, were citizens of the United States under the Confederation,
and consequently at the time of the adoption of the Constitution of
the United States, it is only necessary to know whether any such
persons were citizens of either of the States under the Confederation,
at the time of the adoption of the Constitution.
Of this there can be no doubt. At the time of the ratification of the
Articles of Confederation, all free native-born inhabitants of the
States of New Hampshire, Massachusetts, New York, New Jersey, and
North Carolina, though descended from African slaves, were not only
citizens of those States, but such of them as had the other necessary
qualifications possessed the franchise of electors, on equal terms
with other citizens.
The Supreme Court of North Carolina, in the case of the State _v._
Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on
this subject, in terms which I believe to be as sound law in the other
States I have enumerated, as it was in North Carolina.
"According to the laws of this State," says Judge Gaston in delivering
the opinion of the court, "all human beings within it, who are not
slaves, fall within one of two classes. Whatever distinctions may have
existed in the Roman laws between citizens and free inhabitants, they
are unknown to our institutions. Before our Revolution, all free
persons born within the dominions of the King of Great Britain,
whatever their color or complexion, were native-born British
subjects--those born out of his allegiance were aliens. Slavery did
not exist in England, but it did in the British colonies. Slaves were
not in legal parlance persons, but property. The moment the
incapacity, the disqualification of slavery, was removed, they became
persons, and were then either British subjects, or not British
subjects, according as they were or were not born within the
allegiance of the British King. Upon the Revolution, no other change
took place in the laws of North Carolina than was consequent on the
transition from a colony dependent on a European King, to a free and
sovereign State. Slaves remained slaves. British subjects in North
Carolina became North Carolina freemen. Foreigners, until made members
of the State, remained aliens. Slaves, manumitted here, became
freemen, and therefore, if born within North Carolina, are citizens of
North Carolina, and all free persons born within the State are born
citizens of the State. The Constitution extended the elective
franchise to every freeman who had arrived at the age of twenty-one,
and paid a public tax; and it is a matter of universal notoriety,
that, under it, free persons, without regard to color, claimed and
exercised the franchise, until it was taken from free men of color a
few years since by our amended Constitution."
In the State _v._ Newcomb, (5 Iredell's R., 253,) decided in 1844, the
same court referred to this case of the State _v._ Manuel, and said:
"That case underwent a very laborious investigation, both by the bar
and the bench. The case was brought here by appeal, and was felt to be
one of great importance in principle. It was considered with an
anxiety and care worthy of the principle involved, and which give it a
controlling influence and authority on all questions of a similar
character."
An argument from speculative premises, however well chosen, that the
then state of opinion in the Commonwealth of Massachusetts was not
consistent with the natural rights of people of color who were born on
that soil, and that they were not, by the Constitution of 1780 of that
State, admitted to the condition of citizens, would be received with
surprise by the people of that State, who know their own political
history. It is true, beyond all controversy, that persons of color,
descended from African slaves, were by that Constitution made citizens
of the State; and such of them as have had the necessary
qualifications, have held and exercised the elective franchise, as
citizens, from that time to the present. (See Com. _v._ Aves, 18 Pick.
R., 210.)
The Constitution of New Hampshire conferred the elective franchise
upon "every inhabitant of the State having the necessary
qualifications," of which color or descent was not one.
The Constitution of New York gave the right to vote to "every male
inhabitant, who shall have resided," &c.; making no discrimination
between free colored persons and others. (See Con. of N.Y., Art. 2,
Rev. Stats. of N.Y., vol. 1, p. 126.)
That of New Jersey, to "all inhabitants of this colony, of full age,
who are worth £50 proclamation money, clear estate."
New York, by its Constitution of 1820, required colored persons to
have some qualifications as prerequisites for voting, which white
persons need not possess. And New Jersey, by its present Constitution,
restricts the right to vote to white male citizens. But these changes
can have no other effect upon the present inquiry, except to show,
that before they were made, no such restrictions existed; and colored
in common with white persons, were not only citizens of those States,
but entitled to the elective franchise on the same qualifications as
white persons, as they now are in New Hampshire and Massachusetts. I
shall not enter into an examination of the existing opinions of that
period respecting the African race, nor into any discussion concerning
the meaning of those who asserted, in the Declaration of Independence,
that all men are created equal; that they are endowed by their Creator
with certain inalienable rights; that among these are life, liberty,
and the pursuit of happiness. My own opinion is, that a calm
comparison of these assertions of universal abstract truths, and of
their own individual opinions and acts, would not leave these men
under any reproach of inconsistency; that the great truths they
asserted on that solemn occasion, they were ready and anxious to make
effectual, wherever a necessary regard to circumstances, which no
statesman can disregard without producing more evil than good, would
allow; and that it would not be just to them, nor true in itself, to
allege that they intended to say that the Creator of all men had
endowed the white race, exclusively, with the great natural rights
which the Declaration of Independence asserts. But this is not the
place to vindicate their memory. As I conceive, we should deal here,
not with such disputes, if there can be a dispute concerning this
subject, but with those substantial facts evinced by the written
Constitutions of States, and by the notorious practice under them. And
they show, in a manner which no argument can obscure, that in some of
the original thirteen States, free colored persons, before and at the
time of the formation of the Constitution, were citizens of those
States.