may extend it to colored persons and females; one may allow all
persons above a prescribed age to convey property and transact
business; another may exclude married women. But whether native-born
women, or persons under age, or under guardianship because insane or
spendthrifts, be excluded from voting or holding office, or allowed to
do so, I apprehend no one will deny that they are citizens of the
United States. Besides, this clause of the Constitution does not
confer on the citizens of one State, in all other States, specific and
enumerated privileges and immunities. They are entitled to such as
belong to citizenship, but not to such as belong to particular
citizens attended by other qualifications. Privileges and immunities
which belong to certain citizens of a State, by reason of the
operation of causes other than mere citizenship, are not conferred.
Thus, if the laws of a State require, in addition to citizenship of
the State, some qualification for office, or the exercise of the
elective franchise, citizens of all other States, coming thither to
reside, and not possessing those qualifications, cannot enjoy those
privileges, not because they are not to be deemed entitled to the
privileges of citizens of the State in which they reside, but because
they, in common with the native-born citizens of that State, must have
the qualifications prescribed by law for the enjoyment of such
privileges, under its Constitution and laws. It rests with the States
themselves so to frame their Constitutions and laws as not to attach a
particular privilege or immunity to mere naked citizenship. If one of
the States will not deny to any of its own citizens a particular
privilege or immunity, if it confer it on all of them by reason of
mere naked citizenship, then it may be claimed by every citizen of
each State by force of the Constitution; and it must be borne in mind,
that the difficulties which attend the allowance of the claims of
colored persons to be citizens of the United States are not avoided by
saying that, though each State may make them its citizens, they are
not thereby made citizens of the United States, because the privileges
of general citizenship are secured to the citizens of each State. The
language of the Constitution is, "The citizens of each State shall be
entitled to all privileges and immunities of citizens in the several
States." If each State may make such persons its citizens, they
become, as such, entitled to the benefits of this article, if there be
a native-born citizenship of the United States distinct from a
native-born citizenship of the several States.
There is one view of this article entitled to consideration in this
connection. It is manifestly copied from the fourth of the Articles of
Confederation, with only slight changes of phraseology, which render
its meaning more precise, and dropping the clause which excluded
paupers, vagabonds, and fugitives from justice, probably because these
cases could be dealt with under the police powers of the States, and a
special provision therefor was not necessary. It has been suggested,
that in adopting it into the Constitution, the words "free
inhabitants" were changed for the word "citizens." An examination of
the forms of expression commonly used in the State papers of that day,
and an attention to the substance of this article of the
Confederation, will show that the words "free inhabitants," as then
used, were synonymous with citizens. When the Articles of
Confederation were adopted, we were in the midst of the war of the
Revolution, and there were very few persons then embraced in the words
"free inhabitants," who were not born on our soil. It was not a time
when many, save the children of the soil, were willing to embark
their fortunes in our cause; and though there might be an inaccuracy
in the uses of words to call free inhabitants citizens, it was then a
technical rather than a substantial difference. If we look into the
Constitutions and State papers of that period, we find the inhabitants
or people of these colonies, or the inhabitants of this State, or
Commonwealth, employed to designate those whom we should now
denominate citizens. The substance and purpose of the article prove it
was in this sense it used these words: it secures to the free
inhabitants of each State the privileges and immunities of free
citizens in every State. It is not conceivable that the States should
have agreed to extend the privileges of citizenship to persons not
entitled to enjoy the privileges of citizens in the States where they
dwelt; that under this article there was a class of persons in some of
the States, not citizens, to whom were secured all the privileges and
immunities of citizens when they went into other States; and the just
conclusion is, that though the Constitution cured an inaccuracy of
language, it left the substance of this article in the National
Constitution the same as it was in the Articles of Confederation.
The history of this fourth article, respecting the attempt to exclude
free persons of color from its operation, has been already stated. It
is reasonable to conclude that this history was known to those who
framed and adopted the Constitution. That under this fourth article of
the Confederation, free persons of color might be entitled to the
privileges of general citizenship, if otherwise entitled thereto, is
clear. When this article was, in substance, placed in and made part of
the Constitution of the United States, with no change in its language
calculated to exclude free colored persons from the benefit of its
provisions, the presumption is, to say the least, strong, that the
practical effect which it was designed to have, and did have, under
the former Government, it was designed to have, and should have, under
the new Government.
It may be further objected, that if free colored persons may be
citizens of the United States, it depends only on the will of a master
whether he will emancipate his slave, and thereby make him a citizen.
Not so. The master is subject to the will of the State. Whether he
shall be allowed to emancipate his slave at all; if so, on what
conditions; and what is to be the political _status_ of the freed man,
depend, not on the will of the master, but on the will of the State,
upon which the political _status_ of all its native-born inhabitants
depends. Under the Constitution of the United States, each State has
retained this power of determining the political _status_ of its
native-born inhabitants, and no exception thereto can be found in the
Constitution. And if a master in a slaveholding State should carry his
slave into a free State, and there emancipate him, he would not
thereby make him a native-born citizen of that State, and consequently
no privileges could be claimed by such emancipated slave as a citizen
of the United States. For, whatever powers the States may exercise to
confer privileges of citizenship on persons not born on their soil,
the Constitution of the United States does not recognise such
citizens. As has already been said, it recognises the great principle
of public law, that allegiance and citizenship spring from the place
of birth. It leaves to the States the application of that principle to
individual cases. It secured to the citizens of each State the
privileges and immunities of citizens in every other State. But it
does not allow to the States the power to make aliens citizens, or
permit one State to take persons born on the soil of another State,
and, contrary to the laws and policy of the State where they were
born, make them its citizens, and so citizens of the United States. No
such deviation from the great rule of public law was contemplated by
the Constitution; and when any such attempt shall be actually made, it
is to be met by applying to it those rules of law and those principles
of good faith which will be sufficient to decide it, and not, in my
judgment, by denying that all the free native-born inhabitants of a
State, who are its citizens under its Constitution and laws, are also
citizens of the United States.
It has sometimes been urged that colored persons are shown not to be
citizens of the United States by the fact that the naturalization laws
apply only to white persons. But whether a person born in the United
States be or be not a citizen, cannot depend on laws which refer only
to aliens, and do not affect the _status_ of persons born in the
United States. The utmost effect which can be attributed to them is,
to show that Congress has not deemed it expedient generally to apply
the rule to colored aliens. That they might do so, if thought fit, is
clear. The Constitution has not excluded them. And since that has
conferred the power on Congress to naturalize colored aliens, it
certainly shows color is not a necessary qualification for citizenship
under the Constitution of the United States. It may be added, that the
power to make colored persons citizens of the United States, under the
Constitution, has been actually exercised in repeated and important
instances. (See the Treaties with the Choctaws, of September 27, 1830,
art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of
Guadalupe Hidalgo, February 2, 1848, art. 8.)
I do not deem it necessary to review at length the legislation of
Congress having more or less bearing on the citizenship of colored
persons. It does not seem to me to have any considerable tendency to
prove that it has been considered by the legislative department of the
Government, that no such persons are citizens of the United States.
Undoubtedly they have been debarred from the exercise of particular
rights or privileges extended to white persons, but, I believe, always
in terms which, by implication, admit they may be citizens. Thus the
act of May 17, 1792, for the organization of the militia, directs the
enrollment of "every free, able-bodied, white male citizen." An
assumption that none but white persons are citizens, would be as
inconsistent with the just import of this language, as that all
citizens are able-bodied, or males.
So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent
the importation of certain persons into States, when by the laws
thereof their admission is prohibited, in its first section forbids
all masters of vessels to import or bring "any negro, mulatto, or
other person of color, not being a native, _a citizen_, or registered
seaman of the United States," &c.
The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and
March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen,
certainly imply there may be persons of color, natives of the United
States, who are not citizens of the United States. This implication is
undoubtedly in accordance with the fact. For not only slaves, but free
persons of color, born in some of the States, are not citizens. But
there is nothing in these laws inconsistent with the citizenship of
persons of color in others of the States, nor with their being
citizens of the United States.
Whether much or little weight should be attached to the particular
phraseology of these and other laws, which were not passed with any
direct reference to this subject, I consider their tendency to be, as
already indicated, to show that, in the apprehension of their framers,
color was not a necessary qualification of citizenship. It would be
strange, if laws were found on our statute book to that effect, when,
by solemn treaties, large bodies of Mexican and North American Indians
as well as free colored inhabitants of Louisiana have been admitted to
citizenship of the United States.
In the legislative debates which preceded the admission of the State
of Missouri into the Union, this question was agitated. Its result is
found in the resolution of Congress, of March 5, 1821, for the
admission of that State into the Union. The Constitution of Missouri,
under which that State applied for admission into the Union, provided,
that it should be the duty of the Legislature "to pass laws to
prevent free negroes and mulattoes from coming to and settling in the
State, under any pretext whatever." One ground of objection to the
admission of the State under this Constitution was, that it would
require the Legislature to exclude free persons of color, who would be
entitled, under the second section of the fourth article of the
Constitution, not only to come within the State, but to enjoy there
the privileges and immunities of citizens. The resolution of Congress
admitting the State was upon the fundamental condition, "that the
Constitution of Missouri shall never be construed to authorize the
passage of any law, and that no law shall be passed in conformity
thereto, by which any citizen of either of the States of this Union
shall be excluded from the enjoyment of any of the privileges and
immunities to which such citizen is entitled under the Constitution of
the United States." It is true, that neither this legislative
declaration, nor anything in the Constitution or laws of Missouri,
could confer or take away any privilege or immunity granted by the
Constitution. But it is also true, that it expresses the then
conviction of the legislative power of the United States, that free
negroes, as citizens of some of the States, might be entitled to the
privileges and immunities of citizens in all the States.
The conclusions at which I have arrived on this part of the case are:
_First._ That the free native-born citizens of each State are citizens
of the United States.
_Second._ That as free colored persons born within some of the States
are citizens of those States, such persons are also citizens of the
United States.
_Third._ That every such citizen, residing in any State, has the right
to sue and is liable to be sued in the Federal courts, as a citizen of
that State in which he resides.
_Fourth._ That as the plea to the jurisdiction in this case shows no
facts, except that the plaintiff was of African descent, and his
ancestors were sold as slaves, and as these facts are not inconsistent
with his citizenship of the United States, and his residence in the
State of Missouri, the plea to the jurisdiction was bad, and the
judgment of the Circuit Court overruling it was correct.
I dissent, therefore, from that part of the opinion of the majority of
the court, in which it is held that a person of African descent cannot
be a citizen of the United States; and I regret I must go further, and
dissent both from what I deem their assumption of authority to examine
the constitutionality of the act of Congress commonly called the
Missouri compromise act, and the grounds and conclusions announced in
their opinion.
Having first decided that they were bound to consider the sufficiency
of the plea to the jurisdiction of the Circuit Court, and having
decided that this plea showed that the Circuit Court had not
jurisdiction, and consequently that this is a case to which the
judicial power of the United States does not extend, they have gone on
to examine the merits of the case as they appeared on the trial before
the court and jury, on the issues joined on the pleas in bar, and so
have reached the question of the power of Congress to pass the act of
1820. On so grave a subject as this, I feel obliged to say that, in my
opinion, such an exertion of judicial power transcends the limits of
the authority of the court, as described by its repeated decisions,
and, as I understand, acknowledged in this opinion of the majority of
the court.
In the course of that opinion, it became necessary to comment on the
case of Legrand _v._ Darnall, (reported in 2 Peters's R., 664.) In
that case, a bill was filed, by one alleged to be a citizen of
Maryland, against one alleged to be a citizen of Pennsylvania. The
bill stated that the defendant was the son of a white man by one of
his slaves; and that the defendant's father devised to him certain
lands, the title to which was put in controversy by the bill. These
facts were admitted in the answer, and upon these and other facts the
court made its decree, founded on the principle that a devise of land
by a master to a slave was by implication also a bequest of his
freedom. The facts that the defendant was of African descent, and was
born a slave, were not only before the court, but entered into the
entire substance of its inquiries. The opinion of the majority of my
brethren in this case disposes of the case of Legrand _v._ Darnall, by
saying, among other things, that as the fact that the defendant was
born a slave only came before this court on the bill and answer, it
was then too late to raise the question of the personal disability of
the party, and therefore that decision is altogether inapplicable in
this case.
In this I concur. Since the decision of this court in Livingston _v._
Story, (11 Pet., 351,) the law has been settled, that when the
declaration or bill contains the necessary averments of citizenship,
this court cannot look at the record, to see whether those averments
are true, except so far as they are put in issue by a plea to the
jurisdiction. In that case, the defendant denied by his answer that
Mr. Livingston was a citizen of New York, as he had alleged in the
bill. Both parties went into proofs. The court refused to examine
those proofs, with reference to the personal disability of the
plaintiff. This is the settled law of the court, affirmed so lately
as Shepherd _v._ Graves, (14 How., 27,) and Wickliff _v._ Owings, (17
How., 51.) (See also De Wolf _v._ Rabaud, 1 Pet., 476.) But I do not
understand this to be a rule which the court may depart from at its
pleasure. If it be a rule, it is as binding on the court as on the
suitors. If it removes from the latter the power to take any objection
to the personal disability of a party alleged by the record to be
competent, which is not shown by a plea to the jurisdiction, it is
because the court are forbidden by law to consider and decide on
objections so taken. I do not consider it to be within the scope of
the judicial power of the majority of the court to pass upon any
question respecting the plaintiff's citizenship in Missouri, save that
raised by the plea to the jurisdiction; and I do not hold any opinion
of this court, or any court, binding, when expressed on a question not
legitimately before it. (Carroll _v._ Carroll, 16 How., 275.) The
judgment of this court is, that the case is to be dismissed for want
of jurisdiction, because the plaintiff was not a citizen of Missouri,
as he alleged in his declaration. Into that judgment, according to the
settled course of this court, nothing appearing after a plea to the
merits can enter. A great question of constitutional law, deeply
affecting the peace and welfare of the country, is not, in my opinion,
a fit subject to be thus reached.
But as, in my opinion, the Circuit Court had jurisdiction, I am
obliged to consider the question whether its judgment on the merits of
the case should stand or be reversed.
The residence of the plaintiff in the State of Illinois, and the
residence of himself and his wife in the territory acquired from
France lying north of latitude thirty-six degrees thirty minutes, and
north of the State of Missouri, are each relied on by the plaintiff in
error. As the residence in the territory affects the plaintiff's wife
and children as well as himself, I must inquire what was its effect.
The general question may be stated to be, whether the plaintiff's
_status_, as a slave, was so changed by his residence within that
territory, that he was not a slave in the State of Missouri, at the
time this action was brought.
In such cases, two inquiries arise, which may be confounded, but
should be kept distinct.
The first is, what was the law of the Territory into which the master
and slave went, respecting the relation between them?
The second is, whether the State of Missouri recognises and allows the
effect of that law of the Territory, on the _status_ of the slave, on
his return within its jurisdiction.
As to the first of these questions, the will of States and nations,
by whose municipal law slavery is not recognised, has been manifested
in three different ways.
One is, absolutely to dissolve the relation, and terminate the rights
of the master existing under the law of the country whence the parties
came. This is said by Lord Stowell, in the case of the slave Grace, (2
Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the case of
Maria [Transcriber's Note: Marie] Louise _v._ Marot, (9 Louis. R.,
473,) to be the law of France; and it has been the law of several
States of this Union, in respect to slaves introduced under certain
conditions. (Wilson _v._ Isabel, 5 Call's R., 430; Hunter _v._ Hulcher
[Transcriber's Note: Fulcher], 1 Leigh, 172; Stewart _v._ Oaks, 5 Har.
and John., 107.)
The second is, where the municipal law of a country not recognising
slavery, it is the will of the State to refuse the master all aid to
exercise any control over his slave; and if he attempt to do so, in a
manner justifiable only by that relation, to prevent the exercise of
that control. But no law exists, designed to operate directly on the
relation of master and slave, and put an end to that relation. This is
said by Lord Stowell, in the case above mentioned, to be the law of
England, and by Mr. Chief Justice Shaw, in the case of the
Commonwealth _v._ Aves, (18 Pick., 193,) to be the law of
Massachusetts.
The third is, to make a distinction between the case of a master and
his slave only temporarily in the country, _animo non manendi_, and
those who are there to reside for permanent or indefinite purposes.
This is said by Mr. Wheaton to be the law of Prussia, and was formerly
the statute law of several States of our Union. It is necessary in
this case to keep in view this distinction between those countries
whose laws are designed to act directly on the _status_ of a slave,
and make him a freeman, and those where his master can obtain no aid
from the laws to enforce his rights.
It is to the last case only that the authorities, out of Missouri,
relied on by defendant, apply, when the residence in the
non-slaveholding Territory was permanent. In the Commonwealth _v._
Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From the
principle above stated, on which a slave brought here becomes free, to
wit: that he becomes entitled to the protection of our laws, it would
seem to follow, as a necessary conclusion, that if the slave waives
the protection of those laws, and returns to the State where he is
held as a slave, his condition is not changed." It was upon this
ground, as is apparent from his whole reasoning, that Sir William
Scott rests his opinion in the case of the slave Grace. To use one of
his expressions, the effect of the law of England was to put the
liberty of the slave into a parenthesis. If there had been an act of
Parliament declaring that a slave coming to England with his master
should thereby be deemed no longer to be a slave, it is easy to see
that the learned judge could not have arrived at the same conclusion.
This distinction is very clearly stated and shown by President Tucker,
in his opinion in the case of Betty _v._ Horton, (5 Leigh's Virginia
R., 615.) (See also Hunter _v._ Fletcher [Transcriber's Note:
Fulcher], 1 Leigh's Va. R., 172; Maria [Transcriber's Note: Marie]
Louise _v._ Marot, 9 Louisiana R. [Transcriber's Note: at 473]; Smith
_v._ Smith, 13 Ib., 441; Thomas _v._ Genevieve, 16 Ib., 483; Rankin
_v._ Lydia, 2 A.K. Marshall, 467; Davies _v._ Tingle, 8 B. Munroe,
539; Griffeth [Transcriber's Note: Griffith] _v._ Fanny, Gilm. Va. R.,
143; Lumford _v._ Coquillon, 14 Martin's La. R., 405; Josephine _v._
Poultney, 1 Louis. Ann. R., 329.)
But if the acts of Congress on this subject are valid, the law of the
Territory of Wisconsin, within whose limits the residence of the
plaintiff and his wife, and their marriage and the birth of one or
both of their children, took place, falls under the first category,
and is a law operating directly on the _status_ of the slave. By the
eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,)
it was enacted that, within this Territory, "slavery and involuntary
servitude, otherwise than in the punishment of crimes, whereof the
parties shall have been duly convicted, shall be, and is hereby,
forever prohibited: _Provided, always_, that any person escaping into
the same, from whom labor or service is lawfully claimed in any State
or Territory of the United States, such fugitive may be lawfully
reclaimed, and conveyed to the person claiming his or her labor or
service, as aforesaid."