And upon a full and careful consideration of the subject, the court is

of opinion, that, upon the facts stated in the plea in abatement, Dred

Scott was not a citizen of Missouri within the meaning of the

Constitution of the United States, and not entitled as such to sue in

its courts; and, consequently, that the Circuit Court had no

jurisdiction of the case, and that the judgment on the plea in abatement

is erroneous.

We are aware that doubts are entertained by some of the members of the

court, whether the plea in abatement is legally before the court upon

this writ of error: but if that plea is regarded as waived, or out of

the case upon any other ground, yet the question as to the jurisdiction

of the Circuit Court is presented on the face of the bill of exception

itself, taken by the plaintiff at the trial; for he admits that he and

his wife were born slaves, but endeavors to make out his title to

freedom and citizenship by showing that they were taken by their owner

to certain places, hereinafter mentioned, where slavery could not by law

exist, and that they thereby became free, and upon their return to

Missouri became citizens of that State.

Now, if the removal, of which he speaks, did not give them their

freedom, then by his own admission he is still a slave, and whatever

opinions may be entertained in favor of the citizenship of a free person

of the African race, no one supposes that a slave is a citizen of the

State or of the United States. If, therefore, the acts done by his owner

did not make them free persons, he is still a slave, and certainly

incapable of suing in the character of a citizen.

The principle of law is too well settled to be disputed, that a court

can give no judgment for either party, where it has no jurisdiction; and

if, upon the showing of Scott himself, it appeared that he was still a

slave, the case ought to have been dismissed, and the judgment against

him and in favor of the defendant for costs, is, like that on the plea

in abatement, erroneous, and the suit ought to have been dismissed by

the Circuit Court for want of jurisdiction in that court.

But, before we proceed to examine this part of the case, it may be

proper to notice an objection taken to the judicial authority of this

court to decide it; and it has been said, that as this court has decided

against the jurisdiction of the Circuit Court on the plea in abatement,

it has no right to examine any question presented by the exception; and

that any thing that it may say upon that part of the case will be extra

judicial, and mere orbita dicta.

This is a manifest mistake; there can be no doubt as to the jurisdiction

of this court to revise the judgment of a Circuit Court, and to reverse

it for any error apparent on the record, whether it be the error of

giving judgment in a case over which it had no jurisdiction, or any

other material error; and this, too, whether there is a plea in

abatement or not.

The objection appears to have arisen from confounding writs of error to

a State court, with writs of error to a Circuit Court of the United

States. Undoubtedly, upon a writ of error to a State court, unless the

record shows a case that gives jurisdiction, the case must be dismissed

for want of jurisdiction in _this court_. And if it is dismissed on that

ground, we have no right to examine and decide upon any question

presented by the bill of exceptions, or any other part of the record.

But writs of error to a State Court, and to a Circuit Court of the

United States, are regulated by different laws, and stand upon entirely

different principles. And in a writ of error to a Circuit Court of the

United States, the whole record is before this court for examination and

decision; and if the sum in controversy is large enough to give

jurisdiction, it is not only the right, but it is the judicial duty of

the court, to examine the whole case as presented by the record; and if

it appears upon its face that any material error or errors have been

committed by the court below, it is the duty of this court to reverse

the judgment, and remand the case. And certainly an error in passing a

judgment upon the merits in favor of either party, in a case which it

was not authorized to try, and over which it had no jurisdiction, is as

grave an error as a court can commit.

The plea in abatement is not a plea to the jurisdiction of this court,

but to the jurisdiction of the Circuit Court. And it appears by the

record before us, that the Circuit Court committed an error, in deciding

that it had jurisdiction, upon the facts in the case, admitted by the

pleadings. It is the duty of the appellate tribunal to correct this

error; but that could not be done by dismissing the case for want of

jurisdiction here--for that would leave the erroneous judgment in full

force, and the injured party without remedy. And the appellate court

therefore exercises the power for which alone appellate courts are

constituted, by reversing the judgment of the court below for this

error. It exercises its proper and appropriate jurisdiction over the

judgment and proceedings of the Circuit Court, as they appear upon the

record brought up by the writ of error.

The correction of one error in the court below does not deprive the

appellate court of the power of examining further into the record, and

correcting any other material errors which may have been committed by

the inferior court. There is certainly no rule of law--nor any

practice--nor any decision of a court--which even questions this power

in the appellate tribunal. On the contrary, it is the daily practice of

this court, and of all appellate courts where they reverse the judgment

of an inferior court for error, to correct by its opinions whatever

errors may appear on the record material to the case; and they have

always held it to be their duty to do so where the silence of the court

might lead to misconstruction or future controversy, and the point has

been relied on by either side, and argued before the court.

In the case before us, we have already decided that the Circuit Court

erred in deciding that it had jurisdiction upon the facts admitted by

the pleadings. And it appears that, in the further progress of the case,

it acted upon the erroneous principle it had decided on the pleadings,

and gave judgment for the defendant, where, upon the facts admitted in

the exception, it had no jurisdiction.

We are at a loss to understand upon what principle of law, applicable to

appellate jurisdiction, it can be supposed that this court has not

judicial authority to correct the last-mentioned error, because they had

before corrected the former; or by what process of reasoning it can be

made out, that the error of an inferior court in actually pronouncing

judgment for one of the parties, in a case in which it had no

jurisdiction, cannot be looked into or corrected by this court, because

we have decided a similar question presented in the pleadings. The last

point is distinctly presented by the facts contained in the plaintiff's

own bill of exceptions, which he himself brings here by this writ of

error. It was the point which chiefly occupied the attention of the

counsel on both sides in the argument--and the judgment which this court

must render upon both errors is precisely the same. It must, in each of

them, exercise jurisdiction over the judgment, and reverse it for the

errors committed by the court below; and issue a mandate to the Circuit

Court to conform its judgment to the opinion pronounced by this court,

by dismissing the case for want of jurisdiction in the Circuit Court.

This is the constant and invariable practice of this court, where it

reverses a judgment for want of jurisdiction in the Circuit Court.

It can scarcely be necessary to pursue such a question further. The want

of jurisdiction in the court below may appear on the record without any

plea in abatement. This is familiarly the case where a court of chancery

has exercised jurisdiction in a case where the plaintiff had a plain and

adequate remedy at law, and it so appears by the transcript when brought

here by appeal. So also where it appears that a court of admiralty has

exercised jurisdiction in a case belonging exclusively to a court of

common law. In these cases there is no plea in abatement. And for the

same reason, and upon the same principles, where the defect of

jurisdiction is patent on the record, this court is bound to reverse the

judgment, although the defendant has not pleaded in abatement to the

jurisdiction of the inferior court.

The cases of Jackson _v._ Ashton and of Capron _v._ Van Noorden, to

which we have referred in a previous part of this opinion, are directly

in point. In the last-mentioned case, Capron brought an action against

Van Noorden in a Circuit Court of the United States, without showing, by

the usual averments of citizenship, that the court had jurisdiction.

There was no plea in abatement put in, and the parties went to trial

upon the merits. The court gave judgment in favor of the defendant with

costs. The plaintiff thereupon brought his writ of error, and this court

reversed the judgment given in favor of the defendant, and remanded the

case with directions to dismiss it, because it did not appear by the

transcript that the Circuit Court had jurisdiction.

The case before us still more strongly imposes upon this court the duty

of examining whether the court below has not committed an error, in

taking jurisdiction and giving a judgment for costs in favor of the

defendant; for in Capron _v._ Van Noorden the judgment was reversed,

because it did _not appear_ that the parties were citizens of different

States. They might or might not be. But in this case it _does appear_

that the plaintiff was born a slave; and if the facts upon which he

relies have not made him free, then it appears affirmatively on the

record that he is not a citizen, and consequently his suit against

Sandford was not a suit between citizens of different States, and the

court had no authority to pass any judgment between the parties. The

suit ought, in this view of it, to have been dismissed by the Circuit

Court, and its judgment in favor of Sandford is erroneous, and must be

reversed.

It is true that the result either way, by dismissal or by a judgment for

the defendant, makes very little, if any, difference in a pecuniary or

personal point of view to either party. But the fact that the result

would be very nearly the same to the parties in either form of judgment,

would not justify this court in sanctioning an error in the judgment

which is patent on the record, and which, if sanctioned, might be drawn

into precedent, and lead to serious mischief and injustice in some

future suit.

We proceed, therefore, to inquire whether the facts relied on by the

plaintiff entitled him to his freedom.

The case, as he himself states it, on the record brought here by his

writ of error, is this:

The plaintiff was a negro slave, belonging to Dr. Emerson, who was a

surgeon in the army of the United States. In the year 1834, he took the

plaintiff from the State of Missouri to the military post at Rock

Island, in the State of Illinois, and held him there as a slave until

the month of April or May, 1836. At the time last-mentioned, said Dr.

Emerson removed the plaintiff from said miltary 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

Sneling, 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 Harriet intermarried, at Fort

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

master and owner. 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 the 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, and 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.

In considering this part of the controversy, two questions arise: 1. Was

he, together with his family, free in Missouri by reason of the stay in

the territory of the United States hereinbefore mentioned? And, 2. If

they were not, is Scott himself free by reason of his removal to Rock

Island, in the State of Illinois, as stated in the above admissions?

We proceed to examine the first question.

The act of Congress, upon which the plaintiff relies, declares that

slavery and involuntary servitude, except as a punishment for crime,

shall be forever prohibited in all that part of the territory ceded by

France, under the name of Louisiana, which lies north of thirty-six

degrees thirty minutes north latitude, and not included within the

limits of Missouri. And the difficulty which meets us at the threshold

of this part of the inquiry is, whether Congress was authorized to pass

this law under any of the powers granted to it by the Constitution; for

if the authority is not given by that instrument, it is the duty of this

court to declare it void and inoperative, and incapable of conferring

freedom upon any one who is held as a slave under the laws of any one of

the States.

The counsel for the plaintiff has laid much stress upon that article in

the Constitution which confers on Congress the power "to dispose of and

make all needful rules and regulations respecting the territory or other

property belonging to the United States;" but, in the judgment of the

court, that provision has no bearing on the present controversy, and the

power there given, whatever it may be, is confined, and was intended to

be confined, to the territory which at that time belonged to, or was

claimed by, the United States, and was within their boundaries as

settled by the treaty with Great Britain, and can have no influence upon

a territory afterward acquired from a foreign Government. It was a

special provision for a known and particular territory, and to meet a

present emergency, and nothing more.

A brief summary of the history of the times, as well as the careful and

measured terms in which the article is framed, will show the correctness

of this proposition.

It will be remembered that, from the commencement of the Revolutionary

war, serious difficulties existed between the States, in relation to the

disposition of large and unsettled territories which were included in

the chartered limits of some of the States. And some of the other

States, and more especially Maryland, which had no unsettled lands,

insisted that as the unoccupied lands, if wrested from Great Britain,

would owe their preservation to the common purse and the common sword,

the money arising from them ought to be applied in just proportion among

the several States to pay the expenses of the war, and ought not to be

appropriated to the use of the State in whose chartered limits they

might happen to lie, to the exclusion of the other States, by whose

combined efforts and common expense the territory was defended and

preserved against the claim of the British Government.

These difficulties caused much uneasiness during the war, while the

issue was in some degree doubtful, and the future boundaries of the

United States yet to be defined by treaty, if we achieved our

independence.

The majority of the Congress of the Confederation obviously concurred in

opinion with the State of Maryland, and desired to obtain from the

States which claimed it a cession of this territory, in order that

Congress might raise money on this security to carry on the war. This

appears by the resolution passed on the 6th of September, 1780, strongly

urging the States to cede these lands to the United States, both for the

sake of peace and union among themselves, and to maintain the public

credit; and this was followed by the resolution of October 10th, 1780,

by which Congress pledged itself, that if the lands were ceded, as

recommended by the resolution above mentioned, they should be disposed

of for the common benefit of the United States, and be settled and

formed into distinct republican States, which should become members of

the Federal Union, and have the same rights of sovereignty, and freedom,

and independence, as other States.

But these difficulties became much more serious after peace took place,

and the boundaries of the United States were established. Every State,

at that time, felt severely the pressure of its war debt; but in

Virginia, and some other States, there were large territories of

unsettled lands, the sale of which would enable them to discharge their

obligations without much inconvenience while other States, which had no

such resource, saw before them many years of heavy and burdensome

taxation; and the latter insisted, for the reasons before stated, that

these unsettled lands should be treated as the common property of the

States, and the proceeds applied to their common benefit.

The letters from the statesmen of that day will show how much this

controversy occupied their thoughts, and the dangers that were

apprehended from it. It was the disturbing element of the time, and

fears were entertained that it might dissolve the Confederation by which

the States were then united.

These fears and dangers were, however, at once removed, when the State

of Virginia, in 1784, voluntarily ceded to the United States the immense

tract of country lying northwest of the river Ohio, and which was within

the acknowledged limits of the State. The only object of the State, in

making this cession, was to put an end to the threatening and exciting

controversy, and to enable the Congress of that time to dispose of the

lands, and appropriate the proceeds as a common fund for the common

benefit of the States. It was not ceded because it was inconvenient to

the State to hold and govern it, nor from any expectation that it could

be better or more conveniently governed by the United States.

The example of Virginia was soon afterward followed by other States,

and, at the time of the adoption of the Constitution, all of the States

similarly situated, had ceded their unappropriated lands, except North

Carolina and Georgia. The main object for which the cessions were

desired and made, was on account of their money value, and to put an end

to a dangerous controversy, as to who was justly entitled to the

proceeds when the land should be sold. It is necessary to bring this

part of the history of these cessions thus distinctly into view, because

it will enable us the better to comprehend the phraseology of the

article in the Constitution, so often referred to in the argument.

Undoubtedly the powers of sovereignty and the eminent domain were ceded

with the land. This was essential, in order to make it effectual, and to

accomplish its objects. But it must be remembered that, at that time,

there was no Government of the United States in existence with

enumerated and limited powers; what was then called the United States,

were thirteen separate, sovereign, independent States, which had entered

into a league or confederation for their mutual protection and

advantage, and the Congress of the United States was composed of the

representatives of these separate sovereignties, meeting together, as

equals, to discuss and decide on certain measures which the States, by

the Articles of Confederation, had agreed to submit to their decision.

But this Confederation had none of the attributes of sovereignty in

legislative, executive, or judicial power. It was little more than a

congress of ambassadors, authorized to represent separate nations, in

matters in which they had a common concern.

It was this congress that accepted the cession from Virginia. They had

no power to accept it under the Articles of Confederation. But they had

an undoubted right, as independent sovereignties, to accept any cession

of territory for their common benefit, which all of them assented to;

and it is equally clear, that as their common property, and having no

superior to control them, they had the right to exercise absolute

dominion over it, subject only to the restrictions which Virginia had

imposed in her act of cession. There was, at we have said, no Government

of the United States then in existence with special enumerated and

limited powers. The territory belonged to sovereignties, who, subject to

the limitations above mentioned, had a right to establish any form of

Government they pleased, by compact or treaty among themselves, and to

regulate rights of person and rights of property in the territory, as

they might deem proper. It was by a Congress, representing the authority

of these several and separate sovereignties, and acting under their

authority and command (but not from any authority derived from the

Articles of Confederation,) that the instrument usually called the

ordinance of 1787 was adopted; regulating in much detail the principles

and the laws by which this territory should be governed; and among other

provisions, slavery is prohibited in it. We do not question the power of

the States, by agreement among themselves, to pass this ordinance, nor

its obligatory force in the territory, while the confederation or league

of the States in their separate sovereign character continued to exist.

This was the state of things when the Constitution of the United States

was formed. The territory ceded by Virginia, belonged to the several

confederated States as common property, and they had united in

establishing in it a system of government and jurisprudence, in order to

prepare it for admission as States, according to the terms of cession.

They were about to dissolve this federative Union, and to surrender a

portion of their independent sovereignty to a new Government, which, for

certain purposes, would make the people of the several States one

people, and which was to be supreme and controlling, within its sphere

of action throughout the United States; but this Government was to be

carefully limited in its powers, and to exercise no authority beyond

those expressly granted by the Constitution, or necessarily to be

implied from the language of the instrument, and the objects it was

intended to accomplish; and as this league of States would, upon the

adoption of the new Government, cease to have any power over the

territory, and the ordinance they had agreed upon be incapable of

execution and a mere nullity, it was obvious that some provision was

necessary to give the new Government sufficient power to enable it to

carry into effect the objects for which it was ceded, and the compacts

and agreements which the States had made with each other in the exercise

of their powers of sovereignty. It was necessary that the lands should

be sold to pay the war debt; that a Government and system of

jurisprudence should be maintained in it, to protect the citizens of the

United States who should migrate to the territory, in their rights of

person and of property. It was also necessary that the new Government,

about to be adopted, should be authorized to maintain the claim of the

United States to the unappropriated lands of North Carolina and Georgia,

which had not then been ceded, but the cession of which was confidently

anticipated upon some terms that would be arranged between the General

Government and these two States. And, moreover, there were many articles

of value besides this property in land, such as arms, military stores,

munitions, and ships of war, which were the common property of the

States, when acting in their independent characters as confederates,

which neither the new Government nor any one else would have a right to

take possession of, or control, without authority from them; and it was

to place these things under the guardianship and protection of the new

Government, and to clothe it with the necessary powers, that the clause

was inserted in the Constitution which gives Congress the power "to

dispose of and make all needful rules and regulations respecting the

territory or other property belonging to the United States." It was

intended for a specific purpose, to provide for the things we have

mentioned. It was to transfer to the new Government the property then

held in common by the States, and to give to that Government power to

apply it to the objects for which it had been destined by mutual

agreement among the States before their league was dissolved. It applied

only to the property which the States held in common at that time, and

has no reference whatever to any territory or other property which the

new sovereignty might afterward itself acquire.

The language used in the clause, the arrangement and combination of the

powers, and the somewhat unusual phraseology it uses, when it speaks of

the political power to be exercised in the government of the territory,

all indicate the design and meaning of the clause to be such as we have

mentioned. It does not speak of _any_ territory, nor of _Territories_,

but uses language which, according to its legitimate meaning, points to

a particular thing. The power is given in relation only to _the_

territory of the United States--that is, to a territory then in

existence, and then known or claimed as the territory of the United

States. It begins its enumeration of powers by that of disposing, in

other words, making sale of the lands, or raising money from them,

which, as we have already said, was the main object of the cession, and

which is accordingly the first thing provided for in the article. It

then gives the power which was necessarily associated with the

disposition and sale of the lands--that is, the power of making needful

rules and regulations respecting the territory. And whatever

construction may now be given to these words, every one, we think, must

admit that they are not the words usually employed by statesmen in

giving supreme power of legislation. They are certainly very unlike the

words used in the power granted to legislate over territory which the

new Government might afterwards itself obtain by cession from a State,

either for its seat of Government, or for forts, magazines, arsenals,

dock yards, and other needful buildings. And the same power of making

needful rules respecting the territory is, in precisely the same

language, applied to the _other_ property belonging to the United

States--associating the power over the territory in this respect with

the power over movable or personal property--that is, the ships, arms,

and munitions of war, which then belonged in common to the State

sovereignties. And it will hardly be said, that this power, in relation

to the last-mentioned objects, was deemed necessary to be thus specially

given to the new Government, in order to authorize it to make needful

rules and regulations respecting the ships it might itself build, or

arms and munitions of war it might itself manufacture or provide for the

public service.

No one, it is believed, would think a moment of deriving the power of

Congress to make needful rules and regulations in relation to property

of this kind from this clause of the Constitution. Nor can it, upon any

fair construction, be applied to any property, but that which the new

Government was about to receive from the confederated States. And if

this be true as to this property, it must be equally true and limited as

to the territory, which is so carefully and precisely coupled with

it--and like it referred to as property in the power granted. The

concluding words of the clause appear to render this construction

irresistible; for, after the provisions we have mentioned, it proceeds

to say, "that nothing in the Constitution shall be so construed as to

prejudice any claims of the United States, or of any particular State."

Now, as we have before said, all of the States, except North Carolina

and Georgia, had made the cession before the Constitution was adopted,

according to the resolution of Congress of October 10, 1780. The claims

of other States, that the unappropriated lands in these two States

should be applied to the common benefit, in like manner, was still

insisted on, but refused by the States. And this member of the clause in

question evidently applies to them, and can apply to nothing else. It

was to exclude the conclusion that either party, by adopting the

Constitution, would surrender what they deem their rights. And when the

latter provision relates so obviously to the unappropriated lands not

yet ceded by the States, and the first clause makes provision for those

then actually ceded, it is impossible, by any just rule of construction,

to make the first provision general, and extend to all territories,

which the Federal Goverenment might in any way afterwards acquire, when

the latter is plainly and unequivocally confined to a particular

territory; which was a part of the same controversy, and involved in the

same dispute, and depended upon the same principles. The union of the

two provisions in the same clause shows that they were kindred subjects;

and that the whole clause is local, and relates only to lands, within

the limits of the United States, which had been or then were claimed by

a State; and that no other territory was in the mind of the framers of

the Constitution, or intended to be embraced in it. Upon any other

construction it would be impossible to account for the insertion of the

last provision in the place where it is found, or to comprehend why, or

for what object, it was associated with the previous provision.

This view of the subject is confirmed by the manner in which the present

Government of the United States dealt with the subject as soon as it

came into existence. It must be borne in mind that the same States that

formed the Confederation also formed and adopted the new Government, to

which so large a portion of their former sovereign powers were

surrendered. It must also be borne in mind that all of these same States

which had then ratified the new Constitution were represented in the

Congress which passed the first law for the government of this

territory; and many of the members of that legislative body had been

deputies from the States under the confederation--had united in adopting

the ordinance of 1787, and assisted in forming the new Government under

which they were then acting, and whose powers they were then exercising.

And it is obvious from the law they passed to carry into effect the

principles and provisions of the ordinance, that they regarded it as the

act of the States done in the exercise of their legitimate powers at the

time. The new Government took the territory as it found it, and in the

condition in which it was transferred, and did not attempt to undo any

thing that that had been done. And, among the earliest laws passed under

the new Government, is one reviving the ordinance of 1787, which had

become inoperative and a nullity upon the adoption of the Constitution.

This law introduces no new form or principles for its government, but

recites, in the preamble, that it is passed in order that this ordinance

may continue to have full effect, and proceeds to make only those rules

and regulations which were needful to adapt it to the new Government,

into whose hands the power had fallen. It appears, therefore, that this

Congress regarded the purposes to which the land in this Territory was

to be applied, and the form of government and principles of

jurisprudence which were to prevail there, while it remained in the

territorial state, as already determined on by the States when they had

full power and right to make the decision; and that the new Government,

having received it in this condition, ought to carry substantially into

effect the plans and principles which had been previously adopted by the

States, and which, no doubt, the States anticipated when they

surrendered their power to the new Government. And if we regard this

clause of the Constitution as pointing to this Territory, with a

Territorial Government already established in it, which had been ceded

to the States for the purposes hereinbefore mentioned--every word in it

is perfectly appropriate and easily understood, and the provisions it

contains are in perfect harmony with the objects for which it was ceded,

and with the condition of its government as a Territory at the time. We

can, then, easily account for the manner in which the first Congress

legislated on the subject--and can also understand why this power over

the Territory was associated in the same clause with the other property

of the United States, and subjected to the like power of making needful

rules and regulations. But if the clause is construed in the expanded

sense contended for, so as to embrace any territory acquired from a

foreign nation by the present Government, and to give it in such

territory a despotic and unlimited power over persons and property, such

as the confederated States might exercise in their common property, it

would be difficult to account for the phraseology used, when compared

with other grants of power--and also for its association with the other

provisions in the same clause.

The Constitution has always been remarkable for the felicity of its

arrangement of different subjects, and the perspicuity and

appropriateness of the language it uses. But if this clause is construed

to extend to territory acquired by the present Government from a foreign

nation, outside of the limits of any charter from the British Government

to a colony, it would be difficult to say, why it was deemed necessary

to give the Government the power to sell any vacant lands belonging to

the sovereignity which might be found within it; and if this was

necessary, why the grant of this power should precede the power to

legislate over it and establish a Government there; and still more

difficult to say, why it was deemed necessary so specially and

particularly to grant the power to make needful rules and regulations in

relation to any personal or movable property it might acquire there. For

the words, _other property_, necessarily, by every known rule of

interpretation, must mean property of a different description from

territory or land. And the difficulty would perhaps be insurmountable in

endeavoring to account for the last member of the sentence, which

provides that "nothing in this Constitution shall be so construed as to

prejudice any claims of the United States or any particular State," or

to say how any particular State could have claims in or to a territory

ceded by a foreign Government, or to account for associating this

provision with the preceding provisions of the clause, with which it

would appear to have no connection.

The words "needful rules and regulations" would seem, also, to have been

cautiously used for some definite object. They are not the words usually

employed by statesmen, when they mean to give the powers of sovereignty,

or to establish a Government, or to authorize its establishment. Thus,

in the law to renew and keep alive the ordinance of 1787, and to

re-establish the Government, the title of the law is: "An act to provide

for the government of the territory northwest of the river Ohio." And in

the Constitution, when granting the power to legislate over the

territory that may be selected for the seat of Government independently

of a State, it does not say Congress shall have power "to make all

needful rules and regulations respecting the territory;" but it declares

that "Congress shall have power to exercise exclusive legislation in all

cases whatsoever over such District (not exceeding ten miles square) as

may, by cession of particular States and the acceptance of Congress,

become the seat of the Government of the United States.

The words "rules and regulations" are usually employed in the

Constitution in speaking of some particular specified power which it

means to confer on the Government, and not, as we have seen, when

granting general powers of legislation. As, for example, in the peculiar

power to Congress "to make rules for the government and regulation of

the land and naval forces, or the particular and specific power to

regulate commerce;" "to establish an uniform _rule_ of naturalization;"

"to coin money and _regulate_ the value thereof." And to construe the

words of which we are speaking as a general and unlimited grant of

sovereignty over territories which the Government might afterward

acquire, is to use them in a sense and for a purpose for which they were

not used in any other part of the instrument. But if confined to a

particular Territory, in which a Government and laws had already been

established, but which would require some alterations to adapt it to the

new Government, the words are peculiarly applicable and appropriate for

that purpose.

The necessity of this special provision in relation to property and the

rights or property held in common by the confederated States, is

illustrated by the first clause of the sixth article. This clause

provides that "all debts, contracts, and engagements entered into before

the adoption of this Constitution, shall be as valid against the United

States under this Government as under the Confederation." This

provision, like the one under consideration, was indispensable if the

new Constitution was adopted. The new Government was not a mere change

in a dynasty, or in a form of government, leaving the nation or

sovereignty the same, and clothed with all the rights, and bound by all

the obligations of the preceding one. But when the present United States

came into existence under the new Government, it was a new political

body, and a new nation, then for the first time taking its place in the

family of nations. It took nothing by succession from the Confederation.

It had no right, as its successor, to any property or rights of property

which it had acquired, and was not liable for any of its obligations. It

was evidently viewed in this light by the framers of the Constitution.

And as the several States would cease to exist in their former

confederated character upon the adoption of the Constitution, and could

not, in that character, again assemble together, special provisions were

indispensable to transfer to the new Government the property and rights

which at that time they held in common; and at the same time to

authorize it to lay taxes and appropriate money to pay the common debt

which they had contracted; and this power could only be given to it by

special provisions in the Constitution. The clause in relation to the

territory and other property of the United States provided for the

first, and the clause last quoted provides for the other. They have no

connection with the general powers and rights of sovereignty delegated

to the new Government, and can neither enlarge nor diminish them. They

were inserted to meet a present emergency, and not to regulate its

powers as a Government.

Indeed, a similar provision was deemed necessary, in relation to

treaties made by the Confederation; and when in the clause next

succeeding the one of which we have last spoken, it is declared that

treaties shall be the supreme law of the land, care is taken to include,

by express words, the treaties made by the confederated States. The

language is: "and all treaties made, or which shall be made, under the

authority of the United States, shall be the supreme law of the land."

Whether, therefore, we take the particular clause in question, by

itself, or in connection with the other provisions of the Constitution,

we think it clear, that it applies only to the particular territory of

which we have spoken, and cannot, by any just rule of interpretation, be

extended to territory which the new Government might afterward obtain

from a foreign nation. Consequently, the power which Congress may have

lawfully exercised in this Territory, while it remained under a

Territorial Government, and which may have been sanctioned by judicial

decision, can furnish no justification and no argument to support a

similar exercise of power over territory afterward acquired by the

Federal Government. We put aside, therefore, any argument, drawn from

precedents, showing the extent of the power which the General Government

exercised over slavery in this Territory, as altogether inapplicable to

the case before us.

But the case of the American and Ocean Insurance Companies _v._ Canter

(1 Pet., 511) has been quoted as establishing a different construction

of this clause of the Constitution. There is, however, not the slightest

conflict between the opinion now given and the one referred to; and it

is only by taking a single sentence out of the latter and separating it

from the context, that even an appearance of conflict can be shown. We

need not comment on such a mode of expounding an opinion of the court.

Indeed it most commonly misrepresents instead of expounding it. And this

is fully exemplified in the case referred to, where, if one sentence is

taken by itself, the opinion would appear to be in direct conflict with

that now given; but the words which immediately follow that sentence

show that the court did not mean to decide the point, but merely

affirmed the power of Congress to establish a Government in the

Territory, leaving it an open question, whether that power was derived

from this clause in the Constitution, or was to be necessarily inferred

from a power to acquire territory by cession from a foreign Government.

The opinion on this part of the case is short, and we give the whole of

it to show how well the selection of a single sentence is calculated to

mislead.

The passage referred to is in page 542, in which the court, in speaking

of the power of Congress to establish a Territorial Government in

Florida until it should become a State, uses the following language:

"In the mean time Florida continues to be a Territory of the United

States, governed by that clause of the Constitution which empowers

Congress to make all needful rules and regulations respecting the

territory or other property of the United States. Perhaps the power of

governing a Territory belonging to the United States, which has not, by

becoming a State, acquired the means of self-government, may result,

necessarily, from the facts that it is not within the jurisdiction of

any particular State, and is within the power and jurisdiction of the

United States. The right to govern may be the inevitable consequence of

the right to acquire territory. _Whichever may be the source from which

the power is derived, the possession of it is unquestionable._"

It is thus clear, from the whole opinion on this point, that the court

did not mean to decide whether the power was derived from the clause in

the Constitution, or was the necessary consequence of the right to

acquire. They do decide that the power in Congress is unquestionable,

and in this we entirely concur, and nothing will be found in this

opinion to the contrary. The power stands firmly on the latter

alternative put by the court--that is, as "_the inevitable consequence

of the right to acquire territory_."

And what still more clearly demonstrates that the court did not mean to

decide the question, but leave it open for future consideration, is the

fact that the case was decided in the Circuit Court by Mr. Justice

Johnson, and his decision was affirmed by the Supreme Court. His opinion

at the circuit is given in full in a note to the case, and in that

opinion he states, in explicit terms, that the clause of the

Constitution applies only to the territory then within the limits of the

United States, and not to Florida, which had been acquired by cession

from Spain. This part of his opinion will be found in the note in page

517 of the report. But he does not dissent from the opinion of the

Supreme Court; thereby showing that, in his judgment, as well as that of

the court, the case before them did not call for a decision on that

particular point, and the court abstained from deciding it. And in a

part of its opinion subsequent to the passage we have quoted, where the

court speak of the legislative power of Congress in Florida, they still

speak with the same reserve. And in page 546, speaking of the power of

Congress to authorize the Territorial Legislature to establish courts

there, the court say: "They are legislative courts, created in virtue of

the general right of sovereignty which exists in the Government, or in

virtue of that clause which enables Congress to make all needful rules

and regulations respecting the territory belonging to the United

States."

It has been said that the construction given to this clause is new, and

now for the first time brought forward. The case of which we are

speaking, and which has been so much discussed, shows that the fact is

otherwise. It shows that precisely the same question came before Mr.

Justice Johnson, at his circuit, thirty years ago--was fully considered

by him, and the same construction given to the clause in the

Constitution which is now given by this court. And that upon an appeal

from his decision the same question was brought before this court, but

was not decided because a decision upon it was not required by the case

before the court.

There is another sentence in the opinion which has been commented on,

which even in a still more striking manner shows how one may mislead or

be misled by taking out a single sentence from the opinion of a court,

and leaving out of view what precedes and follows. It is in page 546,

near the close of the opinion, in which the court say: "In legislating

for them," (the territories of the United States,) "Congress exercises

the combined powers of the General and of a State Government." And it is

said, that as a State may unquestionably prohibit slavery within its

territory, this sentence decides in effect that Congress may do the same

in a territory of the United States, exercising there the powers of a

State, as well as the power of the General Government.

The examination of this passage in the case referred to, would be more

appropriate when we come to consider in another part of this opinion

what power Congress can constitutionally exercise in a Territory, over

the rights of person or rights of property of a citizen. But, as it is

in the same case with the passage we have before commented on, we

dispose of it now, as it will save the court from the necessity of

referring again to the case. And it will be seen upon reading the page

in which this sentence is found, that it has no reference whatever to

the power of Congress over rights of person or rights of property--but

relates altogether to the power of establishing judicial tribunals to

administer the laws constitutionally passed, and defining the

jurisdiction they may exercise.

The law of Congress establishing a Territorial Government in Florida,

provided that the Legislature of the Territory should have legislative

powers over "all rightful objects of legislation; but no law should be

valid which was inconsistent with the laws and Constitution of the

United States."

Under the power thus conferred, the Legislature of Florida passed an

act, erecting a tribunal at Key West to decide cases of salvage. And in

the case of which we are speaking, the question arose whether the

Territorial Legislature could be authorized by Congress to establish

such a tribunal, with such powers; and one of the parties among other

objections, insisted that Congress could not under the Constitution

authorize the Legislature of the Territory to establish such a tribunal

with such powers, but that it must be established by Congress itself;

and that a sale of cargo made under its order, to pay salvors, was void,

as made without legal authority, and passed no property to the

purchaser.

It is in disposing of this objection that the sentence relied on occurs,

and the court begin that part of the opinion by stating with great

precision the point which they are about to decide.

They say: "It has been contended that by the Constitution of the United

States, the judicial power of the United States extends to all cases of

admiralty and maritime jurisdiction; and that the whole of the judicial

power must be vested 'in one Supreme Court, and in such inferior courts

as Congress shall from time to time ordain and establish.' Hence it has

been argued that Congress can not vest admiralty jurisdiction in courts

created by the Territorial Legislature."

And after thus clearly stating the point before them, and which they

were about to decide, they proceed to show that these Territorial

tribunals were not constitutional courts, but merely legislative, and

that Congress might, therefore, delegate the power to the Territorial

Government to establish the court in question; and they conclude that

part of the opinion in the following words: "Although admiralty

jurisdiction can be exercised in the States in those courts only which

are established in pursuance of the third article of the Constitution,

the same limitation does not extend to the Territories. In legislating

for them, Congress exercises the combined powers of the General and

State Governments."

Thus it will be seen by these quotations from the opinion, that the

court, after stating the question it was about to decide in a manner too

plain to be misunderstood, proceeded to decide it, and announced, as the

opinion of the tribunal, that in organizing the judicial department of

the Government in a Territory of the United States, Congress does not

act under, and is not restricted by, the third article in the

Constitution, and is not bound, in a Territory, to ordain and establish

courts in which the judges hold their offices during good behaviour, but

may exercise the discretionary power which a State exercises in

establishing its judicial department, and regulating the jurisdiction of

its courts, and may authorize the Territorial Government to establish,

or may itself establish, courts in which the judges hold their offices

for a term of years only; and may vest in them judicial power upon

subjects confided to the judiciary of the United States. And in doing

this, Congress undoubtedly exercises the combined power of the General

and a State Government. It exercises the discretionary power of a State

Government in authorizing the establishment of a court in which the

judges hold their appointments for a term of years only, and not during

good behaviour; and it exercises the power of the General Government in

investing that court with admiralty jurisdiction, over which the General

Government had exclusive jurisdiction in the Territory.

No one, we presume, will question the correctness of that opinion; nor

is there any thing in conflict with it in the opinion now given. The

point decided in the case cited has no relation to the question now

before the court. That depended on the construction of the third article

of the Constitution, in relation to the judiciary of the United States,

and the power which Congress might exercise in a Territory in organizing

the judicial department of the Government. The case before us depends

upon other and different provisions of the Constitution, altogether

separate and apart from the one above mentioned. The question as to

what courts Congress may ordain or establish in a Territory to

administer laws which the Constitution authorizes it to pass, and what

laws it is or is not authorized by the Constitution to pass, are widely

different--are regulated by different and separate articles of the

Constitution, and stand upon different principles. And we are satisfied

that no one who reads attentively the page in Peters' Reports to which

we have referred, can suppose that the attention of the court was drawn

for a moment to the question now before this court, or that it meant in

that case to say that Congress had a right to prohibit a citizen of the

United States from taking any property which he lawfully held into a

Territory of the United States.

This brings us to examine by what provision of the Constitution the

present Federal Government, under its delegated and restricted powers,

is authorized to acquire territory outside of the original limits of the

United States, and what powers it may exercise therein over the person

or property of a citizen of the United States, while it remains a

Territory, and until it shall be admitted as one of the States of the

Union.

There is certainly no power given by the Constitution to the Federal

Government to establish or maintain colonies bordering on the United

States or at a distance, to be ruled and governed at its own pleasure;

nor to enlarge its territorial limits in any way, except by the

admission of new States. That power is plainly given; and if a new State

is admitted, it needs no further legislation from Congress, because the

Constitution itself defines the relative rights and powers, and duties

of the State, and the citizens of the State, and the Federal Government.

But no power is given to acquire a Territory to be held and governed

permanently in that character.

And indeed the power exercised by Congress to acquire territory and

establish a Government there, according to its own unlimited discretion,

was viewed with great jealousy by the leading statesmen of the day. And

in the Federalist, (No. 38,) written by Mr. Madison, he speaks of the

acquisition of the Northwestern Territory by the confederated States, by

the cession from Virginia, and the establishment of a Government there,

as an exercise of power not warranted by the Articles of Confederation,

and dangerous to the liberties of the people. And he urges the adoption

of the Constitution as a security and safeguard against such an exercise

of power.

We do not mean, however, to question the power of Congress in this

respect. The power to expand the territory of the United States by the

admission of new States is plainly given; and in the construction of

this power by all the departments of the Government, it has been held to

authorize the acquisition of territory, not fit for admission at the

time, but to be admitted as soon as its population and situation would

entitle it to admission. It is acquired to become a State, and not to be

held as a colony and governed by Congress with absolute authority; and

as the propriety of admitting a new State is committed to the sound

discretion of Congress, the power to acquire territory for that purpose,

to be held by the United States until it is in a suitable condition to

become a State upon an equal footing with the other States, must rest

upon the same discretion. It is a question for the political department

of the Government, and not the judicial; and whatever the political

department of the Government shall recognize as within the limits of the

United States, the judicial department is also bound to recognize, and

to administer in it the laws of the United States, so far as they apply,

and to maintain in the Territory the authority and rights of the

Government, and also the personal rights and rights of property of

individual citizens, as secured by the Constitution. All we mean to say

on this point is, that, as there is no express regulation in the

Constitution defining the power which the General Government may

exercise over the person or property of a citizen in a Territory thus

acquired, the court must necessarily look to the provisions and

principles of the Constitution, and its distribution of powers, for the

rules and principles by which its decision must be governed.

Taking this rule to guide us, it may be safely assumed that citizens of

the United States who migrate to a Territory belonging to the people of

the United States, cannot be ruled as mere colonists, dependent upon the

will of the General Government, and to be governed by any laws it may

think proper to impose. The principle upon which our Government rests,

and upon which alone they continue to exist, is the union of States,

sovereign and independent within their own limits in their internal and

domestic concerns, and bound together as one people by a General

Government, possessing certain enumerated and restricted powers,

delegated to it by the people of the several States, and exercising

supreme authority within the scope of the powers granted to it,

throughout the dominion of the United States. A power, therefore, in the

General Government to obtain and hold colonies and dependent

territories, over which they might legislate without restriction, would

be inconsistent with its own existence in its present form. Whatever it

acquires, it acquires for the benefit of the people of the several

States who created it. It is their trustee acting for them, and charged

with the duty of promoting the interests of the whole people of the

whole Union in the exercise of the powers specifically granted.

At the time when the Territory in question was obtained by cession from

France, it contained no population fit to be associated together and

admitted as a State; and it therefore was absolutely necessary to hold

possession of it, as a Territory belonging to the United States, until

it was settled and inhabited by a civilized community capable of

self-government, and in a condition to be admitted on equal terms with

the other States as a member of the Union. But, as we have before said,

it was acquired by the General Government, as the representative and

trustee of the people of the United States, and it must therefore be

held in that character for their common and equal benefit; for it was

the people of the several States, acting through their agent and

representative, the Federal Government, who in fact acquired the

Territory in question, and the Government holds it for their common use

until it shall be associated with the other States as a member of the

Union.

But until that time arrives, it is undoubtedly necessary that some

Government should be established in order to organize society, and to

protect the inhabitants in their persons and property; and as the people

of the United States could act in this matter only through the

Government which represented them, and through which they spoke and

acted when the Territory was obtained, it was not only within the scope

of its powers, but it was its duty to pass such laws and establish such

a Government as would enable those by whose authority they acted to reap

the advantages anticipated from its acquisition, and to gather there a

population which would enable it to assume the position to which it was

destined among the States of the Union. The power to acquire necessarily

carries with it the power to preserve and apply to the purposes for

which it was acquired. The form of government to be established

necessarily rested in the discretion of Congress. It was their duty to

establish the one that would be best suited for the protection and

security of the citizens of the United States, and other inhabitants who

might be authorized to take up their abode there, and that must always

depend upon the existing condition of the Territory, as to the number

and character of its inhabitants, and their situation in the Territory.

In some cases a Government, consisting of persons appointed by the

Federal Government, would best subserve the interests of the Territory,

when the inhabitants were few and scattered, and new to one another. In

other instances, it would be more advisable to commit the powers of

self-government to the people who had settled in the Territory, as being

the most competent to determine what was best for their own interests.

But some form of civil authority would be absolutely necessary to

organize and preserve civilized society, and prepare it to become a

State; and what is the best form must always depend on the condition of

the territory at the time, and the choice of the mode must depend upon

the exercise of a discretionary power by Congress, acting within the

scope of its constitutional authority, and not infringing upon the

rights of person or rights of property of the citizen who might go there

to reside, or for any other lawful purpose. It was acquired by the

exercise of this discretion, and it must be held and governed in like

manner, until it is fitted to be a State.

But the power of Congress over the person or property of a citizen can

never be a mere discretionary power under our Constitution and form of

Government. The powers of the Government and the rights and privileges

of the citizen are regulated and plainly defined by the Constitution

itself. And when the Territory becomes a part of the United States, the

Federal Government enters into possession in the character impressed

upon it by those who created it. It enters upon it with its powers over

the citizen strictly defined, and limited by the Constitution, from

which it derives its own existence, and by virtue of which alone it

continues to exist and act as a Government and sovereignty. It has no

power of any kind beyond it; and it cannot, when it enters a Territory

of the United States, put off its character, and assume discretionary or

despotic powers which the Constitution has denied to it. It cannot

create for itself a new character separated from the citizens of the

United States, and the duties it owes them under the provisions of the

Constitution. The Territory being a part of the United States, the

Government and the citizen both enter it under the authority of the

Constiution, with their respective rights defined and marked out; and

the Federal Government can exercise no power over his person or

property, beyond what that instrument confers, nor lawfully deny any

right which it has reserved.

A reference to a few of the provisions of the Constitution will

illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any

law in a Territory respecting the establishment of religion, or the free

exercise thereof, or abridging the freedom of speech or of the press, or

the right of the people of the Territory peacably to assemble, and to

petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor

the right to trial by jury, nor compel any one to be a witness against

himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is

not necessary here to enumerate, are, in express and positive terms,

denied to the General Government; and the rights of private property

have been guarded with equal care. Thus the rights of property are

united with the rights of person, and placed on the same ground by the

fifth amendment to the Constitution, which provides that no person shall

be deprived of life, liberty, and property, without due process of law.

And an act of Congress which deprives a citizen of the United States of

his liberty or property, merely because he came himself or brought his

property into a particular Territory of the United States, and who had

committed no offense against the laws, could hardly be dignified with

the name of due process of law.

So, too, it will hardly be contended that Congress could by law quarter

a soldier in a house in a Territory without the consent of the owner, in

time of peace; nor in time of war, but in a manner prescribed by law.

Nor could they by law forfeit the property of a citizen in a Territory

who was convicted of treason, for a longer period than the life of the

person convicted; nor take private property for public use without just

compensation.

The powers over person and property of which we speak are not only not

granted to Congress, but are in express terms denied, and they are

forbidden to exercise them. And this prohibition is not confined to the

States, but the words are general, and extend to the whole territory

over which the Constitution gives it power to legislate, including those

portions of it remaining under Territorial Government, as well as that

covered by States. It is a total absence of power everywhere within the

dominion of the United States, and places the citizens of a Territory,

so far as these rights are concerned, on the same footing with citizens

of the States, and guards them as firmly and plainly against any inroads

which the General Government might attempt, under the plea of implied or

incidental powers. And if Congress itself cannot do this--if it is

beyond the powers conferred on the Federal Government--it will be

admitted, we presume, that it could not authorize a Territorial

Government to exercise them. It could confer no power on any local

Government, established by its authority, to violate the provisions of

the Constitution.

It seems, however, to be supposed, that there is a difference between

property in a slave and other property, and that different rules may be

applied to it in expounding the Constitution of the United States. And

the laws and usages of nations, and the writings of eminent jurists upon

the relation of master and slave and their mutual rights and duties, and

the powers which Governments may exercise over it, have been dwelt upon

in the argument.

But in considering the question before us, it must be borne in mind that

there is no law of nations standing between the people of the United

States and their Government, and interfering with their relation to each

other. The powers of the Government, and the rights of the citizen under

it, are positive and practical regulations plainly written down. The

people of the United States have delegated to it certain enumerated

powers, and forbidden it to exercise others. It has no power over the

person or property of a citizen but what the citizens of the United

States have granted. And no laws or usages of other nations, or

reasoning of statesmen or jurists upon the relations of master and

slave, can enlarge the powers of the Government, or take from the

citizens the rights they have reserved. And if the Constitution

recognizes the right of property of the master in a slave, and makes no

distinction between that description of property and other property

owned by a citizen, no tribunal, acting under the authority of the

United States, whether it be legislative, executive, or judicial, has a

right to draw such a distinction, or deny to it the benefit of the

provisions and guarantees which have been provided for the protection of

private property against the encroachments of the Government.

Now, as we have already said in an earlier part of this opinion, upon a

different point, the right of property in a slave is distinctly and

expressly affirmed in the Constitution. The right to traffic in it, like

an ordinary article of merchandise and property, was guaranteed to the

citizens of the United States, in every State that might desire it, for

twenty years. And the Government in express terms is pledged to protect

it in all future time, if the slave escapes from his owner. This is done

in plain words--too plain to be misunderstood. And no word can be found

in the Constitution which gives Congress a greater power over

slave-property, or which entitles property of that kind to less

protection than property of any other description. The only power

conferred is the power coupled with the duty of guarding and protecting

the owner in his rights.

Upon these considerations, it is the opinion of the court that the act

of Congress which prohibited a citizen from holding and owning property

of this kind in the territory of the United States north of the line

therein mentioned, is not warranted by the Constitution, and is

therefore void; and that neither Dred Scott himself, nor any of his

family, were made free by being carried into this territory; even if

they had been carried there by the owner, with the intention of becoming

a permanent resident.

We have so far examined the case, as it stands under the Constitution of

the United States, and the powers thereby delegated to the Federal

Government.

But there is another point in the case which depends on State power and

State law. And it is contended, on the part of the plaintiff, that he is

made free by being taken to Rock Island, in the State of Illinois,

independently of his residence in the territory of the United States;

and being so made free, he was not again reduced to a state of slavery

by being brought back to Missouri.

Our notice of this part of the case will be very brief; for the

principle on which it depends was decided in this court, upon much

consideration in the case of Strader et al. _v._ Graham, reported in

10th Howard, 82. In that case, the slaves had been taken from Kentucky

to Ohio, with the consent of the owner, and afterward brought back to

Kentucky. And this court held that their _status_ or condition, as free

or slave, depended upon the laws of Kentucky, when they were brought

back into that State, and not of Ohio; and that this court had no

jurisdiction to revise the judgment of a State court upon its own laws.

This was the point directly before the court, and the decision that this

court had not jurisdiction turned upon it, as will be seen by the report

of the case.

So in this case. As Scott was a slave when taken into the State of

Illinois by his owner, and was there held as such, and brought back in

that character, his _status_, as free or slave, depended on the laws of

Missouri, and not of Illinois.

It has, however, been urged in the argument, that by the laws of

Missouri he was free on his return, and that this case, therefore, can

not be governed by the case of Strader et al. _v._ Graham, where it

appeared, by the laws of Kentucky, that the plaintiffs continued to be

slaves on their return from Ohio. But whatever doubts or opinions may,

at one time, have been entertained upon this subject, we are satisfied,

upon a careful examination of all the cases decided in the State courts

of Missouri referred to, that it is now firmly settled by the decisions

of the highest court in the State, that Scott and his family upon their

return were not free, but were, by the laws of Missouri, the property of

the defendant; and that the Circuit Court of the United States had no

jurisdiction, when, by the laws of the State, the plaintiff was a slave,

and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against

the defendant in the State Court of Missouri, claiming the freedom of

himself and his family upon the same grounds and the same evidence upon

which he relies in the case before the court. The case was carried

before the Supreme Court of the State; was fully argued there; and that

court decided that neither the plaintiff nor his family were entitled to

freedom, and were still the slaves of the defendant; and reversed the

judgment of the inferior State court, which had given a different

decision. If the plaintiff supposed that this judgment of the Supreme

Court of the State was erroneous, and that this court had jurisdiction

to revise and reverse it, the only mode by which he could legally bring

it before this court was by writ of error directed to the Supreme Court

of the State, requiring it to transmit the record to this court. If

this had been done, it is too plain for argument that the writ must have

been dismissed for want of jurisdiction in this court. The case of

Strader and others _v._ Graham is directly in point; and, indeed,

independent of any decision, the language of the 25th section of the act

of 1789 is too clear and precise to admit of controversy.

But the plaintiff did not pursue the mode prescribed by law for bringing

the judgment of a State court before this court for revision, but

suffered the case to be remanded to the inferior State court, where it

is still continued, and is, by agreement of parties, to await the

judgment of this court on the point. All of this appears on the record

before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State court,

the plaintiff goes into the Circuit Court of the United States, upon the

same case and the same evidence, and against the same party, and

proceeds to judgment, and then brings here the same case from the

Circuit Court, which the law would not have permitted him to bring

directly from the State court. And if this court takes jurisdiction in

this form, the result, so far as the rights of the respective parties

are concerned, is in every respect substantially the same as if it had

in open violation of law entertained jurisdiction over the judgment of

the State court upon a writ of error, and revised and reversed its

judgment upon the ground that its opinion upon the question of law was

erroneous. It would ill become this court to sanction such an attempt to

evade the law, or to exercise an appellate power in this circuitous way,

which it is forbidden to exercise in the direct and regular and

invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court, that it

appears by the record before us that the plaintiff in error is not a

citizen of Missouri, in the sense in which that word is used in the

Constitution; and that the Circuit Court of the United States, for that

reason, had no jurisdiction in the case, and could give no judgment in

it. Its judgment for the defendant must, consequently, be reversed, and

a mandate issued, directing the suit to be dismissed for want of

jurisdiction

POINTS DECIDED.

I.

1. Upon a writ of error to a Circuit Court of the United States, the

transcript of the record of all the proceedings in the case is brought

before this court, and is open to its inspection and revision.

2. When a plea to the jurisdiction, in abatement, is overruled by the

court upon demurrer, and the defendant pleads in bar, and upon these

pleas the final judgment of the court is in his favor--if the plaintiff

brings a writ of error, the judgment of the court upon the plea in

abatement is before this court, although it was in favor of the

plaintiff--and if the court erred in overruling it, the judgment must be

reversed, and a mandate issued to the Circuit Court to dismiss the case

for want of jurisdiction.

3. In the Circuit Courts of the United States, the record must show that

the case is one in which by the Constitution and laws of the United

States, the court had jurisdiction--and if this does not appear, and the

court gives judgment either for plaintiff or defendant, it is error, and

the judgment must be reversed by this court--and the parties cannot by

consent waive the objection to the jurisdiction of the Circuit Court.

4. A free negro of the African race, whose ancestors were brought to

this country and sold as slaves, is not a "citizen" within the meaning

of the Constitution of the United States.

5. When the Constitution was adopted, they were not regarded in any of

the States as members of the community which constituted the State, and

were not numbered among its "people or citizens." Consequently, the

special rights and immunities guaranteed to citizens do not apply to

them. And not being "citizens" within the meaning of the Constitution,

they are not entitled to sue in that character in a court of the United

States, and the Circuit Court has not jurisdiction in such a suit.

6. The only two clauses in the Constitution which point to this race,

treat them as persons whom it was morally lawful to deal in as articles

of property and to hold as slaves.

7. Since the adoption of the Constitution of the United States, no State

can by any subsequent law make a foreigner or any other description of

persons citizens of the United States, nor entitle them to the rights

and privileges secured to citizens by that instrument.

8. A State, by its laws passed since the adoption of the Constitution,

may put a foreigner or any other description of persons upon a footing

with its own citizens, as to all the rights and privileges enjoyed by

them within its dominion, and by its laws. But that will not make him a

citizen of the United States, nor entitle him to sue in its courts, nor

to any of the privileges and immunities of a citizen in another State.

9. The change in public opinion and feeling in relation to the African

race, which has taken place since the adoption of the Constitution,

cannot change its construction and meaning, and it must be construed and

administered now according to its true meaning and intention when it was

formed and adopted.

10. The plaintiff having admitted, by his demurrer to the plea in

abatement, that his ancestors were imported from Africa and sold as

slaves, he is not a citizen of the State of Missouri according to the

Constitution of the United States, and was not entitled to sue in that

character in the Circuit Court.

11. This being the case, the judgment of the court below, in favor of

the plaintiff on the plea in abatement, was erroneous.

II.

1. But if the plea in abatement is not brought up by this writ of error,

the objection to the citizenship of the plaintiff is still apparent on

the record, as he himself, in making out his case, states that he is of

African descent, was born a slave, and claims that he and his family

became entitled to freedom by being taken by their owner to reside in a

territory where slavery is prohibited by act of Congress--and that, in

addition to this claim, he himself became entitled to freedom by being

taken to Rock Island, in the State of Illinois--and being free when he

was brought back to Missouri, he was by the laws of that State a

citizen.

2. If, therefore, the facts he states do not give him or his family a

right to freedom, the plaintiff is still a slave, and not entitled to

sue as a "citizen," and the judgment of the Circuit Court was erroneous

on that ground also, without any reference to the plea in abatement.

3. The Circuit Court can give no judgment for plaintiff or defendant in

a case where it has not jurisdiction, no matter whether there be a plea

in abatement or not. And unless it appears upon the face of the record,

when brought here by writ of error, that the Circuit Court had

jurisdiction, the judgment must be reversed.

The case of Capron _v._ Van Noorden (2 Cranch, 126) examined, and the

principles thereby decided, reaffirmed.

4. When the record, as brought here by writ of error, does not show that

the Circuit Court had jurisdiction, this court has jurisdiction to

revise and correct the error, like any other error in the court below.

It does not and cannot dismiss the case for want of jurisdiction here;

for that would leave the erroneous judgment of the court below in full

force, and the party injured without remedy. But it must reverse the

judgment, and, as in any other case of reversal, send a mandate to the

Circuit Court to conform its judgment to the opinion of this court.

5. The difference of the jurisdiction in this court in the cases of

writs of error to State courts and to Circuit Courts of the United

States, pointed out; and the mistakes made as to the jurisdiction of

this court in the latter case, by confounding it with its limited

jurisdiction in the former.

6. If the court reverses a judgment upon the ground that it appears by a

particular part of the record that the Circuit Court had not

jurisdiction, it does not take away the jurisdiction of this court to

examine into and correct, by a reversal of the judgment, any other

errors, either as to the jurisdiction or any other matter, where it

appears from other parts of the record that the Circuit Court had fallen

into error. On the contrary, it is the daily and familiar practice of

this court to reverse on several grounds, where more than one error

appears to have been committed. And the error of a Circuit Court in its

jurisdiction stands on the same ground, and is to be treated in the same

manner as any other error upon which its judgment is founded.

7. The decision, therefore, that the judgment of the Circuit Court upon

the plea in abatement is erroneous, is no reason why the alleged error

apparent in the exception should not also be examined, and the judgment

reversed on that ground also, if it discloses a want of jurisdiction in

the Circuit Court.

It is often the duty of this court, after having decided that a

particular decision of the Circuit Court was erroneous, to examine into

other alleged errors, and to correct them if they are found to exist.

And this has been uniformly done by this court, when the questions are

in any degree connected with the controversy, and the silence of the

court might create doubts which would lead to further and useless

litigation.

III.

1. The facts upon which the plaintiff relies did not give him his

freedom, and make him a citizen of Missouri.

2. The clause in the Constitution authorizing Congress to make all

needful rules and regulations for the government of the territory and

other property of the United States, applies only to territory within

the chartered limits of some one of the States when they were colonies

of Great Britain, and which was surrendered by the British Government to

the old Confederation of the States, in the treaty of peace. It does not

apply to territory acquired by the present Federal Government, by treaty

or conquest, from a foreign nation.

The case of the American and Ocean Insurance Companies _v._ Canter (1

Peters, 511) referred to and examined, showing that the decision in this

case is not in conflict with that opinion, and that the court did not,

in the case referred to, decide upon the construction of the clause of

the Constitution above mentioned, because the case before them did not

make it necessary to decide the question.

3. The United States, under the present Constitution, cannot acquire

territory to be held as a colony, to be governed at its will and

pleasure. But it may acquire territory which, at the time, has not a

population that fits it to become a State, and may govern it as a

Territory until it has a population which, in the judgment of Congress,

entitles it to be admitted as a State of the Union.

4. During the time it remains a Territory, Congress may legislate over

it within the scope of its constitutional powers in relation to citizens

of the United States--and may establish a Territorial Government--and

the form of this local Government must be regulated by the discretion of

Congress, but with powers not exceeding those which Congress itself, by

the Constitution, is authorized to exercise over citizens of the United

States, in respect to their rights of persons or rights of property.

IV.

1. The territory thus acquired, is acquired by the people of the United

States for their common and equal benefit, through their agent and

trustee, the Federal Government. Congress can exercise no power over the

rights of person or property of a citizen in the Territory which is

prohibited by the Constitution. The Government and the citizen, whenever

the Territory is open to settlement, both enter it with their respective

rights defined and limited by the Constitution.

2. Congress has no right to prohibit the citizens of any particular

State or States from taking up their home there, while it permits

citizens of other States to do so. Nor has it a right to give privileges

to one class of citizens which it refuses to another. The territory is

acquired for their equal and common benefit--and if open to any, it must

be open to all upon equal and the same terms.

3. Every citizen has a right to take with him into the Territory any

article of property which the Constitution of the United States

recognizes as property.

4. The Constitution of the United States recognizes slaves as property,

and pledges the Federal Government to protect it. And Congress cannot

exercise any more authority over property of that description than it

may constitutionally exercise over property of any other kind.

5. The act of Congress, therefore, prohibiting a citizen of the United

States from taking with him his slaves when he removes to the Territory

in question to reside, is an exercise of authority over private property

which is not warranted by the Constitution--and the removal of the

plaintiff, by his owner, to that Territory, gave him no title to

freedom.

V.

1. The plaintiff himself acquired no title to freedom by being taken, by

his owner, to Rock Island, in Illinois, and brought back to Missouri.

This court has heretofore decided that the _status_ or condition of a

person of African descent depended on the laws of the State in which he

resided.

2. It has been settled by the decisions of the highest court in

Missouri, that by the laws of that State, a slave does not become

entitled to his freedom, where the owner takes him to reside in a State

where slavery is not permitted, and afterwards brings him back to

Missouri.

Conclusion. It follows that it is apparent upon the record that the

court below erred in its judgment on the plea in abatement, and also

erred in giving judgment for the defendant, when the exception shows

that the plaintiff was not a citizen of the United States. And as the

Circuit Court had no jurisdiction, either in the case stated in the plea

in abatement, or in the one stated in the exception, its judgment in

favor of the defendant is erroneous, and must be reversed.

THE

FUGITIVE SLAVE LAW.

BY

REV. CHARLES HODGE, D.D.

OF NEW JERSEY.

THE FUGITIVE SLAVE LAW.

NOTE.--We have affixed, by way of comment to "the

decision of the Supreme Court in the Dred Scott

case," the following able paper from the pen of

Prof. Hodge. It lucidly explains the source and

sanction of Civil Government, and deduces

therefrom the duties and responsibilities of the

governed.--ED.

* * * * *

Alleged Immorality of the Law answered--Duty of

Obedience--Government a Divine Institution--The

Warrant of Government is not the consent of the

governed--Infidel Doctrines--Deductions from this

Doctrine--Decision of the Supreme

Court--Objections answered--Conscience and the

Law--Duty of Executive Officers--Duty of Private

Citizens--Objections answered--Right of

Revolution--Summary application of these

principles to the Fugitive Slave Law--Conclusion.

THERE is no more obvious duty, at the present time, resting on American

Christians, ministers and people, than to endeavor to promote kind

feelings between the South and the North. All fierce addresses to the

passions, on either side, are fratricidal. It is an offense against the

gospel, against our common country, and against God. Every one should

endeavor to diffuse right principles, and thus secure right feeling and

action, under the blessing of God in every part of the land. If the

South has no such grounds of complaint as would justify them before God

and the human race, whose trustees in one important sense they are, in

dissolving the Union, how is it with the North? Are they justifiable in

the violent resistance to the fugitive slave bill, which has been

threatened or attempted? This opposition in a great measure has been

confined to the abolitionists as a party, and as such they are a small

minority of the people. They have never included in their ranks either

the controlling intellect or moral feeling at the North. Their

fundamental principle is anti-scriptural and therefore irreligious.

They assume that slaveholding is sinful. This doctrine is the life of

the sect. It has no power over those who reject that principle, and

therefore it has not gained ascendency over those whose faith is

governed by the word of God.

We have ever maintained that the proper method of opposing this party,

and of counteracting its pernicious influence, was to exhibit clearly

the falsehood of its one idea, viz: that slaveholding is a sin against

God. The discussion has now taken a new turn. It is assumed that the

fugitiue slave law of the last Congress, (1850) is unconstitutional, or

if not contrary to the Constitution, contrary to the law of God. Under

this impression many who have never been regarded as abolitionists, have

entered their protest against the law, and some in their haste have

inferred from its supposed unconstitutionality or immorality that it

ought to be openly resisted. It is obvious that the proper method of

dealing with the subject in this new aspect, is to demonstrate that the

law in question is according to the Constitution of the land; that it is

not inconsistent with the divine law; or, admitting its

unconstitutionality or immorality, that the resistance recommended is

none the less a sin against God. We do not propose to discuss either of

the two former of these propositions. The constitutionality of the law

may safely be left in the hands of the constituted authorities. It is

enough for us that there is no flagrant and manifest inconsistency

between the law and the constitution; that the first legal authorities

in the land pronounce them perfectly consistent; and that there is no

difference in principle between the present law and that of 1793 on the

same subject, in which the whole country has acquiesced for more than

half a century. We would also say that after having read some of the

most labored disquisitions designed to prove that the fugitive slave

bill subverts the fundamental principles of our federal compact, we have

been unable to discover the least force in the arguments adduced.

As to the immorality of the law, so far as we can discover, the whole

stress of the argument in the affirmative rests on two assumptions.

First, that the law of God in Deuteronomy, expressly forbids the

restoration of a fugitive slave to his owner; and secondly, that slavery

itself being sinful, it must be wrong to enforce the claims of the

master to the service of the slave. As to the former of these

assumptions, we would simply remark, that the venerable Prof. Stuart in

his recent work, "Conscience and the Constitution," has clearly proved

that the law in Deuteronomy has no application to the present case. The

thing there forbidden is the restoration of a slave who had fled from a

heathen master and taken refuge among the worshipers of the true God.

Such a man was not to be forced back into heathenism. This is the

obvious meaning and spirit of the command. That it has no reference to

slaves who had escaped from Hebrew masters, and fled from one tribe or

city to another, is plain from the simple fact that the Hebrew laws

recognized slavery. It would be a perfect contradiction if the law

authorized the purchase and holding of slaves, and yet forbid the

enforcing the right of possession. There could be no such thing as

slavery, in such a land as Palestine, if the slave could recover his

liberty by simply moving from one tribe to another over an imaginary

line, or even from the house of his master to that of his next neighbor.

Besides, how inconsistent is it in the abolitionists in one breath to

maintain that the laws of Moses did not recognize slavery, and in the

next, that the laws about the restoration of slaves referred to the

slaves of Hebrew masters. According to their doctrine, there could be

among the Israelites no slaves to restore. They must admit either that

the law of God allowed the Hebrews to hold slaves, and then there is an

end to their arguments against the sinfulness of slaveholding; or

acknowledge that the law representing the restoration of slaves referred

only to fugitives from the heathen, and then there is an end to their

argument from this enactment against the law under consideration.

The way in which abolitionists treat the Scriptures makes it evident

that the command in Deuteronomy is urged not so much out of regard to

the authority of the word of God, as an argumentum ad hominem. Wherever

the Scriptures either in the Old or New Testament recognize the

lawfulness of holding slaves, they are tortured without mercy to force

from them a different response; and where, as in this case, they appear

to favor the other side of the question, abolitionists quote them rather

to silence those who make them the rule of their faith, than as the

ground of their own convictions. Were there no such law as that in

Deuteronomy in existence, or were there a plain injunction to restore a

fugitive from service to his Hebrew master, it is plain from their

principles that they would none the less fiercely condemn the law under

consideration. Their opposition is not founded on the scriptural

command. It rests on the assumption that the master's claim is

iniquitous and ought not to be enforced.[258] Their objections are not

to the mode of delivery, but to the delivery itself. Why else quote the

law in Deuteronomy, which apparently forbids such surrender of the

fugitive to his master? It is clear that no effective enactment could be

framed on this subject which would not meet with the same opposition. We

are convinced, by reading the discussions on this subject, that the

immorality attributed to the fugitive slave law resolves itself into the

assumed immorality of slaveholding. No man would object to restoring an

apprentice to his master; and no one would quote Scripture or search for

arguments to prove it sinful to restore a fugitive slave, if he believed

slaveholding to be lawful in the sight of God. This being the case, we

feel satisfied that the mass of people at the North, whose conscience

and action are ultimately determined by the teachings of the Bible, will

soon settle down into the conviction that the law in question is not in

conflict with the law of God.

But suppose the reverse to be the fact; suppose it clearly made out that

the law passed by Congress in reference to fugitive slaves is contrary

to the Constitution or to the law of God, what is to be done? What is

the duty of the people under such circumstances? The answers given to

this question are very different, and some of them so portentous that

the public mind has been aroused and directed to the consideration of

the nature of civil government and of the grounds and limits of the

obedience due to the laws of the land. As this is a subject not merely

of general interest at this time, but of permanent importance, we

purpose to devote to its discussion the few following pages.

Our design is to state in few words in what sense government is a divine

institution, and to draw from that doctrine the principles which must

determine the nature and limits of the obedience which is due the laws

of the land.

That the Bible, when it asserts that all power is of God, or the powers

that be are ordained of God, does not teach that any one form of civil

government has been divinely appointed as universally obligatory, is

plain because the Scriptures contain no such prescription. There are no

directions given as to the form which civil governments shall assume.

All the divine commands on this subject, are as applicable under one

form as another. The direction is general; obey the powers that be. The

propsition is unlimited; all power is of God; i. e., government,

whatever its form, is of God. He has ordained it. The most pointed

scriptural injunctions on this subject were given during the usurped or

tyrannical reign of military despots. It is plain that the sacred

writers did not, in such passages, mean to teach that a military

despotism was the form of government which God had ordained as of

perpetual and universal obligation. As the Bible enjoins no one form, so

the people of God in all ages, under the guidance of his Spirit, have

lived with a good conscience, under all the diversities of organization

of which human government is susceptible.

Again, as no one form of government is prescribed, so neither has God

determined preceptively who are to exercise civil power. He has not

said that such power must be hereditary, and descend on the principle of

primogeniture. He has not determined whether it shall be confined to

males to the exclusion of females; or whether all offices shall be

elective. These are not matters of divine appointment, and are not

included in the proposition that all power is of God. Neither is it

included in this proposition that government is in such a sense ordained

of God that the people have no control in the matter. The doctrine of

the Bible is not inconsistent with the right of the people, as we shall

endeavor to show in the sequel, to determine their own form of

government and to select their own rulers.

When it is said government is of God, we understand the Scriptures to

mean, first, that it is a divine institution and not a mere social

compact. It does not belong to the category of voluntary associations

such as men form for literary, benevolent, or commercial purposes. It is

not optional with men whether government shall exist. It is a divine

appointment, in the same sense as marriage and the church are divine

institutions. The former of these is not a mere civil contract, nor is

the church as a visible spiritual community a mere voluntary society.

Men are under obligation to recognize its existence, to join its ranks

and submit to its laws. In like manner it is the will of God that civil

government should exist. Men are bound by his authority to have civil

rulers for the punishment of evil doers, and for the praise of them that

do well. This is the scriptural doctrine, as opposed to the deistical

theory of a social compact as the ultimate ground of all human

governments.

It follows from this view of the subject that obedience to the laws of

the land is a religious duty, and that disobedience is of the specific

nature of sin; this is a principle of vast importance. It is true that

the law of God is so broad that it binds a man to every thing that is

right, and forbids every thing that is wrong; and consequently that

every violation even of a voluntary engagement is of the nature of an

offense against God. Still there is a wide difference between

disobedience to an obligation voluntarily assumed, and which has no

other sanction than our own engagement, and disregard of an obligation

directly imposed of God. St. Peter recognizes this distinction when he

said to Annanias, Thou hast not lied unto men but unto God. All lying is

sinful, but lying to God is a higher crime than lying to men. There is

greater irreverence and contempt of the divine presence and authority,

and a violation of an obligation of a higher order. Every man feels that

the marriage vows have a sacred character which could not belong to

them, if marriage was merely a civil contract. In like manner the divine

institution of government elevates it into the sphere of religion, and

adds a new and higher sanction to the obligations which it imposes.

There is a specific difference, more easily felt than described, between

what is religious and what is merely moral; between disobedience to man

and resistance to an ordinance of God.

A third point included in the scriptural doctrine on this subject is,

that the actual existence of any government creates the obligation of

obedience. That is, the obligation does not rest either on the origin or

the nature of the government, or on the mode in which it is

administered. It may be legitimate or revolutionary, despotic or

constitutional, just or unjust, so long as it exists it is to be

recognized and obeyed within its proper sphere. The powers that be are

ordained of God in such sense that the possession of power is to be

referred to his providence. It is not by chance, nor through the

uncontrolled agency of men, but by divine ordination that any government

exists. The declaration of the apostle just quoted was uttered under the

reign of Nero. It is as true of his authority as of that of the Queen of

England, or that of our own President, that it was of God. He made Nero

Emperor. He required all within the limits of the Roman empire to

recognize and obey him so long as he was allowed to occupy the throne.

It was not necessary for the early Christians to sit in judgment on the

title of every new emperor, whenever the pretorian guards chose to put

down one and put up another; neither are God's people now in various

parts of the world called upon to discuss the titles and adjudicate the

claims of their rulers. The possession of civil power is a providential

fact, and is to be regarded as such. This does not imply that God

approves of every government which he allows to exist. He permits

oppressive rulers to bear sway, just as he permits famine or pestilence

to execute his vengeance. A good government is a blessing, a bad

government is a judgment; but the one as much as the other is ordained

of God, and is to be obeyed not only for fear but also for conscience

sake.

A fourth principle involved in the proposition that all power is of God

is, that the magistrate is invested with a divine right. He represents

God. His authority is derived from Him. There is a sense in which he

represents the people and derives from them his power; but in a far

higher sense he is the minister of God. To resist him is to resist God,

and "they that resist shall receive unto themselves damnation." Thus

saith the Scriptures. It need hardly be remarked that this principle

relates to the nature, and not to the extent, of the power of the

magistrate. It is as true of the lowest as of the highest; of a justice

of the peace as of the President of the United States; of a

constitutional monarch as of an absolute sovereign. The principle is

that the authority of rulers is divine, and not human, in its origin.

They exercise the power which belongs to them of divine right. The

reader, we trust, will not confound this doctrine with the old doctrine

of "the divine right of kings." The two things are as different as day

and night. We are not for reviving a defunct theory of civil government;

a theory which perished, at least among Anglo-Saxons, at the expulsion

of James II. from the throne of England. That monarch took it with him

into exile, and it lies entombed with the last of the Stuarts. According

to that theory God had established the monarchical form of government as

universally obligatory. There could not consistently with his law be any

other. The people had no more right to renounce that form of government

than the children of a family have to resolve themselves into a

democracy. In the second place, it assumed that God had determined the

law of succession as well as the form of government. The people could

not change the one any more than the other; or any more than children

could change their father, or a wife her husband. And thirdly, as a

necessary consequence of these principles, it inculcated in all cases

the duty of passive obedience. The king holding his office immediately

from God, held it entirely independent of the will of the people, and

his responsibility was to God alone. He could not forfeit his throne by

any injustice however flagrant. The people, if in any case they could

not obey, were obliged to submit; resistance or revolution was treason

against God. We have already remarked that the scriptural doctrine is

opposed to every one of these principles. The Bible does not prescribe

any one form of government; it does not determine who shall be

depositories of civil power; and it clearly recognizes the right of

revolution. In asserting, therefore, the divine right of rulers, we are

not asserting any doctrine repudiated by our forefathers, or

inconsistent with civil liberty in its widest rational extent.

Such, as we understand it, is the true nature of civil government. It is

a divine institution and not a mere voluntary compact. Obedience to the

magistrate and laws is a religious duty; and disobedience is a sin

against God. This is true of all forms of government. Men living under

the Turkish Sultan are bound to recognize his authority, as much as the

subjects of a constitutional monarch, or the fellow-citizens of an

elective president, are bound to recognize their respective rulers. All

power is of God, and the powers that be are ordained of God, in such

sense that all magistrates are to be regarded as his ministers, acting

in his name and with his authority, each within his legitimate sphere;

beyond which he ceases to be a magistrate.

That this is the doctrine of the Scriptures on this subject can hardly

be doubted. The Bible never refers to the consent of the governed, the

superiority of the rulers, or to the general principles of expediency,

as the ground of our obligation to the higher powers. The obedience

which slaves owe their masters, children their parents, wives their

husbands, people their rulers, is always made to rest on the divine will

as its ultimate foundation. It is part of the service which we owe to

God. We are required to act, in all these relations, not as

men-pleasers, but as the servants of God. All such obedience terminates

on our Master who is in heaven. This gives the sublimity of spiritual

freedom even to the service of a slave. It is not in the power of man to

reduce to bondage those who serve God, in all the service they render

their fellow-men. The will of God, therefore, is the foundation of our

obligation to obey the laws of the land. His will, however, is not an

arbitrary determination; it is the expression of infinite intelligence

and love. There is the most perfect agreement between all the precepts

of the Bible and the highest dictates of reason. There is no command in

the word of God of permanent and universal obligation, which may not be

shown to be in accordance with the laws of our own higher nature. This

is one of the strongest collateral arguments in favor of the divine

origin of the Scriptures. In appealing therefore to the Bible in support

of the doctrine here advanced, we are not, on the one hand appealing to

an arbitrary standard, a mere statute book, a collection of laws which

create the obligations they enforce; nor, on the other hand, to "the

reason and nature of things" in the abstract, which after all is only

our own reason; but we are appealing to the infinite intelligence of a

personal God, whose will, because of his infinite excellence, is

necessarily the ultimate ground and rule of all moral obligation. This,

however, being the case, whatever the Bible declares to be right is

found to be in accordance with the constitution of nature and our own

reason. All that the Scriptures, for example, teach of the subordination

of children to their parents, of wives to their husbands, has not its

foundation, but its confirmation, in the very nature of the relation of

the parties. Any violation of the precepts of the Bible, on these

points, is found to be a violation of the laws of nature, and certainly

destructive. In like manner it is clear from the social nature of man,

from the dependence of men upon each other, from the impossibility of

attaining the end of our being in this world, otherwise than in society

and under an ordered government, that it is the will of God that such

society should exist. The design of God in this matter is as plain as in

the constitution of the universe. We might as well maintain that the

laws of nature are the result of chance, or that marriage and parental

authority have no other foundation than human law, as to assert that

civil government has no firmer foundation than the will of man or the

quicksands of expediency. By creating men social beings, and making it

necessary for them to live in society, God has made his will as thus

revealed the foundation of all civil government.

This doctrine is but one aspect of the comprehensive doctrine of Theism,

a doctrine which teaches the existence of a personal God, a Spirit

infinite, eternal, and unchangeable, in his being, wisdom, power,

justice, holiness, goodness, and truth; a God who is everywhere present

upholding and governing all his creatures and all their actions. The

universe is not a machine left to go of itself. God did not at first

create matter and impress upon it certain laws and then leave it to

their blind operation. He is everywhere present in the material world,

not superseding secondary causes, but so upholding and guiding their

operations, that the intelligence evinced is the omnipresent

intelligence of God, and the power exercised is the _potestas ordinata_

of the Great First Cause. He is no less supreme in his control of

intelligent agents. They indeed are free, but not independent. They are

governed in a manner consistent with their nature; yet God turns them as

the rivers of waters are turned. All events depending on human agency

are under his control. God is in history. Neither chance nor blind

necessity determine the concatenation or issues of things. Nor is the

world in the hands of its inhabitants. God has not launched our globe on

the ocean of space and left its multitudinous crew to direct its course

without his interference. He is at the helm. His breath fills the sails.

His wisdom and power are pledged for the prosperity of the voyage.

Nothing happens, even to the falling of a sparrow, which is not ordered

by him. He works all things after the counsel of his will. It is by him

that kings reign and princes decree justice. He puts down one, and

raises up another. As he leads out the stars by night, marshaling them

as a host, calling each one by its name, so does he order all human

events. He raises up nations and appoints the bounds of their

habitation. He founds the empires of the earth and determines their form

and their duration. This doctrine of God's universal providence is the

foundation of all religion. If this doctrine be not true, we are without

God in the world. But if it is true, it involves a vast deal. God is

everywhere in nature and in history. Every thing is a revelation of his

presence and power. We are always in contact with him. Every thing has a

voice, which speaks of his goodness or his wrath; fruitful seasons

proclaim his goodness, famine and pestilence declare his displeasure.

Nothing is by chance. The existence of any particular form of government

is as much his work, as the rising of the sun or falling of the rain. It

is something he has ordained for some wise purpose, and it is to be

regarded as his work. If all events are under God's control, if it is by

him that kings reign, then the actual possession of power is as much a

revelation of his will that it should be obeyed, as the possession of

wisdom or goodness is a manifestation of his will that those endowed

with those gifts, should be reverenced and loved. It follows, therefore,

from the universal providence of God, that "the powers that be are

ordained of God." We have no more right to refuse obedience to an

actually existing government because it is not to our taste, or because

we do not approve of its measures, than a child has the right to refuse

to recognize a wayward parent; or a wife a capricious husband.

The religious character of our civil duties flows also from the

comprehensive doctrine that the will of God is the ground of all moral

obligation. To seek that ground either in "the reason and nature of

things," or in expediency, is to banish God from the moral world, as

effectually as the mechanical theory of the universe banishes him from

the physical universe and from history. Our allegiance on that

hypothesis is not to God but to reason or to society. This theory of

morals therefore, changes the nature of religion and of moral

obligation. It modifies and degrades all religious sentiment and

exercises; it changes the very nature of sin, of repentance and

obedience, and gives us, what is a perfect solecism, a religion without

God. According to the Bible, our obligation to obey the laws of the land

is not founded on the fact that the good of society requires such

obedience, or that it is a dictate of reason, but on the authority of

God. It is part of the service which we owe to him. This must be so if

the doctrine is true that God is our moral governor, to whom we are

responsible for all our acts, and whose will is both the ground and the

rule of all our obligations.

We need not, however, dwell longer on this subject. Although it has long

been common to look upon civil government as a human institution, and to

represent the consent of the governed as the only ground of the

obligation of obedience, yet this doctrine is so notoriously of infidel

origin, and so obviously in conflict with the teachings of the Bible,

that it can have no hold on the convictions of a Christian people. It is

no more true of the state than it is of the family, or of the church.

All are of divine institution. All have their foundation in his will.

The duties belonging to each are enjoined by him and are enforced by his

authority. Marriage is indeed a voluntary covenant. The parties select

each other, and the state may make laws regulating the mode in which the

contract shall be ratified; and determining its civil effects. It is,

however, none the less an ordinance of God. The vows it includes are

made to God; its sanction is found in his law; and its violation is not

a mere breach of contract or disobedience to the civil law, but a sin

against God. So with regard to the church, it is in one sense a

voluntary society. No man can be forced by other men to join its

communion. If done at all it must be done with his own consent, yet

every man is under the strongest moral obligation to enter its fold. And

when enrolled in the number of its members his obligation to obedience

does not rest on his consent; it does not cease should that consent be

withdrawn. It rests on the authority of the church as a divine

institution. This is an authority no man can throw off. It presses him

everywhere and at all times with the weight of a moral obligation. In a

sense analogous to this the state is a divine institution. Men are bound

to organize themselves into a civil government. Their obligation to obey

its laws does not rest upon their compact in this case, any more than in

the others above referred to. It is enjoined by God. It is a religious

duty, and disobedience is a direct offense against him. The people have

indeed the right to determine the form of the government under which

they are to live, and to modify it from time to time to suit their

changing condition. So, though to a less extent, or within narrower

limits, they have a right to modify the form of their ecclesiastical

governments, a right which every church has exercised, but the ground

and nature of the obligation to obedience remains unchanged. This is not

a matter of mere theory. It is of primary practical importance and has

an all-pervading influence on national character. Every thing indeed

connected with this subject depends on the answer to the question, Why

are we obliged to obey the laws? If we answer because we made them; or

because we assent to them, or framed the government which enacts them;

or because the good of society enjoins obedience, or reason dictates it,

then the state is a human institution; it has no religious sanction; it

is founded on the sand; it ceases to have a hold on the conscience and

to commend itself as a revelation of God to be reverenced and obeyed as

a manifestation of his presence and will. But, on the other hand, if we

place the state in the same category with the family and the church, and

regard it as an institution of God, then we elevate it into a higher

sphere; we invest it with religious sanctions and it become pervaded by

a divine presence and authority, which immeasurably strengthens, while

it elevates its power. Obedience for conscience' sake is as different

from obedience from fear, or from voluntary consent, or regard to human

authority, as the divine from the human.