# Dred Scott v. Sandford > Supreme Court of the United States · March 18, 1857 · 60 U.S. 393 URL: https://www.frixlaw.com/law-library/cases/9416631 ## Case - **Full name:** Dred Scott, Plaintiff in Error, v. John F. A. Sandford - **Court:** Supreme Court of the United States - **Decided:** March 18, 1857 - **Citations:** 60 U.S. 393; 19 How. 393; 15 L. Ed. 691; 1856 U.S. LEXIS 472 - **Precedential status:** Published - **Opinion:** Dissent by Curtis - **Judges:** Taney, Nelson, Grier, Daniel, Campbell, Atroht, McLeau, McLeah, Mr', Curtis - **Cited by:** 385 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Reported overruled by statute, as recognized in Hepburn v. Griswold — not on the Supreme Court's list. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9416631 ## How later opinions describe it (automated extraction) - holding that "a negro of African descent, [whose] ancestors were of pure African blood, and were brought into this country and sold as slaves," id. at 397, was not entitled to the privileges and immunities of the Constitution accorded to citizens - stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void - holding that members of “the negro race” are not citizens for the purposes of the United States Constitution and that the Declaration of Independence does not include slaves as part of the people - stating the words of the Declaration of Independence "would seem to embrace the whole human family" but "the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration" ## Opinion text Mr. Justice CURTIS dissenting. I dissent from the opinion pronounced by the Chief Justice,” afid from the judgment which the majority of. the court'think it proper to render in this ■ case. The plaintiff alleged, in his declaration, that he was a citizen of the State of Missouri, and that the' defendant was a citizen of the State-of New York. ■ It "is not doubted that it was necessary to make each of these' allegations, to sustain the jurisdiction of the Circuit Court. The ■defendant denied, by a plea to the jurisdiction, either sufficient or;insufficient, that the- plaintiff was a citizen of the State of Missouri. The plaintiff' demurred to that plea.1 The Circuit' Court adjudged the plea insufficient, and the first questión for» our consideration is, whether the sufficiency of that plea is her - = fore this eourt-for judgment, upon this writ of error. The-part of the judicial power of the United States, conferred by • Congress. on the Circuit Courts, béing limited to certain de-. scribed cases and- controversies, the question whether a partic- • *565 ular case is within the cognizance of a Circuit Court, may be raised by a plea, to the jurisdiction of such court. "When that question has been raised, the Circuit. Court must, in the first instance, pass upon and determine.it. Whether its determination be final, or subject to review by this appellate court, must depend upon the will of Congress; upon which body the Constitution has conferred the power, with certain restrictions, to establish inferior courts, to determine their jurisdiction, and to regulate the appellate power of this court.. The twenty- ■ second section of the judiciary act of 1789, which allows a -writ of error from final judgments of Circuit Courts, provides that .there shall be no reversal in this court, on such writ of error, for error in ruling any plea in abatement, other than a. plea to the jurisdiction of the court. Accordingly it has'been ■ held, from the origin of the court to the present day, that Circuit Courts have not been made by Congress the final judges of their own jurisdiction in civil cases. And that when a record comes here upon a writ of error or appeal, and, on its inspection, it appears to this court that the Circuit Court had not jurisdiction, its judgment must be reversed, and the cause remanded, to be dismissed for want of jurisdiction. It is alleged by the defendant in error, in this case, that the plea to the jurisdiction was a sufficient plea; that it shows, on' inspection of its allegations, confessed by the. demurrer, that the plaintiff was not a citizen of the State of Missouri; that upon this record, it must appear to this court that the case was not within the judicial power of the United States, as" defined and granted by the Constitution, because it was not a . suit by a citizen of one State' against a citizen of another State. To this it is answered, first, that the defendant, by pleading .over,' after the plea to the jurisdiction1 was adjudged insufficient, finally waivéd all benefit of that plea. When that plea was adjudged insufficient, the defendant, was obliged to answer over. He held no alternative. He could not stop the further progress of the’ case in.'the Circuit Court by a writ of error, on which the 'sufficiency of his plea to the jurisdiction could be tried in this court, because the judgment on that plea was not final, and no writ of error would. lie. He was forced to plead to the merits. It cannot be true, then, that he waived the benefit of his plea to the jurisdiction by answering over. Waiver includes consent. Here, there was no consent. And if the benefit of the plea was finally lost, it must be, not by any waiver, but' because the laws ol the United States have not provided any mode of reviewing the decision of the Circuit Court on such a plea, when that decision is against the defendant. This is not the *566 law. Whether the decision of the Circuit Court on a, plea to the jurisdiction be against the plaintiff, or against the defendant, the losing party may have any alleged error in law, in ■ ruling such a plea, examined in this court on a writ of error, when the matter in controversy exceeds the sum or value of two thousand dollars. If the decision be against the plaintiff, and his suit dismissed for want of jurisdiction, the judgment is technically final, and' he may at once sue out his writ of error. (Mollan v. Torrance, 9 Wheat., 537 .) If the decision .be against the defendant, though he must answer over, and wait for a final judgment in the- cause, he may then have his writ of error, and upon it obtain the judgment of this court on any question of law apparent on the record, touching the jurisdiction. The fact that he pleaded over to the merits, under compulsion, can have no effect on his right to object to the jurisdiction. If this were not so, the condition of the two parties would be grossly unequal. Eor if a plea to the jurisdiction were ruled against the plaintiff, he could at once take his writ of error, and have the ruling reviewed here; while, if the same plea were ruled against the defendant, he must not only wait for a final judgment, but could in no event have the ruling of the Circuit Court upon the plea reviewed by this court. I know of no ground for saying that the laws of the United States have thus discriminated between'the parties to a suit in its courts. It is further objected, that as the judgment of the Circuit Court was in favor of the defendant, and the writ of error in this cause was sued out by the plaintiff, the defendant is not in a condition to assign any error in the record, and therefore this court is precluded from considering the question whether the Circuit Court had jurisdiction. • The practice.of this court does -not require a technical assignment of errors. (See the rule.) Upon a writ of error, the whole record is open for inspection; and if any error be found in it, the judgment is reversed. (Bank of U. S. v. Smith, 11 Wheat., 171 .) It is true, as a general rule, that the court will not allow a party to rely on anything as cause for reversing a judgment, which was for his advantage. In this, we follow an ancient rule of the common law. But so careful was that law of the preservation of the course of its courts, that it made an exception out of that general rule, and allowed a party to assign. for error that which was for his advantage, if it were a departure by the court itself from its settled course of procedure. The cases on this subject are collected in Bac. Ab., Error H. 4. And this court followed this practice in Capron v. Van Noor- *567 den, ( 2 Cranch, 126 ,) where the plaintiff below procured the reversal :of a judgment for the' defendant, on the ground that the plaintiff’s allegations of citizenship had not shown jurisdiction. But it .is not necessary to determine whether the defendant can be allowed to assign want of jurisdiction as an error in a judgment in his own favor. The true question is, not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the Circuit Court on the merits, when it appears on the record, by a plea to the jurisdiction, that it is a case to which the judicial pówer of the United Statés does not extend. The course of the court is, where no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even where it does not appear, affirmatively, that it does exist. (Pequignot v. The Pennsylvania R. R. Co., 16 How., 104 .) It acts upon the principle that the judicial power of the United States must not be exerted in a ease to which it does not extend, even if both parties desire to have it ’exerted. (Cutler v. Rae, 7 How., 729 .) I consider, therefore, that when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ ■'of error, the first duty of this court is, sua sponte, if not moved to it by either party, to examine the sufficiency of that plea; and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a ease to which the Constitution and laws of the United States have not extended that power. I proceed, therefore, to examine the plea to the jurisdiction. I do not perceive any sound reason why it is not to be judged by the rules of the common law applicable to such pleas. It is true, where the jurisdiction of the Circuit-Court depends on the citizenship of -the. parties, it is incumbent on the plaintiff to allege on the record the necessary citizenship; but .when he has aohe so, the defendant must interpose’a plea in abatement, the allegations whereof show that the court has not jurisdiction; and it is incumbent on him to prove the truth of his plea. In Sheppard v. Graves, ( 14 How., 27 ,) the- rules on this subject are thus stated in the opinion of the court: “That although, jn the courts’ of the United States, it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, ■it must be taken, prima-fade, as existing; and it is incumbent *568 ón bim wbo woi]ld impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes.; that the necessity for the allegation, and the burden of sustaining it by proof, both rest upon the party talcing the1 exception.” . These positions are sustained by the.'authorities there cited, as well as by Wickliffe v. Owings, ( 17 How., 47 .) ■■ When, therefore, as in this case, the necessary averments as to ‘ citizenship are made on the'record, and jurisdiction-is assumed to exist, and the' defendant comes by a plea to' the jurisdiction .to displace that presumption, he occupies, in my judgment, precisely the position described in Bacon Ab., Abatement: “Abatement, in the general acceptation of the word, signifies a plea, put in .by the'defendant, in which he. shows cause.to the court why he should not be impleaded; or, if at all, not in the manner and form he/now is.” This being, then, a plea in abatement, to the jurisdiction of the court, I must judge of its sufficiency by those rules of the common .law applicable to such pleas. . The plea wás as follows: “And the -said John E. A. Sand.-'. ford,, in-his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action,- and each and every of them, (if any-suck have accrued to the said Dred Scotty) .accrued to the said Dred. Scott oUt of the jurisdiction of this coart, and exclusively within "the jurisdiction ©f the courts of the State of Missouri; for that, to wit, the said plaintiff, Dred Scott, is not a citizen'.of the.. State of Missouri, ás Alleged, -in his declaration, because he' is a negro of African descent; his ancestors were of pure African1 blood, and were brought-into this country and sold as negro slaves, and thie the said Sandford is ready to verify. -Wherefore, he . prays judgment whether this court can or.will take further cognizance of the action aforesaid.” -, ■ .The plaintiff demurred, and the judgment of the Circuit Court was, that, the plea was insufficient. I cannot treat-this plea as a general traverse of the,citizenship 'alleged 'by the plaintiff. Indeed, if it were so treated, the plea was clearly bad, for it concludes with a verification* and not to. the .country, as a general traverse should. And though this defect in a plea in bar must be pointed out by a special demur-, rer, it is never necessary to demur specially ‘to a plea in ijbate* . ment; all matters, though of form only,'may be takenadvantagé of upon a general demurrer to such- a plea. (Chitty on Pl., 465.) .. The truth is, that though not drawn-with the utmost tech** Bical accuracy, it is a special traverse of the pláintiff’s allegation. *569 of "citizenship, and was a suitable and proper mode of traverse under, the' circumstances. By reference to Mr. Stephen’s description of the uses of such a traverse, contained in his excellent analysis of pleadings, (Steph. on Pl., 176,) it will be seen how precisely this plea meets one of his descriptions. No doubt the defendant might have traversed, by a common or general traverse, the plaintiff’s allegation that he was a citizen of the" State of Missouri, concluding to the country. The issue thus presented' beingjoined, would have involved matter of law, on which the jury must have passed, under the direction of the court. But by traversing the plaintiffs citizenship specially— that' is, averring those facts on which the defendant relied to show that in point of law the plaintiff was not a citizen, and basing the traverse on those facts as a deduction therefrom— opportunity was given to do, what was done; that is,'to present directly to the court, by a demurrer, the sufficiency of those facts to negative, in point of law, the plaintiff’s allegation of citizenship. This, then, being a special, and not a general" or common traverse, the rule is settled, that the facts thus set out in the plea, as the reason or ground of the traverse, must of themselves constitute, in point of law, a negative of the allegation thüs traversed. (Stephen on Pl., 183; Ch. on Pl., 620.) And upon a demurrer -to this plea, the question which arises is, whether the facts, that the plaintiff is a negro, of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves, may all be true, and yet the plaintiff be a citizen of the State of Missouri, within the meaning of the Constitution and laws of the United States, which confer on citizens of one State the right to sue citizens of another State in the Circuit Courts. Undoubtedly, if these facts, taken together, amount to an allegation that, at the time of action brought, the plaintiff was himself a slave, the plea is sufficient. It has been suggested that the plea, in legal effect, does so aver, because, if his .ancestors were sold as slaves, the presumption is they continued slaves; and if so, the presumption is, the plaintiff was born a slave; and if so, the presumption is, he continued to be a slave to the time of action brought. .1 cannot think such presumptions can be resorted to, to help but defective averments in pleading; especially, in pleading in abatement, where the utmost certainty and precision are required. (Chitty on Pl., 457.) That the plaintiff himself was a,slaye at the time of action brought, is a substantive fact, having no; necessary connection with the fact that his parents were , sold as slaves. Éor they' might have been sold after he was born; or the plaintiff himself, if once a slave, might have *570 became a freeman before action brought. To aver that bis ancestors were sold as slaves, is not equivalent, in point of law, to, an averment that be was a slave.- If it were,'be could not even confess and avoid tbe averment of tbe slavery of bis an- ' cestors, wbicb -would be monstrous; and if it be not equivalent in point of law, it cannot be treated as amounting thereto when demurred to; for a 'demurrer confesses only those substantive fa'ets wbicb are well pleaded, and not other distinct substantive facts wbicb might be inferred therefrom by a jury. To.treat an,averménttbat tbe plaintiff’sancestórs were Africans, brought to this country and sold as slaves, as amounting to an ave,r-•meht on the record that ‘.be was a slave, because it may lay some foundation for. presuming so,-is to bold that tbe facts actually alleged may be treated as intended as: evidence of another distinct fact not alleged:- But it is a cardinal rule of pleading, laid down in Dowman’s case, (9 Rep., 9 b,) and in even earlier authorities therein referred to, “that evidence shall never be pleaded, for it only tends to prove matter of fact; ánd therefore tbe matter of "fact shall be pleaded.” Or, as tbe rule is> sometimes stated, pleadings must not be argumentative. (Stephen on Pleading, 384, and authorities cited ,by .bjm.) In Com. Dig., Pleader E. 3, and Bac. Abridgement, Pleas I, 5, and Stephen on PL, many decisions under this rule are collected. . In trover, for . an indenture whereby A granted a. manor, it is no plea that A did not grant the manor, for it-does not. answer the declaration except by argument. (Yelv., 223.) ■So in trespass for taking-and carrying .away the plaintiff’s goods, the defendant pleaded that the plaintiff never had any goods.'. -The court said, “this is an infallible argument'that the defendant is not guilty, but it is.no plea.” (Dyer, a 43.) - In. ejectment, the defendant pleaded a surrender-of a copy-hold by the hand of Posset, the steward. The plaintiff replied, -that Posset was not steward. The court held this no issue, for it traversed the surrender only argumentatively. (Cro. Elis., 260.) In these cases, and many- others reported in the books, the inferences from the facts stated were irresistible. But the court held they did not, when, demurred to, amount to such inferable facts. " In the casó at bar, the inference that the de- . fendánt was a slave at the time of action brought, even if it. can -be made at-all, from the fact that his-parents were slaves, is certainly not a necessary inference. This case, therefore, is like that of Digby v. Alexander, (8 Bing., 116.) In that case, the defendant pleaded many facts strongly tending tó show that he ...was oñceCEarl of Stirling; hut as there'was no. positive alie- *571 gation that be was so at tbe time of action brought, and as every fact averred might be true, and yet the defendant not have been Earl of Stirling at the time of action brought* the plea was held to be insufficient. A lawful seizin of land is presumed to continue. But if, in an action of trespass quare clausum, the defendant were to plead that he was lawfully seized of the locus in quo, one month before the time of the alleged trespass, I should have no doubt it would be .a bad plea. (See Mollan v. Torrance, 9 Wheat., 537 .) So if á plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same State as the defendant, were to allege that the plaintiff’s ancestors were citizens of that State, I think the plea could not be supported. My judgment would be, as it is in this case, that if the defendant meant to aver a particular substantive fact, as existing at the time' of action brought, he must do it directly and explicitly, and not by way of inference from certain other averments, which are quite consistent with the contrary hypothesis. I cannot, therefore, treat this plea as containing an averment that the plaintiff himself was a slave at-the time of action brought; and the inquiry recurs, whether the facts, that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizenship in the State of Missouri, within the meaning of the Constitution and laws of the United States. , In Gassies v. Ballon, ( 6 Pet., 761 ,) the defendant was described on the record as a naturalized citizen of the United States, ■residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did theffireside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive th'e plaintiff of his right to sue citizens of States other than Missouri, in the-courts of the United States. ' So that, under the allegations contained in this plea, and admitted by the demurrer, the question is, whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be & citizen, this plaintiff has the right to the judgment of the court that he is so; for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors. The first section of the second article of the Constitution *572 uses the language,, “.a citizen of the United Státes at the time of the adoption, of the .Constitution.” ' One mode of approaching this question is, to inquire who were citizens of the United States at the time of the adoption of the Constitution, • Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was, “ The United States of America,” This Government was. in existence-when the Constitution was framed ,and proposed for adoption, and was to be superseded by the new Government of the United States of America, organized under the Constitution; When, therefore, the Constitution speaks. of citizenship of the United States, existing at the time of the -adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the time of such adoption. ■ Without going into any question concerning the powers of the Confederation to govern the territory,of the United.States out of the limits of the States, and consequently to sustain the relation.of Government'and citizen.in respeet to the inhabitants of such territory, it may safely he said that the citizens of the several States were citizens of the United States under the Confederation. ■ That Government, was simply a confederacy, of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the Government of the Confederation, to act on any question, of citizenship, or to make any rules in respect thereto.- The whole matter wás left to stand upon the action of the several States, and to the natural conseqhence of such action, that the citizens of each State should he citizens of that Confederacy into which that State had entered, the style whereof, was* “The United States of America.” To determine whether any free persons, descended from Africans held in slavery, were Citizens of-the United States under the Confederation, and consequently at the time of the adoption of the- Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution. . Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire,- Massachusetts, New *573 York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, hut such of them as had the other necessary qualifications pofesess-ed the franchise of electors, on'equal terms with other citizens. The Supreme Court of North Carolina, in the case of the State v. Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina. “According to the laws of this State,’-’ says Judge Gaston., in delivering the opinion of the court, “all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the. Roman laws between citizens and''free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color of complexion, were native-born British subjects— those, born out of his allegiance were aliens. Slavery did not exist in England, but it aid in the British colonies; Slaves were not in legal parlance persons, but property. The moment •the incapacity, the disqualification of slavery, was removed, they became ,persons, and were then either British subjects, qr not British subjects, according as they were or were not born within the allegiance of'the British King. TJpon the Revolution, no other ehange took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in- North Carolina became North Carolina freemen. Foreigners, until made members-of the' State, remained aliens. Slaves, manumitted here,-became freemen, and therefore, if born within . North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State! The Constitution' extended the elective franchise'to every, freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a ,matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution.” - In the State v. Newcomb, (5 Iredell’s R., 253,) decided in 1844, the same court referred to this casé of the State v. Manuel, and said: “That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be. one of great importance in principle. It was considered with an anxiety, and care worthy of the .principle involved, and which give it a control *574 ling influence and. authority on all questions of a. similar character.” An argument from speculative premises, however well cho.sen, that the then t state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born pn that soil, and that they were not* by the Constitution of 1780 of that State, admitted to the condition of citizens, would be -received with surprise by the people of that State, who know their own political history. . It is true, beyond all controversy, that persons of eolqr, descended from African slaves, were by that Constitution made citizens •of the State; and such of them as have had the necessary qualifications, have held and exercised the elective franchise, as ' citizens, from that time to the present. (See Com. v. Aves, 18 Pick. R., 210.) ) The Constitution of 'New Hampshire conferred the elective franchise, upon “every inhabitant of the State having the necessary qualifications,” of which color or descent-was not one. ■ The Constitution of New‘York gave the right to voté to “every male ¡inhabitant, whó shall" have resided1,” &c.; making no. discrimination between free colored persons and others. (See Con. of N. Y., Art. 2, Rev. Stats. of N. Y., vol. 1, p. 126.) That of New- Jersey, to “all inhabitants of. this colony, of full age, who' áre worth £50 proclamation money, clear estate.” ■ New York, by its Constitution of 1820, required colored persons to havé,some qualifications as prerequisites for voting, which white persons need not possess. And New- Jersey,' by. its present Constitution, restricts the right to vote to white male citizens! Rut these changes' can have no other effect upon the present inquiry, except to show, that before they were made, no such restrictions existed; and- colored in corn-mop with white persons, were- not only citizens of those States, • but entitled to the elective franchise on the samé qualifications as white persons, as they now are in New Hampshire and Massachusetts. I shall not enter into an examination of the' existing opinions.- of that period respecting the African race, eclafatión of Independence, that all men.'are created equal; that they are endowed by their- Creator with ; certain inalienable rights; that among these are life; liberty, and the pursuit of happiness. ' My own opinion is,-that a cáíín comparison of these assertions of universal abstract truths,-iand of their own individual opinions and acts,’ would not leave *575 ' these men tinder any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a. necessary regard to circumstanbes, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true'in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the' Declaration of Independence asserts. But this is not the place to vindicate their memory. As I conceive, we should deal Here, not with such disputes, if there can Jbe a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States, and by the notorious practice under .them. And they show, in a manner which no •argument can obscure, that in some the original thirteen States, free colored persons, before and at the time of the formation of the Conptitution; were citizens of those States. The fourth of the fundamental articles of the Confederation was as follows: “ The free inhabitants of each of these States," paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States.” The fact that free persons of color were citizens .of some of the seveml States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such' persons the privileges and immunities of general citizenship, were not only known to those who framed and adopte'd those. articles, but the evidence is decisive, that the fourth article was intended to have that effect, and' that more restricted language, which would have'' excluded such persons, was deliberately and purposely rejected. ' On the 25th of June, 1-778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth _ article, by inserting after the \yord “free,” and before the word “inhabitants,” the word “white,” so that the privileges and immunities of General citizenship would be secured only to white persons. 'wo States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by, its terms of inclusion, “free inhabitants,” and the!strong implication from its terms of exclusion, “paupers, vagabonds, and-fugitives from justice,’.’ Who alone were excepted, it is-clear, that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, Were entitled to the *576 privileges and immunities of general citizenship of the United States. . Did the Constitution-of the United States deprive them' or their descendants of citizenship ? That Constitution was .ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of “the people of the United States,” by whom the Constitution was ordained and established, but in at least five of the States they had the-power to act, and doubtless did act, by their suffrages, -upon the question of its adoption. It would be strange, if we ^were to find in that instrument anything which deprived of their citizenship any part of the people of the United States Who Were among those by whom it was established. • I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons bom on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that,' .under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United "States. I will proceed to state' the grounds of that opinion. .The first section of the second article of the Constitution •uses the-language, “a naturahbom citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the ‘Constitution' was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the. received general doctrine has been, in conformity "with the common law, that free persons bom .within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignly by the several States, all such persons ceased to be subjects, and became citizens of the several.States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, *577 and thus to continue British subjects. (McIlvain v. Coxe’s Lessee, 4 Cranch, 209 ; Inglis v. Sailors’ Snug Harbor, 3 Peters, p. 99; Shanks v. Dupont, Ibid, p. 242.) The Constitution having recognised the rule that' persons horn within the several States .are citizens of the United States, one of four things must be true: First. That the Constitution itself has described what 'native-born persons shall or shall • not be citizens of the United States; or, Second. That it has empowered Congress to do so; or, Third. That all free persons, born within the several States, are citizens of the United States; or, Fourth. That it is left to each State to determine what free persons, rbom within its limits, shall be citizens of such State, and thereby be citizens of the United States. . If there be such a thing as citizenship of the United States acquired by birth within the States, which the Constitution expressly recognises, and no one denies, then these four alternatives embrace the entire subject, and it only remains to’ select that one which is true. That the Constitution itself has defined citizenship of the United States by declaring what persons, born within the several States, shall or shall not be citizens of the United States,, will not be pretended. It contains no such declaration. We may dismiss the first alternative, as without doubt unfounded. Has it empowered Congress to enact what free persons, born within the several States, shali of shall not be citizens of the United States'? Before examining the various provisions of the Constitution which may relate to this question, it is important to consider for a moment the substantial nature, of this inquiry. It is, in effect, whether the • Constitution has empowered Congress to create privilegéd classes within the States; who alone can be entitled to the franchises and powers of citizenship of the United States. If it be admitted that the Constitution has enabled Congress to declare what free persons, bom within the several States, shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power.. If this subject is' within1 the control of Congress, it' must depend wholly on .its discretion. Eor, certainly, no limits of that discretion can be found in the Constitution; which is wholly silent concerning it; and the necessary consequence is, that the Federal Government may select classes of- persons within the several States who alone can be entitled to the political privileges of citizenship of the United'States. If this power exists, what persons born within the States may be President or Vice Pres? *578 3dent of the United States, or members of either House of Congress, or bold- any office or enjoy any privilege -whereof citizenship of the United States is a necessary qualification, must depend solely on the will of Congress. By virtue of it, though Congress can grant no title of nobility, they may create an oligarchy, in whose hands would be concentrated the entire power of the Federal Government. It is a substantive power, distinct in its nature from all others; capable of affecting not only the relations of the States to the General Government, but of controlling the political condition of the people of the United States., Certainly we ought to find this power granted by the Constitution, at least by some necessary inference, before we can say it does not remain to the States or the people. I proceed therefore to examine all the provisions of the Constitution which may have some bearing on this subject. Among the powers expressly granted to Congress is. “the power'to establish a uniform rule of naturalization.” It is not doubted that this is a power to prescribe a-rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this, would do violence to the meaning of the term naturalization, fixed in the common-law, (Co. Lit., 8 a, 129 a; 2 Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who concurred in framing and adopting the Constitution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen, that it was (employed in the Declaration- of Independence. It was in this •sense it was expounded in the Federalist, (No. 42,) has been understood by Congress, by the Judiciary, ( 2 Wheat., 259, 269 ; 3 Wash. R., 313, 322; 12 Wheat., 277 ,) and by commentators on the Constitution. (3 Story’s Com. on Con., 1—3; 1 Rawle on Con., 84—88; 1 Tucker’s Bl. Com. App., 255—259.) It appears, then, that the only power expressly granted to 'Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth. "Whether there be anything in the Constitution from which ¡a broader power may be implied, will best be seen when we •some to examine the two other alternatives; which are, whether all free persons, born on the soil of the several States, or only such of them as may be citizens of each State, respectively, are thereby citizens of the United States.. The last of these alternatives, in my judgment, contains the truth. . '' Undoubtedly, as has already been said, it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights -of citizenship. But it must be remembered, that though *579 the Constitution was to form a Government, ana under it the United States of America were to be one united sovereign nation, to which loyalty and obedience on the one side, and from which- protection and privileges on the other, would be due, yet- the several sovereign States, whose people were then citizens, - were not only to continue in existence, but with powers unimpaired, except so far as they were granted by the people to the National Government. Among the powers unquestionably possessed by the several States, was that of determining what persons should and whgt persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may,1 well enough for the purpose nowin view, be divided into three parts. ,Mrst: The power to remove the .disabilities of alienage, either by special acts in reference to each individual case, or by establishing a rule of naturalization to be administered and applied by the courts. Second: Determining what persons,should enjoy the privileges of citizenship, in respect to the internal affairs of the several States. Third! What native-born • persons should be citizens of the United States. '' _ . ■. The first-named power, that of establishing a uniform rulé of naturalization, was granted; and here the grant, according to its terms, stopped. Construing a, Constitution containing . only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization, must be admitted to be .-exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But wheh this particular subject of citizenship was under consideration, and, in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from' the residue, and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left, to the States and to the people". And this presumption is,' in my opinion, converted into a certainty, by an examination of all such other clauses of the Constitution as touch this subject. ' I will examine each which can have any possible bearing on this question. The first clause of the second section of the third article of the Constitution is, “The judicial power shall extend to controversies between a State ,and citizens of another State; between citizens of different States; between citizens of the same' State, claiming lands under grants of different States; and between States, or the citizens thereof, and foreign States, *580 citizens, or subjects.” . I do not think this clause has any considerable bearing upon the particular inquiry now under consideration. Its purpose was, to extend the judicial power to -those controversies into which local feelings or interests might so enter as to disturb the course of Justice, or give rise to suspicions that they had done so, and thus possibly give occasion to jealousy or ill will between different States, or a particular State and a foreign nation.. At the same time, 1 would remark, in passing, that it has never been held, I do not know that it has ever been supposed, that any citizen of a State could bring himself under this clause and the eleventh and twelfth sections of the judiciary act of 1789, passed in pursuance of it, who was not a citizen of the United States. But I have referred to the clause, only because it is one of the places where citizenship is mentioned by the Constitution. Whether it is entitled to any weight in this inquiry or not, it refers only to citizenship of the several States; it recognises that;' but it does not recognise citizenship of the United States as something distinct, therefrom. As has been said, the purpose of this clause did not necessarily connect.it with citizenship of the United States, evén if that were something distinct from citizenship of the several States, in the contemplation of the Constitution. This cannot be said of other clauses of the Constitution, which I now proceed to refer to. ■ “The citizens of each State shall be entitled to all the privileges, and immunities of citizens of the several States.” Nowhere else in the Constitution, is-there anything concerning a.general citizenship; but here, privileges and immunities to be enjoyed throughout 'the United States, under and by force of the national compact, are granted and secured. In selecting those, who.- are to enjoy these national rights of citizenship, howare they described? As citizens of each State. It is to them these national rights' are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws. of. the. United States. They are to be citizens of the several States, and, as such, the privileges and immunities of general.citizenship,, derived from and guarantied by the Constitution, áre to be enjoyed by them. It would seem thát if it had been intended to constitute a class of native-born persons within the States,, who should derive their citizenship of the United States from the action of the Federal Government; this, was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States. *581 And if it was intended to secure these rights only to citizens of the United States, how has the Constitution here described such persons ? Simply as citizens of1 each State. But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is One of the chiefest attributes of citizenship under the American' Constitutions; and the just and constitutional possession of this right is decisive evidence of citizenship. The provisions madé by a Constitution on this subject-must therefore -be looked to 'as bearing directly on the question what persons are citizens under that Constitution ; and as being decisive, to this extent, that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Govern- r ment of the United States, must be deemed citizens of the' United States. ' Here, again, the consideration presses itself upon us, that if there was designed to be a particular class of native-born persons within the States, deriving their citizenship from the' Constitution and laws of the United States, they should at least have been referred to as those by whom the President1 and House of Representatives were to be elected, and to whom they should be responsible. ' ' Instead of that, we again find this subject referred to' the laws of the several States. The electors of President are to be appointed in such manner as the Legislature of each State, may direct, ‘ and the qualifications of electors of members of the House of Representatives shall be the same as for electors of the most numerous branch of the State Legislature. „ Laying aside, then, the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons bóm within the several State?, we. find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend' on the place ’of birth; that it has not attempted practically to apply this. ■ principle by designating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question, what free persons, born within the several States, are citizens of the United States, the only answer we can receive from any of its express provisions is, the citizens of the several States are to' enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends bn their citizenship in the several States. Add to this, that the Constitution was ordained by the citizens of the several States; that they were “the people of the United States,” for whom *582 ' and whose posterity the Government was declared in the preamble of the Constitution to be made; that each of them was “a citizen of the United States at the time of the adoption of the Constitution,” within the meaning of those words in that instrument; that by them the Government was to be and was in fact organized; and that no power is conferred on the Government of the '-Union to discriminate between them, or to disfranchise any of them — the necessary conclusion is, that those persons born within the several States, who, by force of their respective Constitutions and laws, are citizens of - the State, are thereby citizens of the United States. It may be proper here to notice some supposed objections to this view of the subject. It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown thatfin five of the thirteen original States, colored persons then possessed the elective franchise, and were among fihfiffA hvwTlíYm ■fiVíA f'írmafít.n+.írm w«.a nWlsnnorl q.tw-1 N exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. - AncJ/ás free colored persons were then citizens of at least five States^ and so in every sense part ,of the people of the United States, .they- were among those for whom and whose posterity the Constitution was ordained and' established/)» Again, it has been objected, that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens. The answer is obvious. The Constitution has left to the States the determination what persons, born within their respective limits,- shall acquire by birth citizenship of the United States; it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress. It has been further objected, that if free colored persons, born within a particular State, and made citizens of that State by its Constitution and laws, are thereby made citizens , of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States; and if so, then colored persons eould vote, and be *583 eligible to not only Federal offices, but offices even in those States whose Constitutions and laws disqualify colored persons from voting or being elected to office. But this position rests upon an assumption which I deem untenable. Its basis is, that no one can be deemed a citizen of the TJnited States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is not true, under the Constitution of the TJnited States, seems to me clear. A naturalized citizen, cannot be President of the TJnited States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet, as" soon as naturalized, he is certainly a citizen of the TJnited States. Nor is any inhabitant of the District of Columbia, or of either of the Territories,,eligible to the office of Senator or Representative in Congress, though they may be citizens of the TJnited States. So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is, that citizenship, under the Constitution of the TJnited States,' is not dependent on the possession of any particular political or even of all civil rights; and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided, is a question to be determined 'by each State, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way. One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But'■■irmfc that there. was then a settled opinion in the executive and legislative branches of the Government, that this power did not exist, cannot be admitted, without at the .same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary /to carry it into execution, a deliberate and known violation of their oaths to support the Constitution; and whatever doubts may then have existed, the question must now be •taken to have been settled. Eour distinct acquisitions of foreign territory have been made by as many different treaties, under as many different Administrations. - Six States, formed on such territory, are now in the Union. Every branch of this Government, during a period of more than fifty years, has participated in these .transactions. To question their validity now, is vain. As was said by Mr. Chief Justice Marshall, in the American Insurance Company v. Canter, ( 1 Peters, 542 ,) “the Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or treaty.” (See Cerré v. Pitot, 6 Cr., 336.) And I add, it also possesses the power of governing it, when acquired, not by resorting to supposititious powers, nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regular tions respecting the territory of the United States. There was to be established by the Constitution a frame of government, under which the people of the United States and their posterity were to continue indefinitely. Tq take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all territory of the United States, and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument, as it is with its language;, and I can have no hesitation in re-, jecting it. I construe this clause, therefore, as if it had. read, Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the *614 soil, so far as tbe soil may be tbe property of tbe party making tbe .cession, at tbe time of making it, ' It bas been urged that tbe words “rules and regulations ” - are not appropriate terms in which to convey authority to make law's for the government of tbe. territory. But it m.ust be remembered that this is a grant of power to tbe Congress — that it is therefore necessarily a grant of power to legislate — and, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do tbe particular terms 'employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a Legislature to. make all needful- rules and regulations respecting tbe territory, is a power, to pass all needful laws respecting it. Tbe word regulate, or regulation, is several times used in tbe Constitution. It is used in tbe fourtb section of tbe first article to describe those laws of tbe States, which prescribe the times, places, and manner, of choosing Senators and Representatives; m tbe second section-of tbe fourth article, to designate the legislative action of a State on the subject of fugitives .from service, having a very close relation to tbe matter of óur present inquiry; in tbe second section of tbe third article, to empower Congress to fix tbe extent of tbe appellate jurisdiction of this court; and, finally, in tbe eighth section of the first article are tbe words,ci Congress shall have power to regulate-eommerce.” It is unnecessary to describe the body of legislation which bas been enacted under this grant of power; its variety and extent are well known. But it may be mentioned, in passing, fbat under this power to regulate commerce, Congress bas .enacted a great system of municipal laws, and extended it over tbe vessels and crews of the United States on tbe high seas and in foreign ports, and even over citizens of tbe United States resident in China; and has established judicatures, with power to inflict even capital punishment within that country; ■ If, ’ then, this clause does contain a power to legislate. respecting tbe territory, what are the limits of that power? To' this I answer; that, in common with all the other legislative powers, of Congress, it finds limits in the express prohibitions on Congress not to do certain things'; - that, in the exercise of the legislative power, Congress cannot pass an ex post facto law.-or bill -of attainder; and so in respect to each-of tbe other prohibitions contained in tbe Constitution. ' Besides-this, the. rules and regulations must be needful. But undoubtedly tbe question whether a particular rule or regulation be needful, must be finally determined by Congress itself. Whether a law be needful, is a legislative of political, *615 not a judicial, question. Whatever Opngress deems needful is so, under