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For your midterm, please answer each of the following three questions. Each answer should be two pages max, typed, double-spaced, 12-point font. Your midterm is due on Saturday, April 10th by 6 PM. You should email it to me. I prefer a word doc, but a Google doc or PDF is fine as long as it is editable. You can use any of the assigned readings or movies we watched in class. No other outside sources.

Our Supreme Court recognized, early on, that, although some Africans had been enslaved by Europeans and American colonists, non-enslaved Africans were among the free peoples of the world. This explicit recognition of free Africans as free people occurred in 1841 in the

Amistad

case. In 1857, however, when asked to determine the status of free Africans in the American community, the Supreme Court noted that our Founding Fathers never contemplated that free Africans would constitute a part of the body politic. The high court said,

in dicta

, that free Africans in American society had always been regarded as an inferior order of beings and had no rights that a white man was bound to respect. Thus, the Court plainly established the young United States as a racist society.

[i]

After the Civil War, it was necessary to amend the Constitution: to free the slaves, to adopt the Civil War Amendments to confer citizenship on them, and to guarantee them equal protection of the law and the most basic indicia of citizenship to them.

We have examined legal histories of racial subordination in the legal system and critiqued cases and statutes about discrimination and racial inequality from 1619 when the first slave ship landed in America through the Civil Rights Movement of the 1950s-1960s. The United States Supreme Court, lower federal courts, Congress, and state legislatures played a significant role in issues revolving around white supremacy, racial segregation, civil rights, and equality under law for African Americans.

Discuss white supremacy and the attitude of the judiciary (the courts), Congress, and state legislators in the South about white supremacy and civil rights and equality for African Americans from the Colonial period up to and including Plessy vs Ferguson (Plessy), which established de jure segregation as the law of the land.

1619 – 1896

Amistad ( movie ) ( establishing the rights of enslaved africans

Plessy v ferguson ( last thing and should be longer topic to speak on ( separate but equal)

Dred scott vs Sanford

How segregation became a thing

De jure segregation Jim crow laws ( after slavery) civil war as well

Could be pg in a half 1-2 pages each

1897-

Use the facts and issues in cases of your choice to discuss the development of the law, and effort to overturn Plessy and end de jure (legal) racial segregation in education, transportation, lunch counters and restaurants, and public accommodations and to guarantee civil rights and equal justice for African Americans. This answer should discuss the cases leading up to Brown I and Brown II.

Sweatt and painter 1938

Missouri vs canada ( Gaines)

Difference decisions by the court reform separate but equal or challenged it

For your final answer, please discuss Brown I and II and the fallout of those cases. You should discuss why Brown by itself wasn’t enough to end segregation in America. Discuss the resistance to Brown in the South. Make sure you also discuss Constance Baker Motley’s cases and her role in desegregating places of public accommodation and higher education.

1955 and after brown and education

Start talking about Brown and the cases that followed afterwards

Arthur and Lucy case

University of alabama and georgia and mississippi

Baker Motley’s case

Sweatt v. Painter, 339 U.S. 629 (1950)
70 S.Ct. 848, 94 L.Ed. 1114
Supreme Court will decide constitutional
questions only when necessary to disposition of
case at hand, and such decisions will be drawn as
narrowly as possible.
KeyCite Yellow Flag – Negative Treatment
Distinguished by Doe ex rel. Doe v. Lower Merion School Dist., 3rd Cir.
(Pa.), December 14, 2011
70 S.Ct. 848
Supreme Court of the United States
SWEATT
v.
8 Cases that cite this headnote
[2]
4 Cases that cite this headnote
[3]
Court of Civil Appeals of Texas at Austin,
210 S.W.2d
442, James W. McClendon, J., and relator brought certiorari.
The Supreme Court, Mr. Chief Justice Vinson found that
the educational opportunities offered white and Negro law
students by the state of Texas were not substantially equal,
and that the equal protection clause of the 14th Amendment
required that relator be admitted to the University of Texas
Law School.
Reversed.
West Headnotes (4)
Constitutional Law
Public Elementary
and Secondary Education
Under equal protection clause of Fourteenth
Amendment, qualified Negro applicant had
personal and present right to a legal education
equivalent to that offered by state to students of
other races. U.S.C.A.Const. Amend. 14.
See 71 S.Ct. 13.
Synopsis
Suit by Heman Marion Sweatt, relator, against Theophilis
Shickel Painter and others, members of the board of regents,
Dean of School of Law and Registrar of University of Texas,
for mandamus to compel admission of the relator to the
school of law of the University of Texas. Judgment of the
District Court, 126th Judicial District, Travis County, Texas,
Roy C. Archer, J., denying mandamus, was affirmed by the
71 Cases that cite this headnote
[4]
Constitutional Law
Constitutional Law
general
Scope of inquiry in
Constitutional Law
Determination
Necessity of
Admissions
Where law school of state university, from which
Negro applicant was excluded, was one of the
nation’s ranking law schools, with a faculty of 16
full time and three part-time professors, a student
body of 850, and a library containing over 65,000
volumes, whereas proposed law school for
Negroes had no independent faculty or library,
and law school thereafter opened for Negroes at
state university had a faculty of five full-time
professors, a student body of 23, and a library
of 16,500 volumes, the educational opportunities
offered white and Negro law students by the
state were not substantially equal and equal
protection clause of Fourteenth Amendment
required that applicant be admitted to the regular
university law school. Acts 1947, c. 29, §
11;
[1]
Discrimination and
Equal protection of the laws is not
achieved through indiscriminate imposition of
inequalities. U.S.C.A.Const. Amend. 14.
PAINTER et al.
No. 44.
|
Argued April 4, 1950.
|
Decided June 5, 1950.
|
Rehearing Denied Oct. 9, 1950.
Constitutional Law
Classification
Vernon’s Ann.Civ.St. art. 2643b note;
Vernon’s Ann.Civ.St. arts. 2643b,
2719,
2900; Vernon’s Ann.St.Const. art. 7, §§ 7, 14;
U.S.C.A.Const. Amend. 14.
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1
Sweatt v. Painter, 339 U.S. 629 (1950)
70 S.Ct. 848, 94 L.Ed. 1114
103 Cases that cite this headnote
Attorneys and Law Firms
**848 *630 Messrs. W. J. Durham, Dallas, Tex., Thurgood
Marshall, New York City, for petitioner.
Messrs. Price Daniel, Liberty, Tex., Joe R. Greenhill,
Houston, Tex., for respondents.
Opinion
*631 Mr. Chief Justice VINSON delivered the opinion of
the Court.
**849 [1] This case and
McLaurin v. Oklahoma State
Regents, 339 U.S. 637, 70 S.Ct. 851, present different
aspects of this general question: To what extent does the
Equal Protection Clause of the Fourteenth Amendment limit
the power of a state to distinguish between students of
different races in professional and graduate education in a
state university? Broader issues have been urged for our
consideration, but we adhere to the principle of deciding
constitutional questions only in the context of the particular
case before the Court. We have frequently reiterated that
this Court will decide constitutional questions only when
necessary to the disposition of the case at hand, and that
such decisions will be drawn as narrowly as possible. Rescue
Army v. Municipal Court, 1947, 331 U.S. 549, 67 S.Ct.
1409, 91 L.Ed. 1666, and cases cited therein. Because of this
traditional reluctance to extend constitutional interpretations
to situations or facts which are not before the Court, much
of the excellent research and detailed argument presented in
these cases is unnecessary to their disposition.
In the instant case, petitioner filed an application for
admission to the University of Texas Law School for the
February, 1946 term. His application was rejected solely
Amendment. The court did not grant the relief requested,
however, but continued the case for six months to allow the
State to supply substantially equal facilities. At the expiration
of the six months, in December, 1946, the court denied the
writ on the showing that the authorized university officials
had adopted an order calling for the opening of a law school
for Negroes the following February. While petitioner’s appeal
was pending, such a school was made available, but petitioner
refused to register therein. The Texas Court of Civil Appeals
set aside the trial court’s judgment and ordered the cause
‘remanded generally to the trial court for further proceedings
without prejudice to the rights of any party to this suit.’
On remand, a hearing was held on the issue of the equality
of the educational facilities at the newly established school as
compared with the University of Texas Law School. Finding
that the new school offered petitioner ‘privileges, advantages,
and opportunities for the study of law substantially equivalent
to those offered by the State to white students at the University
of Texas,’ the trial court denied mandamus. The Court of
Civil Appeals affirmed. 1948, 210 S.W.2d 442. Petitioner’s
application for a writ of error was denied by the Texas
Supreme Court. We granted certiorari, 1949, 338 U.S. 865,
70 S.Ct. 139, because of the manifest importance of the
constitutional issues involved.
The University of Texas Law School, from which petitioner
was excluded, was staffed by a faculty of sixteen fulltime and three part-time professors, some of whom are
nationally recognized authorities in their field. Its student
body numbered 850. The library contained over 65,000
volumes. Among the other facilities available to the students
were a law review, moot court facilities, *633 scholarship
funds, and Order of the Coif affiliation. The school’s alumni
occupy the most distinguished positions in the private practice
of the law and in the public life of the **850 State. It
may properly be considered one of the nation’s ranking law
schools.
because he is a Negro. 1 Petitioner thereupon brought this
suit for mandamus against the appropriate school officials,
respondents here, to compel his admission. At that time, there
was no law school in Texas which admitted Negroes.
The law school for Negroes which was to have opened in
February, 1947, would have had no independent faculty or
library. The teaching was to be carried on by four members
of the University of Texas Law School faculty, who were
to maintain their offices at the University of Texas while
teaching at both institutions. Few of the 10,000 volumes
The State trial court recognized that the action of the State
in denying petitioner the opportunity to gain *632 a legal
education while granting it to others deprived him of the
equal protection of the laws guaranteed by the Fourteenth
Since the trial of this case, respondents report the opening of
a law school at the Texas State University for Negroes. It is
ordered for the library had arrived; 2 nor was there any fulltime librarian. The school lacked accreditation.
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2
Sweatt v. Painter, 339 U.S. 629 (1950)
70 S.Ct. 848, 94 L.Ed. 1114
apparently on the road to full accreditation. It has a faculty
of five full-time professors; a student body of 23; a library of
some 16,500 volumes serviced by a full-time staff; a practice
court and legal aid association; and one alumnus who has
become a member of the Texas Bar.
Whether the University of Texas Law School is compared
with the original or the new law school for Negroes, we cannot
find substantial equality in the educational opportunities
offered white and Negro law students by the State. In terms of
number of the faculty, variety of courses and opportunity for
specialization, size of the student body, scope of the library,
availability of law *634 review and similar activities, the
University of Texas Law School is superior. What is more
important, the University of Texas Law School possesses to
a far greater degree those qualities which are incapable of
objective measurement but which make for greatness in a law
school. Such qualities, to name but a few, include reputation
of the faculty, experience of the administration, position and
influence of the alumni, standing in the community, traditions
and prestige. It is difficult to believe that one who had a free
choice between these law schools would consider the question
close.
Moreover, although the law is a highly learned profession, we
are well aware that it is an intensely practical one. The law
school, the proving ground for legal learning and practice,
cannot be effective in isolation from the individuals and
institutions with which the law interacts. Few students and
no one who has practiced law would choose to study in an
academic vacuum, removed from the interplay of ideas and
the exchange of views with which the law is concerned.
The law school to which Texas is willing to admit petitioner
excludes from its student body members of the racial groups
which number 85% of the population of the State and include
most of the lawyers, witnesses, jurors, judges and other
officials with whom petitioner will inevitably be dealing
when he becomes a member of the Texas Bar. With such
a substantial and significant segment of society excluded,
we cannot conclude that the education offered petitioner is
substantially equal to that which he would receive if admitted
to the University of Texas Law School.
[2] It may be argued that excluding petitioner from that
school is no different from excluding white students from
the new law school. This contention overlooks realities.
It is unlikely that a member of a group so decisively
in the majority, attending a school with rich traditions
and *635 prestige which only a history of consistently
maintained excellence could command, would claim that the
opportunities affored him for legal education were unequal
to those held open to petitioner. That such a claim, if
made, would be dishonored by the State, is no answer.
‘Equal protection of the laws is not **851 achieved
through indiscriminate imposition of inequalities.’ Shelley
v. Kraemer, 1948, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed.
1161, 3 A.L.R.2d 441.
[3] It is fundamental that these cases concern rights which
are personal and present. This Court has stated unanimously
that ‘The State must provide (legal education) for (petitioner)
in conformity with the equal protection clause of the
Fourteenth Amendment and provide it as soon as it does for
applicants of any other group.’ Sipuel v. Board of Regents,
1948, 332 U.S. 631, 633, 68 S.Ct. 299, 92 L.Ed. 247. That
case ‘did not present the issue whether a state might not satisfy
the equal protection clause of the Fourteenth Amendment
by establishing a separate law school for Negroes.’ Fisher
v. Hurst, 1948, 333 U.S. 147, 150, 68 S.Ct. 389, 390, 92
L.Ed. 604. In
State of Missouri ex rel. Gaines v. Canada,
1938, 305 U.S. 337, 351, 59 S.Ct. 232, 237, 83 L.Ed. 208, the
Court, speaking through Chief Justice Hughes, declared that
‘petitioner’s right was a personal one. It was as an individual
that he was entitled to the equal protection of the laws, and
the State was bound to furnish him within its borders facilities
for legal education substantially equal to those which the
State there afforded for persons of the white race, whether or
not other Negroes sought the same opportunity.’ These are
the only cases in this Court which present the issue of the
constitutional validity of race distinctions in state-supported
graduate and professional education.
In accordance with these cases, petitioner may claim his full
constitutional right: legal education equivalent to that offered
by the State to students of other races. Such education is not
available to him in a separate law school as offered by the
State. We cannot, therefore, *636 agree with respondents
that the doctrine of
Plessy v. Ferguson, 1896, 163 U.S.
537, 16 S.Ct. 1138, 41 L.Ed. 256, requires affirmance of the
judgment below. Nor need we reach petitioner’s contention
that Plessy v. Ferguson should be reexamined in the light
of contemporary knowledge respecting the purposes of the
Fourteenth Amendment and the effects of racial segregation.
See supra, 339 U.S. 631, 70 S.Ct. 849.
[4] We hold that the Equal Protection Clause of the
Fourteenth Amendment requires that petitioner be admitted to
the University of Texas Law School. The judgment is reversed
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3
Sweatt v. Painter, 339 U.S. 629 (1950)
70 S.Ct. 848, 94 L.Ed. 1114
and the cause is remanded for proceedings not inconsistent
with this opinion.
All Citations
339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114
Reversed.
Footnotes
1
It appears that the University has been restricted to white students, in accordance with the State law. See
2
Tex.Const. Art. VII, ss 7, 14;
Tex.Rev.Civ.Stat. Arts. 2643b,
2719, 2900 (Vernon, 1925 and Supp.)
‘Students of the interim School of Law of the Texas State University for Negroes (located in Austin, whereas
the permanent School was to be located at Houston) shall have use of the State Law Library in the Capitol
Building * * *.’ Tex.Laws 1947, c. 29, s 11, Tex.Rev.Civ.Stat. (Vernon, Supp.), note to
Art. 2643b. It is not
clear that this privilege was anything more than was extended to all citizens of the State.
End of Document
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4
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
KeyCite Red Flag – Severe Negative Treatment
Superseded January 1, 1868
60 U.S. 393
Supreme Court of the United States
DRED SCOTT, PLAINTIFF IN ERROR,
v.
JOHN F. A. SANDFORD.
March 6, 1857
**1 THIS case was brought up, by writ of error, from the
Circuit Court of the United States for the district of Missouri.
It was an action of trespass vi et armis instituted in the Circuit
Court by Scott against Sandford.
Prior to the institution of the present suit, an action was
brought by Scott for his freedom in the Circuit Court of St.
Louis county, (State court,) where there was a verdict and
judgment in his favor. On a writ of error to the Supreme Court
of the State, the judgment below was reversed, and the case
remanded to the Circuit Court, where it was continued to
await the decision of the case now in question.
The declaration of Scott contained three counts: one, that
Sandford had assaulted the plaintiff; one, that he had assaulted
Harriet Scott, his wife; and one, that he had assaulted Eliza
Scott and Lizzie Scott, his children.
Sandford appeared, and filed the following plea:
DRED SCOTT
v.
JOHN F. A. SANDFORD.}
Plea to the Jurisdiction of the Court.
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 guarantied 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.
**2 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 *394 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
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
1
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
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.
**3 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, and 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 *395 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.
8. 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.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
2
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
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 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 persons 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 have 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 *396 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.
West Headnotes (56)
[1]
Aliens, Immigration, and
Citizenship
Nature of and right to
naturalization
The power of congress to establish a uniform
rule of naturalization does not confer the power
to raise to citizenship a person born within the
United States, who from birth or parentage, or by
the laws of the country, is not of right a citizen,
since naturalization applies solely to aliens.
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3
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
A writ of error brings up the whole record of the
proceedings in court below.
6 Cases that cite this headnote
[2]
Aliens, Immigration, and
Citizenship
Power to naturalize
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.
2 Cases that cite this headnote
[7]
Free negroes and mulattoes are not such citizens
as were contemplated by the federal or state
constitution.
6 Cases that cite this headnote
[3]
Aliens, Immigration, and
Citizenship
Power to naturalize
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.
2 Cases that cite this headnote
[8]
Appeal and Error
4 Cases that cite this headnote
[9]
1 Cases that cite this headnote
[5]
Appeal and Error
Jurisdiction
If defendant objects to jurisdiction of courts
of general jurisdiction, he must plead want of
jurisdiction specially, and unless fact on which
he relies is found true by jury or admitted,
jurisdiction cannot be disputed in appellate court.
2 Cases that cite this headnote
[6]
Appeal and Error
distinguished
Writ of error; appeal
Aliens, Immigration, and
Citizenship
Who Are Citizens
The terms “people of the United States” and
“citizens” are synonymous.
Record in General
The correction of one error in lower court
does not deprive appellate court of power of
examining further into record and correcting any
other material errors committed.
Aliens, Immigration, and
Citizenship
Who Are Citizens
A person may be a “citizen,” that is, a
member of the community who form the
sovereignty, although he exercises no share of the
political power and is incapacitated from holding
particular offices.
10 Cases that cite this headnote
[4]
Aliens, Immigration, and
Citizenship
Citizens of United States and
of the several states
7 Cases that cite this headnote
[10]
Aliens, Immigration, and
Citizenship
Foreign citizens in territories
acquired by United States
Since there is no express constitutional provision
defining the power of the general government
over the person or property of citizens in
territories which have been acquired, their rights
and privileges must be those which are secured
by the constitution to citizens, and not those of
mere colonists; the power to make all needful
rules and regulations respecting the territory
belonging to the United States being referable
solely to territory belonging to them at the
adoption of the constitution.
13 Cases that cite this headnote
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4
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
[11]
according to its true intent and meaning when
adopted.
Aliens, Immigration, and
Citizenship
Citizens of United States and
of the several states
A person who is not a citizen of the United States
within the intendment of the federal constitution
cannot be made so by a law of one of the states
clothing him with the rights of state citizenship,
and thus entitled to the privileges and immunities
of a citizen of the United States.
6 Cases that cite this headnote
[16]
Aliens, Immigration, and
Citizenship
Citizens of United States and
of the several states
It seems that no law of a state passed since the
constitution was adopted can give any right of
citizenship outside of its own territory.
[13]
3 Cases that cite this headnote
[17]
[15]
Inquiry Into
7 Cases that cite this headnote
[18]
Constitutional Law
Entities Protected by
Constitutional Provision
No change in public opinion or feeling in relation
to Negroes should induce court to give to
words of Constitution a more liberal construction
in favor of Negroes than such words were
intended to bear when instrument was framed
and adopted.
The provision entitling citizens of each state to
all the privileges and immunities of citizens in
the several states does not apply to a person
migrating permanently from one state to another,
or to a person who, in the state from which
he comes, was endowed with certain rights
of citizenship which are not given him in
the other state, since, when the domicile is
permanently changed, it is the province of the
state to determine the status of its citizens and
inhabitants.
10 Cases that cite this headnote
4 Cases that cite this headnote
2 Cases that cite this headnote
[14]
Constitutional Law
Legislative Judgment
Courts have nothing to do with the justice,
wisdom, policy, or expediency of a law. These
are matters purely of legislative deliberation and
cognizance.
Aliens, Immigration, and
Citizenship
Citizens of United States and
of the several states
One having all rights and privileges of a citizen
of a state is not necessarily a citizen of the United
States.
Foreign policy and
Acquisition of territory to be held by the United
States until it is in a suitable condition to become
a state is a question for political department
of government and not judicial department
and judicial department is bound to recognize
decision of political department.
6 Cases that cite this headnote
[12]
Constitutional Law
national defense
Constitutional Law
construction in general
Extrinsic aids to
Constitutional Law
Construction
General Rules of
Constitutional Law
Intent in general
Duty of court is to interpret Constitution as
framed with best light court can obtain on the
subject and administer Constitution as it finds it
[19]
Constitutional Law
Applications
Particular Issues and
Act Cong. March 6, 1820, 3 Stat. 545, “Missouri
Compromise Act,” prohibiting the holding of
slaves in the territory of the Louisiana Purchase
north of 36 deg. 30 min., is obnoxious to the
constitutional provision that citizens of each
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5
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
state shall be entitled to all the privileges and
immunities of citizens of the several states in that
in such territory, which is the common property
of all the states, some of its citizens are attempted
to be deprived of their property rights.
[23]
Constitutional Law
Entities Protected by
Constitutional Provision
A citizen of one state has no right to participate
in the government of another, but if he ranks
as citizen in state to which he belongs within
meaning of federal Constitution, whenever he
goes into another state, he has all privileges and
immunities belonging to citizens of the state.
[24]
Constitutional Law
Travel and movement
Constitutional Law
Property in General
Congressional act depriving citizen of the United
States of his liberty or property merely because
he went into or brought his property into
a particular territory without committing any
offense against the law would deny due process.
Courts
Record
Jurisdiction to Be Shown by
The want of jurisdiction in lower court may
appear on record without any plea in abatement.
2 Cases that cite this headnote
[25]
2 Cases that cite this headnote
[21]
Allegations, pleadings, and
No averment in pleadings of plaintiff is
necessary to give jurisdiction to courts of general
jurisdiction.
3 Cases that cite this headnote
[20]
Courts
affidavits
Courts
Presumptions and Burden of Proof
as to Jurisdiction
Courts of general jurisdiction are presumed to
have jurisdiction unless the contrary appears.
1 Cases that cite this headnote
[26]
Courts
Decisions of Same Court or CoOrdinate Court
In determining whether prior opinion of court
should be followed, single sentence of opinion
should not be separated from the context.
5 Cases that cite this headnote
7 Cases that cite this headnote
[22]
Constitutional Law
Travel and movement
Constitutional Law
Property in General
Human Trafficking and Slavery
Enact; Validity
Power to
Act Cong. March 6, 1820, 3 Stat. 545, “Missouri
Compromise Act”, prohibiting the holding of
slaves in the territory of the Louisiana purchase
north of 36 deg. 30 min., is obnoxious to the
provision that no person shall be deprived of his
rights except by due process of law, in that its
effect, if enforced, would be to destroy the rights
of slaveholders, citizens of the United States,
who, with their slaves, might remove into such
territory.
6 Cases that cite this headnote
[27]
Territories
organization
In general; establishment and
In organizing judicial department of government
in a territory, Congress does not act under
and is not restricted by the third article of the
Constitution.
4 Cases that cite this headnote
[28]
Federal Courts
Pleadings and motions
In federal courts, plaintiff must plead that his
suit is within jurisdiction of court and that he is
entitled to sue therein, and judgment unsupported
by such allegation is reversible.
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Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
[29]
Federal Courts
of proof
Presumptions and burden
[33]
Jurisdiction of federal courts is not presumed,
but record before appellate court must show
affirmatively that inferior court had authority
under the Constitution to hear and determine
case.
[30]
Federal Courts
general
A negro held in slavery in one state, under the
laws thereof, and taken by his master, for a
temporary residence, into a state where slavery
is prohibited by law, and thence into a territory
acquired by treaty where slavery is prohibited by
act of congress, and afterwards returning with his
master into the same slave state, and resuming his
residence there, is not such a citizen of that state
as may sue there in the circuit court of the United
States, if by the law of that state, as repeatedly
declared by its highest court in recent decisions,
a negro, under such circumstances, is a slave;
although, by the law of that state at the time of
his return, as settled by earlier cases, he was then
a freeman; and although the new decisions be not
based upon the construction of the constitution
and statutes of the state, but upon the ground
that the state will not enforce laws which prohibit
slavery in other states or territories.
Equity jurisdiction in
Circuit court had equity jurisdiction over its
own judgment as court of law without regard to
character of parties and was required to prevent
parties from proceeding to enforce judgment by
execution if money was not justly and equitably
due.
2 Cases that cite this headnote
[31]
Federal Courts
Necessity of Objection;
Power and Duty of Court
Federal Courts
Federal Courts
Conflicting and obsolete
decisions; change of law
35 Cases that cite this headnote
Motions
If fact of citizenship is averred in declaration and
defendant does not deny it and put it in issue by
plea in abatement he cannot offer evidence at the
trial to disprove it, and consequently cannot avail
himself of the objection in appellate court unless
defect is apparent in some other part of record.
[34]
Federal Courts
Proceedings
Supreme Court would not sanction attempt
to evade law or exercise appellate power in
circuitous way which it was forbidden to exercise
in direct and regular and invariable forms of
judicial proceedings.
13 Cases that cite this headnote
[32]
Federal Courts
Property
When a negro, held as a slave in one state,
is thence taken by his master, for a temporary
residence, into a state where slavery is prohibited
by law, and afterwards returns with his master to
the same slave state, and resumes his residence
there, his status and condition on such return is
a question exclusively of the law of that state,
and the decisions of the state courts upon it are
binding upon the federal courts.
5 Cases that cite this headnote
[35]
Federal Courts
Former Circuit Courts
(abolished in 1911)
Where the defendant, in an action in a circuit
court of the United States, pleaded in abatement
to the jurisdiction, and, this plea being overruled
on demurrer, put in several pleas in bar, upon
which verdict and judgment were rendered in his
favor, upon a writ of error brought by the plaintiff
to reverse this judgment the whole record is
before the supreme court, and the question upon
the plea in abatement is open for revision.
12 Cases that cite this headnote
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
7
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
[36]
Federal Courts
Former Circuit Courts
(abolished in 1911)
Supreme Court has jurisdiction to revise
judgment of circuit court and reverse it for
any error apparent on record including error in
giving judgment in case over which it has no
jurisdiction, whether or not there is a plea in
abatement filed.
1 Cases that cite this headnote
[42]
Federal Courts
Review of state courts
On writ of error to state court, unless record
shows case that gives jurisdiction to United
States Supreme Court, case must be dismissed.
8 Cases that cite this headnote
[38]
Indians
[43]
Admission to citizenship
Jurisdiction of cause of action
Judgment
Jurisdiction of the person and
subject-matter
[44]
Admissions by Demurrer
A demurrer to a pleading admits allegations of
fact therein.
1 Cases that cite this headnote
[41]
Public Lands
Cessions and treaties
Under cessions of Virginia, in 1784, and other
states, of unappropriated land to the United
States for payment of war debts, powers of
sovereignty and eminent domain were ceded
with the land.
In
Human Trafficking and Slavery
and powers of owners
Rights
Human Trafficking and Slavery
and powers of owners
Rights
The federal government has no power over
person or property of citizens except what
citizens of the United States have granted and no
laws or usages of other nations or reasoning of
statesmen or jurists on relations of master and
slave could enlarge powers of government or
take from citizens rights reserved.
1 Cases that cite this headnote
Pleading
Human Trafficking and Slavery
general; nature, origin, and legality
7 Cases that cite this headnote
A court can give no judgment for either party
where it has no jurisdiction.
[40]
In
Right of property in slave is distinctly and
expressly affirmed in the Constitution.
3 Cases that cite this headnote
Judgment
Human Trafficking and Slavery
general; nature, origin, and legality
5 Cases that cite this headnote
Indians may be naturalized by authority of
Congress and become citizens of a state and of
the United States.
[39]
Power to
The provision in Act Cong. passed March
6, 1820, 3 Stat. 545, commonly known as
the Missouri Compromise act, prohibiting the
holding and ownership of slaves in the territory
of the United States north of the line therein
mentioned, is not warranted by the constitution,
and is therefore void.
2 Cases that cite this headnote
[37]
Human Trafficking and Slavery
Enact; Validity
5 Cases that cite this headnote
[45]
Human Trafficking and Slavery
and powers of owners
Rights
No federal tribunal may deny the right of
property in slave, or deny to slave owners
benefit of provisions and guarantees provided
for protection of private property by the
Constitution, since the Constitution recognizes
such right of property and makes no distinction
between slaves and other property.
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8
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
private property for public use without just
compensation.
2 Cases that cite this headnote
[46]
Human Trafficking and
Slavery
Regulation of persons incident to
the existence of slavery
1 Cases that cite this headnote
[51]
Under federal Constitution, federal government
has no right to interfere with reserved power of
states to regulate slaves for any other purpose but
that of protecting rights of owner.
Territories
Application of Constitution and
laws of United States to territory acquired
Congress could not deny people of territory right
to keep and bear arms, nor right to jury trial, nor
compel one to be a witness against himself in
criminal proceeding.
3 Cases that cite this headnote
6 Cases that cite this headnote
[47]
Territories
Power of United States to
acquire and control additional territory
[52]
The federal constitution confers no power on
the general government to establish or maintain
colonies to be ruled and governed at its own
pleasure, or to acquire and hold lands to be
governed permanently in the character of a
territory.
Territories
Application of Constitution and
laws of United States to territory acquired
Congress cannot make law in a territory
respecting establishment of religion or free
exercise thereof or abridging freedom of speech
or of the press or right of assembly and petition.
1 Cases that cite this headnote
5 Cases that cite this headnote
[48]
Territories
[53]
Acquisition of territory
Territories
Acquisition of territory
Whatever the federal government acquires,
including territories, it acquires for benefit of
people of several states and is their trustee acting
for them and charged with duty of promoting
interests of the whole people.
[50]
9 Cases that cite this headnote
[54]
United States
In general; nature
On adoption of the Constitution, the United
States took nothing by succession from the
confederation and 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.
Territories
Application of Constitution and
laws of United States to territory acquired
Congress could not quarter soldier in house in
territory without consent of owner in time of
peace, nor in time of war except in manner
prescribed by law, nor forfeit property of citizen
in territory convicted of treason for longer
period than life of person convicted, nor take
Legislative power of Congress
The federal grant of power to congress to
dispose of and make all needful rules and
regulations respecting the territory or other
property belonging to the United States refers
only to territory which belonged to the United
States at the time the constitution was adoped,
and not to subsequently acquired territory.
Territory is acquired by the United States to
become a state and not to be held as a colony and
governed by Congress with absolute authority.
[49]
Territories
[55]
United States
In general; nature
On adoption of the Constitution, new
government was not a mere change in a dynasty
or in form of government, leaving nation or
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9
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
sovereignty the same and clothed with all rights
and bound by all obligations of the preceding
one, but a new nation was created.
3 Cases that cite this headnote
[56]
United States
Legislative Authority,
Powers, and Functions
The power of Congress over person or property
of a citizen can never be a mere discretionary
power.
APRIL TERM, 1854.
And the said John F. A. Sandford, in his own proper person,
comes and says that this court ought not to have or take further
cognizance of the action aforesaid, because he says that said
cause of action, and each and every of them, (if any such have
accrued to the said Dred Scott,) accrued to the said Dred Scott
out of the jurisdiction of this court, and exclusively within the
jurisdiction of the courts of the State of Missouri, for that,
to wit: the said plaintiff, Dred Scott, is not a citizen of the
State of Missouri, as alleged in his declaration, because *397
he is a negro of African descent; his ancestors were of pure
African blood, and were brought into this country and sold
as negro slaves, and this the said Sandford is ready to verify.
Wherefore, he prays judgment whether this court can or will
take further cognizance of the action aforesaid.
JOHN F. A. SANDFORD.
To this plea there was a demurrer in the usual form, which
was argued in April, 1854, when the court gave judgment that
the demurrer should be sustained.
In May, 1854, the defendant, in pursuance of an agreement
between counsel, and with the leave of the court, pleaded in
bar of the action:
1. Not guilty.
2. That the plaintiff was a negro slave, the lawful property
of the defendant, and, as such, the defendant gently laid his
hands upon him, and thereby had only restrained him, as the
defendant had a right to do.
3. That with respect to the wife and daughters of the plaintiff,
in the second and third counts of the declaration mentioned,
the defendant had, as to them, only acted in the same manner,
and in virtue of the same legal right.
In the first of these pleas, the plaintiff joined issue; and
to the second and third, filed replications alleging that the
defendant, of his own wrong and without the cause in his
second and third pleas alleged, committed the trespasses, &c.
The counsel then filed the following agreed statement of facts,
viz:
In the year 1834, the plaintiff was a negro slave belonging to
Dr. Emerson, who was a surgeon in the army of the United
States. In that year, 1834, said Dr. Emerson 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 military 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 Snelling, 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.
*398 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 said Harriet at said Fort
Snelling, with the consent of said Dr. Emerson, who then
claimed to be their master and owner, intermarried, and took
each other for husband and wife. 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.
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10
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
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.
‘That, upon the facts agreed to by the parties, they ought to
find for the plaintiff. The court refused to give such instruction
to the jury, and the plaintiff, to such refusal, then and there
duly excepted.’
Before the commencement of this suit, said Dr. Emerson sold
and conveyed the plaintiff, said 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.
The court then gave the following instruction to the jury, on
motion of the defendant:
At the times mentioned in the plaintiff’s declaration, the
defendant, claiming to be owner as aforesaid, laid his hands
upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned
them, doing in this respect, however, no more than what he
might lawfully do if they were of right his slaves at such times.
Further proof may be given on the trial for either party.
It is agreed that Dred Scott brought suit for his freedom
in the Circuit Court of St. Louis county; that there was a
verdict and judgment in his favor; that on a writ of error to
the Supreme Court, the judgment below was reversed, and
the same remanded to the Circuit Court, where it has been
continued to await the decision of this case.
In May, 1854, the cause went before a jury, who found the
following verdict, viz: ‘As to the first issue joined in this case,
we of the jury find the defendant not guilty; and as to the
issue secondly above joined, we of the jury find that before
and at the time when, &c., in the first count mentioned, the
said Dred Scott was a negro slave, the lawful property of the
defendant; and as to the issue thirdly above joined, we, the
jury, find that before and at the time when, &c., in the second
and third counts mentioned, the said Harriet, wife of *399
said Dred Scott, and Eliza and Lizzie, the daughters of the
said Dred Scott, were negro slaves, the lawful property of the
defendant.‘
Whereupon, the court gave judgment for the defendant.
After an ineffectual motion for a new trial, the plaintiff filed
the following bill of exceptions.
On the trial of this cause by the jury, the plaintiff, to
maintain the issues on his part, read to the jury the following
agreed statement of facts, (see agreement above.) No further
testimony was given to the jury by either party. Thereupon
the plaintiff moved the court to give to the jury the following
instruction, viz:
‘The jury are instructed, that upon the facts in this case,
the law is with the defendant.’ The plaintiff excepted to this
instruction.
Upon these exceptions, the case came up to this court.
It was argued at December term, 1855, and ordered to be
reargued at the present term.
Attorneys and Law Firms
It was now argued by Mr. Blair and Mr. G. F. Curtis for the
plaintiff in error, and by Mr. Geyer and Mr. Johnson for the
defendant in error.
Opinion
The reporter regrets that want of room will not allow him
to give the arguments of counsel; but he regrets it the less,
because the subject is thoroughly examined in the opinion
of the court, the opinions of the concurring judges, and the
opinions of the judges who dissented from the judgment of
the court.
Mr. Chief Justice TANEY delivered the opinion of the court.
This case has been twice argued. After the argument at the
last term, differences of opinion were found to exist among
the members of the court; and as the questions in controversy
are of the highest importance, and the court was at that
time much pressed by the ordinary business of the term,
it was deemed advisable to continue the case, and direct a
re-argument on some of the points, in order that we might
have an opportunity of giving to the whole subject a more
deliberate *400 consideration. It has accordingly been again
argued by counsel, and considered by the court; and I now
proceed to deliver its opinion.
There are two leading questions presented by the record:
1. Had the Circuit Court of the United States jurisdiction to
hear and determine the case between these parties? And
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11
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
2. If it had jurisdiction, is the judgment it has given erroneous
or not?
The plaintiff in error, who was also the plaintiff in the court
below, was, with his wife and children, held as slaves by the
defendant, in the State of Missouri; and he brought this action
in the Circuit Court of the United States for that district, to
assert the title of himself and his family to freedom.
The declaration is in the form usually adopted in that State
to try questions of this description, and contains the averment
necessary to give the court jurisdiction; that he and the
defendant are citizens of different States; that is, that he is a
citizen of Missouri, and the defendant a citizen of New York.
The defendant pleaded in abatement to the jurisdiction of
the court, that the plaintiff was not a citizen of the State
of Missouri, as alleged in his declaration, being a negro of
African descent, whose ancestors were of pure African blood,
and who were brought into this country and sold as slaves.
To this plea the plaintiff demurred, and the defendant joined
in demurrer. The court overruled the plea, and gave judgment
that the defendant should answer over. And he thereupon
put in sundry pleas in bar, upon which issues were joined;
and at the trial the verdict and judgment were in his favor.
Whereupon the plaintiff brought this writ of error.
Before we speak of the pleas in bar, it will be proper to dispose
of the questions which have arisen on the plea in abatement.
That plea denies the right of the plaintiff to sue in a court of
the United States, for the reasons therein stated.
If the question raised by it is legally before us, and the court
should be of opinion that the facts stated in it disqualify the
plaintiff from becoming a citizen, in the sense in which that
word is used in the Constitution of the United States, then
the judgment of the Circuit Court is erroneous, and must be
reversed.
It is suggested, however, that this plea is not before us; and
that as the judgment in the court below on this plea was in
favor of the plaintiff, he does not seek to reverse it, or bring
it before the court for revision by his writ of error; and also
that the defendant waived this defence by pleading over, and
thereby admitted the jurisdiction of the court.
*401 But, in making this objection, we think the peculiar
and limited jurisdiction of courts of the United States has not
been adverted to. This peculiar and limited jurisdiction has
made it necessary, in these courts, to adopt different rules
and principles of pleading, so far as jurisdiction is concerned,
from those which regulate courts of common law in England,
and in the different States of the Union which have adopted
the common-law rules.
In these last-mentioned courts, where their character and rank
are analogous to that of a Circuit Court of the United States;
in other words, where they are what the law terms courts of
general jurisdiction; they are presumed to have jurisdiction,
unless the contrary appears. No averment in the pleadings of
the plaintiff is necessary, in order to give jurisdiction. If the
defendant objects to it, he must plead it specially, and unless
the fact on which he relies is found to be true by a jury, or
admitted to be true by the plaintiff, the jurisdiction cannot be
disputed in an appellate court.
Now, it is not necessary to inquire whether in courts of that
description a party who pleads over in bar, when a plea to the
jurisdiction has been ruled against him, does or does not waive
his plea; nor whether upon a judgment in his favor on the pleas
in bar, and a writ of error brought by the plaintiff, the question
upon the plea in abatement would be open for revision in the
appellate court. Cases that may have been decided in such
courts, or rules that may have been laid down by common-law
pleaders, can have no influence in the decision in this court.
Because, under the Constitution and laws of the United States,
the rules which govern the pleadings in its courts, in questions
of jurisdiction, stand on different principles and are regulated
by different laws.
This difference arises, as we have said, from the peculiar
character of the Government of the United States. For
although it is sovereign and supreme in its appropriate sphere
of action, yet it does not possess all the powers which usually
belong to the sovereignty of a nation. Certain specified
powers, enumerated in the Constitution, have been conferred
upon it; and neither the legislative, executive, nor judicial
departments of the Government can lawfully exercise any
authority beyond the limits marked out by the Constitution.
And in regulating the judicial department, the cases in which
the courts of the United States shall have jurisdiction are
particularly and specifically enumerated and defined; and
they are not authorized to take cognizance of any case which
does not come within the description therein specified. Hence,
when a plaintiff sues in a court of the United States, it is
necessary that he should *402 show, in his pleading, that
the suit he brings is within the jurisdiction of the court, and
that he is entitled to sue there. And if he omits to do this,
and should, by any oversight of the Circuit Court, obtain a
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Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
judgment in his favor, the judgment would be reversed in the
appellate court for want of jurisdiction in the court below.
The jurisdiction would not be presumed, as in the case of
a common-law English or State court, unless the contrary
appeared. But the record, when it comes before the appellate
court, must show, affirmatively, that the inferior court had
authority, under the Constitution, to hear and determine the
case. And if the plaintiff claims a right to sue in a Circuit Court
of the United States, under that provision of the Constitution
which gives jurisdiction in controversies between citizens of
different States, he must distinctly aver in his pleading that
they are citizens of different States; and he cannot maintain
his suit without showing that fact in the pleadings.
the whole record of the proceedings in the court below. And
in the case of the United States v. Smith, (11 Wheat., 172,)
this court said, that the case being brought up by writ of error,
the whole record was under the consideration of this court.
And this being the case in the present instance, the plea in
abatement is necessarily under consideration; and it becomes,
therefore, our duty to decide whether the facts stated in the
plea are or are not sufficient to show that the plaintiff is not
entitled to sue as a citizen in a court of the United States.
This point was decided in the case of Bingham v. Cabot, (in
3 Dall., 382,) and ever since adhered to by the court. And in
Jackson v. Ashton, (8 Pet., 148,) it was held that the objection
to which it was open could not be waived by the opposite
party, because consent of parties could not give jurisdiction.
The question is simply this: Can a negro, whose ancestors
were imported into this country, and sold as slaves, become
a member of the political community formed and brought
into existence by the Constitution of the United States, and
as such become entitled to all the rights, and privileges, and
immunities, guarantied by that instrument to the citizen? One
of which rights is the privilege of suing in a court of the United
States in the cases specified in the Constitution.
It is needless to accumulate cases on this subject. Those
already referred to, and the cases of Capron v. Van Noorden,
(in 2 Cr., 126,) and Montalet v. Murray, (4 Cr., 46,) are
sufficient to show the rule of which we have spoken. The case
of Capron v. Van Noorden strikingly illustrates the difference
between a common-law court and a court of the United States.
If, however, the fact of citizenship is averred in the
declaration, and the defendant does not deny it, and put it in
issue by plea in abatement, he cannot offer evidence at the
trial to disprove it, and consequently cannot avail himself of
the objection in the appellate court, unless the defect should
be apparent in some other part of the record. For if there is
no plea in abatement, and the want of jurisdiction does not
appear in any other part of the transcript brought up by the
writ of error, the undisputed averment of citizenship in the
declaration must be taken in this court to be true. In this case,
the citizenship is averred, but it is denied by the defendant in
the manner required by the rules of pleading, and the fact upon
which the denial is based is admitted by the demurrer. And, if
the plea and demurrer, and judgment of the court below upon
it, are before us upon this record, the question to be decided
is, whether the facts stated in the plea are sufficient to show
that the plaintiff is not entitled to sue as a citizen in a court
of the United States.
*403 We think they are before us. The plea in abatement and
the judgment of the court upon it, are a part of the judicial
proceedings in the Circuit Court, and are there recorded as
such; and a writ of error always brings up to the superior court
This is certainly a very serious question, and one that now for
the first time has been brought for decision before this court.
But it is brought here by those who have a right to bring it,
and it is our duty to meet it and decide it.
It will be observed, that the plea applies to that class of persons
only whose ancestors were negroes of the African race, and
imported into this country, and sold and held as slaves. The
only matter in issue before the court, therefore, is, whether the
descendants of such slaves, when they shall be emancipated,
or who are born of parents who had become free before their
birth, are citizens of a State, in the sense in which the word
citizen is used in the Constitution of the United States. And
this being the only matter in dispute on the pleadings, the
court must be understood as speaking in this opinion of that
class only, that is, of those persons who are the descendants
of Africans who were imported into this country, and sold as
slaves.
The situation of this population was altogether unlike that
of the Indian race. The latter, it is true, formed no part of
the colonial communities, and never amalgamated with them
in social connections or in government. But although they
were uncivilized, they were yet a free and independent people,
associated together in nations or tribes, and governed by their
own laws. Many of these political communities were situated
in territories to which the white race claimed the ultimate
*404 right of dominion. But that claim was acknowledged
to be subject to the right of the Indians to occupy it as long
as they thought proper, and neither the English nor colonial
Governments claimed or exercised any dominion over the
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Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
tribe or nation by whom it was occupied, nor claimed the
right to the possession of the territory, until the tribe or
nation consented to cede it. These Indian Governments were
regarded and treated as foreign Governments, as much so as if
an ocean had separated the red man from the white; and their
freedom has constantly been acknowledged, from the time of
the first emigration to the English colonies to the present day,
by the different Governments which succeeded each other.
Treaties have been negotiated with them, and their alliance
sought for in war; and the people who compose these Indian
political communities have always been treated as foreigners
not living under our Government. It is true that the course
of events has brought the Indian tribes within the limits of
the United States under subjection to the white race; and it
has been found necessary, for their sake as well as our own,
to regard them as in a state of pupilage, and to legislate to
a certain extent over them and the territory they occupy. But
they may, without doubt, like the subjects of any other foreign
Government, be naturalized by the authority of Congress, and
become citizens of a State, and of the United States; and if
an individual should leave his nation or tribe, and take up his
abode among the white population, he would be entitled to all
the rights and privileges which would belong to an emigrant
from any other foreign people.
We proceed to examine the case as presented by the pleadings.
The words ‘people of the United States‘ and ‘citizens‘ are
synonymous terms, and mean the same thing. They both
describe the political body who, according to our republican
institutions, form the sovereignty, and who hold the power
and conduct the Government through their representatives.
They are what we familiarly call the ‘sovereign people,‘ and
every citizen is one of this people, and a constituent member
of this sovereignty. The question before us is, whether the
class of persons described in the plea in abatement compose
a portion of this people, and are constituent members of
this sovereignty? We think they are not, and that they are
not included, and were not intended to be included, under
the word ‘citizens‘ in the Constitution, and can therefore
claim none of the rights and privileges which that instrument
provides for and secures to citizens of the United States.
On the contrary, they were at that time considered as a
subordinate *405 and inferior class of beings, who had been
subjugated by the dominant race, and, whether emancipated
or not, yet remained subject to their authority, and had no
rights or privileges but such as those who held the power and
the Government might choose to grant them.
It is not the province of the court to decide upon the justice or
injustice, the policy or impolicy, of these laws. The decision
of that question belonged to the political or law-making
power; to those who formed the sovereignty and framed
the Constitution. The duty of the court is, to interpret the
instrument they have framed, with the best lights we can
obtain on the subject, and to administer it as we find it,
according to its true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights
of citizenship which a State may confer within its own limits,
and the rights of citizenship as a member of the Union. It does
not by any means follow, because he has all the rights and
privileges of a citizen of a State, that he must be a citizen of
the United States. He may have all of the rights and privileges
of the citizen of a State, and yet not be entitled to the rights
and privileges of a citizen in any other State. For, previous to
the adoption of the Constitution of the United States, every
State had the undoubted right to confer on whomsoever it
pleased the character of citizen, and to endow him with all
its rights. But this character of course was confined to the
boundaries of the State, and gave him no rights or privileges
in other States beyond those secured to him by the laws
of nations and the comity of States. Nor have the several
States surrendered the power of conferring these rights and
privileges by adopting the Constitution of the United States.
Each State may still confer them upon an alien, or any one
it thinks proper, or upon any class or description of persons;
yet he would not be a citizen in the sense in which that word
is used in the Constitution of the United States, nor entitled
to sue as such in one of its courts, nor to the privileges and
immunities of a citizen in the other States. The rights which
he would acquire would be restricted to the State which gave
them. The Constitution has conferred on Congress the right
to establish an uniform rule of naturalization, and this right is
evidently exclusive, and has always been held by this court
to be so. Consequently, no State, since the adoption of the
Constitution, can by naturalizing an alien invest him with the
rights and privileges secured to a citizen of a State under the
Federal Government, although, so far as the State alone was
concerned, he would undoubtedly be entitled to the rights of a
citizen, and clothed with all the *406 rights and immunities
which the Constitution and laws of the State attached to that
character.
It is very clear, therefore, that no State can, by any act or
law of its own, passed since the adoption of the Constitution,
introduce a new member into the political community created
by the Constitution of the United States. It cannot make him
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Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
a member of this community by making him a member of
its own. And for the same reason it cannot introduce any
person, or description of persons, who were not intended to be
embraced in this new political family, which the Constitution
brought into existence, but were intended to be excluded from
it.
The question then arises, whether the provisions of the
Constitution, in relation to the personal rights and privileges
to which the citizen of a State should be entitled, embraced the
negro African race, at that time in this country, or who might
afterwards be imported, who had then or should afterwards be
made free in any State; and to put it in the power of a single
State to make him a citizen of the United States, and endue
him with the full rights of citizenship in every other State
without their consent? Does the Constitution of the United
States act upon him whenever he shall be made free under the
laws of a State, and raised there to the rank of a citizen, and
immediately clothe him with all the privileges of a citizen in
every other State, and in its own courts?
The court think the affirmative of these propositions cannot
be maintained. And if it cannot, the plaintiff in error could not
be a citizen of the State of Missouri, within the meaning of
the Constitution of the United States, and, consequently, was
not entitled to sue in its courts.
It is true, every person, and every class and description
of persons, who were at the time of the adoption of the
Constitution recognized as citizens in the several States,
became also citizens of this new political body; but none
other; it was formed by them, and for them and their posterity,
but for no one else. And the personal rights and privileges
guaranteed to citizens of this new sovereignty were intended
to embrace those only who were then members of the several
State communities, or who should afterwards by birthright or
otherwise become members, according to the provisions of
the Constitution and the principles on which it was founded.
It was the union of those who were at that time members of
distinct and separate political communities into one political
family, whose power, for certain specified purposes, was to
extend over the whole territory of the United States. And it
gave to each citizen rights and privileges outside of his State
*407 which he did not before possess, and placed him in
every other State upon a perfect equality with its own citizens
as to rights of person and rights of property; it made him a
citizen of the United States.
It becomes necessary, therefore, to determine who were
citizens of the several States when the Constitution was
adopted. And in order to do this, we must recur to
the Governments and institutions of the thirteen colonies,
when they separated from Great Britain and formed new
sovereignties, and took their places in the family of
independent nations. We must inquire who, at that time, were
recognized as the people or citizens of a State, whose rights
and liberties had been outraged by the English Government;
and who declared their independence, and assumed the
powers of Government to defend their rights by force of arms.
In the opinion of the court, the legislation and histories
of the times, and the language used in the Declaration of
Independence, show, that neither the class of persons who had
been imported as slaves, nor their descendants, whether they
had become free or not, were then acknowledged as a part of
the people, nor intended to be included in the general words
used in that memorable instrument.
It is difficult at this day to realize the state of public opinion
in relation to that unfortunate race, which prevailed in the
civilized and enlightened portions of the world at the time of
the Declaration of Independence, and when the Constitution
of the United States was framed and adopted. But the public
history of every European nation displays it in a manner too
plain to be mistaken.
They had for more than a century before been regarded as
beings of an inferior order, and altogether unfit to associate
with the white race, either in social or political relations; and
so far inferior, that they had no rights which the white man was
bound to respect; and that the negro might justly and lawfully
be reduced to slavery for his benefit. He was bought and sold,
and treated as an ordinary article of merchandise and traffic,
whenever a profit could be made by it. This opinion was at
that time fixed and universal in the civilized portion of the
white race. It was regarded as an axiom in morals as well as
in politics, which no one thought of disputing, or supposed
to be open to dispute; and men in every grade and position
in society daily and habitually acted upon it in their private
pursuits, as well as in matters of public concern, without
doubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more
*408 uniformly acted upon than by the English Government
and English people. They not only seized them on the coast
of Africa, and sold them or held them in slavery for their own
use; but they took them as ordinary articles of merchandise to
every country where they could make a profit on them, and
were far more extensively engaged in this commerce than any
other nation in the world.
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Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
The opinion thus entertained and acted upon in England was
naturally impressed upon the colonies they founded on this
side of the Atlantic. And, accordingly, a negro of the African
race was regarded by them as an article of property, and held,
and bought and sold as such, in every one of the thirteen
colonies which united in the Declaration of Independence,
and afterwards formed the Constitution of the United States.
The slaves were more or less numerous in the different
colonies, as slave labor was found more or less profitable. But
no one seems to have doubted the correctness of the prevailing
opinion of the time.
The legislation of the different colonies furnishes positive and
indisputable proof of this fact.
It would be tedious, in this opinion, to enumerate the various
laws they passed upon this subject. It will be sufficient, as
a sample of the legislation which then generally prevailed
throughout the British colonies, to give the laws of two of
them; one being still a large slaveholding State, and the other
the first State in which slavery ceased to exist.
The province of Maryland, in 1717, (ch. 13, s. 5,) passed a
law declaring ‘that if any free negro or mulatto intermarry
with any white woman, or if any white man shall intermarry
with any negro or mulatto woman, such negro or mulatto
shall become a slave during life, excepting mulattoes born of
white women, who, for such intermarriage, shall only become
servants for seven years, to be disposed of as the justices of
the county court, where such marriage so happens, shall think
fit; to be applied by them towards the support of a public
school within the said county. And any white man or white
woman who shall intermarry as aforesaid, with any negro
or mulatto, such white man or white woman shall become
servants during the term of seven years, and shall be disposed
of by the justices as aforesaid, and be applied to the uses
aforesaid.‘
**5 The other colonial law to which we refer was passed by
Massachusetts in 1705, (chap. 6.) It is entitled ‘An act for the
better preventing of a spurious and mixed issue,‘ &c. and it
provides, that ‘if any negro or mulatto shall presume to smite
or strike any person of the English or other Christian nation,
such negro or mulatto shall be severely whipped, at *409 the
discretion of the justices before whom the offender shall be
convicted.‘
And ‘that none of her Majesty’s English or Scottish subjects,
nor of any other Christian nation, within this province, shall
contract matrimony with any negro or mulatto; nor shall any
person, duly authorized to solemnize marriage, presume to
join any such in marriage, on pain of forfeiting the sum of fifty
pounds; one moiety thereof to her Majesty, for and towards
the support of the Government within this province, and the
other moiety to him or them that shall inform and sue for
the same, in any of her Majesty’s courts of record within the
province, by bill, plaint, or information.‘
We give both of these laws in the words used by the respective
legislative bodies, because the language in which they are
framed, as well as the provisions contained in them, show, too
plainly to be misunderstood, the degraded condition of this
unhappy race. They were still in force when the Revolution
began, and are a faithful index to the state of feeling towards
the class of persons of whom they speak, and of the position
they occupied throughout the thirteen colonies, in the eyes
and thoughts of the men who framed the Declaration of
Independence and established the State Constitutions and
Governments. They show that a perpetual and impassable
barrier was intended to be erected between the white race
and the one which they had reduced to slavery, and governed
as subjects with absolute and despotic power, and which
they then looked upon as so far below them in the scale of
created beings, that intermarriages between white persons and
negroes or mulattoes were regarded as unnatural and immoral,
and punished as crimes, not only in the parties, but in the
person who joined them in marriage. And no distinction in this
respect was made between the free negro or mulatto and the
slave, but this stigma, of the deepest degradation, was fixed
upon the whole race.
We refer to these historical facts for the purpose of showing
the fixed opinions concerning that race, upon which the
statesmen of that day spoke and acted. It is necessary to do
this, in order to determine whether the general terms used in
the Constitution of the United States, as to the rights of man
and the rights of the people, was intended to include them,
or to give to them or their posterity the benefit of any of its
provisions.
The language of the Declaration of Independence is equally
conclusive:
It begins by declaring that, ‘when in the course of human
events it becomes necessary for one people to dissolve the
political bands which have connected them with another, and
to *410 assume among the powers of the earth the separate
and equal station to which the laws of nature and nature’s God
entitle them, a decent respect for the opinions of mankind
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Dred Scott v. Sandford, 60 U.S. 393 (1857)
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requires that they should declare the causes which impel them
to the separation.‘
**6 It then proceeds to say: ‘We hold these truths to be selfevident: that all men are created equal; that they are endowed
by their Creator with certain unalienable rights; that among
them is life, liberty, and the pursuit of happiness; that to secure
these rights, Governments are instituted, deriving their just
powers from the consent of the governed.‘
The general words above quoted would seem to embrace
the whole human family, and if they were used in a similar
instrument at this day would be so understood. But it is
too clear for dispute, that the enslaved African race were
not intended to be included, and formed no part of the
people who framed and adopted this declaration; for if the
language, as understood in that day, would embrace them, the
conduct of the distinguished men who framed the Declaration
of Independence would have been utterly and flagrantly
inconsistent with the principles they asserted; and instead
of the sympathy of mankind, to which they so confidently
appealed, they would have deserved and received universal
rebuke and reprobation.
Yet the men who framed this declaration were great men—
high in literary acquirements—high in their sense of honor,
and incapable of asserting principles inconsistent with those
on which they were acting. They perfectly understood the
meaning of the language they used, and how it would be
understood by others; and they knew that it would not in
any part of the civilized world be supposed to embrace the
negro race, which, by common consent, had been excluded
from civilized Governments and the family of nations, and
doomed to slavery. They spoke and acted according to
the then established doctrines and principles, and in the
ordinary language of the day, and no one misunderstood them.
The unhappy black race were separated from the white by
indelible marks, and laws long before established, and were
never thought of or spoken of except as property, and when the
claims of the owner or the profit of the trader were supposed
to need protection.
This state of public opinion had undergone no change when
the Constitution was adopted, as is equally evident from its
provisions and language.
The brief preamble sets forth by whom it was formed, for what
purposes, and for whose benefit and protection. It declares
*411 that it is formed by the people of the United States; that
is to say, by those who were members of the different political
communities in the several States; and its great object is
declared to be to secure the blessings of liberty to themselves
and their posterity. It speaks in general terms of the people
of the United States, and of citizens of the several States,
when it is providing for the exercise of the powers granted
or the privileges secured to the citizen. It does not define
what description of persons are intended to be included under
these terms, or who shall be regarded as a citizen and one of
the people. It uses them as terms so well understood, that no
further description or definition was necessary.
**7 But there are two clauses in the Constitution which point
directly and specifically to the negro race as a separate class
of persons, and show clearly that they were not regarded as
a portion of the people or citizens of the Government then
formed.
One of these clauses reserves to each of the thirteen States
the right to import slaves until the year 1808, if it thinks
proper. And the importation which it thus sanctions was
unquestionably of persons of the race of which we are
speaking, as the traffic in slaves in the United States had
always been confined to them. And by the other provision the
States pledge themselves to each other to maintain the right of
property of the master, by delivering up to him any slave who
may have escaped from his service, and be found within their
respective territories. By the first above-mentioned clause,
therefore, the right to purchase and hold this property is
directly sanctioned and authorized for twenty years by the
people who framed the Constitution. And by the second, they
pledge themselves to maintain and uphold the right of the
master in the manner specified, as long as the Government
they then formed should endure. And these two provisions
show, conclusively, that neither the description of persons
therein referred to, nor their descendants, were embraced in
any of the other provisions of the Constitution; for certainly
these two clauses were not intended to confer on them or their
posterity the blessings of liberty, or any of the personal rights
so carefully provided for the citizen.
No one of that race had ever migrated to the United States
voluntarily; all of them had been brought here as articles of
merchandise. The number that had been emancipated at that
time were but few in comparison with those held in slavery;
and they were identified in the public mind with the race
to which they belonged, and regarded as a part of the slave
population rather than the free. It is obvious that they were not
*412 even in the minds of the framers of the Constitution
when they were conferring special rights and privileges upon
the citizens of a State in every other part of the Union.
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Dred Scott v. Sandford, 60 U.S. 393 (1857)
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Indeed, when we look to the condition of this race in the
several States at the time, it is impossible to believe that these
rights and privileges were intended to be extended to them.
It is very true, that in that portion of the Union where the
labor of the negro race was found to be unsuited to the climate
and unprofitable to the master, but few slaves were held at
the time of the Declaration of Independence; and when the
Constitution was adopted, it had entirely worn out in one of
them, and measures had been taken for its gradual abolition in
several others. But this change had not been produced by any
change of opinion in relation to this race; but because it was
discovered, from experience, that slave labor was unsuited to
the climate and productions of these States: for some of the
States, where it had ceased or nearly ceased to exist, were
actively engaged in the slave trade, procuring cargoes on the
coast of Africa, and transporting them for sale to those parts
of the Union where their labor was found to be profitable,
and suited to the climate and productions. And this traffic was
openly carried on, and fortunes accumulated by it, without
reproach from the people of the States where they resided.
And it can hardly be supposed that, in the States where it
was then countenanced in its worst form—that is, in the
seizure and transportation—the people could have regarded
those who were emancipated as entitled to equal rights with
themselves.
**8 And we may here again refer, in support of this
proposition, to the plain and unequivocal language of the laws
of the several States, some passed after the Declaration of
Independence and before the Constitution was adopted, and
some since the Government went into operation.
We need not refer, on this point, particularly to the laws
of the present slaveholding States. Their statute books are
full of provisions in relation to this class, in the same spirit
with the Maryland law which we have before quoted. They
have continued to treat them as an inferior class, and to
subject them to strict police regulations, drawing a broad line
of distinction between the citizen and the slave races, and
legislating in relation to them upon the same principle which
prevailed at the time of the Declaration of Independence.
As relates to these States, it is too plain for argument, that
they have never been regarded as a part of the people or
citizens of the State, nor supposed to possess any political
rights which the dominant race might not withhold or grant at
their pleasure. *413 And as long ago as 1822, the Court of
Appeals of Kentucky decided that free negroes and mulattoes
were not citizens within the meaning of the Constitution of
the United States; and the correctness of this decision is
recognized, and the same doctrine affirmed, in 1 Meigs’s
Tenn. Reports, 331.
And if we turn to the legislation of the States where slavery
had worn out, or measures taken for its speedy abolition, we
shall find the same opinions and principles equally fixed and
equally acted upon.
Thus, Massachusetts, in 1786, passed a law similar to the
colonial one of which we have spoken. The law of 1786,
like the law of 1705, forbids the marriage of any white
person with any negro, Indian, or mulatto, and inflicts a
penalty of fifty pounds upon any one who shall join them in
marriage; and declares all such marriage absolutely null and
void, and degrades thus the unhappy issue of the marriage
by fixing upon it the stain of bastardy. And this mark of
degradation was renewed, and again impressed upon the
race, in the careful and deliberate preparation of their revised
code published in 1836. This code forbids any person from
joining in marriage any white person with any Indian, negro,
or mulatto, and subjects the party who shall offend in this
respect, to imprisonment, not exceeding six months, in the
common jail, or to hard labor, and to a fine of not less than
fifty nor more than two hundred dollars; and, like the law of
1786, it declares the marriage to be absolutely null and void. It
will be seen that the punishment is increased by the code upon
the person who shall marry them, by adding imprisonment to
a pecuniary penalty.
So, too, in Connecticut. We refer more particularly to the
legislation of this State, because it was not only among the
first to put an end to slavery within its own territory, but was
the first to fix a mark of reprobation upon the African slave
trade. The law last mentioned was passed in October, 1788,
about nine months after the State had ratified and adopted
the present Constitution of the United States; and by that law
it prohibited its own citizens, under severe penalties, from
engaging in the trade, and declared all policies of insurance
on the vessel or cargo made in the State to be null and void.
But, up to the time of the adoption of the Constitution, there
is nothing in the legislation of the State indicating any change
of opinion as to the relative rights and position of the white
and black races in this country, or indicating that it meant
to place the latter, when free, upon a level with its citizens.
And certainly nothing which would have led the slaveholding
States to suppose, that Connecticut designed to claim for
them, under *414 the new Constitution, the equal rights and
privileges and rank of citizens in every other State.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
18
Dred Scott v. Sandford, 60 U.S. 393 (1857)
19 How. 393, 15 L.Ed. 691
**9 The first step taken by Connecticut upon this subject
was as early as 1774, wen it passed an act forbidding the
further importation of slaves into the State. But the section
containing the prohibition is introduced by the following
preamble:
‘And whereas the increase of slaves in this State is injurious
to the poor, and inconvenient.‘
This recital would appear to have been carefully introduced,
in order to prevent any misunderstanding of the motive which
induced the Legislature to pass the law, and places it distinctly
upon the interest and convenience of the white population—
excluding the inference that it might have been intended in
any degree for the benefit of the other.
And in the act of 1784, by which the issue of slaves, born
after the time therein mentioned, were to be free at a certain
age, the section is again introduced by a preamble assigning
a similar motive for the act. It is in these words:
‘Whereas sound policy requires that the abolition of slavery
should be effected as soon as may be consistent with the rights
of individuals, and the public safety and welfare‘—showing
that the right of property in the master was to be protected,
and that the measure was one of policy, and to prevent the
injury and inconvenience, to the whites, of a slave population
in the State.
And still further pursuing its legislation, we find that in the
same statute passed in 1774, which prohibited the further
importation of slaves into the State, there is also a provision by
which any negro, Indian, or mulatto servant, who was found
wandering out of the town or place to which he belonged,
without a written pass such as is therein described, was made
liable to be seized by any one, and taken before the next
authority to be examined and delivered up to his master—who
was required to pay the charge which had accrued thereby.
And a subsequent section of the same law provides, that if any
free negro shall travel without such pass, and shall be stopped,
seized, or taken up, he shall pay all charges arising thereby.
And this law was in full operation when the Constitution
of the United States was adopted, and was not repealed till
1797. So that up to that time free negroes and mulattoes were
associated with servants and slaves in the police regulations
established by the laws of the State.
And again, in 1833, Connecticut passed another law, which
made it penal to set up or establish any school in that State for
the instruction of persons of the African race not inhabitants
of the State, or to instruct or teach in any such school or
*415 institution, or board or harbor for that purpose, any
such person, without the previous consent in writing of the
civil authority of the town in which such school or institution
might be.
And it appears by the case of Crandall v. The State, reported
in 10 Conn. Rep., 340, that upon an information filed against
Prudence Crandall for a violation of this law, one of the points
raised in the defence was, that the law was a violation of
the Constitution of the United States; and that the persons
instructed, although of the African race, were citizens of other
States, and therefore entitled to the rights and privileges of
citizens in the State of Connecticut. But Chief Justice Dagget,
before whom the case was tried, held, that persons of that
description were not citizens of a State, within the meaning of
the word citizen in the Constitution of the United States, and
were not therefore entitled to the privileges and immunities
of citizens in other States.
**10 The case was carried up to the Supreme Court of Errors
of the State, and the question fully argued there. But the case
went off upon another point, and no opinion was expressed
on this question.
We have made this particular examination into the legislative
and judicial action of Connecticut, because, from the early
hostility it displayed to the slave trade on the coast of Africa,
we may expect to find the laws of that State as lenient and
favorable to the subject race as those of any other State in
the Union; and if we find that at the time the Constitution
was adopted, they were not even there raised to the rank of
citizens, but were still held and treated as property, and the
laws relating to them passed with reference altogether to the
interest and convenience of the white race, we shall hardly
find them elevated to a higher rank anywhere else.
A brief notice of the laws of two other States, and we shall
pass on to other considerations.
By the laws of New Hampshire, collected and finally passed
in 1815, no one was permitted to be enrolled in the militia of
the State, but free white citizens; and the same provision is
found in a subsequent collection of the laws, made in 1855.
Nothing could more strongly mark the entire repudiation of
the African race. The alien is excluded, because, being born
in a foreign country, he cannot be a member of the community
until he is naturalized. But why are the African race, born
in the State, not permitted to share in one of the highest
duties of the citizen? The answer is obvious; he is not, by the
institutions and laws of the State, numbered among its people.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
19
Dred Scott v. Sandford, 60…
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