The plaintiff in error was a negro slave, and brought into a free State Illinois, and in the free territory of the United States for about four years, during which time he was married to
Trang 1Dred Scott v Sandford
The U.S Supreme Court attempted to resolve the legal status of African Amer-icans in Dred Scott v Sandford Chief Justice
ROGER TANEY’s belief that the Court could settle the issue proved mistaken, however The decision heightened tensions and convinced abolitionists that the legal system was immoral
Dred Scott was a slave owned by an army surgeon, John Emerson, who resided in Missouri
In 1836 Emerson took Scott to Fort Snelling, in what is now Minnesota, but then was a territory in which slavery had been expressly forbidden by the Missouri Compromise of 1820 In 1846 Scott sued for his freedom in Missouri state court, arguing that his residence in a free territory had released him from slavery The Missouri Supreme Court rejected his argument, and Scott appealed to the U.S Supreme Court
The Court heard arguments on Dred Scott in
1855 and 1856 The Court could have disposed of the case on narrower grounds by holding that Scott had not become free through his temporary stay with Emerson in free territory Instead, Taney decided that the Court needed to address the broader issue of the status
of slavery in the territories He wrote a tortuous opinion, arguing that because of the attitudes toward slavery and African Americans that prevailed in 1787–1789, when the Constitution was drafted and ratified, a slave was not and never could become a federal citizen In addition, Taney ruled that the free descendants
of slaves were not federal citizens and that property in slaves was entitled to such
protection that Congress could not constitu-tionally forbid slavery in the territories The immediate effect of the Dred Scott decision was to convince abolitionists that the South and the Supreme Court planned to impose slavery throughout the Union With the start of theU.S.CIVIL WARin 1861, it became clear that Taney’s decision had failed in its essential purpose
k
Dred Scott, Plff in Er., v John
F.A Sandford.
(See S C 19 How 393 –633.) Plea in abatement, when may be reviewed—the word “citizen” in the Constitution does not embrace one of the negro race—negro cannot become a citizen—slave not made free by residence in a free state or territory—Declaration
of Independence does not include slaves as part
of the people—the rights and privileges con-ferred by the constitution upon citizens do not apply to the negro race—Constitution should have the meaning intended when it was adopted—court may examine other errors besides plea in abatement—Constitution ex-pressly affirms right of property in slaves— Missouri compromise unconstitutional and void Where a plea in abatement, by defendant, to the jurisdiction of the court below is overruled
on demurrer, and the defendant thereupon pleads in bar, upon which issues were joined and the trial and verdict were in his favor, and
Trang 2the plaintiff thereupon brought the case into
this court by writ of error, and the plea and
demurrer and judgment of the court below
upon it are part of the record; held, that this
court has power to review the decision of the
court below upon the plea in abatement
It is therefore the duty of the court 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 the court of the
United States
The provisions of the Constitution of the
United States in relation to the personal rights
and privileges to which the citizen of a state
should be entitled, do not embrace the negro
African race, at that time in this country, or who
might afterwards be imported, who had then
been or should afterwards be made free in any
state
Such provisions of the Constitution do not
put it in the power of a single state to make out
one of the negro African race a citizen of the
United States, and to endue him with the full
rights of citizenship in every other state without
their consent
The Constitution of the United States does not
act upon one of the negro race whenever he shall
be made free under the laws of a state, and raise
him to the rank of a citizen, and immediately
clothe him with all the privileges of a citizen of any
other state, and in its own courts
The plaintiff in error was a negro slave, and
brought into a free State (Illinois), and in the free
territory of the United States for about four years,
during which time he was married to another
negro slave who also was in said free territory One
of their children (Eliza) was born on the River
Mississippi, north of the north line of Missouri,
and another of their children was born in the State
of Missouri, to which state he had returned
Held, that the plaintiff in error could not be
and was not a citizen of the State of Missouri,
within the meaning of the constitution of the
United States, and consequently was not
enti-tled to sue in its courts
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 part of
the people, nor intended to be included in the
general words used in that instrument
The descendants of Africans who were imported into this country and sold as slaves, when they shall become emancipated, or who are born of parents who had become free before their birth, are not citizens of a state in the sense
in which the word “citizens” is used in the Constitution of the United States
The enslaved African race was not intended
to be included in, and formed no part of, the people who framed and adopted the Declara-tion of Independence
When the framers of the Constitution were conferring special rights and privileges upon the citizens of a state in every other part of the Union, it is impossible to believe that these rights and privileges were intended to be extended to the negro race
The words of the Constitution should be given the meaning they were intended to bear, when that instrument was framed and adopted
Where this court has decided against the jurisdiction of the Circuit Court on a plea of abatement, it has still the right to examine any question presented by exception or by the record, and may reverse the judgement for errors committed, and remand the case to the Circuit Court for it to dismiss the case for want
of jurisdiction
The right of property in a slave is distinctly and expressly affirmed in the Constitution
The Act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned (thirty-six degrees thirty min-utes north latitude), is not warranted by the Constitution, and is therefore void
Neither Dred Scott himself, nor any of his family were made free by being carried into such territory; even if they had been carried there by their owner with the intention of becoming permanent residents
Scott was not made free by being taken to Rock Island in the State of Illinois
As Scott was a slave when taken into the State of Illinois by his owner, and was there held
as such, and brought back into Missouri in that character, his status, as free or slave, depended
on the laws of Missouri, and not of Illinois He and his family were not free, by the laws of Missouri, the property of defendant
SLAVERY
DRED SCOTT V SANDFORD
Trang 3Argued Feb 11, 12, 13 and 14, 1856 May 12,
1856, ordered to be re-argued at the next term
Re-argued Dec 15, 16, 17 and 18, 1856
Decided March 6, 1857
In Error to the Circuit Court of the United States for the District of Missouri
On November 2, 1853, Dred Scott, by his attorney, filed in the clerk’s office of the Circuit Court of the United States for the District of Missouri, the following declaration against the defendant, John F.A Sandford:
Dred Scott, of St Louis, in the State of Missouri, and a citizen of the State of Missouri, complains of John F.A Sandford, of the City of New York, and a citizen of the State of New York,
in the plea of trespass for that the defendant heretofore, to wit: on the 1st day of January, A.D
1853, at St Louis, in the County of St Louis and State of Missouri, with force and arms assaulted the plaintiff, and without law or right held him as a slave, and imprisoned him for the space of six hours and more, and then and there did threaten
to beat the plaintiff and to hold him in prison, and restrained of liberty, so that by means of such threats the plaintiff was put in fear and could not attend to his business, to wit: $2,500, and other wrongs to the plaintiff then and there did, against the peace and to the damage of the plaintiff $3,000
And also for that the defendant heretofore, on the 1st day of January, A.D 1853, with force and arms at St Louis aforesaid, an assault did make on Harriet Scott, then and still the wife of the plaintiff, and then and there did imprison said Harriet, and hold her as a slave, without law or right, for the space of six hours, and then and there did threaten
to beat said Harriet and hold her as a slave, so that
by means of the premises said Harriet was put in great fear and pain, and could not and did not attend to the plaintiff’s business, and the plaintiff lost and was deprived of the society, comfort and assistance of his wife, and thereby lost great gains and profits, of the value, to wit: of $2,500, and other wrongs to the plaintiff, the defendant then and there did, against the peace and to the plaintiff’s damage, $3,000
And also for that the defendant heretofore,
to wit: on the 1st day of January, A.D 1853, with force and arms at St Louis aforesaid, made
an assault on Eliza Scott and Lizzie Scott, then and still infant daughters and servants of the plaintiff, and then and here imprisoned and
held as slaves said Eliza and Lizzie, for a long space of time, to wit: six hours, and then and there did threaten to beat said Eliza and Lizzie and hold them as slaves and restrained of their liberty, so that by means of the premises, said Eliza and Lizzie were put in great fear, and could not and did not attend to plaintiff’s business as otherwise they might and would have done, and the plaintiff thereby lost the comfort, society, service and assistance of his said children and servants, of great value, to wit:
$2,500, and other wrongs to the plaintiff, the defendant then and there did against the peace, and to the damage of plaintiff $3,000, and the plaintiff on account of the aforesaid several grievances, brings suit, etc by his attorney, R.M Field
The defendant, by his attorney, filed the following plea:
Plea to the jurisdiction of the court 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 he is a negro
of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify; wherefore he prays judgment whether this court can or will take further cognizance of the action aforesaid The plea was verified
The plaintiff filed the following demurrer to this plea:
And now comes the plaintiff and demurs in law to the plea of the defendant to the jurisdiction of the court, and says that the said plea and the matters therein contained are not sufficient in law to preclude the court of its jurisdiction of this case, and that the plaintiff is not bound by law to reply to said plea Wherefore the plaintiff prays judgment of said
SLAVERY
DRED SCOTT V.
SANDFORD
Trang 4plea, and that the defendant answer further to
the plaintiff’s said action, etc
On April 24, 1854, the matters of law arising
upon the demurrer were argued and submitted
to the court On April 25, the court rendered a
decision that the law was for plaintiff on said
demurrer, and that the said demurrer be, and
the same is hereby sustained
On May 4, 1854, in accordance with an
agreement by the attorneys, the defendant filed
pleas, Nos 1, 2 and 3, to all of which pleas the
plaintiff filed replications Said attorneys also
filed an agreement upon the statement of the
facts in this case The pleas are as follows:
1 And the said John F.A Sandford, by H.A
Garland, his attorney, comes and defends the
wrong and injury, when, etc., and says that he is
not guilty of the said supposed trespass above
laid to his charge, or any part thereof in manner
and form as the said Dred Scott hath above
thereof complained against him, and of this he,
the said Sandford, putteth himself upon the
country
2 And for a further plea in this behalf, as to
the making of said assault on said Dred Scott in
the first count in said declaration mentioned,
imprisoning him and keeping and detaining
him in prison, etc., the said Sandford, by leave
of the court first obtained, says that the said
Dred Scott ought not have or maintain his
aforesaid action thereof against him, because he
says that before, and at the time when, etc., in
the said first count mentioned, the said Dred
Scott was a negro slave, the lawful property of
the defendant, and as such slave he gently laid
his hands upon him, and only restrained him of
such liberty as he had a right to do, and this the
said Sandford is ready to verify, wherefore he
prays judgment whether the said Scott ought to
have or maintain his aforesaid action thereof
against him
3 And for a further plea in this behalf, as to
making the said assault upon Harriet, the wife,
and Eliza and Lizzie, the daughters of the said
Dred Scott, in the second and third counts of
the said declaration mentioned, and
imprison-ing them and keepimprison-ing and detainimprison-ing them in
prison, etc., the said John F.A Sandford, by
leave of the court obtained, says that said Dred
Scott out not to have or maintain his aforesaid
action thereof against him, because he says that
before and at the said time, etc., when etc., in
the said second and third counts mentioned, the said Harriet, wife of said Scott, and Eliza and Lizzie, his daughters, were the lawful slaves of the said Sandford, and as such slaves he gently laid his hands upon them and restrained them
of their liberty as he had a right to do And this
he is ready to verify Wherefore he prays judgment, etc
Garland, for defendant
The replications are as follows:
The plaintiff, as to the plea of the defendant firstly above pleaded, and whereof he has put himself on the country, doth do like Field
And the plaintiff, as to the plea of the defendant secondly above pleaded as to said several trespasses in the introductory part of that plea mentioned and therein attempted to
be justified, says that the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having and maintaining his aforesaid action against the defendant, because
he says that said defendant at said time, when, etc., of his own wrong, and without the cause by him in his said second plea alleged, committed the said several trespasses in the introductory part of that plea mentioned, in manner and form as the plaintiff has above in his declaration complained, and this the plaintiff prays may be inquired of by the country
The replication to the third plea was similar
to the second
The agreed statement of facts was as follows:
In the year 1834 the plaintiff was a negro slave belonging to Doctor Emerson, who was a surgeon in the Army of the United States In that year, 1834, said Doctor 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 Doctor 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 36 degrees 30 minutes north, and north of the State of Missouri Said doctor Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838
SLAVERY
DRED SCOTT V SANDFORD
Trang 5In the year 1835, Harriet, who is named in the second count of the plaintiff’s declaration, was the negro slave of Major Taliaferro, who belonged to the Army of the United States In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Doctor Emerson herein-before named Said Doctor 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 Doctor Emerson, who then claimed to
be heir 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 of the steamboat Gipsey, north of the north line of the State of Missouri, and upon the River Mississippi Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks
In the year 1838, said Doctor Emerson remove the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided
Before the commencement of this suit, said Doctor Emerson sold and conveyed the plain-tiff, 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
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 impri-soned them, doing in this respect, however no more than what he might lawfully do, if they were of right his slaves at such time
Further proof may be given on the trial for either party
Mr R.M Field, for plaintiff
Mr H.A Garland for defendant
The case was tried, at the Circuit Court held for the District of Missouri at St Louis on May
15, 1854, before the court and a jury
The jury 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, etc.,
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, etc., in the second and third counts mentioned, the said Harriet wife of said Dred Scott, and Eliza and Lizzie the daughters of the said Dred Scott were negro slaves, the lawful property of the defendant.” Whereupon it is now considered by the court, that the plaintiff take nothing by his writ in this case, and that the defendant John F.A Sandford go hence without day and recover against said plaintiff, Dred Scott, the costs by him expended in the defense of this suit
A motion for a new trial was made by the attorneys for the plaintiff, which the court overruled Thereupon the said plaintiff filed a bill of exception, which is as follows:
Dred Scott v John F.A Sandford
April Term, 1854
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
“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
Mr Field, for plaintiff
Mr Garland, for defendant.”
No further testimony was given to the jury
by either party Thereupon the plaintiff moved the court to give the jury, the following instructions:
Plaintiff’s Instruction The jury are instructed, 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 The court then gave
SLAVERY
DRED SCOTT V.
SANDFORD
Trang 6the following instruction to the jury, on motion
of the defendant:
Defendant’s Instruction
The jury are instructed, that upon the facts
in this case the law is with the defendant
To the giving of such instruction the
plaintiff then and there duly excepted
The jury found the verdict as above The
plaintiff thereupon immediately filed in court
the following motion for a new trial:
And now, after verdict, and before
judg-ment, the plaintiff comes and moves the court
to set aside the verdict and grant a new trial,
because the court misdirected the jury in matter
of law on said trial Field
The court overruled the said motion and
gave judgment on verdict for the defendant; and
to such action of the court the plaintiff then and
there duly excepted
The plaintiff writes this bill of exceptions
and prays that it may be allowed, and signed
and sealed Field
Allowed and signed and sealed, May 15,
1854
R W Wells [seal.]
A writ of error was issued, and in the
Supreme Court of the United States, December
Term, 1854, the following was filed:
And now comes said plaintiff in error and
says that in the record of the proceedings, and
in the giving of judgment below, there is
manifest error, because the court below gave
judgment for the defendant below, when the
judgment should have been for plaintiff below,
wherefore for said errors and others the plaintiff
prays judgment of reversal here, and that he
may be restored to all he has lost
By his attorney, Nathaniel Holmes Filed,
Dec 30, 1854
Messrs M Blair and Curtis, for the plaintiff
in error:
1 The first question is, whether this court
will consider the question raised in the Circuit
Court by the plea to the jurisdiction, no final
judgment having been rendered on the
demur-rer to that plea, and the defendant having
pleaded over after the demurrer was sustained,
and the final judgment assigned for error having
been rendered on the issue on the merits
2 Whether, if the ruling of the Circuit Court on the demurrer to the plea in abatement
is subject to be reviewed here, the judgment of the court, in holding the plaintiff to be
“a citizen” in such sense as to enable him to maintain an action in that character in the courts of the United States, was erroneous
3 Whether the facts stated in the agreed case entitle the plaintiff and his family to freedom, supposing the 8th section of the Act
of 1820, known as the Missouri Compromise,
to be constitutional
4 Whether the said Act is constitutional
Upon the first point the counsel cited, Shephard v Graves, 14 How 519; U S v Boyd,
5 How 51; Smith v Kernochen, 7 How 216;
Sims v Hundley, 6 How 1; Bailey v Dozier,
6 How 23; Conard v Atlantic Ins Co 1 Pet
386; De Wolf v Rabaud, 1 Pet 476; Evans v Gee,
11 Pet 89; 1 Wash C C 70, 80; 2 Sumn 251; 2 Dall 341; 4 Dall 330, and then said: In this case,
as in those cited, the declaration gives jurisdic-tion, and the facts alleged in support of it can only be contested by making an issue as in other cases If that issue be not made, or be waived in the conduct of the cause according to a well-settled practice of the court, there is no reason
in this case more than in any other why the objection should be available at a later stage of the case If the fact had been that plaintiff was not a resident of Missouri, and that was the reason why he was not a citizen, no advantage could be taken of the fact at any subsequent stage of the case What difference does it make that another fact is relied on to show that he is not a citizen? It is the right to sue as“a citizen”
of Missouri, which is questioned: and it is immaterial whether the right be questioned on account of residence, or on account of any other circumstances which deprives him of the character of a citizen of Missouri
2 But if the court should be of opinion that the question raised by the plea in abatement, and the demurrer thereto, is not waived, and that the judgment of the Circuit Court therein must be maintained before it will consider the questions affecting his right to freedom, I submit the following considerations in support
of the judgment on the demurrer:
The opinion of the court in Amy v Smith,
1 Litt 326, 4 Ga 68, that free negroes are not citizens within the meaning of the 2d section of the 4th article of the Constitution, delivered in
SLAVERY
DRED SCOTT V SANDFORD
Trang 7the spring of 1822, displays no research, logic or learning On the other hand, the dissenting opinion of Judge Mills, p 337, is sustained by the views of Judge Washington in Corfield v
Coryell, 4 Wash C C 71
21 Ala 434; State v Manuel, 4 Dev &
Bat 24
The other decisions relied on, Meigs, 339; 1 English, 509, are to the same effect as the decision in Amy v Smith, and simply follow that
The argument most relied on by those who deny the citizenship of free colored men is, that the Acts of Congress on the subject of naturalization provide for naturalizing white persons only But even naturalization was not limited to the whites by the Constitution, and it has been extended repeatedly by treaty and Act
of Congress to Indians and negroes
Treaty with Choctaws, art 14, 20th Septem-ber, 1830; Treaty with the Cherokees, 12th art
Vol V U S Laws, 647; Treaties of 1803 for Louisiana, 1819 for Florida, 1847 for California;
21 Ala 454; and as Judge Gaston says, 4 Dev &
Bat 24, there is no connection between the subject of citizenship as acquired by birth and that acquired under the laws of Congress, and it would be a dangerous mistake to confound them That citizenship is acquired by birth, is a well settled common law principle
Vattel, ch 19, secs 212, 313, 314; Justinian, Lib 1, Tit 5, sec 3; Constitution, sec 5, art 2
The Constitution of the United States recognizes but two kinds of free persons, citizens and aliens Nobody supposes that free negroes are aliens They must therefore be citizens
Opinions Atty.-Gen Vol IV p 417; 3d sec
Act march 6, 1820; 6th sec Act of 1812, to form
a territorial government in Missouri; Militia Act, May 17, 1792; Constitutions of Kentucky, Louisiana, Mississippi, Connecticut and Mis-souri
All of the above define the qualifications of electors in terms,“free white male citizens;” and thus show that it is as a class of citizens that the negroes are excluded These considerations would authorize the conclusion that the framers
of the Constitutions and the patriots of that era regarded this class of persons as citizens, and included them in that character in the provi-sions of the Constitutions; and this is fully
confirmed by reference to the laws and records
of that day
Act of Mass 6th March, 1788; Proposal of South Carolina, Jan 25, 1778 to amend the 4th article; Journals, Vol II p 606; Journals, Vol
IV p 183; Organization of the Western Territory, Resolutions, April 23, 1784; Ordi-nance 1787, art 4; 2 Kent’s Com p 258, note b Missouri Rev Laws of 1845, p 755, and Code of 1835, allude to free negroes who were
“citizens.”
No reason can be imagined for permitting a suit between free white persons of different states, for wrongs which the local tribunals were deemed inadequate to redress, which will not apply with equal force to controversies to which
a free negro may be a party They have equal capacity with other citizens to hold property and carry on business, and therefore to create the mischief against which the national judiciary was provided The words of a law are to
be construed with reference to the object of the law
16 Pet 640; 12 Wheat 441; 16 Pet 104
In 1 Paine, C C 394, the courts say that a person need not have acquired political rights; it
is only necessary that he should have acquired a domicil, to enable him to sue as a citizen; and in
3 Wash C C 546, that “citizenship means nothing but residence.”
3 The next question to be considered is, whether Dred and his family, or either of them, was emancipated by being taken to Illinois, and
to that part of Louisiana Territory lying north of
36 degrees 30 minutes, and being detained there
in the manner described in the agreed case The eldest child, Eliza, having been born north of the Missouri line, on the boat whilst descending the Mississippi, was free under the Constitution
of Illinois, and well settled legal principles Constitutions of Illinois, art 6, secs 1 and 2;
3 U S Stat at L p 544; Spotts v Gillaspie,
6 Rand (Va.), 572; Commonwealth v Holloway,
2 S & R 305
The Circuit Court decided against the plaintiff on the strength of Scott v Emerson,
15 Mo 586
But the question depends on general princi-ples, and the courts of the United States, whilst they will respectfully consider the decisions of the State Court, decide such questions according to their own judgment of the law
SLAVERY
DRED SCOTT V.
SANDFORD
Trang 8Swift v Tyson, 16 Pet 1; Carpenter v ins Co.
16 Pet 511; Lane v Vick, 3 How 476; Foxcroft v
Mallett, 4 How 379
During the time that Dr Emerson kept
Dred at his station at Rock Island, and Harriet
at Fort Snelling, there is no evidence that he had
or claimed a residence elsewhere, and this court,
in Ennis v Smith, 14 how 423, “where a party
lives, is taken prima facie to be his domicil.”
See, also Sylvia v Kirby, 17 Mo 434
In the case of Scott v Emerson, 15 Mo 576,
the court base their decision on two grounds:
1st That by returning to Missouri to reside
the master’s right, which was suspended during
the residence in Illinois, and in the Territory, is
revived
2d The Constitution of Illinois, and the 8th
sec of the Act of 1820, are penal statutes which
the courts of other States were not bound to
enforce
In support of the first position, Ex parte
Grace, 2 Hagg 90; Commonwealth v Aves, 18
Pick 193, and Mahoney v Ashton, 4 H & McH
295, were cited
These decisions are inapplicable to the case
at bar, for the present case the Constitution and
Statute of Illinois expressly provide that
eman-cipation shall be the effect of the violation of the
provision The laws under which the above
decisions were made were different
David v Porter, 4 H & McH 418; Betty v
Horton, 1 Lee, 615
The second ground relied upon by the court
was equally untenable See opinion of Judge
Gambles, of the same case of Emerson v Scott,
“in this State it has been recognized from the
beginning of the government as a correct
position in law, that the master who takes his
slave to reside in a state or territory where
slavery is prohibited, emancipates his slave
Also McMicken v Amos, 4 Rand 134; Bank
v Earle, 13 Pet 590; Spencer v Dennis, 8
Gill 321
4 The freedom of Harriet and her daughter
Lizzie depends on the validity of the 8th section
of the Act of March 6, 1820, entitled“An Act to
authorize the people of Missouri Territory to
form a constitution and state government,” etc
The section is as follows:
That in all that territory ceded by France to
the United States, which lies north of 36 degrees
30 minutes north latitude, not included within the limits of the State contemplated by this Act, slavery and involuntary servitude, otherwise than in the punishment of crimes whereof the party shall have been duly convicted, shall be, and the same is hereby forever prohibited
Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid
The Validity of this section is denied, on the ground that Congress possessed no power to prohibit slavery in the Territories
It is not the power to govern the Territories, but the extent of the power which is questioned
Even those who deny any constitutional power
on the ground of necessity; but they say where the necessity stops, there the power ceases But this concedes the whole question; for it be lawful to legislate at all, the quantum which may
be necessary is purely a legislative question;
and indeed, whether the Constitution confers directly the legislative power in question or not is immaterial, seeing that it owns the lands, and has power to pass what laws it may deem expedient to dispose of and make them available
Undoubtedly, for temporary purposes, it is indispensable that provision be made to govern the people in order that the lands shall posses any value, or that what remains after part is sold, may not be seized and confiscated What would be proper provisions to this end, is not within the scope of judicial inquiry If it were, it
is demonstrable that the provision in question is most judicious, as a mere regulation to facilitate the disposition of public lands
But it is alleged that the particular provision prohibiting slavery is violative of some part of the Constitution, which establishes the quality
of the States and the rights of slave holders to take that species of property into the Territories
of the United States I admit that whether the power of Congress to legislate be given expressly
or implication, it is given with the limitation that it shall be exercised in subordination to the Constitution, and that if it be exercised in violation of any provisions of the Constitution, the Act would be void Subject to this limita-tion, Congress is at liberty to adopt any means
to accomplish its object
SLAVERY
DRED SCOTT V SANDFORD
Trang 9McCulloch v Maryland, 4 Wheat 316.
But where is it written in the Constitution that no law shall be passed prohibiting slavery in the territories? Not only was this measure adopted as one deemed advisable and proper
to the well government of the territories under both the Confederation and the Constitution, but when the Mississippi Territory was ceded in
1798, it was deemed necessary to stipulate that slavery should not be prohibited, in order to limit the discretion of Congress The limitation sought to be imposed is one dependent altogether upon state laws, and subjects Con-gress to the State Legislatures The Act is now claimed as unconstitutional, because a species of property recognized in the laws of the States cannot be held in the Territories; but it would become constitutional if the States should cease
to recognize such property; and again unconsti-tutional if the States should recognize it again
How the law in question affects the States as States, in any respect, is not perceived; it is not pretended that any State has legislative rights in the Territories
Pollard v Hagan, 3 How 322
On other subjects, there are difficulties in adjusting the rights of the general and state governments; but there can be no conflict on this Over the Territories, the general govern-ment alone has any power; and in the exercise
of that, as of all other powers, is a government
of the people “In form and substance (this court says, it emanates from them, its powers are granted by them, and are to be exercised on them and for their benefit.”
On this branch of the subject, the counsel cited the following authorities: Story’s Com
Const Vol III., pp 193, 195; 1 Kent’s Com
360; Sergeant, Const Law, 389; McCulloch v
Maryland, 4 Wheat 422; Am Ins Co v Canter,
1 Pet 543; Cherokee Nation v Georgia, 5 Pet 44;
Menard v Aspasia, 5 Pet 505;Strader v Graham,
10 How 93; Cross v Harrison, 16 How 193;
Hogg v Zanesville Canal Co 5 Ohio, 410; Phoebe
v Jay, Breese, 210; Spooner v McConnell,
1 McL 341;Harry v Decker, Walker (Miss.) 36;
Rachael v Walker, 4 Mo 350; 3 How 223 And the following Acts of Congress; 1 Stat at L., pp
50, 551; 2 Stat at L., pp 58, 283, 309, 514; 3 Stat at L., p 546; 4 Stat at L., p 740; 5 Stat at L., pp 10, 235, 797; 9 Stat at L., pp 223, 447
Messrs H S Geyer and R Johnson, for the defendant in error:
This cause was argued before this court at the December Term, 1855, when it was ordered
to be re-argued by counsel for their respective parties, at a next term of court, and especially upon the following points:
1 Whether or not the facts being admitted
by the demurrer to the plea to the jurisdiction, the judgment on the demurrer being that the defendant answer over, and the submission of the defendant to that judgment, by pleading over the merits, the appellate court can take notice of these facts thus admitted upon the record, in determining the question of the jurisdiction to the court below, to hear and fully dispose of the case
2 Whether or not, assuming that the appellate court is bound to take notice of the facts thus appearing upon the record, the plaintiff is a citizen of the State of Missouri within the meaning of the 11th section of the Judiciary Act of 1789
l The averment that the plaintiff is a citizen
of the State of Missouri, is a necessary averment
If it had been omitted or defectively stated, it would have been error in the Circuit Court to entertain jurisdiction, even though the defen-dant had not traversed the averment, but pleaded to the merits
3 Dall 382; 2 Cranch, 1, 126; Sullivan v Fulton Steamboat Co 6 Wheat 450; Turner v Enrille, 4 Dall 7; Capron v Van Noorden, 2 Cranch, 126
It the plea demurred to, is to be regarded as a traverse or averment of citizenship of the plaintiff, then the fact on which the plaintiff claims a right to sue in the Circuit Court does not appear by the record; on the contrary, it appears affirmatively that he had no right to sue
in that court The whole question, whether the court could entertain jurisdiction and allow the defendant to plead over, depends on the decision
on the demurrer If that was erroneous, it was error to proceed further, and the defendants pleading over could not give jurisdiction
2 It appears by the record that the defendant is a negro, born a slave; and therefore, whether he is entitled to freedom or not, by his temporary residence at Rock Island
or Fort Snelling, or both, he is not and cannot
be a citizen of the State of Missouri, within the meaning of the Constitution, or sec 11 of the Judiciary Act
SLAVERY
DRED SCOTT V.
SANDFORD
Trang 10Citizens, within the meaning of art 3, sec 2,
are citizens of the United States, who are
citizens of the state in which they respectively
reside
Read v Bertrand, 4 Wash C C 516; Knox v
Greenleaf, 4 Dall 360; 3 Story on Const 565,
secs 1687, 1688; 6 Pet 761
Citizens are natives or naturalized All
persons born in the United States are not
citizens
Exceptions are:
First Children of foreign ambassadors
Second Indians
Third In general, persons of color
1 Bouv Inst pp 16, 64; Amy v Smith, 1 Lit
Ky 334; 2 Kent’s Com p 258, note b
Free blacks are not citizens within the
provision of the Constitution, art 4, sec 2; so
held by Dagget, Ch J., in Connecticut See note
Kent’s Com supra
See also, State v Claiborne, 1 Meigs, 331;
Opinions Atty.Gen Vol I 382, ed 41; Vol I p
506, ed 52.“An inquiry into the political grade
of the free colored population, under the
Constitution of the United States,” by John P
Denny
Persons who are not citizens of the United
States by birth, can become such only by virtue
of treaty, or in pursuance of some law of the
United States
The power of naturalization is exclusively
vested in Congress
U.S v Villato, 2 Dall 370; Chirac v Chirac,
2 Wheat 269; Houston v Moore, 5 Wheat 48
A slave cannot become a citizen merely by a
discharge from bondage
3 Assuming that the Circuit Court had
jurisdiction, the facts, as agreed by the parties,
do not establish the right of the plaintiff, his
wife and children, or either of them, to
freedom
Sec 1 of art 5 of the Constitution of Illinois,
and sec 8 of the Act of 6 March, 1820, do not
declare the consequence of bringing a slave
within the Territory, embraced There is no
exception or saving in respect to the rights of
travelers The effect of the provision is, in terms,
the same, whether a slave is introduced to reside
there or for some temporary purpose Neither
clause changes the condition of the slave
brought into the Territory embraced by it
The slave is held to be free while he remains within such State or country, only because his owner has not the authority of law to restrain him of his liberty
The owner’s authority is restored if the slave
is found within a State or country where slavery exists by law
The Slave Grace, 2 Hagg Adm 94; Willard v
The People, 4 Scam 461; Graham v Strader, 5 B
Mon 181; 7 B Mon 633; Collins v America,
9 B Mon 565; Mercer v Gilman, 11 B Mon
210; Maria v Kirby, 12 B Mon 542; Lewis v
Fullerton, 1 Rand 15
It has been held that where an owner of a slave brings him into a State or country in which slavery does not exist, or is prohibited by law, with the intention to make it his domicil, it operates as an emancipation, and the master cannot resume domain, though the slave return
to, or is found in a country where slavery exists
by law
Rankin v Lydia, 2 A K Marsh 467; Griffith
v Fanny, Gilm (Va.) 143; Lunsford v Coquillon,
2 Mart N S 405; Josephine v Poultney, 1 La
Ann 329; Winney v Whitesides, 1 Mo 472;
Milly v Smith, 2 Mo 172; Nat v Ruddle, 8 Mo
282; Rachel v Walker, 4 Mo 350; overruled in Scott v Emerson, 15 Mo 570; Sylvia v Kirby, 17
Mo 434
These are cases of emancipation by the voluntary act of the master, binding upon him everywhere, as would be emancipation upon any other proof recognized by law Slaves, however, attending their owners temporarily sojourning in, or traveling through a State wherein slavery does not exist by law, are not thereby emancipated
2 A K Marsh 467; Graham v Strader, 5 B
Mon 181; Mercer v Gilman, 11 B Mon 210;
Maria v Kirby, 12 B Mon 542; Lewis v
Fullerton, 1 Rand 15; Henry v Ball, 1 Wheat 1;
Spragg v Mary, 3 Harr & J.; Pocock v Hendricks,
8 Gill & J 421; The Slave Grace, 2 Hagg 94;
Commonwealth v Aves, 18 Pick 193; Mahoney
v Ashton, 4 H & McH 295
The present plaintiff in error was held not entitled to his freedom, on the same state of facts as is now in evidence, in Scott v Emerson,
15 Mo 576
This decision was affirmed in Sylvia v Kirby,
17 Mo 434
SLAVERY
DRED SCOTT V SANDFORD