Report of the Decision of the Supreme Court of the United States , and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F.A. Part 7

"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 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 lat.i.tude 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. 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 a military post called Jefferson barracks.

"In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided.

"Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, 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 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.

"R.M. FIELD, _for Plaintiff_.

"H.A. GARLAND, _for Defendant_.

"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 cause remanded to the Circuit Court, where it has been continued to await the decision of this case.

"FIELD, _for Plaintiff_.

"GARLAND, _for Defendant_."

Upon the aforegoing agreed facts, the plaintiff prayed the court to instruct the jury that they ought to find for the plaintiff, and upon the refusal of the instruction thus prayed for, the plaintiff excepted to the court's opinion. The court then, upon the prayer of the defendant, instructed the jury, that upon the facts of this case agreed as above, the law was with the defendant. To this opinion, also, the plaintiff's counsel excepted, as he did to the opinion of the court denying to the plaintiff a new trial after the verdict of the jury in favor of the defendant.

The question first in order presented by the record in this cause, is that which arises upon the plea in abatement, and the demurrer to that plea; and upon this question it is my opinion that the demurrer should have been overruled, and the plea sustained.

On behalf of the plaintiff it has been urged, that by the pleas interposed in bar of a recovery in the court below, (which pleas both in fact and in law are essentially the same with the objections averred in abatement,) the defence in abatement has been displaced or waived; that it could therefore no longer be relied on in the Circuit Court, and cannot claim the consideration of this court in reviewing this cause. This position is regarded as wholly untenable. On the contrary, it would seem to follow conclusively from the peculiar character of the courts of the United States, as organized under the Const.i.tution and the statutes, and as defined by numerous and unvarying adjudications from this bench, that there is not one of those courts whose jurisdiction and powers can be deduced from mere custom or tradition; not one, whose jurisdiction and powers must not be traced palpably to, and invested exclusively by, the Const.i.tution and statutes of the United States; not one that is not bound, therefore, at all times, and at all stages of its proceedings, to look to and to regard the special and declared extent and bounds of its commission and authority. There is no such tribunal of the United States as a court of _general jurisdiction_, in the sense in which that phrase is applied to the superior courts under the common law; and even with respect to the courts existing under that system, it is a well-settled principle, that _consent_ can never give jurisdiction.

The principles above stated, and the consequences regularly deducible from them, have, as already remarked, been repeatedly and unvaryingly propounded from this bench. Beginning with the earliest decisions of this court, we have the cases of Bingham _v._ Cabot et al., (3 Dallas, 382;) Turner _v._ Eurille, (4 Dallas, 7;) Abercrombie _v._ Dupuis et al., (1 Cranch, 343;) Wood _v._ Wagnon, (2 Cranch, 9;) The United States _v._ The brig Union et al., (4 Cranch, 216;) Sullivan _v._ The Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. _v._ Torrence, (9 Wheaton, 537;) Brown _v._ Keene, (8 Peters, 112,) and Jackson _v._ Ashton, (8 Peters, 148;) ruling, in uniform and unbroken current, the doctrine that it is essential to the jurisdiction of the courts of the United States, that the facts upon which it is founded should appear upon the record. Nay, to such an extent and so inflexibly has this requisite to the jurisdiction been enforced, that in the case of Cap.r.o.n _v._ Van Noorden, (2 Cranch, 126,) it is declared, that the plaintiff in this court may a.s.sign for error his own omission in the pleadings in the court below, where they go to the jurisdiction. This doctrine has been, if possible, more strikingly ill.u.s.trated in a later decision, the case of The State of Rhode Island _v._ The State of Ma.s.sachusetts, in the 12th of Peters.

In this case, on page 718 of the volume, this court, with reference to a motion to dismiss the cause _for want of jurisdiction_, have said: "_However late this objection has been made, or may be made, in any cause in an inferior or appellate court of the United States_, it must be considered and decided before any court can move one farther step in the cause, as any movement is necessarily to exercise the jurisdiction. Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit; to adjudicate or exercise any judicial power over them. The question is, whether on the case before the court their action is judicial or extra-judicial; with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. A motion to dismiss a cause pending in the courts of the United States, is not a.n.a.logous to a plea to the jurisdiction of a court of common law or equity in England; there, the superior courts have a general jurisdiction over all persons within the realm, and all causes of action between them. It depends on the subject-matter, whether the jurisdiction shall be exercised by a court of law or equity; but that court to which it appropriately belongs can act judicially upon the party and the subject of the suit, unless it shall be made apparent to the court that the judicial determination of the case has been withdrawn from the court of general jurisdiction to an inferior and limited one. It is a necessary presumption that the court of general jurisdiction can act upon the given case, when nothing to the contrary appears; hence has arisen the rule that the party claiming an exemption from its process must set out the reason by a special plea in abatement, and show that some inferior court of law or equity has the exclusive cognizance of the case, otherwise the superior court must proceed in virtue of its general jurisdiction. A motion to dismiss, therefore, cannot be entertained, as it does not disclose a case of exception; and if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. There are other cla.s.ses of cases where the objection to the jurisdiction is of a different nature, as on a bill in chancery, that the subject-matter is cognizable only by the King in Council, or that the parties defendant cannot be brought before any munic.i.p.al court on account of their sovereign character or the nature of the controversy; or to the very common cases which present the question, whether the cause belong to a court of law or equity. To such cases, a plea in abatement would not be applicable, because the plaintiff could not sue in an inferior court. The objection goes to a denial of any jurisdiction of a munic.i.p.al court in the one cla.s.s of cases, and to the jurisdiction of any court of equity or of law in the other, on which last the court decides according to its discretion.

"An objection to jurisdiction on the ground of exemption from the process of the court in which the suit is brought, or the manner in which a defendant is brought into it, is waived by appearance and pleading to issue; but when the objection goes to the power of the court over the parties or the subject-matter, the defendant need not, for he cannot, give the plaintiff a better writ. Where an inferior court can have no jurisdiction of a case of law or equity, the ground of objection is not taken by plea in abatement, as an exception of the given case from the otherwise general jurisdiction of the court; appearance does not cure the defect of judicial power, and it may be relied on by plea, answer, demurrer, _or at the trial or hearing_. As a denial of jurisdiction over the subject-matter of a suit between parties within the realm, over which and whom the court has power to act, cannot be successful in an English court of general jurisdiction, a motion like the present could not be sustained consistently with the principles of its const.i.tution. _But as this court is one of limited and special original jurisdiction_, its action must be confined to the particular cases, controversies, and parties, over which the Const.i.tution and laws have authorized it to act; any proceeding without the limits prescribed is _coram non judice_, and its action a nullity. And whether the want or excess of power is objected by a party, or is apparent to the court, it must surcease its action or proceed extra-judicially."

In the constructing of pleadings either in abatement or in bar, every fact or position const.i.tuting a portion of the public law, or of known or general history, is necessarily implied. Such fact or position need not be specially averred and set forth; it is what the world at large and every individual are presumed to know--nay, are bound to know and to be governed by.

If, on the other hand, there exist facts or circ.u.mstances by which a particular case would be withdrawn or exempted from the influence of public law or necessary historical knowledge, such facts and circ.u.mstances form an exception to the general principle, and these must be specially set forth and _established_ by those who would avail themselves of such exception.

Now, the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know--that the African negro race never have been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recognised by the inhabitants of other countries anything partaking of the character of nationality, or civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves, as _property_ in the strictest sense of the term.

In the plea in abatement, the character or capacity of citizen on the part of the plaintiff is denied; and the causes which show the absence of that character or capacity are set forth by averment. The verity of those causes, according to the settled rules of pleading, being admitted by the demurrer, it only remained for the Circuit Court to decide upon their legal sufficiency to abate the plaintiff's action.

And it now becomes the province of this court to determine whether the plaintiff below, (and in error here,) admitted to be a _negro_ of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves--such being his _status_, and such the circ.u.mstances surrounding his position--whether he can, by correct legal induction from that _status_ and those circ.u.mstances, be clothed with the character and capacities of a citizen of the State of Missouri?

It may be a.s.sumed as a postulate, that to a slave, as such, there appertains and can appertain no relation, civil or political, with the State or the Government. He is himself strictly _property_, to be used in subserviency to the interests, the convenience, or the will, of his owner; and to suppose, with respect to the former, the existence of any privilege or discretion, or of any obligation to others incompatible with the magisterial rights just defined, would be by implication, if not directly, to deny the relation of master and slave, since none can possess and enjoy, as his own, that which another has a paramount right and power to withhold. Hence it follows, necessarily, that a slave, the _peculium_ or property of a master, and possessing within himself no civil nor political rights or capacities, cannot be a CITIZEN. For who, it may be asked, is a citizen? What do the character and _status_ of citizen import? Without fear of contradiction, it does not import the condition of being private property, the subject of individual power and owners.h.i.+p. Upon a principle of etymology alone, the term _citizen_, as derived from _civitas_, conveys the ideas of connection or identification with the State or Government, and a partic.i.p.ation of its functions. But beyond this, there is not, it is believed, to be found, in the theories of writers on Government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political.

Thus Vattel, in the preliminary chapter to his Treatise on the Law of Nations, says: "Nations or States are bodies politic; societies of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength. Such a society has her affairs and her interests; she deliberates and takes resolutions _in common_; thus becoming a moral person, who possesses an understanding and a will peculiar to herself." Again, in the first chapter of the first book of the Treatise just quoted, the same writer, after repeating his definition of a State, proceeds to remark, that, "from the very design that induces a number of men to form a society, which has its common interests and which is to act in concert, it is necessary that there should be established a public authority, to order and direct what is to be done by each, in relation to the end of the a.s.sociation. This political authority is the _sovereignty_." Again this writer remarks: "The authority of _all_ over each member essentially belongs to the body politic or the State."

By this same writer it is also said: "The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority; they _equally_ partic.i.p.ate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights." Again: "I say, to be _of the country_, it is necessary to be born of a person who is a _citizen_; for if he be born there of a foreigner, it will be only the place of his _birth_, and not his _country_. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country." (Vattel, Book 1, cap. 19, p. 101.)

From the views here expressed, and they seem to be unexceptionable, it must follow, that with the _slave_, with one devoid of rights or capacities, _civil or political_, there could be no pact; that one thus situated could be no party to, or actor in, the a.s.sociation of those possessing free will, power, discretion. He could form no part of the design, no const.i.tuent ingredient or portion of a society based upon _common_, that is, upon _equal_ interests and powers. He could not at the same time be the sovereign and the slave.

But it has been insisted, in argument, that the emanc.i.p.ation of a slave, effected either by the direct act and a.s.sent of the master, or by causes operating in contravention of his will, produces a change in the _status_ or capacities of the slave, such as will transform him from a mere subject of property, into a being possessing a social, civil, and political equality with a citizen. In other words, will make him a citizen of the State within which he was, previously to his emanc.i.p.ation, a slave.

It is difficult to conceive by what magic the mere _surcease_ or renunciation of an interest in a subject of _property_, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties, can create a citizen of that State? Much more emphatically may it be asked, how such a result could be accomplished by means wholly extraneous, and entirely foreign to the Government of the State? The argument thus urged must lead to these extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the a.n.a.logies of history.

The inst.i.tution of slavery, as it exists and has existed from the period of its introduction into the United States, though more humane and mitigated in character than was the same inst.i.tution, either under the republic or the empire of Rome, bears, both in its tenure and in the simplicity incident to the mode of its exercise, a closer resemblance to Roman slavery than it does to the condition of _villanage_, as it formerly existed in England. Connected with the latter, there were peculiarities, from custom or positive regulation, which varied it materially from the slavery of the Romans, or from slavery at any period within the United States.

But with regard to slavery amongst the Romans, it is by no means true that emanc.i.p.ation, either during the republic or the empire, conferred, by the act itself, or implied, the _status_ or the rights of citizens.h.i.+p.

The proud t.i.tle of Roman citizen, with the immunities and rights incident thereto, and as contradistinguished alike from the condition of conquered subjects or of the lower grades of native domestic residents, was maintained throughout the duration of the republic, and until a late period of the eastern empire, and at last was in _effect_ destroyed less by an elevation of the inferior cla.s.ses than by the degradation of the free, and the previous possessors of rights and immunities civil and political, to the indiscriminate abas.e.m.e.nt incident to absolute and simple despotism.

By the learned and elegant historian of the Decline and Fall of the Roman Empire, we are told that "In the _decline_ of the Roman empire, the proud distinctions of the republic were gradually abolished; and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the memory of famous ancestors. He delighted to honor with t.i.tles and emoluments his generals, magistrates, and senators, and his precarious indulgence communicated some rays of their glory to their wives and children. But in the eye of the law all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was _degraded_ to an obsolete and empty name. The voice of a Roman could no longer enact his laws, or create the annual ministers of his powers; his const.i.tutional rights might have checked the arbitrary will of a master; and the bold adventurer from Germany or Arabia was admitted with equal favor to the civil and military command which the _citizen_ alone had been once ent.i.tled to a.s.sume over the conquests of his fathers. The first Caesars had scrupulously guarded the distinction of _ingenuous_ and _servile_ birth, which was decided by the condition of the mother. The slaves who were liberated by a generous master immediately entered into the middle cla.s.s of _libertini_ or freedmen; but they could never be enfranchised from the duties of obedience and grat.i.tude; whatever were the fruits of their industry, their patron and his family inherited the third part, or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons, but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained without reserve or delay the station of a citizen; and at length the dignity of an ingenuous birth _was created_ or _supposed_ by the omnipotence of the emperor."[1]

[Footnote 1: Vide Gibbons's Decline and Fall of the Roman Empire.

London edition of 1825, vol. 3d, chap. 44, p. 183.]

The above account of slavery and its modifications will be found in strictest conformity with the Inst.i.tutes of Justinian. Thus, book 1st, t.i.tle 3d, it is said: "The first general division of persons in respect to their rights is into freemen and slaves." The same t.i.tle, sec. 4th: "Slaves are born such, or become so. They are born such of bondwomen; they become so either by _the law of nations_, as by capture, or by the civil law." Section 5th: "In the condition of slaves there is no diversity; but among free persons there are many.

Thus some are _ingenui_ or freemen, others _libertini_ or freedmen."

t.i.t. 4th. DE INGENUIS.--"A freeman is one who is born free by being born in matrimony, of parents who both are free, or both freed; or of parents one free and the other freed. But one born of a free mother, although the father be a slave or unknown, is free."

t.i.t. 5th. DE LIBERTINIS.--"Freedmen are those who have been manumitted from just servitude."

Section third of the same t.i.tle states that "freedmen were formerly distinguished by a threefold division." But the emperor proceeds to say: "Our _piety_ leading us to reduce all things into a better state, we have amended our laws, and re-established the ancient usage; for anciently liberty was simple and undivided--that is, was conferred upon the slave as his manumittor possessed it, admitting this single difference, that the person manumitted became only a _freed man_, although his manumittor was a _free_ man." And he further declares: "We have made all freed men in general become citizens of Rome, regarding neither the age of the manumitted, nor the manumittor, nor the ancient forms of manumission. We have also introduced many new methods by which _slaves_ may become Roman citizens."

By the references above given it is shown, from the nature and objects of civil and political a.s.sociations, and upon the direct authority of history, that citizens.h.i.+p was not conferred by the simple fact of emanc.i.p.ation, but that such a result was deduced therefrom in violation of the fundamental principles of free political a.s.sociation; by the exertion of despotic will to establish, under a false and misapplied denomination, one equal and universal slavery; and to effect this result required the exertions of absolute power--of a power both in theory and practice, being in its most plenary acceptation the SOVEREIGNTY, THE STATE ITSELF--it could not be produced by a less or inferior authority, much less by the will or the act of one who, with reference to civil and political rights, was himself a _slave_. The master might abdicate or abandon his interest or owners.h.i.+p in his property, but his act would be a mere abandonment.

It seems to involve an absurdity to impute to it the invest.i.ture of rights which the sovereignty alone had power to impart. There is not perhaps a community in which slavery is recognised, in which the power of emanc.i.p.ation and the modes of its exercise are not regulated by law--that is, by the sovereign authority; and none can fail to comprehend the necessity for such regulation, for the preservation of order, and even of political and social existence.

By the argument for the plaintiff in error, a power equally despotic is vested in every member of the a.s.sociation, and the most obscure or unworthy individual it comprises may arbitrarily invade and derange its most deliberate and solemn ordinances. At a.s.sumptions anomalous as these, so fraught with mischief and ruin, the mind at once is revolted, and goes directly to the conclusions, that to change or to abolish a fundamental principle of the society, must be the act of the society itself--of the _sovereignty_; and that none other can admit to a partic.i.p.ation of that high attribute. It may further expose the character of the argument urged for the plaintiff, to point out some of the revolting consequences which it would authorize. If that argument possesses any integrity, it a.s.serts the power in any citizen, or _quasi_ citizen, or a resident foreigner of any one of the States, from a motive either of corruption or caprice, not only to infract the inherent and necessary authority of such State, but also materially to interfere with the organization of the Federal Government, and with the authority of the separate and independent States. He may emanc.i.p.ate his negro slave, by which process he first transforms that slave into a citizen of his own State; he may next, under color of article fourth, section second, of the Const.i.tution of the United States, obtrude him, and on terms of civil and political equality, upon any and every State in this Union, in defiance of all regulations of necessity or policy, ordained by those States for their internal happiness or safety. Nay, more: this manumitted slave may, by a proceeding springing from the will or act of his master alone, be mixed up with the inst.i.tutions of the Federal Government, to which he is not a party, and in opposition to the laws of that Government which, in authorizing the extension by naturalization of the rights and immunities of citizens of the United States to those not originally parties to the Federal compact, have restricted that boon to _free white aliens alone_. If the rights and immunities connected with or practiced under the inst.i.tutions of the United States can by any indirection be claimed or deduced from sources or modes other than the Const.i.tution and laws of the United States, it follows that the power of naturalization vested in Congress is not exclusive--that it has _in effect_ no existence, but is repealed or abrogated.

But it has been strangely contended that the jurisdiction of the Circuit Court might be maintained upon the ground that the plaintiff was a _resident_ of Missouri, and that, for the purpose of vesting the court with jurisdiction over the parties, _residence_ within the State was sufficient.

The first, and to my mind a conclusive reply to this singular argument is presented in the fact, that the language of the Const.i.tution restricts the jurisdiction of the courts to cases in which the parties shall be _citizens_, and is entirely silent with respect to residence.

A second answer to this strange and lat.i.tudinous notion is, that it so far stultifies the sages by whom the Const.i.tution was framed, as to impute to them ignorance of the material distinction existing between _citizens.h.i.+p_ and mere _residence_ or _domicil_, and of the well-known facts, that a person confessedly an _alien_ may be permitted to reside in a country in which he can possess no civil or political rights, or of which he is neither a citizen nor subject; and that for certain purposes a man may have a _domicil_ in different countries, in no one of which he is an actual personal resident.

The correct conclusions upon the question here considered would seem to be these:

That in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union as _property_ merely, and as such was not and could not be a party or an actor, much less a _peer_ in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignty--the State--exerted to that end, either in the form of legislation, or in some other mode of operation.

It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That so far as rights and immunities appertaining to citizens have been defined and secured by the Const.i.tution and laws of the United States, the African race is not and never was recognised either by the language or purposes of the former; and it has been expressly excluded by every act of Congress providing for the creation of citizens by _naturalization_, these laws, as has already been remarked, being restricted to _free white aliens_ exclusively.

But it is evident that, after the formation of the Federal Government by the adoption of the Const.i.tution, the highest exertion of State power would be incompetent to bestow a character or status created by the Const.i.tution, or conferred in virtue of its authority only. Upon those, therefore, who were not originally parties to the Federal compact, or who are not admitted and adopted as parties thereto, in the mode prescribed by its paramount authority, no State could have power to bestow the character or the rights and privileges exclusively reserved by the States for the action of the Federal Government by that compact.

The States, in the exercise of their political power, might, with reference to their peculiar Government and jurisdiction, guaranty the rights of person and property, and the enjoyment of civil and political privileges, to those whom they should be disposed to make the objects of their bounty; but they could not reclaim or exert the powers which they had vested exclusively in the Government of the United States. They could not add to or change in any respect the cla.s.s of persons to whom alone the character of citizen of the United States appertained at the time of the adoption of the Federal Const.i.tution. They could not create citizens of the United States by any direct or indirect proceeding.

According to the view taken of the law, as applicable to the demurrer to the plea in abatement in this cause, the questions subsequently raised upon the several pleas in bar might be pa.s.sed by, as requiring neither a particular examination, nor an adjudication directly upon them. But as these questions are intrinsically of primary interest and magnitude, and have been elaborately discussed in argument, and as with respect to them the opinions of a majority of the court, including my own, are perfectly coincident, to me it seems proper that they should here be fully considered, and, so far as it is practicable for this court to accomplish such an end, finally put to rest.

The questions then to be considered upon the several pleas in bar, and upon the agreed statement of facts between the counsel, are: 1st.

Whether the admitted master and owner of the plaintiff, holding him as his slave in the State of Missouri, and in conformity with his rights guarantied to him by the laws of Missouri then and still in force, by carrying with him for his own benefit and accommodation, and as his own slave, the person of the plaintiff into the State of Illinois, within which State slavery had been prohibited by the Const.i.tution thereof, and by retaining the plaintiff during the commorancy of the master within the State of Illinois, had, upon his return with his slave into the State of Missouri, forfeited his rights as master, by reason of any supposed operation of the prohibitory provision in the Const.i.tution of Illinois, beyond the proper territorial jurisdiction of the latter State? 2d. Whether a similar removal of the plaintiff by his master from the State of Missouri, and his retention in service at a point included within no State, but situated north of thirty-six degrees thirty minutes of north lat.i.tude, worked a forfeiture of the right of property of the master, and the manumission of the plaintiff?