DRED SCOTT CONCURRING OPINIONS
Justice Catron,Justice Wayne, Justice Nelson,
Justice Grier, Justice Daniel,
and Justice Campbell concurring in
separate opinions.
Justice McLean and
Justice Curtis dissenting in separate
opinions.
Mr. Justice CATRON .
The defendant pleaded to the jurisdiction of
the Circuit Court, that the plaintiff was a negro of African blood;
the descendant of Africans, who had been imported and sold in
this country as slaves, and thus had no capacity as a citizen
of Missouri to maintain a suit in the Circuit Court. The court
sustained a demurrer to this plea, and a trial was had upon the
pleas, of the general issue, and also that the plaintiff and his
family were slaves, belonging to the defendant. In this trial,
a verdict was given for the defendant.
The judgment of the Circuit Court upon the
plea in abatement is not open, in my opinion, to examination in
this court upon the plaintiff's writ.
The judgment was given for him conformably
to the prayer of his demurrer. He cannot assign an error in such
a judgment. (Tidd's Pr., 1163; 2 Williams's Saund., 46 a; 2 Iredell
N. C., 87; 2 W. and S., 391.) Nor does the fact that the judgment
was given on a plea to the jurisdiction, avoid the application
of this rule. (Capron v. Van Noorden, 2 Cr., 126; 6 Wend., 465;
7 Met., 598; 5 Pike, 1005.)
The declaration discloses a case within the
jurisdiction of the courta controversy between citizens of different
States. The plea in abatement, impugning these jurisdictional
averments, was waived when the defendant answered to the declaration
by pleas to the merits. The proceedings on that plea remain a
part of the technical record, to show the history of the case,
but are not open to the review of this court by a writ of error.
The authorities are very conclusive on this point. Shepherd v.
Graves, 14 How., 505; Bailey v. Dozier, 6 How., 23; 1 Stewart,
(Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2 Stewart, (Alabama,)
370, 443; 2 Scammon, (Illinois,) 78. Nor can the court assume,
as admitted facts, the averments of the plea from the confession
of the demurrer. That confession was for a single object, and
cannot be used for any other purpose than to test the validity
of the plea. Tompkins v. Ashley, 1 Moody and Mackin, 32; 33 Maine,
96, 100.
There being nothing in controversy here but
the merits, I will proceed to discuss them.
The plaintiff claims to have acquired property
in himself, and became free, by being kept in Illinois during
two years.
The Constitution, laws, and policy, of Illinois,
are somewhat peculiar respecting slavery. Unless the master becomes
an inhabitant of that State, the slaves he takes there do not
acquire their freedom; and if they return with their master to
the slave State of his domicil, they cannot assert their freedom
after their return. For the reasons and authorities on this point,
I refer to the opinion of my brother Nelson, with which I not
only concur, but think his opinion is the most conclusive argument
on the subject within my knowledge.
It is next insisted for the plaintiff, that
his freedom (and that of his wife and eldest child) was obtained
by force of the act of Congress of 1820, usually known as the
Missouri compromise act, which declares: 'That in all that territory
ceded by France to the United States, which lies north of thirtysix
degrees thirty minutes north latitude, slavery and involuntary
servitude shall be, and are hereby, forever prohibited.'
From this prohibition, the territory now constituting
the State of Missouri was excepted; which exception to the stipulation
gave it the designation of a compromise.
The first question presented on this act is,
whether Congress had power to make such compromise. For, if power
was wanting, then no freedom could be acquired by the defendant
under the act.
That Congress has no authority to pass laws
and bind men's rights beyond the powers conferred by the Constitution,
is not open to controversy. But it is insisted that, by the Constitution,
Congress has power to legislate for and govern the Territories
of the United States, and that by force of the power to govern,
laws could be enacted, prohibiting slavery in any portion of the
Louisiana Territory; and, of course, to abolish slavery in all
parts of it, whilst it was, or is, governed as a Territory.
My opinion is, that Congress is vested with
power to govern the Territories of the United States by force
of the third section of the fourth article of the Constitution.
And I will state my reasons for this opinion.
Amlost every provision in that instrument has
a history that must be understood, before the brief and sententious
language employed can be comprehended in the relations its authors
intended. We must bring before us the state of things presented
to the Convention, and in regard to which it acted, when the compound
provision was made, declaring: 1st. That 'new States may be admitted
by the Congress into this Union.' 2d. 'The Congress shall have
power to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the United
States. And nothing in this Constitution shall be so construed
as to prejudice any claims of the United States, or any particular
State.'
Having ascertained the historical facts giving
rise to these provisions, the difficulty of arriving at the true
meaning of the language employed will be greatly lessened.
The history of these facts is substantially
as follows:
The King of Great Britain, by his proclamation
of 1763, virtually claimed that the country west of the mountains
had been conquered from France, and ceded to the Crown of Great
Britain by the treaty of Paris of that year, and he says: 'We
reserve it under our sovereignty, protection, and dominion, for
the use of the Indians.'
This country was conquered from the Crown of
Great Britain, and surrendered to the United States by the treaty
of peace of 1783. The colonial charters of Virginia, North Carolina,
and Georgia, included it. Other States set up pretensions of claim
to some portions of the territory north of the Ohio, but they
were of no value, as I suppose. (5 Wheat., 375.)
As this vacant country had been won by the
blood and treasure of all the States, those whose charters did
not reach it, insisted that the country belonged to the States
united, and that the lands should be disposed of for the benefit
of the whole; and to which end, the western territory should be
ceded to the States united. The contest was stringent and angry,
long before the Convention convened, and deeply agitated that
body. As a matter of justice, and to quiet the controversy, Virginia
consented to cede the country north of the Ohio as early as 1783;
and in 1784 the deed of cession was executed, by her delegates
in the Congress of the Confederation, conveying to the United
States in Congress assembled, for the benefit of said States,
'all right, title, and claim, as well of soil as of jurisdiction,
which this Commonwealth hath to the territory or tract of country
within the limits of the Virginia charter, situate, lying, and
being to the northwest of the river Ohio.' In 1787, (July 13,)
the ordinance was passed by the old Congress to govern the Territory.
Massachusetts had ceded her pretension of claim
to western territory in 1785, Connecticut hers in 1786, and New
York had ceded hers. In August, 1787, South Carolina ceded to
the Confederation her pretension of claim to territory west of
that State. And North Carolina was expected to cede hers, which
she did do, in April, 1790. And so Georgia was confidently expected
to cede her large domain, now constituting the territory of the
States of Alabama and Mississippi.
At the time the Constitution was under consideration,
there had been ceded to the United States, or was shortly expected
to be ceded, all the western country, from the British Canada
line to Florida, and from the head of the Mississippi almost to
its mounth, except that portion which now constitutes the State
of Kentucky.
Although Virginia had conferred on the Congress
of the Confederation power to govern the Territory north of the
Ohio, still, it cannot be denied, as I think, that power was wanting
to admit a new State under the Articles of Confederation.
With these facts prominently before the Convention,
they proposed to accomplish these ends:
1st. To give power to admit new States.
2d. To dispose of the public lands in the Territories,
and such as might remain undisposed of in the new States after
they were admitted.
And, thirdly, to give power to govern the different
Territories as incipient States, not of the Union, and fit them
for admission. No one in the Convention seems to have doubted
that these powers were necessary. As early as the third day of
its session, (May 29th,) Edmund Randolph brought forward a set
of resolutions containing nearly all the germs of the Constitution,
the tenth of which is as follows:
'Resolved, That provision ought to be made
for the admission of States lawfully arising within the limits
of the United States, whether from a voluntary junction of government
and territory or otherwise, with the consent of a number of voices
in the National Legislature less than the whole.'
August 18th, Mr. Madison submitted, in order
to be referred to the committee of detail, the following powers
as proper to be added to those of the General Legislature:
'To dispose of the unappropriated lands of
the United States.' 'To institute temporary Governments for new
States arising therein.' (3 Madison Papers, 1353.)
These, with the resolution, that a district
for the location of the seat of Government should be provided,
and some others, were referred, without a dissent, to the committee
of detail, to arrange and put them into satisfactory language.
Gouverneur Morris constructed the clauses,
and combined the views of a majority on the two provisions, to
admit new States; and secondly, to dispose of the public lands,
and to govern the Territories, in the mean time, between the cessions
of the States and the admission into the Union of new States arising
in the ceded territory. (3 Madison Papers, 1456 to 1466.)
It was hardly possible to separate the power
'to make all needful rules and regulations' respecting the government
of the territory and the disposition of the public lands.
North of the Ohio, Virginia conveyed the lands,
and vested the jurisdiction in the thirteen original States, before
the Constitution was formed. She had the sole title and sole sovereignty,
and the same power to cede, on any terms she saw proper, that
the King of England had to grant the Virginia colonial charter
of 1609, or to grant the charter of Pennsylvania to William Penn.
The thirteen States, through their representatives and deputed
ministers in the old Congress, had the same right to govern that
Virginia had before the cession. (Baldwin's Constitutional Views,
90.) And the sixth article of the Constitution adopted all engagements
entered into by the Congress of the Confederation, as valid against
the United States; and that the laws, made in pursuance of the
new Constitution, to carry out this engagement, should be the
supreme law of the land, and the judges bound thereby. To give
the compact, and the ordinance, which was part of it, full effect
under the new Government, the act of August 7th, 1789, was passed,
which declares, 'Whereas, in order that the ordinance of the United
States in Congress assembled, for the government of the Territory
northwest of the river Ohio, may have full effect, it is requisite
that certain provisions should be made, so as to adapt the same
to the present Constitution of the United States.' It is then
provided that the Governor and other officers should be appointed
by the President, with the consent of the Senate; and be subject
to removal, &c., in like manner that they were by the old
Congress, whose functions had ceased.
By the powers to govern, given by the Constitution,
those amendments to the ordinance could be made, but Congress
guardedly abstained from touching the compact of Virginia, further
than to adapt it to the new Constitution.
It is due to myself to say, that it is asking
much of a judge, who has for nearly twenty years been exercising
jurisdiction, from the western Missouri line to the Rocky Mountains,
and, on this understanding of the Constitution, inflicting the
extreme penalty of death for crimes committed where the direct
legislation of Congress was the only rule, to agree that he had
been all the while acting in mistake, and as an usurper.
More than sixty years have passed away since
Congress has exercised power to govern the Territories, by its
legislation directly, or by Territorial charters, subject to repeal
at all times, and it is now too late to call that power into question,
if this court could disregard its own decisions; which it cannot
do, as I think. It was held in the case of Cross v. Harrison,
(16 How., 193'4,) that the sovereignty of California was in the
United States, in virtue of the Constitution, by which power had
been given to Congress to dispose of and make all needful rules
and regulations respecting the territory or other property belonging
to the United States, with the power to admit new States into
the Union. That decision followed preceding ones, there cited.
The question was then presented, how it was possible for the judicial
mind to conceive that the United States Government, created solely
by the Constitution, could, by a lawful treaty, acquire territory
over which the acquiring power had no jurisdiction to hold and
govern it, by force of the instrument under whose authority the
country was acquired; and the foregoing was the conclusion of
this court on the proposition. What was there announced, was most
deliberately done, and with a purpose. The only question here
is, as I think, how far the power of Congress is limited.
As to the Northwest Territory, Virginia had
the right to abolish slavery there; and she did so agree in 1787,
with the other States in the Congress of the Confederation, by
assenting to and adopting the ordinance of 1787, for the government
of the Northwest Territory. She did this also by an act of her
Legislature, passed afterwards, which was a treaty in fact.
Before the new Constitution was adopted, she
had as much right to treat and agree as any European Government
had. And, having excluded slavery, the new Government was bound
by that engagement by article six of the new Constitution. This
only meant that slavery should not exist whilst the United States
exercised the power of government, in the Territorial form; for,
when a new State came in, it might do so, with or without slavery.
My opinion is, that Congress had no power,
in face of the compact between Virginia and the twelve other States,
to force slavery into the Northwest Territory, because there,
it was bound to that 'engagement,' and could not break it.
In 1790, North Carolina ceded her western territory,
now the State of Tennessee, and stipulated that the inhabitants
thereof should enjoy all the privileges and advantages of the
ordinance for governing the territory north of the Ohio river,
and that Congress should assume the government, and accept the
cession, under the express conditions contained in the ordinance:
Provided, 'That no regulation made, or to be made, by Congress,
shall tend to emancipate slaves.'
In 1802, Georgia ceded her western territory
to the United States, with the provision that the ordinance of
1787 should in all its parts extend to the territory ceded, 'that
article only excepted which forbids slavery.' Congress had no
more power to legislate slavery out from the North Carolina and
Georgia cessions, than it had power to legislate slavery in, north
of the Ohio. No power existed in Congress to legislate at all,
affecting slavery, in either case. The inhabitants, as respected
this description of property, stood protected whilst they were
governed by Congress, in like manner that they were protected
before the cession was made, and when they were, respectively,
parts of North Carolina and Georgia.
And how does the power of Congress stand west
of the Mississippi river? The country there was acquired from
France, by treaty, in 1803. It declares, that the First Consul,
in the name of the French Republic, doth hereby cede to the United
States, in full sovereignty, the colony or province of Louisiana,
with all the rights and appurtenances of the said territory. And,
by article third, that 'the inhabitants of the ceded territory
shall be incorporated in the Union of the United States, and admitted
as soon as possible, according to the principles of the Federal
Constitution, to the enjoyment of all the rights, advantages,
and immunities, of citizens of the United States; and, in the
mean time, they shall be maintained and protected in the free
enjoyment of their liberty, property, and the religion which they
profess.'
Louisiana was a province where slavery was
not only lawful, but where property in slaves was the most valuable
of all personal property. The province was ceded as a unit, with
an equal right pertaining to all its inhabitants, in every part
thereof, to own slaves. It was, to a great extent, a vacant country,
having in it few civilized inhabitants. No one portion of the
colony, of a proper size for a State of the Union had a sufficient
number of inhabitants to claim admission into the Union. To enable
the United States to fulfil the treaty, additional population
was indispensable, and obviously desired with anxiety by both
sides, so that the whole country should, as soon as possible,
become States of the Union. And for this contemplated future population,
the treaty as expressly provided as it did for the inhabitants
residing in the province when the treaty was made. All these were
to be protected 'in the mean time;' that is to say, at all times,
between the date of the treaty and the time when the portion of
the Territory where the inhabitants resided was admitted into
the Union as a State.
At the date of the treaty, each inhabitant
had the right to the free enjoyment of his property, alike with
his liberty and his religion, in every part of Louisiana; the
province then being one country, he might go everywhere in it,
and carry his liberty, property, and religion, with him, and in
which he was to be maintained and protected, until he became a
citizen of a State of the Union of the United States. This cannot
be denied to the original inhabitants and their descendants. And,
if it be true that immigrants were equally protected, it must
follow that they can also stand on the treaty.
The settled doctrine in the State courts of
Louisiana is, that a French subject coming to the Orleans Territory,
after the treaty of 1803 was made, and before Louisiana was admitted
into the Union, and being an inhabitant at the time of the admission,
became a citizen of the United States by that act; that he was
one of the inhabitants contemplated by the third article of the
treaty, which referred to all the inhabitants embraced within
the new State on its admission.
That this is the true construction, I have
no doubt.
If power existed to draw a line at thirtysix
degrees thirty minutes north, so Congress had equal power to draw
the line on the thirtieth degreethat is, due west from the city
of New Orleansand to declare that north of that line slavery should
never exist. Suppose this had been done before 1812, when Louisiana
came into the Union, and the question of infraction of the treaty
had then been presented on the present assumption of power to
prohibit slavery, who doubts what the decision of this court would
have been on such an act of Congress; yet, the difference between
the supposed line, and that on thirtysix degrees thirty minutes
north, is only in the degree of grossness presented by the lower
line.
The Missouri compomise line of 1820 was very
aggressive; it declared that slavery was abolished forever throughout
a country reaching from the Mississippi river to the Pacific ocean,
stretching over thirtytwo degrees of longitude, and twelve and
a half degrees of latitude on its eastern side, sweeping over
fourfifths, to say no more, of the original province of Louisiana.
That the United States Government stipulated
in favor of the inhabitants to the extent here contended for,
has not been seriously denied, as far as I know; but the argument
is, that Congress had authority to repeal the third article of
the treaty of 1803, in so far as it secured the right to hold
slave property, in a portion of the ceded territory, leaving the
right to exist in other parts. In other words, that Congress could
repeal the third article entirely, at its pleasure. This I deny.
The compacts with North Carolina and Georgia
were treaties also, and stood on the same footing of the Louisiana
treaty; on the assumption of power to repeal the one, it must
have extended to all, and Congress could have excluded the slaveholder
of North Carolina from the enjoyment of his lands in the Territory
now the State of Tennessee, where the citizens of the mother State
were the principal proprietors.
And so in the case of Georgia. Her citizens
could have been refused the right to emigrate to the Mississippi
or Alabama Territory, unless they left their most valuable and
cherished property behind them.
The Constitution was framed in reference to
facts then existing or likely to arise: the instrument looked
to no theories of Government. In the vigorous debates in the Convention,
as reported by Mr. Madison and others, surrounding facts, and
the condition and necessities of the country, gave rise to almost
every provision; and among those facts, it was prominently true,
that Congress dare not be intrusted with power to provide that,
if North Carolina or Georgia ceded her western territory, the
citizens of the State (in either case) could be prohibited, at
the pleasure of Congress, from removing to their lands, then granted
to a large extent, in the country likely to be ceded, unless they
left their slaves behind. That such an attempt, in the face of
a population fresh from the war of the Revolution, and then engaged
in war with the great confederacy of Indians, extending from the
mouth of the Ohio to the Gulf of Mexico, would end in open revolt,
all intelligent men knew.
In view of these facts, let us inquire how
the question stands by the terms of the Constitution, aside from
the treaty? How it stood in public opinion when the Georgia cession
was made, in 1802, is apparent from the fact that no guaranty
was required by Georgia of the United States, for the protection
of slave property. The Federal Constitution was relied on, to
secure the rights of Georgia and her citizens during the Territorial
condition of the country. She relied on the indisputable truths,
that the States were by the Constitution made equals in political
rights, and equals in the right to participate in the common property
of all the States united, and held in trust for them. The Constitution
having provided that 'The citizens of each State shall be entitled
to all privileges and immunities of citizens of the several States,'
the right to enjoy the territory as equals was reserved to the
States, and to the citizens of the States, respectively. The cited
clause is not that citizens of the United States shall have equal
privileges in the Territories, but the citizen of each State shall
come there in right of his State, and enjoy the common property.
He secures his equality through the equality of his State, by
virtue of that great fundamental condition of the Unionthe equality
of the States.
Congress cannot do indirectly what the Constitution
prohibits directly. If the slaveholder is prohibited from going
to the Territory with his slaves, who are parts of his family
in name and in fact, it will follow that men owning lawful property
in their own States, carrying with them the equality of their
State to enjoy the common property, may be told, you cannot come
here with your slaves, and he will be held out at the border.
By this subterfuge, owners of slave property, to the amount of
thousand of millions, might be almost as effectually excluded
from removing into the Territory of Louisiana north of thirtysix
degrees thirty minutes, as if the law declared that owners of
slaves, as a class, should be excluded, even if their slaves were
left behind.
Just as well might Congress have said to those
of the North, you shall not introduce into the territory south
of said line your cattle or horses, as the country is already
overstocked; nor can you introduce your tools of trade, or machines,
as the policy of Congress is to encourage the culture of sugar
and cotton south of the line, and so to provide that the Northern
people shall manufacture for those of the South, and barter for
the staple articles slave labor produces. And thus the Northern
farmer and mechanic would be held out, as the slaveholder was
for thirty years, by the Missouri restriction.
If Congress could prohibit one species of property,
lawful throughout Louisiana when it was acquired, and lawful in
the State from whence it was brought, so Congress might exclude
any or all property.
The case before us will illustrate the construction
contended for. Dr. Emerson was a citizen of Missouri; he had an
equal right to go to the Territory with every citizen of other
States. This is undeniable, as I suppose. Scott was Dr. Emerson's
lawful property in Missouri; he carried his Missouri title with
him; and the precise question here is, whether Congress had the
power to annul that title. It is idle to say, that if Congress
could not defeat the title directly, that it might be done indirectly,
by drawing a narrow circle around the slave population of Upper
Louisiana, and declaring that if the slave went beyond it he should
be free. Such assumption is mere evasion, and entitled to no consideration.
And it is equally idle to contend, that because Congress has express
power to regulate commerce among the Indian tribes, and to prohibit
intercourse with the Indians, that therefore Dr. Emerson's title
might be defeated within the country ceded by the Indians to the
United States as early as 1805, and which embraces Fort Snelling.
(Am. State Papers, vol. 1, p. 734.) We must meet the question,
whether Congress had the power to declare that a citizen of a
State, carrying with him his equal rights, secured to him through
his State, could be stripped of his goods and slaves, and be deprived
of any participation in the common property? If this be the true
meaning of the Constitution, equality of rights to enjoy a common
country (equal to a thousand miles square) may be cut off by a
geographical line, and a great portion of our citizens excluded
from it.
Ingenious, indirect evasions of the Constitution
have been attempted and defeated heretofore. In the passenger
cases, (7 How. R.,) the attempt was made to impose a tax on the
masters, crews, and passengers of vessels, the Constitution having
prohibited a tax on the vessel itself; but this court held the
attempt to be a mere evasion, and pronounced the tax illegal.
I admit that Virginia could, and lawfully did,
prohibit slavery northwest of the Ohio, by her charter of cession,
and that the territory was taken by the United States with this
condition imposed. I also admit that France could, by the treaty
of 1803, have prohibited slavery in any part of the ceded territory,
and imposed it on the United States as a fundamental condition
of the cession, in the mean time, till new States were admitted
in the Union.
I concur with Judge Baldwin, that Federal power
is exercised over all the territory within the United States,
pursuant to the Constitution; and, the conditions of the cession,
whether it was a part of the original territory of a State of
the Union, or of a foreign State, ceded by deed or treaty; the
right of the United States in or over it depends on the contract
of cession, which operates to incorporate as well the Territory
as its inhabitants into the Union. (Baldwin's Constitutional Views,
84.)
My opinion is, that the third article of the
treaty of 1803, ceding Louisiana to the United States, stands
protected by the Constitution, and cannot be repealed by Congress.
And, secondly, that the act of 1820, known
as the Missouri compromise, violates the most leading feature
of the Constitutiona feature on which the Union depends, and which
secures to the respective States and their citizens and entire
EQUALITY of rights, privileges, and immunities.
On these grounds, I hold the compromise act
to have been void; and, consequently, that the plaintiff, Scott,
can claim no benefit under it.
For the reasons above stated, I concur with
my brother, judges that the plaintiff, Scott, is a slave, and
was so when this suit was brought.
LINCOLN BIOGRAPHY
LINCOLN'S HOUSE DIVIDED SPEECH
