Chapter LIV: Appendix (2)

OF MISSISSIPPI.

SLAVERY

IN THE

LIGHT OF INTERNATIONAL LAW.

THERE are some who deny the unity of the human race; with such we have no controversy, but it is a part of our religious belief, that "God made of one blood all nations that dwell on the face of the earth;" and on this we would base one of our arguments for the subordination of a part of the human family. It is not necessary to the vindication of our cause, or of truth, to deny the authority, or to fritter away the evident meaning of any part of the word of God, as is done by most of the abolitionists. It is sufficient for our purpose that we have shown that the negro is an inferior variety of the human race; that he is inferior in his physical structure, and in his mental and moral organization. This orgnization incapacitates him for emerging, by his own will and power, from barbarism, and achieving civilization and refinement. History teaches the same lesson. We find Africa to-day, just as it was three thousand years ago. When God created man he said to him, "Be fruitful and multiply and replenish the earth, and subdue it, and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth on the face of the earth." And again, upon the re-creation after the flood, he repeated the command, in almost the same words, to Noah and his sons. This command shows that God had a purpose with regard to the physical world, in placing man upon it, and that man has a mission to fulfill in subduing it, and acquiring a control, not only over animate but also over inanimate nature. Indeed, the one is essential to the other. Man can not control and subdue the inferior animals, until he has acquired some control over the powers of nature. Place him in the forest naked and unarmed, and many of the animals are his superiors; but endow his mind with a knowledge of nature's laws, and thus enable him to make them subservient to his purposes, and he becomes irresistible; a god on earth. In fulfilling this command, man elevates his nature as he increases his knowledge, and thereby extends his powers. God requires that every part of the human family shall fulfill this great command, and contribute their part in rendering subservient to human use, all the faculties of nature. Nay, even where the one talent is misimproved, he takes it away and gives it to him, who has ten talents. It is on this principle that it is right and in accordance with the ordinance of God, to dispossess of their lands, mines, waterpowers, harbors, etc., a savage nation, possessing, but not improving them, and convert them to the uses of the world of mankind. This is the warrant for the conflict of civilization with barbarism. Not to go back to former times, it is this precept which has converted the former howling wilderness of this Western World, into an earthly paradise, affording an ample subsistence to happy millions of the most enlightened of the human family. It is this that causes effete dynasties and nations to disappear from the face of the world, and their places to be supplied by those full of life and energy. It is this that is rolling back and blotting out the mongrel races of the New World, to make room for the onward march of a higher civilization.

The manifest destiny men are not so far wrong after all; but instead of destiny, it is the purpose and ordinance of God. Upon this principle has England acted in reference to India, Australia, China, and in almost every region of the globe. It is upon this principle that Europe is now controlling the destinies of the Old World, as the United States, if they are true to themselves, will control the destinies of the New. This has governed us in requiring that Japan should open her ports to the commerce, and her coal mines to the navies of the world; that she should enrol herself in the brotherhood of nations, and perform her part in the great drama of life. It is upon this principle that England, France, and the United States, are requiring the same thing of China; and it is upon this principle that the vagrant is arrested in your streets and sent to the work-house.

These principles are clearly enunciated, and ably defended by J. Q. Adams in his celebrated speech on the Chinese question, delivered in 1841. It is true, that he applies them to the rights of commerce only; but by legitimate deduction, they are as applicable to the rights of labor, as to the rights of commerce. Although nations and races have always acted on these principles, yet at the time of the delivery of this speech, so startling were the positions assumed by Mr. Adams, that but few could be found who were prepared to defend them, yet none were able to controvert them. Their general adoption at the present day only shows what history has so long taught, that master minds are generally in advance of their age.

In the "Memoir of J. Q. Adams," by Josiah Quincy, we have a report of this speech. Speaking of the Chinese war, Mr. Adams says, "that by the law of nations is to be understood, not one code of laws, binding alike on all nations of the earth, but a system of rules, varying according to the condition and character of the nations concerned. There is a law of nations among Christian communities, which is the law recognized by the Constitution of the United States, as obligatory upon them in their intercourse with European States and colonies. But we have a different law of nations regulating our intercourse with the Indian tribes on this continent; another between us and the woolly-headed nations of Africa; another with the Barbary powers; another with the flowery land, or Celestial empire." Then, reasoning on the rights of property, established by labor, by occupation, by compact, he maintains "that the right of exchange, barter--in other words, of commerce--necessarily follows; that a state of nature among men is a state of peace; the pursuit of happiness, man's natural right; that is the duty of all men to contribute, as much as is in their power, to one another's happiness, and that there is no other way by which they can so well contribute to the comfort and well-being of one another, as by commerce, or the mutual exchange of equivalents." These views and principles he thus illustrates:

"The duty of commercial intercourse between nations, is laid down in terms sufficiently positive by Vattel, but he afterwards qualifies it by a restriction, which, unless itself restricted, annuls it altogether. He says that, although the general duty of commercial intercourse is incumbent upon nations, yet every nation may exclude any particular branch or article of trade, which it may deem injurious to its interests. This can not be denied. But then a nation may multiply these particular exclusions, until they become general, and equivalent to a total interdict of commerce; and this, time out of mind, has been the inflexible policy of the Chinese empire. So says Vattel, without affixing any note of censure upon it. Yet it is manifestly incompatible with the position which he had previously laid down, that commercial intercourse between nations is a moral obligation upon them all."

The same doctrine, with regard to the duties of _individuals_ in a community, that is here advanced by Mr. Adams with regard to _races_ and _nations_, is thus set forth in Blackstone's Commentaries, book iv, chap. xxxiii: "_There is not a more necessary, or more certain maxim, in the frame and constitution of society, than that every individual must contribute his share, in order to the well-being of the community._"

The first principle laid down by Mr. Adams is, that the same code of international law does not apply to all nations alike, but that it varies with the condition and character of the people; that one code of laws applies to the enlightened and Christian nations of Europe, but an entirely different one to the pagan, woolly-headed, barbarians of Africa. What would be just and right with regard to the African, would be eminently unjust towards the European. Though it would be a great wrong to reduce the European to a condition of servitude, it does not follow that it would be equally wrong to enslave the African. If all the human races were alike, one code of international laws would apply to the whole, but so long as the African continues to be an inferior race, they must be treated as such.

But again, Mr. Adams clearly lays down the principle that no nation or race can be permitted, in any way, to isolate itself from the community of nations, but is morally bound to contribute all in its power to the well-being of the whole race, at the same time that it secures its own. If it possesses territory which it occupies, but does not improve, it must yield it to the claims of civiilization. If it has productions valuable to the world, it is morally bound to exchange them. If it has ports, harbors, coal mines, or other facilities for commerce and manufactures, it must allow other nations to participate in its advantages. If it has a superabundant supply of labor, it must be rendered available. If, then, it is right that civilization and progress should appropriate the hunting grounds of the Indian race; if it is right that China and Japan should be required to open their ports to the commerce of the world, it must be equally right that the great store house of labor in Africa should be opened for the benefit of the human race. In the Western World, a vast continent of fertile land and propitious climate, was possessed, not improved, by a sparse hunter race; but the law of God and of nations required that the earth should be subdued and replenished, and now God has enlarged Japheth, and he dwells in these tents of Shem. China, Japan, and other regions of Asia, are inhabited by teeming millions, rich in the productions of art, yet scarcely able to obtain a meagre sustenance, and rigidly excluding all intercourse with the outer world, but at the demands of commerce the barriers are broken down, and they, in common with other nations, are benefited by the change. Africa has long possessed a superabundant population of indolent, degraded, pagan savages, useless to the world and to themselves. Numberless efforts have been made to elevate them in the scale of existence, in their own country, but all in vain. Even when partially civilized, under the control of the white man, they soon relapse into barbarism, if emancipated from this control. But a colony of them, some two hundred years since, were imported into the Western World, and placed subordinate to the white race; and now, if we are to believe the abolitionists, they have improved so rapidly as to have become equal, if not superior, to the white race. Certainly they are far superior to their ancestors, or their brethren in Africa. At the same time, they have conferred an equal benefit on the world. They supply a demand for labor which can not otherwise be met, and their products not only clothe the civilized world, but also are the life-blood of its commerce.

It is not necessary to the discussion of this topic, that we should show _what_ are the laws of nations, applicable to the different races enumerated by Mr. Adams; though it is manifest to the most casual observer, that the laws applicable to them are radically different. What would be thought of a minister at the court of St. James, who should propose to carry out with Great Britain, the same course of policy we pursue towards the Indian tribes; or of the English minister at our capital, who would exact from us the concessions required of the rajahs of India, or the chiefs of Australia? The radical difference is this: among civilized and Christian nations, the law recognizes a perfect equality, and requires an entire reciprocity; but between an elevated and a degraded or inferior race, this inequality is recognized, and an influence and a superiority is accorded to the one, which is denied to the other. This is well illustrated by our present intercourse with Mexico, and should we establish a protectorate over that unhappy country, for their good and our own, it would be in strict accordance with these principles. With some nations we have diplomatic intercourse, on terms of perfect equality and reciprocity; others we treat as inferiors, and assume over them some degree of control, while we nevertheless recognize them as legitimate governments. But there are other nations or races, with whom we form no diplomatic relations, and whose governments we do not recognize. In this latter class are included most of the inhabitants of Africa, and of Hayti; or in other words, the _negro race_. The reason is, that those nations performing their duties to the human race, according to the ordinance of God, are to be recognized as not needing our assistance, or requiring our guardianship; those fulfilling only in part, should be considered in a state of tutelage, but those that fulfill none, or but few of these duties, require to be made subservient to the superior races, in order that they may fulfill the great ends of their existence. This subordination has existed in all times, among all nations, and with all races. But as soon as any race became so developed as no longer to require it, it ceased to exist. In this way, and in this alone,--except by the deportation of the slaves--has slavery ever ceased to exist, in any community; nor can it be otherwise in the future. Emancipation in name, is not always freedom in reality. The free blacks of our Northern States and the West Indies, are, as a mass, more abject slaves than any on our Southern plantations. Nor is it possible for them to acquire a more elevated position, until they shall have acquired the requisite qualifications for that position.

At the present time, with the exception of serfdom, peonage, and political slavery, this subordination is confined to the negro race. Why is this so? Manifestly because they have shown themselves incapable, in their own land, of emerging from barbarism, achieving civilization and refinement, performing their duties to the human race, and becoming entitled to a position as equals among the nations of the earth. Until such improvement takes place as shall entitle them to this exalted position, their own happiness and well-being, their duties to the human race, the claims of civilization, the progress of society, the law of nations, and the ordinance of God, require that they should be placed in a subordinate position to a superior race. Experience also shows us that this is their normal and natural position. In their native land they still are what they have always been, a pagan, savage, servile race, fulfilling their duties neither to themselves, to God, nor to the human race; but under the tutelage of a superior race, they are elevated in the scale of existence, improved mentally, morally, and physically, and are thus enabled to do their part in contributing to the well-being of the human race. But so far as our experience goes, this development is not permanent, but is liable to retrogression as soon as the influence of the superior race is removed. Like the electro-magnet, whose power is lost the moment it is insulated from the vivifying power of electricity, so the servile race loses its power when removed from the control of a superior intellect. The example of our own free blacks, those emancipated in the West Indies, Sierra Leone, and even Liberia, are conclusive on this point.

It becomes us not to speculate too curiously concerning God's plan in governing the world, much less to strive to thwart his purposes with our puny arms; he will work out his purposes of good to the human race, in his own good time and way, whether it meets our views or not. But from the revelation of his purpose concerning the descendants of the three progenitors of the human race after the flood, it is manifest that the children of Ham were to be a servile race; as their final disinthrallment is nowhere spoken of, it is exceedingly improbable that slavery will cease to exist till the end of time. It is true that Ethiopia shall stretch forth her hands to God; but this is being fulfilled on a grander scale than ever before has been witnessed, even in our midst, in this Western World, where God has enlarged Japheth, where he dwells in the tents of Shem, and where Cainan is his servant.

PORT GIBSON, MISSISSIPPI, _February 22, 1860_.

DECISION

OF THE

SUPREME COURT

OF THE UNITED STATES

IN THE

DRED SCOTT CASE.

DRED SCOTT DECISION.

SUPREME COURT OF THE UNITED STATES,

DECEMBER TERM, 1856.

DRED SCOTT

_versus_

JOHN F. A. SANDFORD.

DRED SCOTT, PLAINTIFF IN ERROR, _v._ JOHN F. A. SANDFORD.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri.

It was an action of trespass _vi et armis_ instituted in the Circuit Court by Scott against Sandford.

Prior to the institution of the present suit, an action was brought by Scott for his freedom in the Circuit Court of St. Louis county, (State court,) where there was a verdict and judgment in his favor. On a writ of error to the Supreme Court of the State, the judgment below was reversed, and the case remanded to the Circuit Court, where it was continued to await the decision of the case now in question.

The declaration of Scott contained three counts: one, that Sandford had assaulted the plaintiff; one, that he had assaulted Harriet Scott, his wife; and one, that he had assaulted Eliza Scott and Lizzie Scott, his children.

Sandford appeared, and filed the following plea:

DRED SCOTT }
_v._ } _Plea to the Jurisdiction of the Court._
JOHN F. A. SANDFORD. }

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.

JOHN F. A. SANDFORD.

* * * * *

To this plea there was a demurrer in the usual form, which was argued in April, 1854, when the court gave judgment that the demurrer should be sustained.

In May, 1854, the defendant, in pursuance of an agreement between counsel, and with the leave of the court, pleaded in bar of the action:

1. Not guilty.

2. That the plaintiff was a negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do.

3. That with respect to the wife and daughters of the plaintiff, in the second and third counts of the declaration mentioned, the defendant had, as to them, only acted in the same manner, and in virtue of the same legal right.

In the first of these pleas, the plaintiff joined issue; and to the second and third, filed replications alleging that the defendant, of his own wrong and without the cause in his second and third pleas alleged, committed the trespasses, etc.

The counsel then filed the following agreed statement of facts, viz:

In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

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.

It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court, the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case.

In May, 1854, the cause went before a jury, who found the following verdict, viz: "As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, 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, the court gave judgment for the defendant.

After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions.

On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts, (see agreement above.) No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instruction, viz:

"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 the following instruction to the jury, on motion of the defendant:

"The jury are instructed, that upon the facts in this case, the law is with the defendant." The plaintiff excepted to this instruction.

Upon these exceptions, the case came up to this court.

It was argued at December term, 1855, and ordered to be reargued at the present term.

* * * * *

It was now argued by Mr. Blair and Mr. G. F. Curtis for the plaintiff in error, and by Mr. Geyer and Mr. Johnson for the defendant in error.

* * * * *

Mr. Chief Justice Taney delivered the opinion of the court.

This case has been twice argued. After the argument of the last term, differences of opinion were found to exist among the members of the court; and as the questions in controversy are of the highest importance, and the court was at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case, and direct a reargument on some of the points, in order that we might have an opportunity of giving to the whole subject a more deliberate consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion.

There are two leading questions presented by the record:

1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And

2. If it had jurisdiction, is the judgment it has given erroneous or not?

The plaintiff in error, who was also the plaintiff in the court below, was, with his wife and children, held as slaves by the defendant, in the State of Missouri; and he brought this action in the Circuit Court of the United States for that district, to assert the title of himself and his family to freedom.

The declaration is in the form usually adopted in that State to try questions of this description, and contains the averment necessary to give the court jurisdiction; that he and the defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant a citizen of New York.

The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.

To this plea the plaintiff demurred, and the defendant joined in demurrer. The court overruled the plea, and gave judgment that the defendant should answer over. And he therefore put in sundry pleas in bar, upon which issues were joined; and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error.

Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement.

That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.

If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous and must be reversed.

It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defense by pleading over, and thereby admitted the jurisdiction of the court.

But in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been adverted to. This peculiar and limited jurisdiction, has made it necessary, in these courts, to adopt different rules and principles of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England, and in the different States of the Union which have adopted the common-law rules.

In these last-mentioned courts, where their character and rank are analagous to that of a Circuit Court of the United States; in other words, where they are what the law terms courts of general jurisdiction; they are presumed to have jurisdiction, unless the contrary appears. No averment in the pleadings of the plaintiff is necessary, in order to give jurisdiction. If the defendant objects to it, he must plead it specially, and unless the fact on which he relies is found to be true by a jury, or admitted to be true by the plaintiff, the jurisdiction can not be disputed in an appellate court.

Now, it is not necessary to inquire whether in courts of that description a party who pleads over in bar, when a plea to the jurisdiction has been ruled against him, does or does not waive his plea; nor whether upon a judgment in his favor on the pleas in bar, and a writ of error brought by the plaintiff, the question upon the plea in abatement would be open for revision in the appellate court. Cases that may have been decided in such courts, or rules that may have been laid down by common-law pleaders, can have no influence in the decision in this court. Because, under the Constitution and laws of the United States, the rules which govern the pleadings in its courts, in questions of jurisdiction, stand on different principles and are regulated by different laws.

This difference arises, as we have said, from the peculiar character of the Government of the United States. For although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the Constitution, have been conferred upon it; and neither the legislative, executive, nor judicial departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution. And in regulating the judicial department, the cases in which the courts of the United States shall have jurisdiction are particularly and specifically enumerated and defined; and they are not authorized to take cognizance of any case which does not come within the description therein specified. Hence, when a plaintiff sues in a court of the United States, it is necessary that he should show, in his pleadings, that the suit he brings is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by any oversight of the Circuit Court, obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not be presumed, as in the case of a common-law English or State court, unless the contrary appeared. But the record, when it comes before the appellate court, must show, affirmatively, that the inferior court had authority, under the Constitution, to hear and determine the case. And if the plaintiff claims a right to sue in a Circuit Court of the United States, under that provision of the Constitution which gives jurisdiction in controversies between citizens of different States, he must distinctly aver in his pleadings that they are citizens of different States; and he can not maintain his suit without showing that fact in the pleadings.

This point was decided in the case of Bingham _v._ Cabot, (in 3 Dall., 382,) and ever since adhered to by the court. And in Jackson _v._ Ashton (8 Pet., 148,) it was held that the objection to which it was open could not be waived by the opposite party, because consent of parties could not give jurisdiction.

It is needless to accumulate cases on this subject. Those already referred to, and the cases of Capron _v._ Van Noorden, (in 2 Cr. 126.,) and Montalet _v._ Murray, (4 Cr., 46,) are sufficient to show the rule of which we have spoken. The case of Capron _v._ Van Noorden strikingly illustrates the difference between a common-law court and a court of the United States.

If, however, the fact of citizenship is avered in the declaration, and the defendant does not deny it, and put it in issue by plea in abatement, he can not offer evidence at the trial to disprove it, and consequently can not avail himself of the objection in the appellate court, unless the defect should be apparent in some other part of the record. For if there is no plea in abatement, and the want of jurisdiction does not appear in any other part of the transcript brought up by the writ of error, the undisputed averment of citizenship in the declaration must be taken in this court to be true. In this case, the citizenship is averred, but it is denied by the defendant in the manner required by the rules of pleading, and the fact upon which the denial is based is admitted by the demurrer. And, if the plea and demurrer, and judgment of the court below upon it, are before us upon this record, the question to be decided is, whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.

We think they are before us. The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of the United States _v._ Smith, (11 Wheat., 172,) this court said, that the case being brought up by writ of error, the whole record was under the consideration of this court. And this being the case in the present instance, the plea in abatement is necessarily under consideration; and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.

This is certainly a very serious question, and one that now for the first time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it is our duty to meet it and decide it.

The question is simply this: Can a negro whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves.

The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.

We proceed to examine the case as presented by the pleadings.

The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterward be imported, who had then or should afterward be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?

The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.

It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterward by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignities, and took their places in the family of independent nations. We must inquire who, at that time, were recognized as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce, than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterward formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time.

The legislation of the different colonies furnishes positive and indisputable proof of this fact.

It would be tedious, in this opinion, to enumerate the various laws they passed upon this subject. It will be sufficient, as a sample of the legislation which then generally prevailed throughout the British colonies, to give the laws of two of them; one being still a large slaveholding State, and the other the first State in which slavery ceased to exist.

The province of Maryland, in 1717, (chap, xiii, s. 5,) passed a law declaring "that if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court, where such marriage so happens, shall think fit; to be applied by them toward the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid, with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid."

The other colonial law to which we refer was passed by Massachusetts in 1705, (chap, vi.) It is entitled "An act for the better preventing of a spurious and mixed issue," etc.; and it provides, that "if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justices before whom the offender shall be convicted."

And "that none of her Majesty's English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and toward the support of the Government within this province, and the other moiety to him or them that shall inform and sue for the same in any of her Majesty's courts of record within the province, by bill, plaint, or information."