Scott v Sandford: Pleadings

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IN ERROR to the Circuit Court of the United States for the District of Missouri.

On November 2, 1853, Dred Scott, by his attorney, filed in the clerk's office of the Circuit Court of the United States for the District of Missouri, the following declaration against the defendant, John F. A. Sanford:

Dred Scott, of St. Louis, in the State of Missouri, and a citizen of the State of Missouri, complains of John F. A. Sandford, of the City of New York, and a citizen of the State of New York, in the plea of trespass for that the defendant heretofore, to wit: on the 1st day of January, A. D. 1853, at St. Louis in the County of St. Louis and State of Missouri, with force and arms assaulted the plaintiff, and without law or right held him as a slave, and imprisoned him for the space of six hours and more, and then and there did threaten to beat the plaintiff and to hold him in prison, and restrained of his lberty, so that by means of such threats the plaintif was put in fear and could not attend to his business, and thereby lost great gains and profits which he might have made and otherwise would have made in the proseention of his business, to wit: $2,500, and other wrongs to the plaintiff then and there did, against the peace and to the damage of the plaintiff $3,000.

And also for that the defendent heretofore on the 1st day of January A. D. 1853, with force and arms at St. Louis aforesaid, an assault did make on Harriet Scott, then and still the wife of the plaintiff, and then and there did imprision Harriet, and hold her as a slave, without law or right, for the space of six hours, and then and there did threaten to beat said Harriet and hold her as a slave, so that by means of the premises said Harriet was put in great fear and pain and could not and did not attend to the plaintiff's business, and the plaintiff lost and was deprived of the society, comfort and assistance of said wife, and thereby lost great gains and profits, of the value, to wit: of $2,500, and other wrongs to the plaintiff, the defendent then and there did, against the peace and to the plaintiff's damage, $3,000.

And also for that the defenden heretofore, to wit: on the 1st day of January, A. D. 1853, with force and arms at St. Louis aforesaid made an assault on Eliza Scott and Lizzie Scott, then and still infant daughters and servants of the plaintiff, and then and there imprisoned and held as slaves said Eliza and Lizzie, for a long space of time, to wit: six hours, and then and there did threaten to beat said Eliza and Lizzie and hold them as slaves and restrained of their liberty, so that by means of the premises, said Eliza and Lizzie were put in great fear and coud not and did not attend to plaintiff's business as otherwise they might and would have done, and the plaintiff thereby lost the comfort, society, service and assistance of his said children and servants, of great value, to wit: $2,500, and other wrongs to the plaintiff $3,000, and the plaintiff on account of the aforesaid several grievances, brings suit, etc. by his attorney.

     R. M. Field

The defendendent, by his attorney, filed the following plea:

Plea to the jurisdiction of the court. April Term, 1854.

And the said John F. A. Sandford, in his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action, and each and every of them, if any such have accrued to the said Dred Scott, accrued to the said Dred Scott out of the jurisdiction of 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 alleed in his declaration, because he is a negro of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify; wherefore he prays judgment whether this court can or will take further cognizance of the action aforesaid.

The plea was verified.

The plaintiff filed the following demurrer to this plea:

And now comes the plaintiff and demurs in law to the plea of the defendant to the jurisdiction of the court and says that the said plea and the matters therein contained are not sufficient in law to preclude the court of its jurisdiction of this case, and that the plaintiff is not bound by law to reply to said plea. Wherefore the plaintiff prays judgment of said plea, and that the defendant answer further to the plaintiff's said action, etc.

On April 24, 1854, the matters of law arising upon the demurrer were argued and submitted to the court. On April 25, the court rendered a decision that the law was for plaintiff on said demurrer, and that the said demurrer be, and the same is hereby sustained.

On May 4, 1854, in acceordance with an agreement by the attorneys, the defendant filed pleas, Nos. 1, 2 and 3, to all of which pleas the plaintiff filed replications. Said attorneys also filed an agreement upon the statement of the facts in this case. The pleas are as follows:

1. And the said John F. A. Sandford, by H. A. Garland, his attorney, comes and defends the wrong and injury, when, etc., and says that he is not guilty of the said supposed trespass above laid to his charge or any part thereof in manner and form as the said Dred Scott hath above thereof complained against him and of this he, the said Sandford, putteth himself upon the country.

2. And for a further plea in this behalf as to the making of said assault on said Dred Scott in the first count in said declration mentioned, impisoning him and keeping and detaining him in prison etc., the said Sandford by leave of the court first obtained, says that the said Dred Scott ought not have or maintain his aforesaid action thereof against him, because he says that before and at the time when, etc., in the said first count mentioned the said Dred Seott was a negro slave, the lawful property of the defendant, and as such slave he gently laid his hands upon him and only restrained him of such liberty as he had a right to do, and this the said Sandford is ready to verify wherefore he prays judgment whether the said Scott ought to have or maintain his aforesaid action thereof against him.

3. And for a further plea in this behalf, as to making the said assault upon Harriet, the wife, and Eliza and Lizzie, the daughters of the said Dred Scott, in the second and third events of the said declaration mentioned, and imprisoning them and keeping and detaining them in prison, etc., the said John F. A. Sandford, by leave of the court obtained, says that said Dred Scott ought not to have or maintain his aforesaid action thereof against him because he says that before and at the said time, etc., when, etc., in the said second and third counts mentioned, the said Harriet, wife of said Scott, and Eliza and Lizzie, his daughters, were the lawful slaves of the said Sandford and as such slaves he gently laid his hands upon them and restrained them of their liberty as he had a right to do. And this he is ready to verify. Wherefore he prays judgement, etc.

     Garland, for defendant.

The replications are as follows:

The plaintiff, as to ths plea of the defendant firstly above pleaded, and whereof he has put himself on the country, doth do like. Field.

And the plaintiff as to the plea of the defendant secondly above pleaded as to said several trespasses in the introdutory part of that plea mentioned and therein attempted to be justified says that the plaintiff by reason of anything in that plea alleged ought not to be barred from having and maintaining his aforesaid action against the defendant, because he says that said defendant at said time, when, etc., of his own wrong, and without the cause by him in his said second plea alleged, committed the said several trespasses in the introductory part of that plea mentioned, in manner and form as the plaintiff has above in his declaration complained, and this the plaintiff prays may be inquired of by the country.

The replication to the third plea was similar to the second.

The agreed statement of facts was as follows:

In the year 1834 the plaintiff was a negro slave belonging to Doctor Emerson, who was a surgeon in the Army of the United States. In that year 1834 said Doctor Emerson took the plaintiff from the State of Missouri to the military post at Rock Island in the State of Illinois and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Doctor Emerson removed the plaintiff from said military post at Rock lsland to the military post at Fort Snelling, situate on the west bank of the Mississippi River in the Territory known as Upper Louisiana, acquired by the United States of France and situate north of the latitude of 36 degrees 30 minutes north, and north of the State of Missouri. Said Doctor Emerson held the plaintiff in slavery at said fort Snelling, from said last mentioned date until the year 1838.

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 Sort Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1831; and then sold and delivered her as a slave at said Fort Snelling unto the said Doctor Emerson hereinbefore named. Said Doctor Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

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

In the year 1838 said Doctor 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 commencement of this suit, said Doctor 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 sueh time.

Further proof may be given on the trial for either party.

     Mr. R. M. Field, for plaintiff.
     Mr. H. A. Garland, for defendant.

The case was tried at the Circuit Court held for the District of Missouri at St. Louis on May 15, 1854, before the court and a jury.

The jury found the following verdict, viz.:

"As to the first issue joined in this case we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, etc., in the first count mentioned the said Dred Scott was a negro slave, the lawful property of the defendant. And as to the issue thirdly above joined, we the jury find, that before and at the time when, etc., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie the daughters of the said Dred Scott were negro slaves, the lawful property of the defendant." Whereupon it is now considered by the court that the plaintiff take nothing by his writ in this case, and that the defendant John F. A. Sandford go hence without day and recover against said plaintiff, Dred Scott, the costs by him expended in the defense of this suit.

A motion for a new trial was made by the attorneys for the plaintiff, which the court overruled. Thereupon the said plaintiff filed a bill of exception which is as follows:

Dred Scott
v.
John F. A. Sandford

April Term 1864

On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts.

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

     Mr. Field, for plaintiff.
     Mr. Garland, for defendant.

No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give the jury the following instructions:

Plaintiff's Instruction.

The jury are instructed that upon the facts agreed to by the parties, they ought to find for the plaintiff.

The court refused to give such instruction to the jury and the plaintiff to such refusal then and there duly excepted. The court then gave the following instruction to the jury on motion of the defendant:

Defendant's Instruction.

The jury are instructed that upon the facts in this case the law is with the defendant.

To the giving of such instruction the plaintiff then and there duly excepted.

The jury found the verdict as above. The plaintiff thereupon immediately filed in court the following motion for a new trial:

And now, after verdict and before judgment the plaintiff comes and moves the court to set aside the verdict and grant a new trial, because the court misdirected the jury in matter of law on said trial.

     Field.

The court overruled the said motion and gave judgment on verdict for the defendant; and to such action of the court the plaintiff then and there duly excepted.

The plaintiff writes this bill of exceptions and prays that it may be allowed, and signed and sealed.

     Field.

Allowed and signed and sealed, May 15, 1854.

     R. W. Wells. [seal.]

A writ of error was issued, and in the Supreme Court of the United States, December Term, 1854, the following was filed:

And now comes said plaintiff in error and says that in the record of the proceedings and in the giving of judgment below there is manifest error because the court below, in the trial of the cause, misdirected the jury in matter of law, and because the court below gave judgment for the defendant below, when the judgment should have been for plaintiff below, wherefore for said errors and others the plaintiff prays judgment of reversal here, and that he may be restored to all he has lost.

     By his attorney, Nathaniel Holmes.

Filed Dec. 30, 1854.

Messrs. M. Blair and Curtis, for the plaintiff in error:

1. The first question is, whether this court will consider the question raised in the Circuit Court by the plea to the jurisdiction, no final judgment having been rendered on the demurrer to that plea, and the defendant having pleaded over after the demurrer was sustained, and the final judgment assigned for error having been rendered on the issue on the merits.

2. Whether, if the ruling of the Circuit Court on the demurrer to the plea in abatement is subject to be reviewed here, the judgment of the court, in holding the plaintiff to be "a citizen" in such sense as to enable him to maintain an action in that character in the courts of the United States, was erroneous.

3. Whether the facts stated in the agreed case entitle the plaintiff and his family to freedom, supposing the 8th section of the Act of 1820, known as the Missouri Compromise, to be constitutional.

4. Whether the said Act is constitutional.

Upon the first point the counsel cited, Shepard v. Graves, 14 How 519; U. S. v. Boyd, 6 How. 51; Smith v. Kernochen, 7 How. 216; Sims v. Hundley, 6 How. 1; Bailey v. Dozier, 6 How. 23; Conard v. Atlantic Ins. Co. 1 Pet. 386; De Wolf v. Rabaud, 1 Pet 476; Evans v. Gee, 11 Pet. 89; 1 Wash. C. C. 70, 80; 2 Sumn. 251; 2 Dall. 341, 4 Dall. 330, and then said: In this case, as in those cited, the declaration gives jurisdiction, and the facts alleged in support of it can only be contested by making an issue as in other cases. If that issue be not made, or be waived in the conduct of the cause according to a well-settled practice of the court, there is no reason in this case more than in any other why the objection should be available at a later stage of the case. If the fact had been that plaintiff was not a resident of Missouri, and that was the reason why he was not a citizen, no advantage could be taken of the fact at any subsequent stage of the ease. What difference does it make that another fact is relied on to show that he is not a citizen? It is the right to sue as "a citizen" of Missouri, which is questioned: and it is immaterial whether the right be questioned on account of residence, or on account of any other circumstance which deprives him of the character of a citizen of Missouri.

2. But if the court should be of opinion that the question raised by the plea in abatement, and the demurrer thereto, is not waived, and that the judgment of the Circuit Court therein must be maintained before it will consider the questions affecting his right to freedom, I submit the following considerations in support of the judgment on the demurrer:

The opinion of the court in Amy v Smith, 1 Litt. 326, 4 Ga. 68, that free negroes are not citizens within the meaning of the 2d section of the 4th article of the Constitution, delivered in the spring of 1822, displays no research, logic or learning. On the other hand, the dissenting opinion of Judge Mills, p. 337, is sustained by the views of Judge Washington in Corfield v. Coryell, 4 Wash. C. C. 71.

21 Ala. 434; State v. Manuel, 4 Dev. & Bat. 24.

The other decisions relied on, Meigs, 339; 1 English, 509, are to the same effect as the decision in Amy v. Smith, and simply follow that.

The argument most relied on by those who deny the citizenship of free colored men is, that the Acts of Congress on the subject of naturalization provide for naturalizing white persons only. But even naturalization was not limited to the whites by the Constitution, and it has been extended repeatedly by treaty and Act of Congress to Indians and negroes.

Treaty with Choctaws, art. 14, 20th September, 1830; Treaty with the Cherokees, 12th art., Vol. V. U. S. Laws, 647; Treaties of 1803 for Louisiana, 1819 for Florida, 1847 for California; 21 Ala. 454; and as Judge Gaston says, 4 Dev. & Bat. 24, there is no connection between the subject of citizenship as acquired by birth and that acquired under the laws of Congress, and it would be a dangerous mistake to confound them. That citizenship is acquired by birth, is a well settled common law principle.

Vattel, ch. 19, secs. 212, 313, 314; Justinian, Lib. 1, Tit. 5, sec. 3; Constitution, sec. 5, art. 2.

The Constitution of the United States recognizes but two kinds of free persons, citizens and aliens. Nobody supposes that free negroes are aliens. They must therefore be citizens.

Opinions Atty.-Gen. Vol. IV. p. 417; 3d sec. Act March 6, 1820; 6th sec. Act of 1812, to form a territorial government in Missouri; Militia Act, May 17, 1792; Constitutions of Kentucky, Louisiana, Mississippi, Connecticut and Missouri.

All of the above define the qualifications of electors in terms, "free white male citizens;" and thus show that it is as a class of citizens that the negroes are excluded. These considerations would authorize the conclusion that the framers of the Constitution and the patriots of that era regarded this class of persons as citizens, and included them in that character in the provisions of the Constitution; and this is fully confirmed by reference to the laws and records of that day.

Act of Mass. 6th March, 1788, Proposal of South Carolina, Jan. 25, 1778, to amend the 4th article; Journals, Vol. II. p. 606; Journals, Vol. IV. p. 183; Organization of the Western Territory, Resolutions, April 23, 1784; Ordinance 1787, art. 4; 2 Kent's Com. p. 268, note b.

Missouri Rev. Laws of 1845, p. 755, and Code of 1835, allude to free negroes who were "citizens."

No reason can be imagined for permitting a suit between free white persons of different states, for wrongs which the local tribunals were deemed inadequate to redress, which will not apply with equal force to controversies to which a free negro may be a party. They have equal capacity with other citizens to hold property and carry on business, and therefore to create the mischief against which the national judiciary was provided. The words of a law are to be construed with reference to the object of the law.

16 Pet. 640; 12 Wheat. 441; 16 Pet. 104.

In l Paine, C. C. 394, the courts say that a person need not have acquired political rights; it is only necessary that he should have acquired a domicil, to enable him to sue as a citizen; and in 3 Wash. C. C. 546, that "citizenship means nothing but residence."

3. The next question to be considered is, whether Dred and his family, or either of them, was emancipated by being taken to Illinois, and to that part of Louisiana Territory lying north of 36 degrees 30 minutes, and being detained there in the manner described in the agreed case. The eldest child, Eliza, having been born north of the Missouri line, on the boat whilst descending the Mississippi, was free under the Constitution of Illinois, and well settled legal principles.

Constitution of Illinois, art. 6, secs. 1 and 2; 3 U. S. Stat. at L. p. 544; Spotts v. Gillaspie, 6 Rand. (Va.), 572; Commonwealth v. Holloway, 2 S. & R. 305.

The Circuit Court decided against the plaintiff on the strength of Scott v. Emerson, 15 Mo. 586.

But the question depends on general principles, and the courts of the United States, whilst they will respectfully consider the decisions of the State Court, decide such questions according to their own judgment of the law.

Swift v. Tyson, 16 Pet. 1; Carpenter v. Ins. Co. 16 Pet. 511; Lane v. Vick, 3 How. 476; Foxcroft v. Mallett, 4 How. 379.

During the time that Dr. Emerson kept Dred at his station at Rock Island, and Harriet at Fort Snelling, there is no evidence that he had or claimed a residence elsewhere, and this court, in Ennis v. Smith, 14 How. 423, "where a party lives, is taken prima facie to be his domicil."

See, also, Sylvia v. Kirby, 17 Mo. 434.

In the case of Scott v. Emerson, 15 Mo. 576, the court base their decision on two grounds:

1st. That by returning to Missouri to reside the master's right, which was suspended during the residence in Illinois, and in the Territory, is revived.

2d. The Constitution of Illinois, and the 8th sec. of the Act of 1820, are penal statutes which the courts of other States were not bound to enforce.

In support of the first position, Ex parte Grace, 2 Hagg. 90; Commonwealth v. Aves, 18 Pick. 193, and Mahoney v. Ashton, 4 H. & McH. 295, were cited.

These decisions are inapplicable to the case at bar, for in the present case the Constitution and Statute of Illinois expressly provide that emancipation shall be the effect of the violation of the provision. The laws under which the above decisions were made were different.

David v. Porter, 4 H. & McH. 418; Betty v. Horton, 1 Lee, 615.

The second ground relied upon by the court was equally untenable. See opinion of Judge Gambles, of the same case of Emerson v. Scott, "in this State it has been recognized from the beginning of the government as a correet position in law, that the master who takes his slave to reside in a state or territory where slavery is prohibited, emancipates his slave.

Also McMicken v. Amos, 4 Rand. 134; Bank v Earle, 13 Pet. 590; Spencer v. Dennis, 8 Gill 321.

4. The freedom of Harriet and her daughter Lizzie depends on the validity of the 8th section of the Act of March 6, 1820, entitled "An Act to authorize the people of Missouri Territory to form a constitution and state government," etc.

The section is as follows:

That in all that territory ceded by France to the United States which lies north of 36 degrees 30 minutes north latitude, not included within the limits of the State contemplated by this Act, slavery and involuntary servitude, otherwise than in the punishment of crimes whereof the party shall have been duly convicted, shall be, and the same is hereby forever prohibited.

Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforessaid.

The validity of this section is denied, on the ground that Congress possessed no power to prohibit slavery in the Territories.

It is not the power to govern the Territories, but the extent of the power which is questioned. Even those who deny any constitutional power to govern the Territories, admit the power on the ground of necessity; but they say where the necessity stops, there the power ceases. But this concedes the whole question; for if it be lawful to legislate at all, the quantum which may be necessary is purely a legislative question; and indeed, whether the Constitution confers directly the legislative power in question or not is immaterial, seeing that it owns the lands and has power to pass what laws it may deem expedient to dispose of and make them available.

Undoubtedly, for temporary purposes, it is indispensable that provision be made to govern the people in order that the lands shall possess any value, or that what remains after part is sold, may not be seized and confiscated. What would be proper provisions to this end, is not within the scope of judicial inquiry. If it were, it is demonstrable that the provision in question is most judicious, as a mere regulation to facilitate the disposition of public lands.

But it is alleged that the particular provision prohibiting slavery is violative of some part of the Constitution, which establishes the equality of the States and the rights of slave holders to take that species of property into the Territories of the United States. I admit that whether the power of Congress to legislate be given expressly or by implication, it is given with the limitation that it shall be exercised in subordination to the Constitution, and that if it be exercised in violation of any provisions of the Constitution, the Act wouid be void. Subject to this limitation, Congress is at liberty to adopt any means to accomplish its object.

McCulloch v. Maryland, 4 Wheat. 316.

But where is it written in the Constitution that no law shall be passed prohibiting slavery in the territories? Not only was this measure adopted as one deemed advisable and proper to the well government of the territories under both the Confederation and the Constitution, but when the Mississippi Territory was ceded in 1798, it was deemed necessary to stipulate that slavery should not be prohibited, in order to limit the discretion of Congress. The limitation sought to be imposed is one dependent altogether upon state laws, and subjects Congress to the State Legislatures. The Act is now claimed as unconstitutional, because a species of property recognized in the laws of the States cannot be held in the Territories; but it would become constitutional if the States should cease to recognize such property; and again unconstitutional if the States should recognize it again. How the law in question affects the States as States, in any respeet, is not perceived; it is not pretended that any State has legislative rights in the Territories.

Pollard v. Hagan, 3 How. 322.

On other subjects, there are difficutlties in adjusting the rights of the general and state governments; but there can be no conflict on this. Over the Territories, the general government alone has any power; and in the exercise of that, as of all other powers, is a government of the people. "In form and substance (this court says), it emanates from them, its powers are granted by them, and are to be exercised on them and for their benefit."

On this branch of the subject, the counsel cited the following authorities: Story's Com. Const. Vol. III., pp 193, 195; 1 Kent's Com. 360; Sergeant, Const. Law, 389; McCulloch v Maryland, 4 Wheat. 422: Am Ins. Co. v. Canter, 1 Pet. 543; Cherokee Nation v. Georgia, 5 Pet. 44; Menard v Aspasia, 5 Pet. 505; Strader v. Graham, 10 How. 93; Cross v. Harrison, 16 How. 193; Hogg v. Zanesville Canal Co., 5 Ohio, 410; Phoebe v. Jay, Breese, 210; Spooner v. McConnell, 1 McL. 341; Merry v. Chexnaider, 8 Mart. (N. S.) 699; Harry v. Deeker, Walker (Miss.) 36; Rachael v. Walker, 4 Mo. 350; 3 How 223. And the following Acts of Congress: I Stat. at L., pp. 50, 551; 2 Stat. at L., pp. 58, 283, 309, 514; 3 Stat. at L., p. 546; 4 Stat. at L., p. 740; 5 Stat. at L., pp. 10, 235, 797; 9 Stat. at L., pp. 223, 447.

Messrs. H. S. Geyer and R. Johnson, for the defemdent in error:

This cause was argued hefore this court at the Decmber Term, 1855, when it was ordered to be re-argued by counsel for their respective parties, at a next term of court, and espeeially upon the following points:

1. Whether or not the facts being admitted by the demurrer to the plea to the jurisdiction, the judgment on the demurrer being that the defendant answer over, and the submission of the defendant to that judgmnent, by pleading over to the merits, the appellate court can take notice of these facts thus admitted upon the record, in determining the question of the jurisdiction to the court below, to hear and fully dispose of the case.

2. Whether or not, assuming that the appellate court is bound to take notice of the facts thus appearing upon the record, the plaintiff is a citizen of the State of Missouri within the meaning of the 11th section of the Judiciary Act of 1789.

1. The averment that the plaintiff is a citizen of the State of Missouri is a necessary averment. If it had been omitted or defectively stated, it would have been error in the Circuit Court to entertain jurisdiction, even though the defendent had not traversed the averment, but pleaded to the merits.

3 Dall. 382; 2 Cranch, 1, 126; Sullivan v. Fulton Steamboat Co. 6 Wheat. 450; Turner v. Enrille, 4 Dall. 7; Capron v. Van Noorden, 2 Cranch, 126.

If the plea demurred to, is to be regarded as a traverse or averment of citizenship of the plaintiff, then the fact on which the plaintiff claims a right to sue in the Circuit Court does not appear by the record; on the contrary, it appears affirmatively that he had no right to sue in that court. The whole question, whether the court could entertain jurisdiction and allow the defendant to plead over, depends on the decision on the demurrer. lf that was erroneous, it was error to proeeed further, and the defendants pleading over could not give jurisdiction.

2. It appears by the record that the defendant is a negro, born a slave and therefore, whether he is entitled to freedom or not, by his temporary residence at Rock Island or Fort Snelling, or both, he is not and cannot be a citizen of the State of Missouri, within the meaning of the Constitution, or sec. 11 of the Judiciary Act.

Citizens, within the meaning of art. 3, sec. 2, are citizens of the United States, who are citizens of the state in which they respeetively reside.

Read v. Bertrand, 4 Wash. C. C. 516; Knox v. Greenleaf, 4 Dall. 360; 3 Story on Const. 565, secs. 1687, 1688; 6 Pet. 761.

Citizens are natives or naturalized. All persons born in the United States are not citizens.

Exceptions are:

First. Children of foreign ambassadors.

Second. Indians.

Third. In general, persons of color.

1 Bouv. Inst. pp. 16, 64; Amy v Smith, 1 Lit. Ky. 334; 2 Kent's Com. p. 258, note b.

Free blacks are not citizens within the provision of the Constitution, art. 4, sec. 2; so held by Dagget, Ch. J., in Connecticut. See note Kent's Com. supra.

See, also, State v. Claiborne, 1 Meigs, 331; Opinions Atty.-Gen. Vol. I. 382, ed. 41; Vol. I. p. 506, ed 52. "An inquiry into the political grade of the free colored population, under the Constithtion of the United States." by John P. Denny.

Persons who are not citizens of the United States by birth, can become such only by virtue of a treaty, or in pursuance of some law of the United States.

The power of naturalization is exclusively vested in Congress.

U. S. v. Villato, 2 Dall. 370; Chirac v. Chirac, 2 Wheat. 269; Houston v. Moore, 5 Wheat. 48.

A slave cannot become a citizen merely by a discharge from bondage.

3. Assuming that the Circuit Court had jurisdiction, the facts, as agreed by the parties, do not establish the right of the plaintiff, his wife and children, or either of them, to freedom.

Sec. I of art. 5 of the Constitution of Illinois, and sec. 8 of the Act of 6 March, 1820, do not declare the consequence of bringing a slave within the Territory, embraced. There is no exception or saving in respect to the rights of travelers. The effect of the provision is, in terms, the same, whether a slave is introduced to reside there or for some temporary purpose. Neither clause changes the condition of the slave brought into the Territory embraced by it. The slave is held to be free while he remains within such State or country, only because his owner has not the authority of law to restrain him of his liberty.

The owner'a authority is restored if the slave is found within a State or country where slavery exists by law.

The Slave Grace, 2 Hagg. Adm. 94; Willard v. The People, 4 Seam. 461; Graham v. Strader, 6 B. Mon. 181; 7 B. Mon. 633, Collins v. America, 9 B. Mon. 565, Mercer v. Gilman, 11 B. Mon. 210; Maria v. Kirby, 12 B. Mon. 542; Lewis v. Fullerton, 1 Rand. 16.

It has been held that where an owner of a slave brings him into a State or country in which slavery does not exist, or is prohibited by law, with the intention to make it his domicil, it operates as an emancipation, and the master cannot resume domain, though the slave return to, or is found in a country where slavery exists by law.

Rankin v. Lydia, 2 A. K. Marsh. 467; Griffith v. Fanny, Gilm. (Va.) 143; Lunsford v. Coquillon, 2 Mart N. S. 405; Josephine v. Poultney, 1 La. Ann. 329; Winney v. Whitesides, 1 Mo. 472; Milly v. Smith, 2 Mo. 172; Nat v. Ruddle, 8 Mo. 282; Rachel v. Walker, 4 Mo. 350; overruled in Scott v. Emerson, 15 Mo. 570; Sylvia v. Kirby, 17 Mo. 434.

These are cases of emancipation by the voluntary act of the master, binding upon him everywhere, as would be emancipation upon any other proof recognized by law. Slaves, however, attending their owners temporarily sojourning in, or traveling through a State wherein slavery does not exist by law, are not thereby emancipated.

2 A. K. Marsh. 467, Graham v. Strader, 5 B. Mon. 181; Mercer v. Gilman, 11 B. Mon. 210; Maria v. Kirby, 12 B. Mon 542; Lewis v. Fullerton, 1 Rand. 15; Henry v. Ball, 1 Wheat. 1; Spragg v. Mary, 3 Harr. & J.; Pocock v. Hendricks, 8 Gill & J. 421; The Slave Grace, 2 Hagg. 94; Commonwealth v. Aves, 18 Pick. 193; Mahoney v. Ashton, 4 H. & McH. 295.

The present plaintiff in error was held not entitled to his freedom, on the same state of facts as is now in evidence, in Scott v. Emerson, 15 Mo. 434.

This decision was affirmed in Sylvia v. Kirby, 17 Mo. 434.

By the laws of Missouri, therefore, the claimants are slaves, and these laws must determine their condition in the courts of the United States.

Strader v. Graham, 10 How. 93.

4. No residence of a slave at Fort Snelling could change his condition or divest the title of his owner.

Slavery existed by law in all the territory ceded by France to the United States, and Congress has not the constitutional power to repeal that law, or abolish or prohibit slavery, within any part of that Territory.

Sec. 8 of the Act of March 6, 1820, is the first, and almost the only instance of an assumption by Congress of tho power to abolish slavery in the Territory. lt has never been recognized by this court. It is understood to be claimed that authority of Congress to erect territorial governments is confirmed by art. 4, sec. 3, of the Constitution, which gives the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," or to resul from the power to acquire territory; and in either case, it comprehends a power of legislation exclusive, universal, absolute and unlimited.

3 Story, Const. secs. 1314, 1315, 1318, 1319, 1320, 1322; 1 Kent's Com. 423.

The clause of the Constitution, however, has been judicially interpreted to be a power to dispose of and make all needful rules and regulations respecting the lands and other property of the United States.

U. S. v. Gratiot, 14 Pet. 526, 537; Am. Ins. Co. v. Carter, 1 Pet. 342; see, also, Federalist, No. 43.

The subject of the power conferred by art. 4, sec. 3, is property, and the property only of the United States. This power is over unappropriated lands.

To organize a municipal government or corporation for the district or countly, to prohibit slavery, or to interfere in any way with the law of property, is not to make needful rules and regulations respecting the territory or other property belonging within such distlict; therefore, the power to institute such a government, and more especially an unlimited power to legislate in all cases over the inhabitants in a territory and their property, cannot be deduced from the clause under consideration.

The power of Congress to institute temporary government over any territory, results necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. It is the power resulting from the necessity of the State, and is limited to the necessity from which it arises; to change the law of property, to emancipate slavery, to abolish slavery where, by the law it exists, to confiscate property, or devest vested rights, cannot be necessary or proper to the institution of a temporary governmnent. The power of Congress over the territory belonging to the United States cannot authorize legislation which practically excludes from such territory the people of any portion of the Union, or prevents them from taking and holding in such territory any property recognized by the Constitution, and the local laws of the territory.


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Posted 9 Sep 2000.

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