Dred Scott v. Sandford

Opinion by Taney: Mr. Chief Justice TANEY delivered the opinion of the court. This case has been twice argued. After the argument at 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‘re-argument on some,of the points, in order that we'-might have an opportunity- of giving to the whole subject a rdore delibérate *400 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 bear and determine the case between these parties ? And 2. If it bad 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 Hew 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 Afrieah 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 thereupon 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 denied 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- defence by pleading over, and thereby admitted the jurisdiction of the court. *401 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 analogous 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. ISTo 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 cannot 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, á!nd 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 com-, mon-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 G-overnment of the United States. Eor 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 sue® in a court of the United States, it is necessary that he should *402 stow, in his pleading, 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 he, 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 héar 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 pleading that they are citizens of different States; and he cannot 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 par- ‘ ty, because, consent of parties could not give jurisdiction. It is needless to accumulate cases oh 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,) lire sufficient to show the rule of which we have spoken-. The case of Capron v. Van Roorden strikingly illustrates the difference between a common-law court and a court of the United States. If, however, the fact of citizenship is averred in the declaration, and the defendant does not deny it, and put it in issue by plea in abatement, he cannot offer evidence at the trial to disprove it, and consequently cannot 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 un•disputed averment of citizenship in the declaration must he taken in this court to be true. In this case, the citizenship is •averred, hut 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, tile 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. *403 "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 áre 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 ns such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument 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 altqgether 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 *404 tight of dominion. But that claim was acknowledged to he 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 emi-Sration to the English colonies to the present day, by the ifferent 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 thé 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 hiB 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 represéntatives. 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 subordi *405 nate 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, with1 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 whiqh 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 of 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 confeiring 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 *406 rights and immunities which the Constitution and laws of the State attached to that character. It is very clear, therefore, that no State can, hy 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 hy 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 he 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 afterwards be imported, who had then or should after-wards 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 recognised 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 guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards 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.oyer the whole 'territory Of the United States. And it gave to each citizen rights ana privileges outside of his State *407 -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 sovereign-ties, and took their places in the family of independent nations. "We must inquire who, at that time, were recognised 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 tó slavery for his benefit. He was bought and sold, and tréated 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 pf 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 *408 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 fyeld them in slavery for their own use; hut 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 afterwards 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, aé 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 eiist. The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law declaring “thát 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 towards 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. 6.) It is entitled “An act for the better preventing'of a spurious and mixed issue,” &c.; 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 *409 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 towards 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.” We give both of these laws in the words used by the respective legislative bodies, because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood, the degraded condition of this unhappy race. They were still in force when the Revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the-men who framed the Declaration of Independence and established the State Constitutions and Governments. They show thaígi perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to Slavery^and governed as subjects with absolute and despotic power, and which they-then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but .in the person who joined them in marriage. Andmo distinction in this respect was made between - the free negro or mulatto and the slave, but this stigma, of the' deepest degradation, was fixed upon the whole race. We fefer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them of their posterity the benefit of any of its provisions. The language .of the Declaration of Independence is equally conclusive: It begins by declaring that, “when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to *410 assume among the powers of- the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to.the separation.” It then proceeds to say: “We hold these truths to he self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriying their just powers from the consent of the governed.” The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of - the people who framed and adopted this declaration; for if the language, as understood in that, day, would embrace them, the conduct of the distinguished men who-framed the Declaration of Independ-' ence would have been utterly andt flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed; they would have deserved and received universal rebuke and reproba* lion. Yet the men who framed this declaration were great men— high in literary acquirements — high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world, be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary lan-fuage Of the day? and no one misunderstood thém. The un-appy black race were separated from the white by indelible marks, and laws long before established-, and were never thought of or spoken of except as- property, and when the claims of the owner or the profit of the trader were supposed to need protection. This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language. . The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection.- It de- *411 dares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was'necessary. But there are two clauses in the Constitution which point directly find specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed. One of these clauses reserves to each of the thirteen States the right to import slaves. until the year 1808, if it thinks ' proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then forined should endure. And these two provisions' show, conclusively, that neither the description of persons therein referred to,, nor their descendants, were embraced in any of the .other provisions of the Constitution; for certainly these “two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not *412 even in the ininds of the framers of the Constitution when ■ they were conferring special rights and privileges upon the citizens of a State in eveiy. other part of the Union.' Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended fo them. It is very true, that in that portipn of the Union where the labor of the negro race was found to be únsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. ■ But this -change had hot been produced by any change of opinion in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and productions of these States: for some of the States, where it had ceased or nearly ceased to exist, were actively engaged in the slave trade, procuring cargoes on the coast of Africa* and transporting them for sale to those parts of the Union where their labor was found to be profitable, and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided. And it can hardly be supposed that, in the States where it was then countenanced .in its worst form — that is, in the seizure and transportation — the people could have regarded those who were emancipated as entitled to equal rights with them-sélves. And we may here again refer, in support of this proposition, to the plain-and unequivocal , language of the laws of the several States, some passed after the Declaration of Independence and before the Constitution was adopted, and some since the Government went into operation. We need not refer, on, this point, particularly to the .laws of the present slaveholding States. Their statute books are full of provisions in relation to this class, in the same spirit with the Maryland law which we have before quoted. They -have continued to treat them as an inferior class, and to subject them to strict police regulations, drawing a broad line of distinction between the citizen and the slave races, and legislating in relation to them upon the same principle which prevailed át the time of the Declaration of Independence.. As relates to these States, it is too plain for argument, that they have never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleas- *413 , ure. And as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and xnulattoes were not citizens within the meaning of the Constitution of the United. States; and the correctness of this decision is recognised, and the same doctrine affirmed, in 1 Meigs’s Tenn. Reports, 331. And if we turn to the legislation of the States where slavery had worn out, or measures takeh for its speedy abolition, we shall find the same opinions and principles equally fixed and equally acted upon. Thus, Massachusetts, in 1786, passed a law similar to the colonial one of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person with any negro, Indian, or mulatto, and inflicts a penalty of .fifty pounds upon any one who shall join them in marriage; and declares all such marriages- absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And this mark of degradation was renewed, and again impressed upon the race, in the careful and deliberate preparation of their revised code published in 1836; This code forbids any person from joining in marriage any white person with any Indian, negro, or mulatto, and subjects the party who shall offend in this respect, to imprisonment, not exceeding six months, in the common jail, or to hard labor, and to a fine of not less than fifty nor more than two hundred dollars; and, like the law of 1786, it declares the marriage to he absolutely null and void. It will he seen that the punishment is increased by the code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty. ' So, too, in Connecticut. We refer more particularly to the legislation of this State, because it was not only among the ..first to put an end to slavery within its.own territory, hut was the first to fix a mark of reprobation upon the African slave . trade. The law last mentioned was passed in October, 1788, about nine months after the State had ratified and adopted . 1he present Constitution of the United States; and by that law . it prohibited its own citizens, under severe penaltiesj from engaging in the trade, and declared all policies of insurance on the vessel or cargo made in" the State to be null and void; But, üp to the' time of the adoption of the Constitution, there is . nothing in the legislation of the State indicating any change of opinion as to the relative rights and position of the white and black races in this, country, or indicating that it meant to place the latter, when free, upon a level with its citizens. And . certainly ..nothing which would have led the slaveholding States to suppose, that Connecticut designed to claim for them, under *414 the new Constitution, the equal rights and privileges and rank of citizens- in every other State. The first step taken by Connecticut upon this subject was as early as 1774, when it passed an act forbidding the further importation of slaves into the State. Biit the section containing the prohibition is introduced .by-the following preamble: “And whereas the increase of slaves in this State is injurious to the poor, and inconvenient.” This recital would appear to have been carefully introduced, in order to prevent any misunderstanding of the motive which induced the Legislature to pass the law, and places it distinctly upon the interest and convenience Of the white-population— excluding the inference that it might have been intended in any. degree for the benefit of the other. And in the act of 1784, by which, the issue of slaves, horn after the time therein'mentioned, were to be free at a certain age, the section is again introduced by a preamble assigning a similar motive for the act. It is in these words: . “Whereas sound policy requires that the abolition of slavery should he effected as soon as may he consistent with the rights Of individuals, and the public safety and welfare” — showing that the right of property in the master was to he protected, and that the measure was one of policy, and to prevent the injury and inconvenience, to the whites, of a slave population in the State. And still further pursuing its legislation, we find that in the same statute passed in 1774, which prohibited the further importation of slaves into the State, there is also a provision by which any negro, Indian, or mulatto servant, who was found wandering out of the town or place to which he belonged, without, a written pass such as is therein described, was- made liable to be seized by any one, and taken before the next authority to be examined and delivered up to his master — who was required to pay the charge which had accrued thereby. And a subsequent section of the same law provides, that if any free negro shall travel without such pass* and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted, and was not repealed till 1797. So that up to that .time frefe negroes and mulattoes were associated with servants and .slaves in the police regulations established by the laws of the State.- And again, in 1833, Connecticut passed another law, which made it penal to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the State, or to instruct or teach in any such school or *415 institution, or board or harbor for that purpose, any sucb person, without the previous consent in writing of the civil authority of the town in which such school or institution might be.' And it appears by the case of Crandall v. The State, reported, in 10 Conn. Rep., 340 , that upon am information filed , against Prudence Crandall for a violation of this law,-one of-the points raised in the defence was, that the law was a violation of the Constitution of the United States; and that the persons instructed, although of the African race, were citizens of other States, and therefore entitled to the rights and privileges of citizens in the State of Connecticut, But Chief Justice Dag-tet, before whom the case was tried, held, that persons of that escription were not citizens of a State, within the meaning of the word citizen in the Constitution of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States. ■ The case was carried up to the Supreme Court of Errors of the State, and the question fully argued there. But the case went off upon another point, and no opinion was expressed on this question. "We have made this particular examination into the legislative and judicial action of Connecticut, because, from the early hostility it displayed to the slave trade on the coast of Africa, we may expect to find the laws of that State as lenient and favorable to the subject race as those of any other State in the Union; and if we find that at the time the Constitution was adopted, they were, not evfen there raised to the rank of citizens, but were still held and treated as property, .and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank anywhere else. . A-brief notice of the laws of two other States, and we shall pass on to other' considerations. By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State, but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could' more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen ? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it. *416 2- 3 o 5-’ P-g* g- gt g- ® ® p 2 p-SLo^ ® ^ P r-j (E> « — i* _ o M* Ü . ^ O Q ® 3"8 B% CO BÍ S-,vi O B Hjj ,®' kOSB-PS-'S^ £- a, 2 bb d iss ® ~ á S $ g Et® § a g »•§, CD fcr CD P © P . 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CD 5¿.* Efc st^tí d; Ü*á cr' cr* P pj tí á S S?oSB2í9o®®sSS§ i^® 3.§ B'fga® B §8 o C ©Jí 2^1 O i g ■a g g-5 1 Í3 K-- cá rr< • X fl> 2 ® a B H-np w tí 5'á.^e pi» Sf § o ^ or® p o hX).*tí rS ntí afa ^ .1 ^ S ■§ CQ ^ o -á ^ 2 rj íh rtí ^ *417 regulations which they considered to be necessary for their own safety.. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the, right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased,-to go where they pleased at every hour of the day or night without molestati5n, unless they committed some violation of law for which a white man would he punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State. It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, ana exercised so much'' influence in procuring its adoption, could.have been so forgetful or regardless of their own safety and the ■ safety of those who trusted and confided in them. Besides, this want' of foresight and care would have been utterly inconsistent with the caution displayed in providing for the admission of new members into this political family. For, when they gave to the citizens of each State the privileges and immunities of citizens in the several States, they at the same time took from the several States the power of naturalization, and confined that power exclusively to the Federal Government. ÍTo State was willing to permit another State ■ to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to tibe rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an -inferior and subordinate class. And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much *418 more important power — that is,, the power of transforming into citizens a numerous class of persons, who in that character would be much more dangerous to the peace and safely ■of a large portion of the Union, than the few foreigners one of the States might improperly naturalize. The Constitution upon its adoption obviously took from the States' all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was horn, or what might he his character or condition; and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory. A clause similar to the one in the Constitution, in relation to the rights and immuniti.es of citizens of one State in the other States, was contained in the Articles of Confederation. But there is a difference of language, which is worthy of note-. The provision in the Articles of Confederation was, “that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should he entitled to all the privileges and immunities of free citizens in the several States.” , It will he observed, thát under this Confederation, each State had the right to decide for itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of another State. The term free inhabitant, in the generality of its terms, would certainly include one of the African race who had been manumitted. But no example, we think, can be found of his admission to all the privileges of citizenship in any State of the Union after these Articles were formed, and while they continued in force. And, notwithstanding the generality of the words “free inhabitants,” it is veiy clear that, according to their accepted meaning in that day, they did not include the African race, whether free or not: for the fifth, section of the ninth article provides that Congress should have the power “to agree upon the number of land forces to be raised, and to malee inquisitions from each State for its quota in proportion to the number of white inhabitants in such State, which requisition should be binding.” "Words could hardly have been used which more strongly mark the line of distinction between the citizen and the •‘subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be .embodied in proportion to its numbers for the general defence. A.nd it cannot for a moment be supposed, that a class of *419 persons thus separated and rejected from those who formed ■the sovereignty of the States, were yet intended to he included under the words “free inhabitants,” in the preceding article, to whom privileges and immunities were so carefully secured in every State. But although this clause of the Articles of Confederation is the same in principle with that inserted in the Constitution, yet the comprehensive word inhabitant, which might' be corn strued to include an emancipated slave, is omitted; and the privilege is confined to citizens of the State. And this alteration in words would hardly have been made, unless a different meaning was intended to be conveyed, or a possible doubt removed. The just and fair inference is, that as this privilege was about to be placed under the protection of the General Government, and the words expounded by its tribunals, and all power in relation to it taken from the State and its courts, it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given — and the word citizen was on that account substituted for the words free inhabitant. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted; and also every description of persons who were not fully recognised as citizens in the several States. This, upon any fair construction of the instruments to which we have' referred, was evidently the object and purpose of this change of words. To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the Government went into operatiofi, will be abundantly sufficient to show this. The two first are particularly worthy of notice, because many ofithe men who assisted in framing the Constitution, and took an active part in procuring its adoption, were then in the halls of legislation, and certainly understood what they’meant when they used the words “people of the United States” and “citizen” in that well-considered instrument. The first of these acts is the naturalization law, which was passed at the second session of the first Congress, March 26, 1790, and confines the right of becoming citizens “to aliens being free white ‘persons.” . 3n ow, the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one, of any color, who was born under allegiance to another Government. But the language of the law above quoted, shows that citizenship *420 at that time was perfectly'understood to be confined to the white race; and that they alone constituted the sovereignty in the Government. Congress might, as we before said, have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even then guarding themselves against the threatened renewal of Indian hostilities. ÍTo one supposed then that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word white was not used with any particular reference to them. ÍTeither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore there was no necessity for using particular words to exclude them. It would seem to have been used merely because it followed out the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subjection and slavery, and governed at their own pleasure. Another of the early laws of which we have spoken, is the first militia law, which was passed in 1792, at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every “free able-bodied white male citizen” shall be enrolled in the militia. The word white is evidently used to exclude the African race, and the word “citizen” to exclude unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free; but it is repudiated, and rejected from the duties and obligations of citizenship in marked language. The third act to which we have alluded is even still inore decisive; it was passed as late as 1813, (2 Stat., 809,) and it provides: “That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States. *421 Here the line of. distinction is drawn in, expresswords. Peiv sons of color, in the judgment of Congress, were not included in the word citizens, ana they are described as another and different class of persons, and authorized to be employed, if born in the United States. And even as late as 1820, (chap. 104, sec. 8,) in the' charter to the city of Washington, the corporation is authorized “to restrain and prohibit the nightly and other disorderly meet* ings of slaves, free negroes, and mulattoes,” thus associating them together in its legislation: and after prescribing the pun* ishment that may be inflicted on the slaves, proceeds in the following words: “And to punish such free negroes and mulattoes by penalties not exceeding twenty dollars for any one offence; and in case of the inability of any such free negro or mulatto to pay any such penalty and cost thereon, to cause him or her to be confined to labor for any time not exceeding six calendar months.” And in a subsequent part of the same ^section, the act authorizes the corporation “to prescribe the terms and conditions upon which free negroes and mulattoea may reside in the city.” This law, like the laws of the States, shows that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white citizens. And after such an uniform course of legislation as we have stated, by the colonies, by the States, and by Congress, running through a period of more than a century, it would seem that to call persons thus marked and stigmatized, “citizens” of the United States, “fellow-citizens,” a constituent part of the sovereignty, would be an abuse of terms, and not calculated to exalt the character of ah American citizen in the eyes of other nations. .The conduct of the Executive Department of the Government has been in perfect harmony upon this subject with this course of legislation. The question was brought officially before the late "William Wirt, when he was the Attorney General of the United States, in 1821, and he decided that the words “citizens of the United States” were used in the acts of Congress in the same sense as in the Constitution; and that free persons of color were not citizens, within the meaning of the Constitution and laws; and this opinion has been confirmed by that of the late Attorney General, Caleb Cushing, in a recent case, and acted upon by the Secretary of State, wbn refused to grant passports to them as “citizens of the United States.” But it is said that a person may be a citizen,' and entitled to *422 that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognised there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship. This argument overlooks the language of the provision in the Constitution of which we are speaking. Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot votó; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens. So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoés, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States, does not apply to them. Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State .from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognised as citizens, but belong tó an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens. But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State, as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another' State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which .belong to citizens of the *423 State. And if persons of the African race are citizens of a State, and of the United States, they would he entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws- of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences Avhich make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States. The case of Legrand v. Darnall ( 2 Peters, 664 ) has been referred to for the purpose of showing that this court has decided that the descendant of a slave may sue as a citizen in a court of the United States; but the case itself shows that the question did not arise and could not have arisen in the case. . It appears from the report, that Darnall was born in Maryland, and was the son of a white man by one of his slaves, and his father executed certain instruments to manumit him, and devised to him some landed property in the State. This property Darnall afterwards sold to Legrand, the appellant, who gave his notes for the purchase-money. But becoming after-wards apprehensive that the appellee had not been emancipated according to the laws of Maryland, he refused to pay the notes until he could bé' better satisfied as to Darnall’s right to convey. Darnall, in the mean time, had taken up his residence in Pennsylvania, and brought suit on the notes, and recovered judgment in the Circuit Court for the district of Maryland. The whole proceeding, as appears by the report, was an amicable one; Legrand being perfectly willing to pay the money, if he could obtain a title, and Darnall not wishing him to pay unless he could make him a good one. In point of fact, the whole proceeding was under the direction of the counsel who argued the case for the appellee, who was the mutual friend o£ the parties, and confided in by both of. them, and whose only *424 object was to have the rights of both parties established by judicial decision in the' most speedy and least expensive manner. Legrand, therefore, raised no objection to the jurisdiction of the court in the suit at law, because he was himself anxious to obtain the judgment of the court upon his title. Consequently, there was nothing in the record before the court to show that Darnall was of African descent, and the usual judgment and award of execution was entered. And Legrand thereupon filed his bill on the equity side of the Circuit Court, stating that Darnall was born .a slave, and had not been legally emancipated, and could not therefore take the land devised to him, nor make Legrand a good title; and praying an injunction to restrain Darnall from proceeding to execution on the judgment, which was granted. Darnall answered, averring in his answer that he was a free man, and capable of conveying a good title. Testimony was taken on this point, and at the hearing ‘the Circuit Court was of opinion that Darnall was a free man and his title good, and dissolved the injunction and dismissed the bill; and that decree was affirmed here, upon the appeal of Legrand. Sow, it is difficult to imagine how any question about the citizenship of Darnall, or his right to sue in that character, can be supposed to have arisen or been decided in that ease. The fact that he was of African descent was first brought before the court upon the bill in equity. The suit at law had then passed into judgment and award' of execution, and the Circuit Court, as a court of law, had no longer any authority over it. It was a valid and legal judgment, which the court that rendered it had not the power to reverse or set aside. And unless it had jurisdiction as a court of equity to restrain him from using its process as a court of law, Darnall, if he thought proper, would have been at liberty to proceed on his judgment, and compel the payment of the money, although the allegations in the bill were true, and he was incapable of making a title. No other court could have enjoined him, for certainly no State equity court could interfere in that way with the judg-. ment of a Circuit Court of the United States. But the Circuit Court as a court of equity certainly had equity jurisdiction over its own judgment as a court of law, without regard to the character of the parties; and had not only the right, but it was its duty — no matter who were the parties in the judgment — to prevent them from proceeding to enforce it by execution, if the court was satisfied that the money was not justly and equitably due. The ability of Dar-pall to convey did not depend upon his citizenship, but upon his title to freedom. And if he was free, he could hold and *425 convey property, by the laws , of Maryland, although he was not a citizen.. ‘ But if he was by law still a slave, he could not. It was therefore the duty of the court, sitting as a court of equity in the latter ease, to prevent him from using its process, as a court of common law, to compel the payment of the purchase-money, when it was evident .that the. purchaser must lose the land. But if he was free, and could make a title, it. was equally the duty of the court not. to suffer Legrand to keep the land, and refuse the payment of the money, upon the ground that Darnall was incapable of suing or( being sued as a citizen in a court of the United States. The character or citizenship of the parties had no connection with the question of jurisdiction, and the matter in dispute had no relation to the citizenship of Darnall. Nor is such a.question alluded to in the opinion, of the court. Besides, we are by no means prepared to say that thpre are not many cases, civil as well as criminal, in which a Circuit Court of the United States may exercise jurisdiction, although one of the.African race is a party; that broad question is not before the court. The question with which we are now dealing is, whether a person of the African race can be a citizen of the United States, and become thereby entitled to a special privilege, by virtue of his title to that character, and which, under .the Constitution, no one but a citizen can claim. It is manifest that the case of Legrand and Darnall has no bearing on that question, and caD have no application to the case now before the court. This ease, however, strikingly illustrates the consequences that would follow the construction of the Constitution which would give the power contended for to a State. It would in effect give it also to an individual. For if the father of young T>arnall had manumitted him in hi3 lifetime, and sent him to reside in a State which recognised him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the. State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the layra and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship, without respect to the laws of Maryland, although such laws were deemed by it absolutely essential, to its own safety. The only two provisions which point to them and include them, treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Govern *426 ment of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting, the rights of the owner, leaving it altogether withothe several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves. Ho one, we presume, supposes that any" change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to hear when the instrument was framed and adopted. Such an argument wotfld he altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on ..and adopted by'the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to. it, and it must not falter in the path of duty. What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition, to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution-can be regarded as settled, it is that which we now give to the word “citizen” and the word “people.” And upon a full and careful consideration of the subject, *427 the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not. entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous. We are aware that doubts are entertained by some of the members of the court, whether the plea in abatement is legally before tiie court upon this writ of error; but if that plea is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial; for he admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and upon their return to Missouri became citizens of that State. Now, if the removal of which he speaks did not give them their freedom, then by his own admission he is still a slave; and whatever opinions may be entertained in favor,of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States. If, therefore, the acts done by his owner did not make them free persons, he is still a slave, and certainly incapable of suing in the character of a citizen. The principle of law is too well settled to be disputed, that a court can give no judgment for either party, where it has no jurisdiction; and if, upon the showing of Scott himself, it appeared that he was still a slave, the case ought to have been dismissed, and the judgment against him and in favor of the defendant for costs, is, like that on the plea in abatement, erroneous, and the ■ suit ought to have been dismissed by the Circuit Court for want of jurisdiction in that court. But, before we proceed to examine this part of the case, it may be proper to notice an objection taken to the judicial authority of this court to decide it; and it has been said, that as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement, it has no right to examine any question presented by the exception; and that anything it may say upon that part of the case will be extra-judicial, and mere obiter dicta. This is a manifest mistake; there can be no doubt as to the jurisdiction of this court to revise the judgment of a Circuit Court, and to reverse it for any error apparent on the record, *428 whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this, too, whether there is a plea in abatement or not. The objection appears to have arisen from confounding writs of error to a State court, with writs of error to a Circuit Court of the United States. Undoubtedly, upon a writ of error to a State court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jurisdiction in this court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exceptions, or any other part of the record. But writs of error to a State court, and to a Circuit Court of the United States, are regulated by different laws, and stand upon entirety different principles. And in a writ of error to a Circuit Court of the United States, the whole record is before this court for examination and decision; and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but'it is the judicial duty of the court, to examine the whole case as presented by the record; and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment, and remand the; case. And certainly an error in passing a judgment upon the merits in favor of either party, in a case which it was not authorized to try, and over' which it had no jurisdiction, is as grave an error as a court can commit. , . - ■ The plea in abatement is not a plea to the jurisdiction of this court, but to the jurisdiction óf the Circuit Court. And it appears by the record before us, that the Circuit Court committed an error, in deciding that it had jurisdiction, upon the facts in the ease, admitted by the pleadings. It is the duty of the appellate tribunal to correct this error; but that could not be done by dismissing the case for want of jurisdiction here— for that would leave the erroneous judgment in' full force, and the injured party without remedy. And the appellate court therefore exercisés the power for which alone appellate courts are constituted, by reversing the judgment of the court below for this error. It exercises its proper and appropriate jurisdiction over the judgment and proceedings of the Circuit Court, as they appear upon the record brought up by the writ of error. The correction óf one error in the court below does not deprive the appellate court of the power of examining further into the record, and correcting any other material errors which may have been committed by the inferior court. There is certainty no rule of law — nor any practice — nor any decision of a *429 court — which even questions this power in the appellate tribunal. On the contrary, it is the daily practice of this court, and of all appellate courts where they reverse the judgment of an inferior court for error, to correct by its opinions whatever errors may appear on the record material to the case; and they have always held it to be their duty to do so where the silence of the court might' lead to misconstruction or future controversy, and the point has been relied on by either side, and argued before the court. In the case before us, we have already decided that the Circuit Court erred in deciding that it had jurisdiction upon the facts admitted by the pleadings. And it appears that, in the further progress of the case, it acted upon the erroneous principle it had decided on the pleadings, and gave judgment for the defendant, where, upon the facts admitted in the exception, it had no'jurisdiction. We are at a loss to understand upon what principle of law, applicable to appellate jurisdiction, it can be supposed that this court has not judicial authority to correct the-last-mentioned error, because they had before corrected the former; or by what process of reasoning it can be made out, that the error of an inferior court in actually-pronouncing judgment for one of the parties, in a case in which it had no jurisdiction, cannot be looked into or corrected by this court, because we have decided a similar question presented in the pleadings. The last •point is distinctly presented by the-facts contained in the plaintiff’s own bill of exceptions, which he himself brings here by this writ of error. It was the point which chiefly occupied the attention of the counsel on both sides in the argument — and the judgment which this court must render upon both errors is precisely the same. It must, in each of them, exercise jurisdiction over the judgment, and reverse it for the errors committed by the court below; and issue a mandate to the Circuit Court to conform its judgment to the opinion pronounced by this court, by dismissing the case for want of jurisdiction in the Circuit Court. This is the constant and invariable practice of this court, where it reverses a judgment for want of jurisdiction in the Circuit Court. It can scarcely be necessary to pursue such a question further. The want of jurisdiction in the court below may appear on the record without any plea in abatement. This is familiarly the case where a court of chancery has exercised jurisdiction in a case where the plaintiff had a plain and adequate remedy at law, and it so appears by the transcript when brought here by appeal. So also where it appears that a court of admiralty has exercised jurisdiction in a case belonging ex- *430 clusivety to a court of common law. In these cases there is no plea in abatement. And for the same reason, and upon the same principles, where the. defect of jurisdiction is patent on the record, this court is bound to reverse the judgment, although the defendant has not pleaded in abatement to the jurisdiction of the inferior court. The cases of Jackson v. Ashton and of Capron v. Van Noorden, to which we have referred in a previous part of this opinion, are directly in point. In the last-mentioned case, Capron brought an action against Van Hoorden in a Circuit Court of the. United States, without showing, by the usual averments of citizenship, that the court had jurisdiction. There was no plea in abatement put in, and the parties went to trial upon the merits. The court gave judgment in favor of the defendant with costs. The plaintiff thereupon brought his writ of error, and this court reversed the judgment given in favor of the defendant, and remanded the case with directions to dismiss it, because it did not appear by the transcript that -the Circuit Court had jurisdiction. The case before us still more strongly imposes upon this court the duty of examining whether the court below has not committed an error, in taking jurisdiction and giving a judgment for costs in favor of the defendant; for in Capron v. Van Noorden the judgment was reversed, because it did not appear that the parties were citizens of different States. They might or might not be. But in this case it does appear that the plaintiff was born a slave; and if the facts upon which he relies have not made him free, then it appears affirmatively on the record that he is not a citizen, and consequently his suit against Sandford was not a suit between citizens of different States, and the court had no authority to pass any judgment between the parties. The suit ought, in this view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is erroneous, and must be reversed. It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a pecuniary or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment, would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be , drawn into precedent, and lead to serious mischief and injustice in some future suit. We proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him to his freedom. *431 The case, as be himself states it, on the record brought here by his writ of error, is this: The plaintiff was a negro slave, belonging to Dr. Emerson, ' who was a surgeon in the army of the United States. In the year 1834, he 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 Eort 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 Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and ownei*. 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, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed tq hold them, and each of them, as ¿laves. In considering this, part of the controversy, tw.o questions arise: 1. -Was he, together with1 Ms family, free in Missouri by reason of the stay in the territory of the United States herein- *432 before mentioned? And 2. If they were not, is Scott himself free by reason of his- removal to Rock Island, in the State of Illinois, as stated in the above admissions ? Ve proceed to examine the first question. The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits. of Missouri. And the difficulty which meets us at the threshold- of this part of the inquiry is, whether Congress was authorized to pass this law. under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it .void and inoperative, and incapable' óf conferring freedom upon any one who' is held as a slave under the laws of any.one of the States. The counsel for the plaintiff has laid much stress upon that ' article in the Constitution which confers on Congress ■ the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;"’ but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon-a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more. A brief summary of the histoty of the times, as well as the careful and measured terms in which the article is framed, will show the correctness of this proposition; It will ,be remembered that, from the commencement of the Revolutionary war, serious difficulties existed between the States, , in relation to ■ the disposition of large and unsettled territories which were included in the chartered limits of some of the States. And some of the other .States, and. more especially Maryland, which had no unsettled lands, insiste'd that as the unoccupied lands, if wrested from Great Britain, would owe .their preservation to the common' purse and the. common sword, the money arising from them ought to be applied in just proportion among the several States to pay the expenses of the war, and ought not to be appropriated to the. use of the State, in wliose chartered. limits they might happen *433 to lie, to.the exclusion of the other States, by whose combined efforts and common expense the territory was defended and preserved against the claim of the British Government. These difficulties caused much uneasiness during the war, while'the issue was in some degree doubtful, and the future boundaries of the United States yet to be defined by treaty, if we achieved our independence. The majority of the Congress of the Confederation obviously concurred in opinion with the State of Maryland, and desired to obtain from the States which claimed it a cession of this territory, in order that Congress might raise money on this security to carry on the war. This appears by the resolution passed on the 6th of-September, 1780, strongly urging the States to cede these lands to the United States, both for the sake- -of peace and union among themselves, and to maintain the. public credit; and this was followed by .the resolution of October 10th; 1780, by which Congress pledged itself, that if the lands were'ceded, as recommended by the resolution above' mentioned, .they should be disposed of for the common benefit of the United States, and.be settled, and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, and freedom, and independence, as other States. But these difficulties became much more serious after peace took place, and the boundaries of the United States were established. . Every State, at. that time, felt severely the pressure-of its war debt; but in Virginia, and some other States, there were large territories of unsettled lands, the sale of which would enable them to discharge their obligations without much inconvenience ;■ while other States, which had no such resource, saw before them many years of heavy and burdensome taxation-; and the latter insisted, for the reasons before-stated, that these unsettled. lands should be treated as the common property of the States, and the proceeds applied to their common benefit. , The letters- from -the statesmen of that day will show how much this controversy occupied their thoughts, and the dangers that were apprehended from itl. It was thé disturbing-element of the time, and fears were entertained that it might' dissolve ■ the Confederation by which the States were then united . These fears and dangers were, however, at on,ce removed, ■ when-the;State of. Virginia, in 17.84, voluntarily ceded to the United States the immense tract of country lying northwest of the river Ohio, and which was within the'’acknowledged limits of the State. The only object of the State, in making, *434 this cession, was to put an end to the threatening and exciting controversy, and to enable the Congress of that time to dispose of the lands, and appropriate the proceeds as a common fund for the common benefit of the States. It was not ceded, be-causé it was inconvenient to the State to hold and govern it, nor from any expectation that it could be better of more conveniently governed by the United States. The example of Virginia was soon afterwards followed by other States, and, at the .time of the adoption of the Constitution, all of the States, similarly situated, had ceded their unappropriated lands, except North Carolina and Georgia. The main object for which these cessions were desired and made, was on account of their money value, and to put an end to a' dangerous controversy, as to who was justly entitled to the proceeds when the lands should be sold. It is necessary to bring this part of the history of these cessions thus distinctly into view, because it will enable us the better to comprehend the phraseology of the article in the'Constitution, so often'referred to in the argument. Undoubtedly the powers of sovereignty and the eminent domain were ceded with the land. This was essential, in order to make it effectual, and to accomplish its objects. But it must be remembered that, at that time, there was no Government. of the United States in existence with enumerated and limited powers; what was then called the United States, were thirteen separate, sovereign, independent ■ States, which had ■entered into a league or confederation for their mutual protection and advantage, and the Congress of the United States was composed of the representatives of these separate sovereign-ties, meeting together,' -as equals, to discuss and decide ,on certain measures which the States, by the Articles of Confederation, had agreed to submit to their decision. But this Confederation had none of the attributes of sovereignty in legisla^ five, executive, or judicial power. -It was little more than a congress of ambassadors, authorized to represent separate nations, in matters in which they had a common concern. It was this Congress that accepted the cession from Virginia. ’They had no power to accept it under the Articles of Confederation. But they had an undoubted right, as independent sovereignties, to accept any cession of territory for their common 'benefit, which all of them assented to; and it is equally clear, that as their common property, and having no superior to control them, they had the right to exercise absolute dominion over it, subject only to the restrictions which Virginia had imposed in her act of cession. There was, as we have said, no Government of .the United' States then in existence *435 with special enumerated and limited powers. The territory-belonged to sovereignties, who, subject to the limitations above mentioned, had- a right to establish any form of government they pleased, by compact or treaty among themselves, and to regulate rights of person and rights of property in the territory, as' they might deem proper. It was by a Congress, representing the authority of these several and’separate sovereignties, and acting under their authority and command, (but not from any authority derived from the Articles of Confederation,) that the instrument usually called the ordinance 'of 1787 was adopted; regulating in much detail the principles and the laws by which this territory should be governed; and among other provisions, slavery is prohibited in it. We do not question the power of the States, by,agreement among themselves, to pass this ordinance, nor its obligatory force in the territory, while the confederation or league of the States in their separate sovereign character continued to exist. This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated States as common properly, and they had united in establishing in it a system of government and jurisprudence, in order to prepare it for admission as States, according to the terms of the cession. They were about to dissolve this federative "Union, and to surrender a portion of their independent sovereignty to a new Government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States; but this Government was to be caremlly limited in its powers, and to exercise no authority beyond those expressly - granted by the ^Constitution, or necessarily, to be implied from the language of the instrument, and the objects it was intended to-accomplish; and as this league of States would, -upon the adoption of the new Government, cease to have any power over the territory, and the -ordinance they had agreed upon be incapable of execution, and a mere nullity, it was obvious that some provision was necessary to give the new Government sufficient power to enable it to carry into effect' the objects for which it was ceded, and the compacts and agreements which the States had made with each other in'the exercise of their powers of Sovereignty. It was necessary that the lands should be sold to pay the war debt; that a Government and. system of jurisprudence should be maintained in it, to protect the citizens of the United States who should migrate to the territory, in their-' rights of person and of property, It was also necessary that, the new Government, about to be *436 adopted, should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been ceded, but the cession of which was confidently anticipated upon some terms that would 'be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land, such as arms, military •stores, munitions, and ships of war, which were the common property of the States, when acting in their independent characters as confederates, which neither the new Government nor any one else would have a right to take possession of, or control, without authority from them; and it was to place these things under the guardianship and protection of the new Government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which gives Congress the power' lfto dispose of and make all needful rules" and regulations respecting the territory or other property belonging to the United States.” It was intended for a specific purpose, to provide for the things we haVe mentioned. It was to transfer to the new Government the property then held in common by" the States, and to give to that Government, power to apply it to the objects, for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and h,as no reference whatever to any territory or other property which the new sovereignty might after- • wards itself acquire. The language -used in the clause, the arrangement and combination of the powers, arid the somewhat unusual phraseology it-uses, when it speaks of. the political power to be exercised in the. government of the territory, all indicate the design and meaning of the-clause to be such as we have mentioned. It does not-speak of any territory, nor of Territories, but uses language which, according to its legitimate meaning, points to . a particular thing. < The power is given in relation only to the ' territory of the United States — that is, to a territory then in existence, and then known or claimed as the territory of the United States.-, It begins its enumeration of powers by that of disposing; in other words, making sale of the lands, of raising money from them, which, as we have already said, was the main object oí the cession, and which is accordingly the first thing provided for in the article. It then gives the power, •which was necessarily associated with the disposition and sale of the lands — that is, the power- of making needful rules and •regulations respecting the territory. And whatever construe- . tion may now be given to these words, every one, we think, *437 must admit that they are not tbe words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new Government might af-terwards itself obtain by cession from a State, either for its seat of Government, or for forts, magazines, arsenals, dock yards, and other needful buildings. - And the same power of making needful rules respecting the territory is, in precisely the same language, applied to the other property belonging to the United States — associating the power over- the territory in this respect with the power over movable or personal property — that is, the ships, arms, and munitions of war, which then belonged in common to the State sover-eignties. And it will hardly be said, that this power, in relation to the last-mentioned objects, was deemed necessary fo be thus specially given to the new Government, in order to authorize it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might itself manufacture or provide for the public service. No one, it is believed, would think a moment of deriving the power of Congress to make needful rules and regulations in relation to property of this kind from this clause of the Constitution. Nor can -it, upon any fair construction, be applied to any property but that which the new Government was about to receive from the confederated States; And if this be true as to this property, it must be equally true and limited as to the territory, which is so- carefully and precisely coupled with it — -and like it referred to as property in the power granted. The concluding words of the clause appear to render this construction irresistible; for, after the provisions we have mentioned,-it proceeds to say, “that nothing in'the Constitution shall be so construed as to prejudice any claims of the United States, or of-any, particular State.” Now, as we have before said, all of the States, except North Carolina and Georgia, had made the cession before the Constitution was adopted, according to the resolution of Congress of October 10, 1780. The claims of other States, that the unappropriated lands in these two States should be applied to the common benefit, in like manner, was still insisted on, but refused by the States. And this-member of the clause in question evidently applies to them, and can apply to nothing else. It was to exclude the conclusion that either party, by-adopting the Constitution, would surrender what they deemed their rights. And when the latter provision relates so obviously to the unappropriated lands not yet ceded by the States, and the first clause makds provision for "those then actually ceded, it is *438 impossible, by any just rule of construction, to make the first provision general, and extend to all territories, which the Federal Government might in any way afterwards acquire, when the latter is plainly and unequivocally confined to a particular territory; which was apart of the same controversy, and. involved in the same dispute, and depended upon the same principles. The union of the two provisions in the same clause shows that they were kindred subjects; and that the whole clause is local, and relates only to lands, within the limits of the United States, which had been or then were claimed by a State; and that no other territory was in the mind of the framers of the Constitution, or intended to be embraced in it; Upon any other construction it would be impossible to account for the insertion of the last provision in the place where it is found, or to comprehend why, or for what object, it was associated'with the previous provision. ' This view of the subject is confirmed by the .manner in which the present Government of the United States dealt with the subject as soon as it came into existence. It must be borne in mind that the same States that formed the Confederation also formed and adopted the new Government, to which so large a portion of their former sovereign powers were surrendered. It must also be borne in mind th.at all of these same States which had then ratified the new Constitution were represented in the Congress which passed the first law for the government of this territory; and many of the members of that legislative body had been deputies from the States under the Confederation — had united in adopting the ordinance of 1787, and assisted in forming the new Government under which they were then acting, and whose powers they were then exercising. And it is obvious from the law they passed to carry into effect the principles and provisions of the ordinance, that they regarded it as the act of the States done in the exercise of their legitimate powers at the time. The new Government took the territory as it found it, and in the condition in which it was transferred, and did not attempt to undo anything that had been done; And, among the earliest laws passed under the new Government, is one reviving the ordinance of 1787, which had become inoperative and a nullity upon the adoption of the Constitution. This law introduces no new form or principles for its government, but recites, in the preamble, that it is passed in order that this ordinance-may continue to have full effect, and proceeds to make, only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen.. It appears, therefore, that this Congress regarded the purposes *439 to which the land in this Territory was to be applied, and the form of government and principles of jurisprudence which were to prevail there, while it remained in the Territorial state, as already determined on by the States when they had full power and right to make the decision; and that the new Government, having received it in this condition, ought to carry substantially into effect the plans' and principles which had been previously adopted by the States, and which no doubt the States anticipated when they 'surrendered their power to the new Government. And.if we regard this clause of the Constitu- • tion as pointing to this Territory, with a Territorial Government already established in it, which had been ceded to the States for the purposes hereinbefore mentioned — every word in it is perfectly appropriate and easily understood, and the provisions it contains are in perfect harmony with the objects for which it was ceded, and with the condition of its government as a Territory at the time. ,Ve can, then, easily.account for the manner in which the first Congress legislated on the subject — and can also understand why this power over the territory was associated in the same clause with the other property of the United States, and subjected to the like power of making needful rules and regulations. But if the clause is construed in the expanded sense contended for, so as to embrace any territory acquired from a foreign nation by the present Government, and to give it in such territory a despotic and .unlimited power over persons and property, such as the confederated States might exercise in their common property, it would be difficult to account for the phraseology used, when compared with other grants of power — and also for its association with the other provisions in the same clause. The Constitution has always been remarkable for the felicity of its arrangement of different subjects, and the perspicuity and appropriateness of the language it uses. But if this clause is construed to extend to territory acquired by the present Government from a foreign nation, outside of the limits of any charter from the British Government to a colony, it would be difficult to say, why it was. deemed necessary to give the Government the power to sell any vacant lands belonging to the sovereignty which might be found within it; and if this was necessary, why the grant of this power should precede the power to legislate over, it and establish a Government there; and still more difficult to say, why it was deemed necessary so specially and particularly to grant the power to make needful yules and regulations in relation to any personal or movable property it might acquire there. Eor the words, other property necessarily, by every known rule of interpretation, must mean *440 property of a different description from territory or land. And. the difficulty would perhaps be insurmountable in endeavoring to account for the last member of the sentence, which provides that ‘/nothingin this.Constitution shall be so construed.as to prejudice any claims pf the United States or any particular State.,” or to say how any particular State could have claims in or" to a territory ceded by a foreign Government,. or to account for associating this provision with the preceding provisions of the clause, with which it would appear to have no connection. The words “needful, rules; and regulations” would seem, also, to Have been cautiously used for some definite object. Théy are not the words usually employed by statesmen, when they mean to give the powers of sovereignty, or to establish a Government, or to authorize its establishment. Thus, in the law to renew and keep alive the ordinance of 1787, and to reestablish the Government, the title of the law is: “An act to provide for the government of the territory northwest of the river Ohio.” . And in the Constitution, when granting the power to legislate over the territory that may be selected for the Seat of Government independently of a State, it does not say Congress shall have power “to make all needful rules and ■regulations respecting' the territory;” but it declares that “ Congress shall have povfer to exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square)^as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States. The words “rules and regulations” are usually employed in ' the Constitution in speaking of some particular specified power which it means to confer op the Government, and not, as we have seen, when granting general powers of legislation. As, for example, in the particular power to Congress “to make rules for the government and regulation of the land and naval forces, or the particular and specific power to regulate commerce;” “to establish an uniform rule o,f naturalization;” _“to coin money and regulate the value thereof.” And to construe the words of which we are speaking as a general and unlimited grant of sovereignty over territories which the Government might afterwards acquire, is to use them' in a sense and for a purpose for which they were not used in any other part of the instrument. But if confined to a particular Territory, in which a Government and laws had already been established, but which would require some alterations to adapt it to the new Government, the words are peculiarly applicable and appropriate for that purpose. *441 The necessity of this speeial provision in relation to property and the rights or property held in common by the confederated ■States, is illustrated by the first clause of the sixth article. This clause provides that “ail debts, contracts, and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Government as under the Confederation.” This provision, like the one under consideration, was indispensable if the new Constitution was adopted. The new Government was not a mer¿ change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and hound by all the obligations of the preceding one. But, when the present United States came into existence under the new Government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution. And as the several States would cease to exist in their former confederated character upon the adoption of the Constitution, and could not, in that character, again assemble together, special provisions - were indispensable to transfer to the new Government the property and rights which at that time they held in common; and at the same time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted; and this power could only be given to it by special provisions in the Constitution. The clause in relation to the territory and other property of the United States provided for the first, and the clause last quoted provided for the other. . They have no connection with the general powers and rights, of sovereignty delegated-to the new Government, and can neither enlarge nor diminish them. They were inserted to meet a present emergency, and not to regulate its powers as a Government. Indeed, a similar provision was deemed necessary, in relation to treaties made by the Confederation; and when1 in the clause next succeeding the one of which we have last spoken, it is declared that treaties shall be the supreme law of the land, care is taken to include, by express words, the treaties made by the confederated States. The language is: “and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” Whether, therefore, we take the particular clause in question, by itself or in connection with the other provisipns of the Constitution, we think it clear, that it applies only to the par *442 ticular territory of which we have spoken, and cannot, by any just rule of interpretation, be extended to territory which the new Government might afterwards obtain from a foreign nation. Consequently, the power which Congress may have lawfully exercised in this Territory, while it remained under a ■Territorial Government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory af-terwards acquired by the Federal Government. "We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us. But the case of the American and Ocean Insurance Companies v. Canter ( 1 Pet., 511 ) has been quoted as establishing a different construction of this clause of the Constitution. There is, however, not the slightest conflict between the opinion now given and the one referred to; and it is only by taking a single sentence out of the latter and separating it from the context, that even an appearance of conflict can be shown. "We need not comment on such a mode of expounding an opinion of .the court. Indeed it most commonly misrepresents instead of expounding it. And this is fully exemplified in the case referred to, where, if one sentence is taken by itself, the opin- : ion would appear to,.be in direct conflict with that now given; but. the words which immediately follow that sentence show that the court did not mean to decide the point, but merely affirmed the power of Congress to establish a Government in the Territory, leaving it an open question, whether that power-was derived from this clause in the Constitution, dr was to be necessarily inferred from a power to acquire territory by cession from a foreign Government. The opinion on this part of the case is short, and we give the whole of it to show how well the selection of a single sentence is calculated to mislead. ' The passage referred .to is in page 542, in which the court, in speaking of the power of Congress to establish a Territorial Government in Florida until it should become a State, usés the following language: “In the mean time Florida continues to be a Territory of the •United States, governed by that clause of the Constitution which empowers . Congress to make alb needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired-the means of self-government, may result, necessarily, from the facts that it is not within the jurisdiction of any par *443 ticular State, and is within the power and jurisdiction of the United States.- The right to govern may. he the inevitable consequence of the right to acquire territory. ’Whichever may he the source from which the power is derived, the possession of it is unquestionable.” It is thus clear, from the whole opinion on this point, that the court did not mean, to decide whether the power was derived from the clause in the Constitution, or was the necessary consequence of the right to acquire. They do decide that the power in Congress is unquestionable, and in, this we entirely concur, and nothing will he found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court — that is, as “the inevitable consequence of the right to acquire territory ” And what still more clearly demonstrates that the court did not mean to decide the question, hut leave it open for future consideration, is the fact that the case was decided in the Circuit Court by'Mr. Justice Johnson, and his decision was affirmed by the Supreme Court. His opinion at the circuit is given in full in a note to the case, and in that opinion he states, in explicit terms, that the clause of the Constitution applies only to the territory then within the limits of the United States, and not to Florida, which had been acquired by cession from Spain. This part of his opinion will be found in the note in page 517 of the report. But he does not dissent from the opinion of the Supreme Court-; thereby showing that, in his judgment, as well as that of the court, the pase before them did not call for a decision on that particular point, and the court abstained from deciding it. And in a part of its opinion subsequent to the passage we have quoted, where the court speak of the legislative power of Congress in Florida, they still speak with the same reserve. And m page 546, speaking of the power of Congress to authorize the Territorial Legislature to establish courts there, the court say: “They are legislative courts, created in virtue of the -general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States.” It has been said that the construction given to this clause is new, and now for the first time brought forward; The case of which we are speaking, and which has been so much discussed, shows that the fact is otherwise. It shpws- that precisely the same question canie before Mr. Justice Johnson, at his circuit, thirty years ago — was fully considered by him, and the same construction given to the clause in the Constitution which is now given by this court. And that upon an appeal *444 from, his decision the same question was^ brought before this court, but was not decided because a decision upon it was not required by the case before, the court. There is another sentence in the opinion which hás been commented on, which even in a still more striking manner shows how one may mislead or be misled by taking out as single sentence from the opinion of a court, and leaving out of view what precedes and follows. It is in page 546, near the close of the opinion, in which the court say.: “In legislating for them,” (the territories of the United States,) “ Congress exercises the combined, powers of the Genera] and of a State. Government.” Arid it is said, that as a State may unquestionably prohibit slavery within its territory, this sentence decides in effect that Congress may do the same in a Territory of the United States, exercising there the powers of a State, as well as the power of the G-eneral Government. ' The examination of this passage in the case referred to, - would be more appropriate when we come to consider in another part of this opinion what power Congress can constitu-tiorially exercise in a Territory, ■ over the rights of person or rights pf property of a citizen. But, as it is in the same case with the passage we have before commented on, we dispose of it now, as- it will save the court from the necessity of referring again to the case. And it will be seen upon reading the page in which this sentence is found, that it has no reference whatever to the power of Congress Over rights of person or rights of property — but relates altogether to the power of establishing judicial tribunals to administer the laws constitutionally passed, and defining the jurisdiction they may exercise. The law of Congress establishing a Territorial^ Government in Florida, provided that the Legislature of the Territory should havelegislative powers over “all,rightful objects of legislation;, but no law should be valid which was inconsistent with the . laws and Constitution of the United States.” Under the power thus conferred, the ¡Legislature of Florida passed an act, erecting a tribunal at Key West to decide cases of salvage. Arid in the case of which we are speaking, the question arose whether the Territorial Legislature .could be authorized by Congress to establish such a tribunal, with such powers; and one of the parties, among other objections, insisted that Congress could not under the Constitution authorize the Legislature of the Territory to establish such a tribunal with such powers, but that it must be established by Congress itself;, and that a sale of cargo made under its order, to pay salvors, was Void, as made without legal authority, and passed no property to the purshaser. *445 It is in disposing of this objection tbat tbe sentence relied on occurs, and the court begin that part of the opinion by stating with great precision the point which they are about to decide. They say: “It has been contended that by the Constitution of the United States, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction; and that the whole of the judicial power must be vested ‘ in one Supréme Court, and in such inferior courts as Congress shall from time to tipie ordain and establish.’ Hence it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the Territorial Legislature.” And after thus clearly stating the point before them, and which they were about to decide, they proceed to show that these Territorial tribunals Were not constitutional courts, but merely legislative, and that Congress might, therefore, delegate the power to the Territorial Government to establish the court in question; and they conclude that part of the opinion in the following words: “Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the Territories. In legislating for them-, Congress exercises the combined powers of the General and State Governments.” Thus it will be seen by these quotations from the opinion, that the court, after stating the question it was about to decide in a manner too plain to be misunderstood, proceeded to decide it, and announced, as the - opinion of the tribunal, that in organizing the judicial department of the Government in a Territory of the United States, Congress does not act under, and is not restricted by, the third article in the Constitution, and is not bound, in a Territory, to ordain and establish courts in which the judges hold their offices during good behaviour, but may exercise the discretionary power which a State exercises in establishing. its judicial department, and regulating the jurisdiction of its courts,- and may authorize th'e Territorial Government to establish, or may itself establish,- courts in which the judges bold their offices for a.term of years only; and may vest in them judicial power upon subjects confided to the judiciary of the United States. And in doing this, Congress undoubtedly exercises the combined power of the General and a State Government. It exercises the discretionary power of a State Government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only, and not during good behaviour; and it' ex- • erases the power of the General Government in investing that *446 court with admiralty jurisdiction, over which the General Gov-ernmént had exclusive jurisdiction in the Territory. No one, we presume, will question the correctness of that opinion; nor is there anything in conflict with it in the opinion now given: The point decided in the case cited has no rela- ' tion to the question now before the- court. That depended on the construction- of the third article of the Constitution, in relation to the judiciary of the United States, and the poorer which Congress might exercise in a Territory in organizing vthe judicial department of the Government. The case before us depends upon other and different provisions of the Constitution, altogether separate and-apart from the one above men*' tioned. The questipn as to what courts Congress may ordain or establish in a Territory to administer laws which the Constitution authorizes it to pass, and what laws it is or is not authorized by the Constitution to pass, are widely different— are regulated by different and separate articles of the Constitution, and stand'upon different principles. -Ánd-we are satisfied that no one who reads attentively the page in Peters’s Reports to which we have referred, can suppose that the attention of the court was drawn for a moment to the question now before -this court, or that it meant in that ease to say that Congress hkd a right to prohibit a citizen of the United States from taking any property which he lawfully held into a Territory of the United States. _ This brings us to examine by wha-t provision of the Consti--tution the present Federal Government, under its delegated and restricted powers, is' authorized to acquire territory, outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the.United States, while it remains a Territory, and-until it shall be admitted as one of the States of the Union. There is certainly no power given by the Constitution to the Federal Government to establish - or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That, power is plainly given; and if a new- State is admitted!, it needs no further legislation by Congress, because the Constitution- itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire á Territory to be held and governed permanently in that character. And indeed the power exercised by Congress to acquire territory and establish a Government there, according to its own Unlimited discretion, was viewed with great jealousy by the *447 -leading statesmen of the-day. And in the Federalist, (Nt). 38,) written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the confederated States, by the cession from Virginia, and the establishment of a Government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power. • We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of .the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory, not fit for admission at-the time, but. to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State; and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, thef power-to acquire territory for -that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government, and not the judicial; and whatever the political department of the Government shall recognise as within the limits of the United States, the judicial department is also bound to recognise, and to administer in it the laws of the United States, so far as they apply, and to maintain in the Territory the authority and rights of the Government and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no. express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a Territory thus acquired, the court must necessarily look to the provisions and'principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed. Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose. The principle upon which our Governments rest, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own- limits in *448 their internal and domestic concerns,'' and bound together as one people by a General Government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the General Government to obtain and hold colonies and dependent territories, over which they might legislate without restriction, would bo inconsistent with its own existence in its present form. "Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests- of the whole people of the Union in the exercise of the powers specifically granted. At the time when the Territory in question was obtained by cession from France, it contained no population fit to be associated together and admitted as a State; and it therefore was absolutely necessary to hold possession of it, as a Territory belonging to the United States, until it was settled and inhabited by a civilized community capable of self-government; and in a condition to be admitted on equal terms with the.other States as a member of the Union. But, as we have before said, it was acquired by the General Government, as the representative and trustee of the people of the United States, and' it must therefore be held in that character for their common and equal benefit; for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union. But until that time arrives, it is undoubtedly necessary that some Government should be established, in order to oi'ganize society, and to protect the inhabitants in their persons and property; and as the people of the United States could act in this matter only through the Government which represented them, and through which they spoke and acted when the Territory was obtained, it was not only within the scope of its powers, hut it was its duty to pass such laws and establish such a Government as would enable those by whose authority they acted to reap the advantages anticipated from its acquisition, and to gather there a population which would enable it to assume the position to which it was destined among the States of the Union. The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be. estab- *449 listed necessarily rested in the discretion of Congress. It was their duty to establish the one that would be best suited for the protection and security of the citizens of the United States, and other inhabitants who might be authorized to take up their abode there, and that must always depend upon the existing condition of the Territory, as to the number and character of .its inhabitants, and their situation in the Territory. In-some cases a Government, consisting of persons appointed by the Federal Government, would best subserve the interests of tlje Territory, when the inhabitants were few and scattered, and new to one another. In other instances, it would be more advisable to commit the powers of self-government to the people who had settled in the Territory, as being the most competent to determine what was best for their own interests. But some form of civil authority would be absolutely necessary to organize and preserve civilized society, and prepare it to become a State; and what is the best form must always depend on the condition of the Territory at the time, and the choice of the mode must depend upon the exercise of a discretionary' power by Congress, acting within the scope of its constitutional authority, and not infringing upon the rights of person or rights of property of -the citizen who might go there to reside, or for any other lawful purpose. It was acquired by the exercise of this discretion, and it must be held and governed in. like manner, until it is fitted to be a State. But the power of Congress over the person or property óf a citizen can never be a mere discretionary power under our’ Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territoi’y becomes a part of the United States, the Federal Government enters into possession in the character impressed upon'it by those who cx-eated it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence', and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Tei’ritory of-the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Gov- *450 eminent can exercise no power over Ms person or property, beyond what that instrument confers, nor lawfully deny any right which it' has reserved. A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the estab-' lishment.of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. These powers, and others, in, relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without' due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of. the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person .convicted; nor take private property for public use ■without jsust compensation. The powers over person and property of which we speak •are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition as not confined to the States, but the words are general, and extend to the whole territory over which the institution gives it power to legislate, including those portions-of it remaining under Territorial Government, as well as .that covered by States. It is a total absence of power everywhere within the dominion of. the United States, and places the citizens of a Territory, so far as these rights are *451 concerned, on tbe same footing with citizens of tbe States, and guards them as firmly and plainly against any inroads which tbe General Government might attempt, under tbe plea of implied or incidental powers. And if Congress itself cannot do tbis — :if it is beyond tbe powers conferred on tbe Federal Government — it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It ■ could confer no power on any local Government, established by its authority, to violate tbe provisions of tbe Constitution. It seems, however, to be supposed, that there is a difference between property in a sl'ave and other property, and that different rules may be applied to it in expounding tbe Constitution .of tbe United States. And the law's and usages of' nations, and tbe writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and tbe powers which Governments may exercise over it, have been dwelt upon in tbe argument. But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of tbe United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated .powers, and forbidden it to exercise others; It has no power over the person or property of a citizen but what the citizens of the United States hate granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other properly owned by a citizen, no tribunal, acting under the authority of the United States, whether it he legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government. Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property bn a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like , an ordinary .article of merchandise and property, was guarantied to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms .is pledged to protect *452 it in all future time, if the slave escapes from his owner. This is done in plain words — too plain to be misunderstood. And no word can be found.in the Constitution which gives Congress a greater power over slave property, -or which , entitles .property of that kind to’ less protection than property of any other description. The only power conferred is the power coupled • with the duty of guarding and protecting the owner' in his rights. Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of . the line therein mentioned, is-not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were, made free by being carried into this territory; even if they had been carried there by the owner-, with the intention of becoming a permanent resident. We have so far examined the ease, as it stands under1 the Constitution of the United States, and the powers thereby delegated to the Federal Government. 'But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States; and being so made free, he was not again reduced to a state of slavery by being brought back-to Missoirri. Our notice of this part of the case will be very brief; for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. v. Graham, reported in 10th Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition, as free or slave, depended upon the laws of Kentucky, when they were brought back into that State, and not of Ohio; and that this court had no jurisdiction to. revise the judgment of a State court upon its own. laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case, So in this ease. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and» not of Illinois. It has,, however, been urged in the argument, that by the laws of Missouri he .was free on his return, and that this case, *453 therefore, cannot be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may, at one time, have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State, that Scott and his. family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court ¿f the United States had no jurisdiction, when, by. the laws of the State, the plaintiff was a slave, and not a citizen. Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State; was fully argued there; and that court decided that neither the plaintiff nor his family were entitled to freedom^ and were still the slaves of the defendant;' and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of • the Supreme Court of the State was erroneous, and that this court had jurisdiction to revise and reyerse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument .that the writ must have been dismissed for want of jurisdiction in this court. The case of Stráder and others v. Graham is directly in point; and, indeed, independefit of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy.' But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case. And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence, and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the *454 State court. And if this court takes jurisdiction in this form, tbe result, so far as tbe rights of tbe respective parties are concerned,, is in every respect Substantially tbe same as if it bad in open violation of law entertained jurisdiction over tbe judgment of tbe State court upon a* writ of error,, and revised and reversed its judgment upon the ground that its opinion, upon tbe question of law was erroneous. It would ill become this court to sanction such an attempt to evade tbe law, or to exercise an appellate power in this circuitous way, which it is forbidden to exercise in tbe direct and regular and invariable forms of judicial proceedings. Upon tbe whole, therefore, it is the judgment of this court, that it appears by tbe record before us that tbe plaintiff in error is not a citizen of Missouri, in tbe sense in which that word is used in the Constitution; and that tbe Circuit Court of tbe United States, for that reason, bad no jurisdiction in tbe case,, and couíd give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing tbe suit to be dismissed for want of jurisdiction. --- Mr. Justice "WAYNE. Concurring as I do entirely in tbe opinion of the court, as it has been written and read by tbe Chief Justice — without any qualification of its reasoning or its conclusions — I shall neither read nor file an opinion of . my own in this case, which I prepared when I supposed it might be necessary and proper for me to do so. The opinion of the court meets fully and decides every point which was made in the argument of the case by the counsel on either side of it. Nothing belonging to the case has been left undecided, nor has any point beeli discussed and decided which was not called for by the record, or which was not necessary for the judicial disposition of it, in the way that it .has been done, by more than a majority of the court. In doing this, the court neither sought nor made the case. „ It was brought to us in the course of that administration of ’ the laws which Congress has enacted, for the review of cases from the Circuit Courts by the Supreme Court. ■ In .our action upon it, we have only discharged our duty as .a distinct and efficient department of the Government, as the framers of the Constitution meant the judiciary to be, and as the States of the Union and-the people of those States.intended -it should be, when they ratified the Constitution of the United ".'States. " _ ■. The case involves private rights of value, and constitutional principles of the highest importance, 'about which, there had *455 become such a difference of opinion, that' the peace and harmony of the country required the settlement of them by judicial decision. It would certainly be a subject of regret,, that the conclusions of the court have not been assented to by all of its members, if I did not know from its history and my own experience how rarely it has happened that the judges have been unanimous upon constitutional questions of moment, and if our decision in this case had not been made by as large a majority of them as has been usually had on constitutional questions of importance.' Two of the judges, Mr. Justices McLean and Curtis, dissent from the opinion of the court. A third, Mr. Justice Nelson, gives a separate opinion upon a single point in the case, with which I concur, assuming that the Circuit Court had jurisdiction; but he abstains altogether from expressing any opinion upon the eighth section of the act. of 1820, known commonly as the Missouri Compromise law, and six of us declare that it was unconstitutional. But it has been assumed, that this court has acted extra-judicially in giving an opinion upon the eighth section of the act of 1820, because, as it lias decided that the Circuit Court had no jurisdiction of the case, this court had no jurisdiction to examine the ease upon its merits-. , But the error of such an assertion has ai'isen in part from a misapprehension of what has been heretofore decided by the Supreme Court, in cases of a like kind with that before us; in part, from a misapplication to the Circuit Courts of the United States, of the rules of pleading concerning pleas to the jurisdiction which prevail in common-law courts; and from its having been forgotten that this ease was not brought to this court by appeal or writ of error from a State court, but by a writ of error to the Circuit Court of the United States. The cases cited by the Chief Justice to show that this court has now only done what it has repeatedly done before in other cases,, without any question of its correctness, speak for themselves. The differences between the rules concerning pleas to the jurisdiction in the courts of the United States and "common-law courts, have been stated and sustained by reasoning and adjudged cases; and it has been-shown that writs of error to a State court and to the Circuit Courts of the United States are-to be determined by different laws and principles. In the first, it is our duty to ascertain if this court has jurisdiction, under the twenty-fifth section of the judiciary act, to review the case from the State court; and if it shall be found that it has not, the case is at end, so far as this court is concerned; for our power *456 to review the ease upon its merits has been made, by the twenty-fifth section, to depend upon its having jurisdiction; when it has not, this court cannot criticise, controvert, or give any opinion upon the merits of a case from a State court. But in a case brought -to this court, by appeal or by writ of error from a Circuit Court of the United States, we begin a review of it, not by inquiring if this court has jurisdiction, but if that court has it. „ If the case has been decided by that court upon its merits, but the record shows it to be deficient in those aver-ments which by the law of the United States must be made by the .plaintiff in the . action, to give the court jurisdiction of his case, we send it back to the court from which it was brought, with directions to be dismissed, though it has been decided there upon its merits. So, in a case containing the averments by the plaintiff which are necessary to give the Circuit Court jurisdiction, if the defendant shall file his plea in abatement denying the truth of them, and the plaintiff shall demur to it, and the court should' erroneously sustain the plaintiff’s demurrer, or declare the plea to be insufficient, and by doing so require the defemlant to answer over by a plea to the merits, and shall decide the case upon such pleading, this court has the same authority to inquire into the jurisdiction of that court to do so, and to correct its error in that regard, that it had in the other case, to correct its error, in trying a case in Much the plaintiff had not made those averments which were necessaiy to give the court jurisdiction. ‘ In both cases the record is resorted to, to determine the point of jurisdiction; but, as the power of review of cases, from a Federal court, by this court, is not limited by the law to a part of the case, this court may correct an error upon the merits; and there is the same reason for. correcting an erroneous judgment of the Circuit- Court, where the want of jurisdiction appears from any part of the record, that there is for declaring a want of jurisdiction for a want of necessary averments. Any attempt to control the court from doing so by the technical common-law rules of pleading in cases of jurisdiction, when a defendant has been denied his plea to it, would tend to enlarge the jurisdiction of the Circuit Court, by limiting this court’s review of its judgments in that particular. But I will not argue a point already so fully discussed. I have every confidence in the opinion of ■ the court upon the point of jurisdiction, and do not allow myself to doubt that the error of a contrary conclusion wijl be fully understood by all who shall read the-argument of the Chief Justice. I have already said that the opinion of the court has my unqualified assent. ■ *457 Mr. Justice NELSON. . I shall proceed to state tbe grounds upon which I have arrived at the conclusion, that the judgment of the court below should be affirmed. The suit was brought in- the court below by the plaintiff, for the purpose of asserting his freedom, and that of Harriet, Lis wife, and two children. The defendant plead, in abatement to the suit, that the cause of action, if any, accrued'to the plaintiff out of the .jurisdiction of the court, and exclusively.within the jurisdiction of the courts of the State of Missouri; for, that the said -plaintiff is not a citizen of the State of Missouri, as alleged in tie declaration, because.he is a negro of African descent; his ancestors were of pure African blood, and were bi’ought into this country and sold as negro slaves. To this plea the plaintiff demurred, and the defendant joined in.demurrer. The court below sustained the demurrer, hold-'hat the plea was insufficient in law to abate the suit. The defendant then plead over in bar of-the action: 1. The general issue. 2. That the plaintiff was- a negro slave, the lawful property of the defendant. And 3. That Harriet, the wife of said plaintiff, and the two ' children, were the lawful slaves of the said defendant. Issue was taken upon these pleas, and the cause went down to trial before the court and jury, and an agreed state of facts was presented, upon which the trial proceeded, and resulted in a verdict for the defendant, under the instructions of the court. The facts agreed upon were substantially as follows: That in the year 1834, the plaintiff, Scott, was a negro slave of Dr. Emerson, who was a surgeon in the army of the United States; and in that year he 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 this date, Dr. Emerson removed, with the plaintiff, from the Rock Island post to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory of Upper Louisiana, and north of the latitude thirty-six degrees thirty minutes, and north- of' the State of Missoui’i. That he held the plaintiff in slavery, at Fort Snelling, from the last-mentioned date until the year 1838. That in the year 1835, Harriet, mentioned in the declaration, was a negro slave of Major Taliaferro, who belonged to the army of the United States; and in that year he took her to Fort Snelling, already mentioned, and kept her there as a slave until the year 1836, and then sold and delivered her to Dr. Emerson, who held her in slavery, at Fort Snelling, until the year 1838. That in the year 1836, the plaintiff, and Harriet *458 were married, at Eort Snelling, with • the consent of tbeir master. The two children, Eliza and Lizzie, are the fruit of this marriage. The first is about fourteen years of age, and was born on board the steamboat Gipsey, north of the State of Missouri, and upon the Mississippi river; the other, about seven yeai’s of age, was born in the State of Missouri, at the military post called Jefferson Barracks. In 1888, Dr. Emerson removed the plaintiff, Harriet, ar.d their daughter Eliza, from Eort Snelling to the State of Missouri, where they have ever since resided. And that, before the commencement of this suit, they were sold by the Doctor to Sandford, the defendant, who has claimed and held them as slaves ever since. The agreed case also states that the plaintiff brought a suit for his freedom, in the Circuit Court of the State of Missouri, on which' a judgment was rendered in his favor; but that, on a writ of error from the Supreme Court of the State, the judgment of the court below was reversed, and the cause remanded to the circuit for a new trial. On closing the testimony in the court below, the counsel for the plaintiff prayed the court to instruct the jury, upon the agreed state of facts, that they ought to-find for the plaintiff; when the court refused, and instructed them that, upon the facts, the law was with the defendant. 'With respect to the plea in abatement, which went to the citizenship of the plaintiff, and his competency to bring, a suit in the Federal courts, the common-law rule of pleading is, that upon' a judgment against the plea on demurrer, and that the defendant answer over, and the defendant submits to the judgment, and pleads over to the merits, the plea in abatement is deemed to be waived, and is -not afterwards to be regarded as -a part of the record in deciding upon the rights of the parties. There is some question, however, whether this rule of pleading applies to the peculiar system and jurisdiction of the Eederal courts. As, in these courts, if the facts appearing on the record show that the Circuit Court had no jurisdiction, its judgment will be reversed in the appellate court for that cause, and the case- remanded with directions to be dismissed. Tn the view we have taken of the case, it will not be necessary to pass upon this question, and we shall therefore proceed at once to an examination of the case upon its merits. The question upon the merits, .in general terms, is, whether or not the removal of the plaintiff, who was a slave, with his master, from the State of Missouri to the State of Illinois, with a view, to a temporary residence, and after such residence and *459 return to tbe slave State, sucb residence in tbe free State works an emancipation. As appears from an agreed statement of facts, tbis question bas been before tbe highest court of tbe State of Missouri, and a judgment rendered that 'tbis residence in the free State bas no sucb effect; but, on tbe contrary, that bis original condition continued unchanged. Tbe court below, the Circuit Court of tbe United States for Missouri, in which this suit was afterwards' brought, followed the- decision of the State court, and rendered a like judgment against the plaintiff. _ _ Tbe argument against these decisions is, that tbe laws of Illinois, forbidding slavery within her territory, bad tbe effect to set tbe slave free while residing in that State, and to impress upon him tbe condition and status of a freeman;, and that, by force of these laws, tbis status and condition accompanied him on bis .return to the slave State, and of consequence be coúld not be there held as a slave. Tbis question has been examined in tbe courts of several of tbe slaveholding States, and different opinions expressed and conclusions arrived at. We shall hereaftér refér .to some of them, and to the principles .upon which they are founded. Our opinion is, that the question is one which belongs to each State to decide for itself, either by its Legislature or courts of justice; and hence, in respect to tbe ease before us, to tbe State of Missouri — a question exclusively of Missouri law, and which, when determined by that State, it is tbe duty of tbe Federal courts to follow it. In other words, except in cases where the power is restrained by tbe Constitution of tbe United States, tbe law of tbe State is supreme over tbe subject of slavery within its jurisdiction. As a practical illustration of tbe principle, we may refer to tbe legislation of tbe free States in abolishing slavery, and prohibiting its introduction into their territories. Confessedly, except as restrained- by tbe Federal Constitution, they exercised, and rightfully, complete and absolute power over tbe subject. Upon what principle, then, can it be denied to tbe State of Missouri? The power flows from tbe sovereign character of tbe States of tbis Union; sovereign, not merely as fespects tbe Federal Government — except as they have consented to its limitation — but sovereign as respects each other. Whether, therefore, tbe State of Missouri will recognise or give effect to tbe laws of Illinois within her territories on tbe subject of slavery, is a question for her to determine. Nor is there any constitutional power in tbis Government that can rightfully control her. *460 Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory; and, her laws affect and bind all property and persons residing within it. It may regulate the manner and circumstances under which property is held, and the condition, capacity, and state, of all persons therein; and, also, the remedy: and modes of administering justice. And.it is equally true, that no State or nation can affect or bind property out of its territory, or persons not residing within it. No State, therefore, can enact -laws to' operate beyond its own dominions, and, if it attempts to do so, it may be lawfully refused obedience. Such laws can have no inherent authority extra-territorially. This is the necessary result of the independence of distinct and separate sovereign-ties. Now; it follows from these principles, that whatever force, or effect the laws of one State or nation may have in the territories of another, must depend solely upon the laws and municipal regulations of the latter, upon its own jurisprudence and polity, and upon its own express or tacit consent. Judge Story observes, in his Conflict of Laws, (p. 24,) “that a State may prohibit the operation of all foreign laws, and the fights growing out of them, within its territóries.” “And that when its code speaks positively on the subject, it must he obeyed by all persons who are within'reach of its sovereignty; when its customary unwritten or common law speaks directly on the subject, it is equally to be obeyed.” Nations, from convenience and cpmity, and from mutual interest, and a sort of moral necessity to do justice, recognise and administer the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself; and is never bound, even upon the ground of comity, to recognise them, if prejudicial to her own interests. The recognition is purely from comity, and not from any absolute or paramount obligation. Judge Story again observes., (898,) “ that the true foundation. and extent of the obligation of the laws of one nation within another is the voluntary consent of the latter, and is inadmissible when they are contrary to its known interests.” And he adds, “in'the silence of any positive rule affirming or denying or restraining the operation of the foreign laws, courts of justice presume the tacit adoption of them by their own Government, unless they are repugnant to its policy or prejudicial to its interests.” (See also 2 Kent Com., p. 457; 13 Peters, 519, 589 .) These principles fully establish, that it belongs to the sóver- *461 eign State of Missouri to determine by her laws tbe question of slavery within her jurisdiction, subject only to such limitations as may be found in the Federal Constitution; and, further, that the laws of other States of the Confederacy, whether enacted hy their Legislatures or expounded by their courts, can have no operation within her territory, or affect rights growing out of her own laws on the subject. This is the necessary result of the independent and sovei’eign character of the State.. The principle is not peculiar to the State of Missouri, but is equally applicable to each State belonging to the Confederacy. The laws of each have no extra-territorial operation within the jurisdiction of another, except such as may be voluntarily conceded by her laws or courts of justice. To the extent of such concession upon the rule of comity of nations, the foreign law may operate, as it then becomes a part of the municipal law of the State. When determined that the foreign law shall have effect, the municipal law of the State retires, and gives place to the foreign law. In view of these principles, let us examine a little more closely the doctrine of those who maintain that the law of Missouri is not. to govern the status and condition of the plaintiff. They insist that the removal and temporary residence with his master in Illinois, where slavery is inhibited, had the effect to set him free, and that the same effect is to be given to the law of Illinois, within the State of Missouri, after his return. Why was he set free in Illinois? Because the law of Missouri, under which he.was-held.as a slave, had no operation by its own force extra-territorially; and the State of Illinois refused to recognise its effect within her limits, upon principles of comity, as a state of slavery was inconsistent with her laws, and contrary to her policy. But, how is the case different on the return of the plaintiff to the State of Missouri? Is she bound to'recognise and enforce the law of Illinois? Eor, unless she is, the status and condition of the slave upon his return remains the same as originally existed. Has the law of Illinois any greater force within the jurisdiction of Missouri, than the laws of the latter within that of the former? Certainly not. They stand upon an equal footing. Neither has any force extra-territorially, except what may be voluntarily conceded to them. It has been supposed, by the counsel for the plaintiff that a rule laid down by Iluberus had some bearing upon this question. Huberus observes that “personal qualities, impressed by the laws of any place, surround and accompany the person wherever he goes, with this effect: that in every place he enjoys and is subject to the same law which other persons qf his *462 class elsewhere enjoy or are subject to.” (De Confl. Leg., lib. 1, tit. 3, sec. 12; 4 Dallas, 375 n.; 1 Story Con. Laws, pp. 59, 60.) The application sought to be given to the rule was this: that as Dred Scott was free while residing in the State of Illinois, by the laws of that State, on his return to the State of Missouri he carried with him the personal qualities of freedom, and that the same effect must be given to his status there as in the former State. But'the difficulty in the case is in the total misapplication of thé rule. ■ These personal qualities, to which Huberus refers, are those impressed upon the individual by the law of the domicil; it is this that the author claims should be permitted to accompany the person into whatever country he might go, and should supersede the law of the place where he had taken up a temporary residence. Now, as the domicij. of Scott was in the State of Missouri, where he was a slave, and from whence he was taken by his master into Illinois for a temporary residence, according to the doctrine of Huberus, the law of his domicil would have accompanied him, and during his residence there he would remain in the sainé condition as in the State of Missouri. In order to have given effect to the rule, as claimed in the argument, it should have been first shown that a domicil had been acquired in the free State, which cannot be pretended upon the agreed facts in the case. But the true answer to the doctrine of Huberus is, that the rule, in any aspect in which it may be viewed, haS no bearing upon either side of the question before ús, even if conceded to the extent laid down by the author; for he admits that foreign Governments give effect to these laws of the domicil no further than they are consistent with their own laws, and not prejudicial to their own subjects; in other words, their force and effect depend upon the law of comity of the foreign Government. "We should add, also, that this general rule.of Huberus, referred to, has not been admit-, ted in the practice of nations, nor is it sanctioned by the most. approved jurists of international law. (Story Con., sec. 91, 96, 103, 104; 2 Kent. Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, 127.) "We come now to the decision of this court in thé case of Strader et al. v. Graham, (10 How., p. 2.) The case came up from the Court of Appeals, in the. State of Kentucky. The question in the case was, whether certain slaves of Graham, a resident of Kentucky, who had been employed temporarily at several places in the State of Ohio, with their master’s consent, and had returned to Kentucky into his service, had thereby *463 become entitled to their freedom. The . Court of Appeals held that they had not. The case was brought to this court under -the twenty-fifth section of the Judiciary act. This court held that it -had no jurisdiction, for the reason, the question was one that belonged exclusively to the State of Kentucky. The Chief Justice, in delivering the opinion of the court, observed that “ every State has an undoubted right to determine the status or domestic and social condition of the persons domiciled within its territory, except in so far as the powers of the States in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of- the United States, he observes, that can in. any degree control the law of Kentucky upon this subject. And the condition of the negroes, there- ■ fore, as to freedom or slavery, after their return, depended altogether upon the laws of that State, and could not be influenced by the laws of Ohio. It was exclhsively in the power of Kentucky to determine, for herself, whether their employment in another State should or should not make them free on their return.’’ ■ It has been supposed, in the argument on the part of the plaintiff, that the eighth section of the act of Congress passed March 6, 1820, (3 St. at Large, p. 544,) which prohibited slavery north of thirty-six degrees thirty miutes, within which the plaintiff and his wile temporarily resided at Fort Snelling, possessed some superior. virtue and effect, extra-territorially, and' within the State of Missouri, beyond that of the laws of Illinois, or those of Ohio in the case of Strader et al. v. Graham. A similar ground was taken and urged upon the court in the case just mentioned, under the ordinance of 1787, which was enacted during the time 'of the Confederation, and reenacted by Congress after the adoption of the Constitution, with some amendments adapting it to the new Government. (1 St. at Large, p. 50.) _ ... In answer to this ground, the Chief Justice, in delivering the opinion of the court,, observed: “ The argument assumes that the six articles which that ordinance declares to be. perpetual, are still in force in the. States since formed within the territory, and admitted into the Union. If this proposition 'could be maintained, it would not alter the question; for the regulations of Congress,1 under the old Confederation or the present Constitution, for the government of a particular Territory, could have no force beyond its linlits. It certainly could not restrict the power of the States, within their respective territories, nor'in any maimer interfere with their laws and institutions, nor give this court control over them.. *464 “The ordinance' in question, he observes, if still in force, could have no more operation than the laws of Ohio in thé State of Kentucky, and could not influence the decision upon the rights of the -master or the slaves in that State.” .This view, thus authoritatively declared, furnishes a conclusive answer to the distinction attempted to be set up between the extra-territorial eftect of a State law and the act of Congress in question. It must be admitted, that Congress possesses no power to regulate or abolish slavery within the States; and that, if this act had attempted any such legislation, it would have been a nullity. And yet the argument here, if thez’e be any force in it, leads to. the result, that effect may be given to such legislation; for it is only by giving the act of Congress operation within the State of Missouri, that it can have any effect upon the question between the parties. Having no such effect directly, it will be difficult' to maintain, upon any consistent reasoning, that it can be made to operate indirectly upon the subject. The argument, we think, in any aspect in which it may be viewed, is utterly destitute of support upon any principles of constitutional law, as, according to that, Congress has no power whatever over the subject of slavery within the State; and is also subversive of the established doctrine of international jurisprudence, as, according to that, it is an axiom that the laws of one Government have no force within the limits of another, or extra-territorially, except from the consent of the latter. It is perhaps not unfit to potice, in this connection, that many of the most eminent statesmen and jurists of the country entertain the opinion that this provision of the act of Congress, even within the territory to which it relates, was not authorized by any'power under the Constitution. The doctrine here contended for, not only upholds its validity in the territory, but claims for it .effect beyond and within the limits of a sovereign State — an effect, as insisted, that displaces the laws of the State, and substitutes', its own provisions in their-place. The consequences of any such construction are apparent. If Congress possesses the power, under the Constitution, to abolish slavery in a Territory, it must necessarily possess the like power to establish it. It cannot be a one-sided power, as may suit the convenience or particular views of the advocates. . It is a power, if it exists at all, over the whole subject; and then, upon the process of reasoning which seeks to extend its influence beyond the Territory, and within the limits of a State, if Congress should establish, instead of abolish, slavery, we do *465 not see but that, if a slave should be removed from the Territory into a free State, bis status would accompany him, and continue, notwithstanding its laws against slavery. The laws • of the free State, according to the argument, would be displaced, and the act of Congress, in its effect, be substituted in their place. "We do not see how this conclusion could be avoided, if the construction against which we are contending should prevail. "We are satisfied, however, it is unsound, ana that the true answer to it is, that even conceding, for the purposes of the argument, that this provision of the act of Congress is valid within the Territory'for which it was enacted, it can have no operation or effect beyond its limits, or within the jurisdiction of a State. It can neither displace its laws, nor change the status or condition of its inhabitants. Our conclusion, therefore, is, upon this branch of the case, that the question involved is one depending solely upon the law of Missouri, and that the Federal court sitting in the State, and trying the case before us,- was bound to follow it. The remaining question for consideration is, "What is the law of the State of Missouri on this subject? And it would be a sufficient answer to refer to the judgment of the highest court of the State in the very case, were it not due to that tribunal to state somewhat at large the course of decision and the principles involved, on account of some diversity of opinion, in the cases. As we have already’ stated, this case was. ■originally brought in the Circuit Court of the State, which-resulted in a judgment for.-the plaintiff. The case was carried, up to the Supreme Court for revision. That court reversed! the judgment below; and remanded the cause to the circuit, for a new trial. In that state of the proceeding, a new suit; was brought by the plaintiff in the Circuit Court ofthe United! ■ States, and tried upon the issues and agreed case before us,, and a verdict and judgment for the defendant, that • court following the decision of the Supreme Court of the States The judgment of the Supreme Court is reported in the 15 Misso. R., p. 576. The court placed the decision upon the» temporary residence of the master with the slaves in the State- and Territory to which they removed, and their return to the-slave State; and upon the principles of international law, that foreign laws have no extra-territorial force, except such as the-State within which they are sought to be enforced.may see fit; to extend to them, upon the doctrine of comity of nations.. This is the substance of the grounds of the decision. The same question has been twice before that court since;, and the saíne judgment given, (15 Misso. R., 595; 17 Ib., 434.); It must be admitted, therefore, as the. settled law of the State, *466 and, according to the decision in the case of Strader et al. v. Graham, is conclusive of the case in this court. It is said, however, that the previous cases and course of decision in the State of Missouri on this subject were different, and that the courts' had held the slave to be free on his return from a temporary residence in the free State. We do not see, were this to be admitted, that the circumstance would show that the settled course of decision, at the time this case was tried in the court below, was not to be considered the law of the State. Certainly, it must be, unless the first decision of a principle of law by a State court is to be permanent and irrevocable. The idea seems to be, that the courts of a State are not to change their opinions, or, if they do, the first decision is to be regarded by this court as the law of the State. It is certain, if this be so, in the case before us, it is an exception to the rule governing this court in all other cases. But what court has not changed its opinions ? What judge has not changed his ? Waiving, however, this view, and turning to the decisions of the courts of Missouri, it will be found that there is no discrepancy between the earlier and the present cases upon this subject. There are some eight of them reported previous to the decision in the case before us, which was decided in 1852. The last of the earlier cases was decided in 1836.. In each one of these, with two exceptions, the master or mistress rémoved into the free State with the slave, with a view to a permanent residence — in other words, to make that his or her domicil. And in several of the cases, this removal and permanent residence were relied on, as the ground of the decision in favor of the plaintiff. All these cases, therefore, are not necessarily in conflict with the decision in the case before us, but consistent with it. In one of the two excepted cases, the master had hired the slave in the State of Illinois from 1817 tó 1825. In the other, the master was an officer in the army, and removed with his slave to .the military post of Port Snelling, and at Prairie du Chien, in Michigan, temporarily, while acting under the orders of his Government. It is ■ coneeded the decision in this case was departed from in the case before us, and in those that have followed it.' But it is to be observed that these subsequent cases are in conformity with those in all the slave States bordering on the free — in Kentucky, ( 2 Marsh., 476 ; 5 B. Munroe, 176; 9 Ib., 565)—in Virginia, ( 1 Rand., 15 ; 1 Leigh, 172 ; 10 Grattan, 495)—in Maryland, (4 Harris and McHenry, 295, 322, 325.) In conformity, also, with the law of England on this subject, Ex parte Grace, (2 Hagg. Adm., R., 94,) and with the opinions of the *467 most, eminent jurists of tbe country. (Story’s Confl., 396 a; 2 Kent Com., 258 n.; 18 Pick., 193 , Chief Justice Shaw. See Corresp. between Lord Stowell and Judge Story, 1 vol. Life of Story, p, 552, 558.) .) Lord Stowell, in communicating his opinion in 'the case of the slave Grace to Judge Story, states, in his letter, what the question was before him, namely: “Whether the emancipation of a slave brought to England insured a complete emancipation to him on his return to his own country, or whether it only operated as a suspension of slavery in England, and his original character devolved on him again upon his return.” He observed, “the question had never been examined since an end was put to slavery fifty years ago,” having reference to the decision of Lord Mansfield in the case of Somersett; but the practice, he observed, “has regularly been, that on his return to his own country, the slave resumed his original character of slave.” .And-so-Lord Stowell held in the case. Judge Story, in his letter in reply, observes: “ I have read with great attention your judgment in the slave case, &c. Upon the fullest consideration which I have been able to give the subject, I entirely concur in your, views. If I had been called upon to pronounce a judgment in a like case, I should have certainly arrived at the same result.” Again he observes: “In my native State, (Massachusetts,) the state of slavery is not recognised as legal; and yet, if a slave should come hither, and afterwards return to his own home, we should certainly think that the local law .attached upon him, and that his servile character would b.e redintegrated.” We may remark, in this connection, that the case before the Maryland court, already referred to, and which was decided in 1799, presented the same question as that before Lord Stowell, and received a similar decision. This was nearly thirty years before the decision in that case, which was in 1828. The Court of Appeals observed, in deciding the Maryland ease, that “however the laws of Great Britain in sueh instances, operating upon such persons there, might ifiterfere so as to prevent the exercise of certain acts by the masters, not permitted, as in the case of Somersett, yet, upon the bringing Ann Joice into this State, (then the province of Maryland,) the relation of master'and slave continued in its extent, as authorized by the laws of'this State.” And Luther Martin, one of the counsel in that case, stated, on the argument, that the question had been previously decided the same way in the case of slaves returning from a residence in Pennsylvania, where, they had become free under her laws. The State of Louisiana, whose courts had gone further in *468 "holding the slave free on his return from a residence in a free State than the courts of her sister States, has settled the law, by an act of her Legislature, in conformity with the law of the court of Missouri in the case before us. (Sess. Law, 1846.) The case before Lord Stowell presented much stronger features for giving effect to the law of England in the case of the slave Grace than exists in the cases that have arisen in this country, for in that case the slave returned to a colony of England over which the Imperial Government exercised supreme authority. Yet, on the return of the slave to the colony, from á temporary residence in England, he held that the original condition -of the slave attached. The question presented in cases arising here is as to the effect and operation to be given to the laws of a foreign State, on the return of the slave within, an independent sovereignty. Upon the whole, it must be admitted that the current of authority, both in England and in this country, is in accordance with the law as declared by the courts óf Missouri in the case before us,.and we think the court below was not only right, but'bound to follow it. Some question has been made as to the character of the residence in this case in the free State. But we regard the facts as sét forth in the agreed case as decisive. The removal of Dr. Emerson from Missouri to the military posts was in thé discharge of his duties as surgeon in the army, and under the orders of his Government. He was' liable at any moment to be recalled, as he was in 1888, and ordered to another post. The same is also true as it respects Major'Taliaferro. In such a case, the officer goes to his post for- a temporary purpose, to remain there for an uncertain time, and not for the purpose of fixing his permanent abode. The question we think too plain to require argument. The ease of the Attorney General v. Napier, (6 Welsh, Hurtst. and Gordon Exch. Rep., 217,) illustrates .and applies the principle in the case of an officer of the English army. A question has been alluded to, on the argument, namely: the right of the master with his slave of transit into or through a free State, on business or commercial pursuits, or in the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common • citizen of the republic under the Constitution of the Unitéd States. When that question, arises, we shall be prepared to decide it. ' *469 Our conclusion is, that tlie judgment of tbe court below should be affirmed. --- Concurrence by Grier: Mr. Justice GRIER. I concur in the opinion delivered by Mr. Justice Nelson on the questions discussed by him. I also concur with the opinion of the court as delivered by the Chief Justice, that thé act of Congress of 6th March, 1820, is unconstitutional and void; and that, assuming the facts as stated in the opinion, the plaintiff cannot sue as a citizen of Missouri in the courts of the United States. But, that the record shows a prima facie case of jurisdiction, requiring the court to decide all the questions properly arising in it; and as the decision of the pleas in bar shows that the plaintiff is a slave, and therefore not entitled to sue in a court of the United States, the form of the judgment is. of little importance; for, whether the judgment be affirmed or dismissed for want of jurisdiction, it is justified- by the decision of the court, and is the same in effect between the parties to the suit. Mr. Justice DANIEL. It may with truth be affirmed, that since the establishment of the several communities now constituting the States of this Confederacy, there never has been submitted to any tribunal within its limits questions surpassing in importance those now claiming the consideration of this court. Indeed it is difficult, to imagine, in connection with th¿ systems of polity peculiar to th,e United States,-a conjuncture of graver import than that must be, within which it is aimed to comprise, and to control, not only the .faculties and practical operation appropriate to the American Confederacy as such, but also the rights and •powers of its separate and independent members, with reference alike to their internal and domestic authority and inter- . ests, and the relations they sustain to their confederates. To my mind it is evident,, that nothing less than the ambitious and far-reaching pretensionJ;o compass these objects of vital concern, is either directly essayed or necessarily implied in the positions attempted in the argument for the plaintiff in' error. How far these positions have any foundation in the nature ' of the rights and relations of separate, equal, and independent Governments," or in the provisions of oúr own Federal compact, or the laws enacted under and in pursuance of the authority of that compact, will be presently investigated. In order correctly to comprehend the tendency and force of those positions, it is proper here succinctly to advert to the *470 facts upon which'the questions of law propounded in the argument have; arisen. This was. an action of trespass'^" et armis, instituted in the Circuit Court of the United States for the district of Missouri, in the name of the plaintiff in error, a negro held as a. slave, for the recovery of freedom for himself, his wife, and two children■, also negroes. To the declaration in this case the defendant below, who-is also the defendant in error, pleaded in abatement that the court could not take cognizance of the cause, because the plaintiff" was not a citizen of the State of Missouri, as averred in the declaration, but was a negro of African descent, and that his ancestors, were of pure African blood, and were brought into this country and sold as negro slaves; and hence it followed, from the sécond section of the third article of the Constitution, which creates the judicial power of the United States, with respect to controversies between citizens of different States, that the Circuit Court could not take cognizance of the action: To this plea in abatement, a demurrer having been interposed on behalf of the plaintiff, it was sustained by the court. After the decision sustaining the demurrer, the defendant, in pursuance, of a previous agreement between counsel, and with the leave of the court, pleaded in bar of the action:' lsi, not guilty; Idly, 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; 3dly, 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. Issues having been joined upon the above pleas in bar, the following statement, comprising all the evidence in the cause, was agreed upon and signed by the counsel of the respective parties, viz: “In the year 1884, the plaintiff was a negro slave belonging to Doctor Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the Ílaintiff from the State of Missouri to the military post at lock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1886. At the time last mentioned, said Dr. Emerson removéd the plaintiff from said military post at Rock Island to the military post at Fort Snel-ling, 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 *471 degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Eort 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 TThited States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post situated as herein-before stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snel-ling 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, ánd was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at a military post called Jefferson barracks. “ In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided. “Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves. , . “At the times mentioned in the plaintiff’s declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff j Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times. “Further proof may be given on the trial for either party. “R. M. Field, for Plaintiff., “H. A. GARLAND, for Defendant. “It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court, the judgment below was reversed, and the *472 "cause remanded to the Circuit Court, where it . has been continued to await the decision of this case. “Field, for Plaintiff. “ Garland, for Defendant.” ■ Upon the aforegoing agreed facts,- the plaintiff prayed the court to instruct the jury that they ought to find for the plaintiff, ana upon the refusal of the instruction thus prayed for, the plaintiff excepted to the court’s opinion. The court then, upon the prayer of the defendant, instructed the 'jury, that upon the facts of this cáse agreed as above, the law was with the defendant. To this opinion, also,, the plaintiff’s counsel excepted, as-he did to the opinion of the court denying to the plaintiff a- new trial after the verdict of the jury in favor of the defendant. ' The question first in or,der presented by the record in this cause, is that which arises upon the plea in abatement, and the demurrer to that plea;. and upon this question it is my opinion that the demurrer should have been overruled, and the plea sustained. ■ On behalf of the plaintiff it-has been urged, that by the pleas interposed'in bar of a recovery in the court below, (which pleas both in fact and in. law aré essentially the same With the objections averred in abatement,) the defence in abatement has been displaced or waived; that it eould therefore no longer be relied on in the Circuit Court,'' and cannot claim the consideration of this court in reviewing this cause.. This position is regarded as wholly untenable. On the contrary, it would seem to follow conclusively from the peculiar character of the courts of the United States, as organized under the Constitution and the statutes, and as defined by numerous and unvarying adjudications from'this bench, that-there is not one of those courts whose jurisdiction and powers can be deduced from mere custom or tradition; not one, whose jurisdiction and powers must not be traced palpably to, and invested exclusively by, the Constitution and statutes of the United States; not one' that is not bound, therefore, at all timés, and at all stages of its pro- . ceedings, to look to and -to i-egard, the special and declared extent and bounds of its commission and authority. There is no such tribunal of the United States as a court of ‘general jurisdiction, in the sense in which that phrase is applied to the superior courts under the- eommon law; and even with respect to the courts existing under that system, it is a well-settled principle, that consent can never give jurisdiction. .. The principles above , stated, and the .consequences regularly deducíale from them,-have,, as already remarked, been repeat *473 edly and unvaryingly propounded from this bench. Beginning with the earliest decisions of this court, we have the cases of Bingham v. Cabot et al., ( 3 Dallas, 382 ;) Turner v. Eurille, ( 4 Dallas, 7 ;) Abercrombie v. Dupuis et al., ( 1 Cranch, 343 ;) Wood v. Wagnon, ( 2 Cranch, 9 ;) The United States v. The brig Union et al., ( 4 Cranch, 216 ;) Sullivan v. The Fulton Steamboat Company, ( 6 Wheaton, 450 ;) Mollan et al. v. Torrence, ( 9 Wheaton, 537 ;) Brown v. Keene, ( 8 Peters, 112 ,) and Jackson v. Ashton, ( 8 Peters, 148 ;) ruling, in unifprm and unbroken current, the doctrine that it is essential to the jurisdiction of the courts of the United States, that the facts upon which it is founded should appear upon the record. Nay, to such an extent and so inflexibly has this requisite to the jurisdiction been enforced, that in the case of Capron v. Van Noorden, ( 2 Cranch, 126 ,) it is declared, that the plaintiff in this court may assign for error his own omission in the pleadings in the court below, where they go to the jurisdiction. This doctrine has been, if possible, more strikingly illustrated in a later decision, the case of The State of Rhode Island v. The State of Massachusetts, in the 12th of Peters. In this case, on page 718 of the volume, this court, .with reference to a motion to dismiss the cause for want of jurisdiction, have said: “However late this objection has been made, .or may be made, in any, cause in an inferior or appellate court of the United States, it must be considered and decided before, any court can move one farther step in the cause, as any movement is necessarily to exercise the jurisdiction. Jurisdiction is the power to hear and determine the subject-matter in controversy between 'the parties to a suit; to adjudicate or exercise any judicial power over them. The question is, whether on the case before the court their action is judicial or extra-judicial; with or without the authority of law to render a judgment or decree upon the rights-of the litigant parties. A motion to dismiss a-cause pending in the courts of the United States, is not analogous to a plea to the jurisdiction of a court of common law or. equity in England; there, the superior courts have a general jurisdiction over all persons within the realm, and all causes of action between them. It depends on the subject-matter, whether the jurisdiction shall be exercised by a court of law or equity ; but that court to which it appropriately belongs can act judicially upon the party and the subject of the suit, unless it shall be made apparent to the court that the judicial determination of the- case has been withdrawn- from the court .of general jurisdiction to an inferior and limited one. It is a necessary presumption that the court of general jurisdiction can act upon the given case, when nothing to the *474 contrary appears; hence has arisen the rule that the party claiming ah exemption from its process must set out the reason by a special.plea in abatement, and show that some inferior court of law or equity has the .exclusive cognizance of the case, otherwise the superior court must proceed in virtue .of its general jurisdiction. ■ A motion to dismiss, therefore, cannot be entertained, as it does not disclose a case of exception; and if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. There are other classes of cases where the objection to the jurisdiction is of a different nature, as on á bill in chancery, that the subject-matter is cognizable only by the King in Council, or that the parties defendant cannot be 'brought before any municipal court on account of their sovereign character or the nature of the controversy; or to the very common .cases which present the question, whether the cause belong /to a court of law or equity. . To such cases, a plea in abatement would not be applicable, because the plaintiff could not sue An ah inferior court. The objection goes to a denial of any jurisdiction of a municipal court in the one class of cases, and to the jurisdiction of any court of equity or. of law in the other, on which last the court decides according to its discretion. “Ail objection,to jurisdiction on the ground of exemption from the process of ..the court in which the suit is brought, or the manner in which a defendant is brought -into it, is waived by appearance and pleading to issue; but when the objection goes to the power of the court over the parties or the subject-matter, the defendant need not, for he cannot, give the plaintiff . a better writ. Where an inferior court can have no jurisdiction of á case of law or equity, the ground of objection is not taken by plea in abatement, as an exception of the given casé .from ■ the otherwise general jurisdiction of the court; appearance 1 does not cure the defect of judicial power, and it may be relied on by plea, answer, demurrer, or at the. trial or hearing. As a denial of jurisdiction over the subject-matter ,of a suit between parties within the realm, over which and whom the court has power to act, cannot be successful in an English court.of general jurisdiction, a motion like the present could not bp sustained consistently with the principles of its constitution. But as this court is one of limited and'special original jurisdiction, its action must he confined to the particular cases, controversies, and parties, over which the Constitution and laws have authorized it to act; any proceeding without the limits prescribed is coram non judice,. and its action a nullity. And whether the want or excess of power is objected by a party, or is apparent *475 to the court, it must surcease its action or proceed extra-judi-cialiy.” In the constructing of pleadings either in1 abatement or in' bar, every fact or position constituting a portion of the public law, or of known or general history, is necessarily implied. Such fact or position need not be specially averred and set forth; it is what the world at large and every individual are presumed to know — nay, are bound to know and to be governed by. If, on the other hand, there exist facts or circumstances by which a particular case would' be withdrawn or exempted from the influence of public law or necessary historical knowledge, such facts and circumstances form an. exception to the general principle, and these must be specially set forth and established by those who would avail themselves of such exception. blow, the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know — that the African negro race never have been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recog-nised by the inhabitants of other countries anything partaking of the character of nationality, of civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of éommeree or traffic;. and that the introduction of that race into every section of this country was not as members of civil, or political society, but as slaves, as property in the strictest sense of the term. Tn the plea in abatement, the character or capacity of citizen on the part of the plaintiff is denied; and the causes which show the absence of that character or capacity áre set forth by averment. The verity of those causes, according to the settled rules of pleading, being admitted by the demurrer; it only remained for the Circuit Court to decide upon their legal sufficiency to abate the plaintiff’s action. And it now becomes the province of this court to determine whether the plaintiff below, (and in error here,) admitted to be a negro of African descent, whose anéestors were of pure African blood, and were brought into this country and sold as negro slaves — such being his' status, and such the circumstances surrounding his position; — whether he can, by correct legal induction from that status and those circumstances, be clothed with the character and capacities of a citizen of the State of Missouri? It may be assumed-ás a postulate, that to a slave, as such, there appertains and can appertain no relation, ciyil or political, with the State or the Government. He is himself strictly property, to be used in subserviency to the interests, the con *476 venience, or the will, of his owner; and to suppose, with respect to the former, the' existence of any privilege or discretion, or of any obligation to others incompatible with the magisterial rights just defined, would be by implication, if not directly, to deny the relation of master and slave, since none can possess and enjoy, as his own, that which another has a paramount right and power to withhold. Hence it follows, necessarily, that a slave, the peculium or property of a master, and possessing within himself no civil nor political rights or capacities, cannot be a citizen. For who, it may be asked, is a citizen ? What do the character and status of citizen import ? "Without fear of contradiction, it does not import the condition of being private property,'the subject of individual power and ownership. Upon a principle of etymology alone, .the term citizen, as derived from civitas, conveys the ideas of connection or identification with "the State or Government, and a participation of its functions. But beyond this, there is not, it is believed, ,to be found, in the theories of writers- on Government, or in’ any actual experiment heretofore tried, an exposition of .the term citizen, which has not. been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political. Thus Vattel, in the preliminary chapter to his Treatise on the Law of Rations,, says': “Rations or States are bodies politic ; societies of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength. Such a'society has her affairs and her interests; she deliberates and-takes resolutions in common; thus becoming a moral person, who possesses an understanding and a.will peculiar, to herself.” Again, in the first chapter of the first book of the Treatise just - quoted, the same writer, after repeating hi.s. definition .of. a State,' proceeds to remark, that, “from /the. very Resign that- induces a number of men to'form a-society, which has its common interests and which is -to act in/.concert, it is necessary that there should, -be' established a public authority, to order and direct what is to be done by each, iji relation to the end of the association. This political authority is/the sovereignty.” -Again this writer remarks; “The authority of all over each member essentially belongs to the body politic pr the State.” By this same writer it is also said: “ The citizens are the members of the civil society; bound to this society by certain ■duties, and subject to its authority; they 'equally participate in its advantages. The natives, or natural-born citizéns, are those born in the country, of parents who -are citizens. As so- *477 eiety cannot perpetuate itself otherwise than hy the children of the citizens, those children naturally follow the condition of their parents, and succeed to all' their rights.” Again: “I say, to be of the country, it is necessary to' be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.” (Vattel, Book 1, cap. 19, p. 101.) From the views here expressed, and they seem to be unexceptionable, it must follow, that with the slave, with one devoid of rights or capacities, civil or political, there could be no pact; that one thus situated could be no party to, or actor in, the association of those possessing free will, power, discretion. He could form no part of the design, no constituent ingredient or portion of a society based upon common, that is, upon equal interests, and powers. He could not at the same time be the sovereign and the slave. But it has been insisted, in argument, that the emancipation of a slave, effected either by the direct act and assent of the master, or by causes operating in contravention ■ of his will, produces a change in the status or capacities of the slave, such as will transform him from a mere subject of property, into a being possessing a social, civil, and political equality with a citizen.. In other words, will make him a citizen of the State within which he was, previously to his emancipation, a slave. It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties,' can create a citizen, of that State? Much more emphatically may it be asked, how such a result could be accomplished by means wholly extraneous, and entirely foreign to the Government of the State ? The argument thus urged must lead to these - extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the analogies of history. The institution of slavery, as it exists and has existed from the period of its introduction into the United States, though more humane and mitigated in character than was the same institution, either under the republic or the empire of Rome, bears, both in its tenure and in the simplicity incident to the *478 mode of its exercise, a closer resemblance to Roman slavery than it does to the condition of villanage, as it formerly existed in England. Connected with the latter, there were peculiarities, from custom or positive regulation, which varied it materially frorq the slavery pf the Romans, or from slavery at any period within the United States. But with regard to slavery amongst the Romans, it is by no means true .that ¿mancipation, either during the republic or the empire, conferred, by the act itself, or implied, the status or the rights of citizenship. _ _ The proud title of Roman citizen, with the immunities and rights incident thereto, and as contradistinguished alike from the condition of conquered subjects or of the lower grades of native domestic residents, was-maintained throughout the duration of the. republic, and until a late period of the eastern empire, and at last was in effect destroyed less by an elevation of the inferior classes than by the degradation of the free,, and the previous possessors of, rights and immunities civil and political, to the indiscriminate abasement incident to absolute and simple despotism; . By the léarned and elegant historian of the Decline and Fall of the Roman Empire, we are told that' “In the decline of the Roman empire, the proud distinctions of the republic were gradually .abolished; and the reason or instinct of Justinian completed the .simple form of an absolute monarchy. The’ emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the •memory of famous ancestors. He delighted to honor with titles and- emolument's his generals, magistrates, and senators, and his precarious indulgence communicated some rays of their glory to tjieif wives and children. But in the eye of the law all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name. ■ The voice of -a Roman could no longer enact his laws, or create the annual ministers of his powers; his constitutional rights might have checked the arbitrary-will of a master; and the bold adventurer. from Germany or Arabia was admitted with equal favor to the civil and military command .which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Csesars'had scrupulously guarded-the distinction of ingenuous and servile birth, which was decided by the condition of the mother. The slaves who were liberated by a generous master immediately entered into the middle class of Iweriini or freedmen; but they could never be enfranchised from the duties of. obedience and gratitude; whatever were the fruits of *479 their industry, their patron and his family inherited the third part, or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons, but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained without reserve or delay the station of a citizen; and at length the dignity of an ingenuous birth was created or supposed by the omnipotence of the emperor.” * The above account of slavery and its modifications will be found in strictest conformity with the Institutes of Justinian. Thus, book 1st, title 3d, it is said: “The first general division of persons in respect to their rights is into freemen and slaves.” The same title, sec. 4th: “ Slaves are born such, or become so. They are born such of bondwomen; they become so either by the law of nations, as by capture*, or by the civil law. Section 5th: “In the condition of slaves there is no diversity; but among free persons there are many. Thus some are ingenui or freemen, others libertini or freedmen.” Tit. 4th. De Ingenuis. — “A freeman is one who is born free by being born in matrimony, of parents who both are free, or both freed; or of parents one free and thé other freed. . But one born of a free mother, although the father be a slave or unknown, is free.” Tit. 5th. De Libertinis. — “Freedmen are those who have been manumitted from just servitude.” Section third of the same .title states that “freedmen were formerly distinguished by a threefold division.” But the emperor proceeds .to say: “Our piety leading us to reduce all things into a better state, we have amended our laws, and reestablished the ancient usage; for anciently liberty was simple and' undivided — that is, was conferred upon the slave as his manumittor possessed it, admitting this single difference, that the person manumitted became only a freed man, although his manumittor was a free man.” And he further declares: “We have made all freed men in general become citizens of Rome, regarding neither the age of the manumitted, nor the manu-mittor, nor the ancient forms of manumission. We have also introduced many new methods by which slaves may become Roman citizens.” By the references above.given it is shown, from the nature and objects of civil' and political associations, and uporr the direct authority of history, that citizenship was not conferred *480 by the simple fact of emancipation, but that such a result was deduced therefrom in violation of the fundamental principles of free political association; by the exertion of despotic will to establish, under a false and misapplied denomination, one equal and universal slavery; and to effect this result required the exertions of absolute power — of a,power both in theory and practice, being in its most plenary acceptation the sovereignty, the State itsele — it could not be produced by a less or inferior authority, much less by the will or the act of one who, with reference to civil and political rights, was himself a slave. The master might abdicate or abandon his interest or owner-, ship in his property, but his act would be a mere abandonment. It seems to involve an absurdity to impute to it the investiture of rights which the sovereignty alone had power to impart. There is not perhaps a community in which slavery is recognised, in which the power of emancipation and the modes of its exercise are not regulated by law — that is, by thq sovereign authority; and none can fail to comprehend the necessity for such regulation, for the preservation of order, and even of political and social existence. By the argument for the plaintiff in error, a power equally despotic is.vested in every member of the association, and the most obscure or unworthy individual it comprises may arbitrarily invade and derange its most deliberate and solemn ordinances. At assumptions anomalous ás these, so fraught with mischief and ruin, the mind at once is revolted, and goes directly to the conclusions, that to change or to abolish a fundamental principle of the society, must be the act of the society itself — of the sovereignty; and that none other can admit to a participation of that high attribute. It may further expose the character of the argument urged for the plaintiff, to point out some' of the revolting consequences which it would authorize. If that argument possesses any integrity, it asserts the power in any citizen, or quasi citizen, or a resident'foreigner of any one of the States, from a motive either of corruption or caprice, not only to infract the inherent and necessary authority of such State, but also materially to interfere with the organization of the Federal Government, and with the authority of the separate and independent States. He may emancipate his negro slave, by which process- be first transforms that slave into a eitizén of his own State; he may next, under color of article fourth, section second, of the Constitution of the United States, obtrude him, and on terms of civil and political equality, upon any and every State in this Union, in defiance of all regular tions of necessity or policy, ordained by those States for their internal happiness or safety. Hay, more: this manumitted slave *481 may, by a proceeding springing from the will or act of his master alone, be mixed up with the institutions of the Federal Government, to which he is not a party, and in opposition to the laws of that Government which, in authorizing the exten- „ sion by naturalization of the rights and immunities of citizens of the United States to those not originally parties to the Federal compact, have restricted that boon to free white aliens alone.; If the rights and immunities connected with or practiced un-' der the institutions of the United States can by any indirection be claimed or deduced from sources or modes other than the Constitution and laws of the United States, it follows that the power of naturalization vested in Congress is not exclusive — that it has in effect no existence, but is repealed or abrogated. But it has been strangely contended that the jurisdiction of the Circuit Court might be maintained upon the ground that the plaintiff was a resident of Missouri, and that, for the purpose of vesting the court with jurisdiction over the parties, residence within the State was sufficient. The first, and to my mind a conclusive reply to this singular argument is presented in the fact, that the language of the Constitution restricts the jurisdiction of the courts to cases in which the parties shall be citizens, and is entirely silent with respect to residence. A second answer to this strange and latitudinous notion is, that it so far stultifies the sages by whom the Constitution was framed, as to impute to them ignorance of the material distinction existing betweén eitiéenship and mere residence or domicil, and of the well-known facts, that a person confessedly aii alien may be permitted to reside in a? country in which he can possess no civil or political rights,, or of which he is neither a citizen nor subject; and that for certain purposes a man may have a domicil in different countries, in no ojie of which he is an actual personal resident. The correct conclusions upon the question here'considered would seem to be these: That in the establishment of the several communities how-the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union, as property merely, and as such was not and could not be a party or an actor,, much less a peer in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignly — the'. State — exert *482 ed to that end,.either in the form of legislation, or in some other mode of operation. It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That so far as rights and immunities appertaining to citizens have been defined and- secured by the Constitution and laws of the United States, the African race is not aiid never was recognised either by the language or purposes of the former; and it has been expressly excluded by . every act of Congress providing for the creation of citizens by naturalization, these laws, as has already been remarked, being restricted to free white aliens exclusively. - But it is evident/that, after the formation of the Federal Government by the adoption of'the Constitution, the highest exertion of State power would be incompetent to bestow a character or status created by the Constitution, or conferred in virtue of its authority only. Upon those, therefore, who were not originally parties to the Federal compact, or who are not admitted and adopted'as parties thereto, in the mode prescribed by its paramount authority, no State could have power to bestow the character or the rights and privileges exclusively-reserved by the States' for the action of the Federal Government by that compact. The States, in the exercise of their political power, might, with reference to their peculiar Government and jurisdiction, guaranty the rights of person and property, and the enjoyment of civil and political privileges, to those whom they should be disposed to make the objects of their bounty; but they could not reclaim or exert the powers which they had .vested - exclusively in' the Government of the United States. They could not add to or change in any respect the class of (persons' to whom alone the character of citizen of the United States appertained at the time of the adoption.of the Federal (Constitution. They could not create citizens of the United ^States by any direct or indirect proceeding. According to the view taken of the law, as applicable .to the demurrer to the plea in abatement in this cause,- the questions subsequently raised upon the several pleas, in-bar might be passed by, as requiring neither a particular examination, nor an adjudication directly upon them.- But as-these questions are intrinsically of primary interest and magnitude, and have been elaborately discussed in argument, and as with respect to them the opinions of a majority of the court, including my own, - are perfectly coincident, to me it seems proper that they should here be fully considered, and, so far as it is practicable , for this court to accomplish such an end, finally put to rest. . *483 The questions tRen to be considered upon the several pleas in bar, and upon the agreed statement of facts between the counsel, are: 1st. "Whether the admitted master and owner of the plaintiff, holding him as his . slave in the State of Missouri, and. in conformity with his rights guarantied to him by ''the laws of Missouri then and still m force,-by carrying with him for his own benefit and accommodation, and as his own slave, the person of the plaintiff into the State of Illinois, within which State slavery had been prohibited by the Constitution thereof, and by retaining the plaintiff during the com-morancy of the master within the State of Illinois, had, upon his return with his slave into the State of Missouri, forfeited his rights as master, by reason of any supposed operation of the prohibitory provision in the Constitution of Illinois, beyond the proper territorial jurisdiction of the latter State? 2d. Whether a similar removal of the plaintiff by his master from the State of Missouri, and his retention in service atapoiht included within no State, but situated north of thirty-six degrees thirty minutes of north latitude, worked a forfeiture of' the right of property of the master, and the manumission of the plaintiff? . In considering the first of these questions, the acts or declarations of the master, as expressive of his purpose to emancipate, maybe thrown out of view, since none will deny the right of the owner to relinquish his interest in any subject of' property, at any time or in any place. The inquiry here bears no relation to acts or declarations of the owner, as expressive of his intent or purpose to make such a relinquishment; it is simply a question whether, irrespective of such purpose, and in opposition thereto, that relinquishment can be enforced against the owner of property within his own country, in defiance' of every guaranty promised by its laws; and this through the instrumentality of a claim to power entirely foreign and . extraneous with reference' to himself, to the origin and foundation of his title, and to the independent authority of his. country. A conclusive negative answer to such an inquiry is at once supplied, by announcing a few familiar and settled principles and doctrines of public law. Vattel, in his chapter on the general principles of the laws, of nations, section 15th, tells us, that “nations being free and independent of each other in the same' manner that men are naturally free and independent, the second general law of their society is, that each nation should be left in the péaceable enjoyment of that liberty which she inherits from nature.” “The natural society of nations,” says this writer, “cannot subsist unless the natural rights of each be respected.” In *484 section 16th he says, “ as a consequence of that, liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes for her — of what it is proper or improper for her to do; and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her'to act in such or such a particular manner, for any attempt at such compulsion would be an infringement on the liberty of nations.” Again, in section 18th, of the same chapter, “ nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal* and inherit from nature the same obligations and rights. Power or weakness does not produce any difference. A small republic is no less a sovereign state than the most powerful kingdom.” So, in section 20: “A nation, then, is mistress of her own actions, so long as they do not affect the proper and perfect rights of any other nation — so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other .nations are bound to acquiesce in her conduct, since they have no right to dictate to her. Since nations are free, independent, and equal, and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue, in order to fulfil her duties, the effect of the whole is to produce, at least externally, in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs, and m the pursuit of their pretensions, without regard to the intrinsic justice of their , conduct, of which others have no right, to form a definitive judgment.” Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following positions as sanctioned by these and other learned publicists, viz: that “nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners., This perfect equality and entire independence of all distinct States is a fundamental principle of public law. It is a neeessaiy consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government or religion, or a course of inter *485 nal policy, to another.” This writer gives some instances of the violation of this great national immunity, and amongst them the constant interference by the ancient Romans, under the pretext of settling disputes between their neighbors, but with the real purpose of reducing those neighbors to bondage; the interference of Russia, Prussia, and Austria, for the dismemberment of Poland; the more recent invasion of Naples by Austria in 1821, and of Spain by the French Government in 1823, under the excuse of suppressing a dangerous spirit of ; internal revolution and reform. With reference to this right of self-government in independent sovereign States, an opinion has been expressed, which, whilst it concedes this right as inseparable from and as a necessary attribute of sovereignty and independence, asserts nevertheless some implied and paramount authority of a supposed international law, to which this right of self-government must be regarded and exerted as subordinate; and.from which independent and sovereign States can be exempted only by a protest, or by some public and formal rejection of that authority. With all respect for those by 'whom this opinion has been professed, I am constrained to regard it as utterly untenable, as palpably inconsistent, and as presenting in argument a complete felo de se. - Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. Again, could such claims, from extraneous sources be regarded as legitimate, the effort to resist or evade them, by protest or denial, would be as irregular and unmeaning as it would be futile. It could in no wise affect the question of superior right. For the position here combatted, no respectable authority has been, and none it is' thought can be adduced. It is certainly irreconcilable with the doctrines already cited from the writers upon public law. Neither the case of Lewis Somersett, (Howell’s State Trials, vol. 20,) so often vaunted as the proud evidence of devotion to freedom under a Government which has done as much perhaps to extend the reign - of slavery as all the world besides; nor does any decision founded upon the authority of Somersett'B case, when correctly expounded, assail or impair the principle of national equality enunciated by each and all of the publicists already referred to. In the case of Somersett, although the applicant for the habeas corpus and the individual claiming properly in that applicant were both subjects and residents *486 "within tie British empire, yet the decision cannot be correctly understood as ruling absolutely and under all circumstances .against the right of property in the claimant. That decision goes no farther than to determine, that within the realm of England there was no authority to justify the detention of an individual in private bondage. If the decision in Somersett’s case had gone beyond this point, it would have presented the anomaly of a repeal by laws enacted for and limited in their operation to the realm alone, of other laws and institutions established for places and subjects without the limits of the realm of England; laws and institutions at that very time, and long subsequently, sanctioned and maintained under the authority of the British Govérnment, and which the full and combined action of the King and Parliament was required to abrogate. But could the decision in Somersett’s case be correctly interpreted as ruling the doctrine which it has been attempted to deduce from it, still that doctrine must be considered as having been overruled by the lucid and able opinion of Lord Stowell in the more recent ease of the slave Grace, reported in the second volume of Haggard, p. 94; in which opinion, whilst it is conceded by the learned judge that there existed no power to coerce the slave whilst in England, that yet, upon her return to the island of Antigua, her status as a slave was revived, or, rather, that the title of the owner to the slave as property had never been extinguished, but had always existed in that island. If the principle of this decision be applicable as between different portions of one and the same empire, with how much more force does it apply as between nations or Governments entirely separate, and absolutely independent of each other? For in this precise attitude the States of this Union stand with reference to this subject, and with reference to the tenure of every description of property vested under their laws and held within their territorial jurisdiction. A strong illustration of the principle ruled by Lord Stowell, and of the effect of that principle even in a case of express contract, is seen in the case of Lewis v. Fullerton, decided by the Supreme Court of Virginia, and reported in the first volume of Randolph, p. 15. The .case was this: A female slave, the property of a citizen of Virginia, whilst with her master in the State of Ohio, was taken from his possession under a writ of habeas corpus, and set at liberty. Soon, or immediately after, by agreement between this slave and her master, a deed, was executed in Ohio by the latter, containing a stipulation that this slave should return to Virginia, and, after a service of'two years in that State, should there be tree. The law of Virginia *487 regulating emancipation required that deeds of emancipation should, within a given time from their date, be recorded in the court of the county in which the grantor resided, and declared that deeds with regard to which this requisite was not complied with should be void. Lewis, an infant son of this female, under the rules prescribed in such cases, brought an action, in forma pauperis, in one of the courts of Virginia, for thé'recovery of his freedom, claimed in virtue of the transactions above mentioned. Upon an appeal to the Supreme Court' from a judgment against the plaintiff, Roane, Justice, in delivering the opinion of the court, after disposing of other questions discussed in that case, remarks: “As to the deed-of emancipation contained in the record, that' deed, taken in connection with the evidence offered in support of it, shows that it had a reference to the State of Virginia; and the testimony shows that it formed a part of this contract, whereby the slave Milly was to be brought back (as she was brought back) into the State of Virginia. Her object was therefore to secure her freedom by the deed within the State of Virginia, after the time should have expired for which she had indented herself, and when she should be found abiding within the State of Virginia. “ If, then, this contract had an eye to the State of Virginia for its operation and effect, the lex loci ceases to .operate. In that case it must, to have its effect, conform to the laws of Virginia. It is insufficient under those laws to effectuate an emancipation, for want of a due recording in the county court, as was decided in the case of Givens v. Mann, in this court. It is also ineffectual within the Commonwealth of Virginia for another reason. The lex loci is also to be taken subject to the exception, that it is not to be enforced in another country, when it violates some moral duty or the policy of that country, or is not consistent with a positive right secured to. a third person or party by the laws of that. country in which it is sought to be enforced. In such a case we are told, lmagis jus nostrum, qmm jus alimam servemus.’” (Huberus, tom. 2, lib. 1, tit. 3; 2 Fontblanque, p. 444.) “ That third party in this instance is the Commonwealth of Virginia, and her policy and interests are also to be attended to. These turn the scale against the lex loci in the present instance.” The second or last-mentioned position assumed for the plaintiff under the pleas in bar, as it rests mainly if not' solely upon the provision of the act of Congress of March .6, 1820, prohibiting slavery in Upper Louisiana north of thirty-six degrees thirty minutes north latitude, popularly called the Missouri Compromise, that assumption renews the question, formerly so *488 zealously debated, as to the validity of the provision in the act of Congress, and upon tbe constitutional competency- of Congress to establish it. Before proceeding, however, to examine the validity of the prohibitory provision of the law, it may, so far as the rights involved in this cause are concerned, be remarked, that conceding to that provision the validity of a legitimate exercise of power, still this concession could by no rational interpretation imply the slightest authority for its operation' beyond the territorial limits comprised within its terms; much less could there be inferred from it a power to destroy or in any degree to control rights, either of person or property, entirely within the bounds of a distinct and independent sovereignty — rights invested and fortified by the guaranty of that sovereignty. These surely would remain in all their integrity, whatever effect might be ascribed to the prohibition within the limits defined by its language. But, beyond and in defiance of this conclusion, inevitable and undeniable as it appears, upon every principle of justice or sound induction, it has heen attempted to convert this prohibitory provision of the act of 1820 not- only into a weapon with which to assail the inherent — the necessarily inherent— powers of independent sovereign Governments, but into a mean of forfeiting that equality of rights and immunities which are the birthright or the donative from the Constitution of every citizen of the .United States within the length and breadth of the nation. In this attempt, there is asserted a power in Congress, whether from incentives of interest, ignorance, faction, partiality, or prejudice, to bestow upon a portion of the citizens of this nation that which is the common property and privilege of all — the power, in fine, of confiscation, in retribution for no offence, or, if for an offence, for that of accidental locality only. It may be that, with respect to future cases, like the one now before the court, there is felt an assurance of the impotence of such a pretension; still, the fullest conviction of that result can impart to it no claim to forbearance, nor dispense with the duty of antipathy and disgust at its sinister aspect, •whenever it may be seen to scowl upon the justice, the order, the tranquillity, and fraternal feeling, which are the surest, nay, the only means, - of promoting or preserving the happiness and prosperity of the nation, ana which were the great and efficient incentives to the formation of this Government. The power of Congress to impose the prohibition in the eighth section of the act of 1820 has been advocated upon an attempted construction of the second clause of the third section *489 of the fourth article of the Constitution, which declares that “Congress shall have power to dispose of and to make all needful rules and regulations respecting the territory and other property belonging to the United States.” In the' discussions in both houses of Congress, at the time of adopting this eighth section of the act of 1820, great weight was given to the peculiar language of this clause, viz: territory and other property belonging to the United States, as going to show that the power of disposing of and regulating, thereby vested in Congress, was restricted to a proprietary interest in the territory or land comprised therein, and did not extend to the personal or’political rights of citizens or settlers, inasmuch as this phrase in the Constitution, “ territory or other property,” identified territory with property, and inasmuch as citizens or ■persons could not be property, and especially were not property . belonging to the United States. And upon every principle of reason or necessity, this power to dispose of and to regulate the territory of the nation could be designed to extend no farther than to its preservation and appropriation to the uses of those to whom it belonged, viz: the nation. Scarcely anything more illogical or extravagant can be imagined than the attempt to deduce from this provision in the Constitution a power to destroy or in any wise to impair the civil and political rights of the citizens of the United States, and much more so the power to establish inequalities amongst those citizens by creating privileges in one class of those citizens, and by the disfranchisement of other portions or classes, by degrading them from the position they previously occupied. There can exist no rational or natural connection or affinity between a pretension like this and the power vested by the Constitution in Congress with regard to the Territories ; on the contrary, there is an absolute incongruity between them. But whatever the power vested in Congress, and whatever the precise subject to which that power extended, it is clear that the power related to a subject appertaining to the United States, and one to be disposed of and regulated for the benefit and under the authority of the United States. Congress was made simply the agent or trustee for the United States, and could not, without a breach of trust and a fraud, appropriate the subject of the trust to any other beneficiary or cestui que trust than the United States, or to the people of the United States, upon equal grounds, legal or equitable. Congress could not appropriate that subject to any one class or portion of the people, to the exclusion of others, politically and. constitutionally equals; but every citizen would, if any one *490 could claim it, have the like rights of purchase, settlement, occupation, or any other right, in the national territory. Nothing can he more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them because they are the owners of slaves,' than the fact that the same instrument, which imparts to Congress its very existence and its every function, guaranties to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, farther, that the only private property which the Constitution has specifically recognised, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty. Can there he imputed to the sages and patriots by whom the Constitution was framed, or can there he detected in the text of that Constitution, or in any rational construction or implication deducible therefrom, a contradiction so palpable as would exist between a pledge to the slaveholdér of an equality with his fellow-citizens, and of the formal and solemn assurance for the security and enjoyment of his property, and a warrant given, as it were uno flatu, to another, to rob him of that property, or to subject him to proscription and disfranchisement for possessing or for endeavoring to retain it? The injustice and extravagance necessarily implied in a supposition like this, cannot be rationally imputed to the patriotic or the honest, or to those who were merely sane. A conclusion in favor of the prohibitory power in Congress, as asserted in the eighth section of the act of 1820, has been attempted, as deducible from°the precedent of the ordinance of the convention of 1787, concerning the cession by Virginia of the territory northwest of the Ohio; the provision in which ordinance, relative to slavery, it has been attempted to impose upon other and subsequently-acquired territory. The first circumstance which, in the consideration of this provision, impressés itself upon my mind, is its utter futility and want of authority. This court has, in repeated instances, ruled, that whatever may have been the force accorded to this ordinance of 1787 at the period of its enactment, its authority and effect ceased, and yielded to the paramount authority of the Constitution, from the period of the adoption of the latter. Such is the principle ruled in the cases of Pollard’s Lessee v. Hagan, ( 3 How., 212 ,) Parmoli v. The First Municipality of *491 New Orleans, ( 3 How., 589 ,) Strader v. Graham, ( 16 How., 82 .) But apart from the superior control of the Constitution, ana anterior to the adoption of that instrument, it is obvious that the inhibition in question never had and never could have any legitimate and binding force. "We may seek in vain for any power in the convention, either to require or to accept a condition or restriction upon the cession like that insisted on; a condition inconsistent with, and destructive of, the object of the grant The cession was, as recommended by the old Congress in 1780, made originally and completed in terms to the United States, and for the benefit of the United States, i. e., for the people, all the people, of the United States. The condition subsequently sought to be annexed in 1787, (declared, too, to be perpetual and immutable,) being contradictory tó the terms and destructive of the purposes of the cession, and after the cession was consummated, and the powers of the ceding party terminated, and the rights of the grantees, the people of ike United States, vested, must necessarily, so far, have been ah initio void. "With respect to the power of the convention-to impose this inhibition, it seems to be pertinent in this place to recur to the opinion of one cotemporary with the establishment of the Government, and whose distinguished services in the formation and adoption of our national charter, point him out as the ariifex maximus of our Eederal system^ James Madison, in the year 1819, speaking with reference to the prohibitory power claimed by Congress, then threatening the very existence of the Union, remarks of the language of the second clause of the third section of article fourth of the Constitution, “that it cannot be well extended beyond a power over the territory as property, and the power to make provisions really needful or necessaiy for the government of settlers, until ripe for admission into the Union.” Again he says, “with respect to what has taken place in the Northwest territory, it may be observed that the ordinance giving it its distinctive character on the' subject of slavehold-ing proceeded from the old Congress, acting with the best intentions, but under a charter which contains no shadow of the authority exercised; and it remains to be decided how far the States formed within that territory, and admitted into the Union, are on a different footing from its other members as to their legislative sovereignty. As to the power of admitting new States into the Eederal compact, the questions offering themselves are, whether Congress can attach conditions, or .the new States concur in conditions, which after admission would abridge or enlarge the constitutional rights of legislation common to other States; whether Congress can, by a compact *492 with a new State, take power either to or from itself, or place the new member above or below the equal rank and rights possessed by the others; whether all such stipulations expressed or implied would not be nullities, and be so pronounced when brought to a practical test. It falls within the scope of your inquiry to state the fact, that there was a proposition in the convention to discriminate between the old and the new States by an article in the Constitution. The proposition, happily, was rejected.- The effect of such a discrimination is sufficiently evident.” * In support of the ordinance of 1787, there may be adduced the semblance at least of obligation deducible from compact, the form of assent or agreement between the grantor and fran tee; but this form or similitude, as is justly remarked by Ir. Madison, is rendered null by the absence of power or authority in the contracting parties, and by the more intrinsic and essential defect of incompatibility with the rights and avowed purposes, of those parties, and with their relative duties and obligations to others. If, then, with the attendant formalities of assent or compact, the. restrictive power claimed was void as to the immediate subject of the ordinance, how much more unfounded must be the pretension to such a power as derived from that source, (viz: the ordinance.of 1787,) with respect to territory acquired by purchase or' conquest under the supreme authority of the Constitution — territory not the subject of mere donation, but obtained in the name of all, by the combined efforts and resources of all, and with no condition annexed or pretended. - In conclusion, my opinion is, that the decision of the Circuit Court, upon the law arising upon the several pleas in bar, is correct, but that it is erroneous in having sustained the dé-murrer to the plea in abatement of the jurisdiction; that for this error the decision of the Circuit Court should be reversed, and the cause remanded to that court, with instructions to abate the action, for the reason set forth and pleaded in the plea in abatement. In the aforegoing examination of this cause, the circumstance that the questions involved therein had been previously adjudged between these parties by the court of the State of Missouri, has not been adverted to; for although it has been ruled1 by this court, that in instances of concurrent jurisdiction, the court first obtaining possession or cognizance of the control versy should retain and decide it, yet, as in this case there had *493 been no plea, either of a former judgment or of autre aetion pendent, it was thought that the fact of a prior decision, however conclusive it might have been if regularly pleaded, could not be incidentally taken into view. Vide Gibbons’s Decline and Fall of the Roman Empire. London edition of 1825, vol. 3d, chap. 44, p. 183. Letter from James Madison to Robert Walsh, November 27th, 1819, on the.sob-ject of the Missouri Compromise. --- Concurrence by Campbell: Mr. Justice CAMPBELL. I concur in the judgment pronounced by the Chief Justice, but the importance of the cause, the expectation and interest it has awakened, and the responsibility involved in its determination, induce me to file a separate opinion. The case shows that the plaintiff, in the year 1834, was a negro slave in Missouri, the property of Dr. Emerson, a surgeon in the army of the United States. In 1834, his master took him to the military station at Rock Island, on the border of Illinois, and in 1836 to Fort Snelling; in the present Minnesota,- then Wisconsin, Territory. While at Fort Snelling, ■the plaintiff married a slave who was there with her master, and two children have been born of this connection; one during the journey of the family in returning to Missouri, and the other after their return to that Stated Since 1838, the plaintiff and the members of his family have been in Missouri in the condition of slaves. The object of this suit is to establish their freedom. The defendant, who claims the plaintiff and his family, under the title of Dr. Emerson, denied the jurisdiction of the Circuit Court, by the plea 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 he had no capacity as a citizen of Missouri to maintain a suit in the Circuit Court. The court sustained a demurrer to this plea, a trial was then had upon the general issue, and special pleas to the effect that the plaintiff' and his family were slaves belonging to the defendant. My opinion in this case is not affected by the plea to the jurisdiction, and I shall not discuss the questions it suggests. The claim of the plaintiff to freedom depends upon the effect to be given to his absence from Missouri, in company with his master, in Illinois and Minnesota, and this effect is to be ascertained by a reference to the laws of Missouri. For the trespass complained of was committed upon one claiming to be a freeman and a citizen, in that State, and who had been living for years under the dominion of its laws. And the rule is; that whatever is a justification where the thing is done, must be a justification in the forum where the case is tried. (20 How. St. Tri., 234; Cowp. S. C., 161.) The Constitution of Missouri recognises slavery as a legal condition, extends guaranties to the masters of slaves, and in *494 vites immigrants to introduce them, as property, by a promise of protection. The laws of the State charge the master with the custody of the slave, and provide for the maintenance and security of their relation. The Federal Constitution and the acts of Congress provide for the return of escaping slaves within the limits of the Union. No removal of the slave beyond the limits of the State, against the consent of the master, nor residence there in another condition, would be regarded as an effective manumission by the courts of Missouri,.upon his return to the State. “ Sicut liberis captis status restituitur sic servus domino.” Nor can the master emancipate the slave within the State, except through the agency of a public authority. The inquiry arises, whether the manumission of the slave is effected by his removal, with the consent of the master, to a community where the law of slavery does not exist, in a case where neither the master nor slave discloses a purpose to remain permanently, and where both parties have continued to maintain their existing relations. What is the law of Missouri in such a case? Similar inquiries have arisen in a great' number of suits, and the discussions in the State courts have relieved the subject of much of its difficulty. (12 B. M. Ky. R., 545; Foster v. Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R., 295; Scott v. Emerson, 15 Misso., 576; 4 Rich. S. C. R., 186; 17 Misso., 434; 15 Misso., 596; 5 B. M., 173; 8 B. M., 540, 633; 9 B. M., 565; 5 Leigh, 614 ; 1 Raud., 15; 18 Pick., 193 .) The result of these discussions is, that in general, the status, or civil and political capacity of a person, is determined,, in the first instance, by the law of the domicil where he is born; that the legal effect on persons, arising from the operation of the law of that domicil, is not indelible, but that a new capacity or status may be acquired by a change of domicil. That questions of status are closely connected with considerations arising out of the social and political organization of the State where they originate, and each sovereign power must determine them within its own territories. A large class of cases has been decided upon the second of the propositions above stated, in the Southern and Western courts — cases in which the law of the actual domicil was adjudged to have altered the native condition and status of the slave, although he had never actually possessed the status of freedom in that domicil. (Rankin v. Lydia, 2 A. K. M.; Herny v. Decker, Walk., 36; 4 Mart., 385 ; 1 Misso., 472; Hunter v. Fulcher, 1 Leigh.) I do not impugn the authority of these cases. No evidence is found in the record to establish the existence of a domicil *495 acquired by tbe master and slave, either in Illinois or Minnesota. The master is described as an officer of the army, who was transferred. from one station to another, along the Western frontier, in- the line of his duty, and who, after performing the usual tburs of service, returned to Missouri; these slaves returned to Missouri with him, and had been there for near fifteen years, in that condition, when this suit was instituted. But absence, in the performance of military duty, without more, is a fact of no importance in determining a question of a change of domicil. Questions of that kind depend upon acts and intentions, and are ascertained from motives, pursuits, the condition of the family, and fortune of the party, and no change will be inferred, unless evidence shows that one domicil was abandoned, and there was an intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M. and W., 511; 2 Curt. Ecc. R., 368.) ) The cases first Cited deny the authority of a foreign law' to dissolve, relations which have been legally contracted in the State Where the parties are, and have their actual domicil — relations which were-never questioned during their absence from that State — relations which are consistent with the native capacity and' condition of the respective parties,' and with the policy of the State-where they reside; but'which relations were inconsistent with the policy or laws, of the State or. Territory within which they had been for a time, and from which they had. returned, with these relations, undisturbed. .It is upon the assumption, that the law of Illinois or Minnesota was indelibly'impressed upon the slave, and its consequences carried -into Missouri, that the claim of the .plaintiff depends. . The importance of the case entitles the doctrine on which it rests to a careful examination. It will be conceded, that in countries where no. law or regulation prevails, opposed to the existence and consequences of slavery, persons who are born in that condition in a foréign State would not be liberated by the accident of their intro-gression. The relation of domestic slavery is recognised in the law of nations, and the interference of the authorities of one State with the rights of a master belonging to another, without a valid cause, is a violation of that lay. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp., 378; Reports of the Com. U. S. and G. B., 187, 238, 241.) The public law of Europe formerly permittéd a master to reclaim his bondsman, yithin a limited period, wherever he could find him, and one of the capitularies of Charlemagne abolishes the rule of prescription. 'He directs, “that,wheresoever, within the bound's of Italy, either the runaway .slave of the king, or of *496 the church, or of any other man, shall he found by his master, he shall he restored without any bar or prescription of years; yet upon the provision that the master he a Frank or German, or of any other nation (foreign ;) but if he be. a Lombard’or a Roman, he shall acquire or receive his slaves by that law which has been established from ancient times among them.” "Without referring for precedents abroad, or to the colonial history, for similar instances, the history of the Confederation and Union affords evidence to attest the existence of this ancient law. In 1783, Congress directed General Washington to continue his remonstrances to the commander of the British forces respecting the permitting negroes belonging to the citizens of these States to leave New York, and to insist upon the discontinuance of' that measure. In 1788, the resident minister of the United States at Madrid was instructed to obtain from the Spanish Crown orders to its Governors in Louisiana and Florida, “to permit and facilitate the apprehension of fugitive slaves- from the States, promising that the States would observe’ the like conduct respecting fugitives from Spanish subjects.” The committee that made the report of this resolution consisted-of Hamilton, Madison, and Sedgwick, (2 Hamilton’s Works, 473;) and the clause in the Federal Constitution providing for the restoration of fugitive slaves is a recognition of this ancient right, and of the principle that a change of place does not effect a change of condition. The diminution of the power of a master to reclaim his escapiúg bondsman in Europe commenced in the enactment of laws of prescription in favor of privileged communes. . Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; Carcassonne, Beziers, Toulouse, and Paris, in France, acquired privileges on this-subject at an early period. The ordinance of William the Conqueror, that a residence of any of the servile population of England, for a year and a day, without being claimed, in any city, burgh, walled town, or castle of the King; should entitle them to perpetual liberty, is a specimen of these laws. The earliest publicist who has discussed this subject is Bodin, a jurist of the sixteenth century, whose work was quoted in the early discussions of the courts in France and England on this subject. He says: “In France, although there be some remembrance of old servitude, yet it is not lawful here to make a slave or to buy any one of others, insomuch as the slaves of. strangers, so soon as they set their foot within France, become, frank and free, as was determined by an old decree of the court of Paris against, an ambassador of Spain, who had brought a slave with him into France.” He states another case, whieh' arose in the city of Toulouse, of a Genoese merchant, who had *497 carried a slave into that city on his voyage from Spain; and when the matter was brought before the magistrates,, the “procureur of the city, out of the records, showed certain ancient privileges given unto them of Tholouse, wherein it'was granted that slaves, so soon as they should come into Tholouse, should he free.” These cases were cited with much approba-. tion in the discussion of the claims of the West India slaves of Yerdelin for freedom, in 1738, before the judges in admiralty, (15 Causes Celébrés, p. 1; 2 Masse Droit Com., sec. 58,) and were reproduced before Lord Mansfield, in the cause of Somersett, in 1772. Of the cases cited by Bodin, it is to be observed that Charles Y of France exempted all the inhabitants of Paris from serfdom, or other feudal incapacities, in 1371, and this was confirmed by several of his successors, (3 Dulaire His., de Par., 546; Broud. Cout. de Par., 21,) and the ordinance of Toulouse is preserved as follows: “ Civitas Tholo-sana fuit et erit sine fine libera, adeo ut servi et ancillce,' sclavi et '■sclavce, dominos sive dominas habentes, cum,rebus vel sine rebus,suis, ad Tholosam vel infra términos extra urbem terminatos accedentes acguirant libertaiem.” (Hist. de Langue, tome 3, p. 69; Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.) The decisions were made upon special ordinances, or charters, which contained positive prohibitions, of slavery,, and where liberty had been granted as a privilege; and the history of Paris furnishes but little support for the boast that she was a “sacro sancta civitas,” where liberty always had an asylum, or for the “self-complacent rhapsodies” of the French advocates in the case of Yerdelin, which amused the grave lawyers who argued'the case of • Somersett. ■ The cáse of Yerdelin was decided upon a special ordinance, which prescribed the conditions on which.West India slaves' might be introduced into France, and which', had been disregarded by the master. The cash of Somersett was' that of a Virginia slave carried to England by-his master, in 177.0, and who remained there two years. For some cause, he was confined on a vessel destined to Jamaica, where he was to be Sold. Lord Mansfield, upon a-return to a habeas corpus, states the question involved* “Here, the person of the slave himself,” he says, “is the immediate subject of inquiry, Can any dominion, authority, or coercion, ,be exercised in this country,1 according to the American laws?” He answers: “The difficulty of adopting the relation* without adopting it in all its-consequences, is indeed extreme, and yet many of those consequences are absolutely contrary to the municipal law of England.” Again, he says: “The return states that the slave departed, and refused to he be sold “ So high *498 an act of . dominion must be recognised by the law of tbe country where it is used. The power of the master over his slave has been extremely different in different countries.” “ The state óf slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, are, erased, from the memory. It is so odious, that nothing can be suffered to support it but positive law.” That there is a difference in the systems of States, which recognise and which do not recognise the institution of slavery, cannot be disguised. Constitutional law, punitive law, police, domestic economy, industrial-pursuits, and amusements, the modes of thinking and of belief of the population of the respective communities, all show-the profound influence exerted upon society by this single arrangement. This influence was discovered in the Federal, Convention, in the deliberations on the plan of the Constitution. Mr. Madison observed, “that the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which, aesulted partly from climate, but principally from the effects ■of their having or not having slaves. These two causes concur in forming the great division of interests in the United States.” • The question to be raised with the opinion of Lord Mansfield, therefore, is not in respect to the incongruity of the two' systems, but whether slavery was absolutely contrary to the law of England; for if it was so, clearly, the American laws ■could not operate there. Historical research ascertains that at the date of the Conquest the rural population of England were generally in a servile condition, and under various names, denoting slight variances in condition, they were sold with the land like -eattle, and were a part of its living money. Traces -of the existence of African slaves are to be found in the early Chronicles. Parliament in the time of Richard IT, and also -of Henry YIH, refused to adopt a general .law of emancipation. Acts of emancipation by the last-named monarch- and by Elizabeth are preserved. The African slave .trade had been carried on, under the unbounded protection of the Crown, for near two centuries, when the case of iSomersett was heard, and no motion for its suppression had ever been submitted to Parliament; while it was forced upon and maintained in unwilling colonies by the Par-, liament and Crown of England at that monfent. Fifteen thousand-negro-slaves were then'living in that island, where they had been introduced under the counsel of the most illustrious jurists of the '¡realm, and such' slaves had been publicly *499 sold for near a. century in tibe markets of London. In the ’ northern part of the kingdom of Great Britain there, existed a class of from 30,000 to 40,000 persons, of whom the Parliament said, in 1775, (15 George III, chap. 28,) “many colliers, coal-heavers, and salters, are in a state of slavery or bondage, bound to the collieries and salt works, where they work for life, transferable with the collieries and salt works when their original masters have no use for them; and whereas the emancipating or setting free the colliers, coal-heavers, and salters, in Scotland, who are now in a state of servitude, gradually and upon reasonable conditions, would be the means of increasing the number of colliers, coal-heavers, and salters, to the great benefit of the public, without doing any injury to the present masters, and would remove the reproach of allowing such a state of servitude to exist in a free country,” &c.; and again, in 1799, “they declare that many colliers and coal-heavers still continue in a state of bondage.” Ho statute, from the Conquest till the 15 George HI,, had been passed upon the subject of personal slavery. These facts have led the most eminent civilian of England to question the' accuracy of this judgment, and to insinuate that in this judgment.the offence of ampliare jurisdictionem by private authority was committed by the eminent magistrate who pronounced it/ This sentence is distinguishable from thosé cited from the French courts in this: that there positive prohibitions existed against slavery, and the right to. freedom was conferred on the immigrant slave by positive law; whereas here the consequences of slavery merely — that is, the public policy — were fóund to be contrary to the law of slavery. The case of the slave Grace, (2 Hagg.,) with' four others, came before Lord Stowell in 1827, by appeals from the West India Vice admiralty-courts. ■ They were cases of slaves who had returned to those islands, after a residence in Great Britain, and where the claim to freedom was first presented .in the colonial forum. The learned judge in that case said: “This suit fails in its foundation: She.(Grace) was not a free person; no injury is done her by her-continuance in slavery, and she has no pretensions to any other station than that which was enjoyed by every slave of a family. If she depends upon such freedom conveyed by a mere residence in England, she complains of a violation of right which she possessed no.longer than whilst she resided in England, but which totally expired when that residence ceased, and she was imported into Antigua.” . The decision of Lord Mansfield was, “that so high an act of dominion ” as .the master exercise^ .over his slave, in sending him abroad for sale, could not be exercised in England *500 under the American laws, and contrary to the spirit of their own. The decision of Lord Stowell is, that the authority of the English laws terminated when the slave departed from England. That the laws of England were not imported into Antigua, with the slave, upon her return, and that the colonial forum had no warrant for applying a foreign eode to dissolve relations which .had existed between persons belonging to that island, and which were legal according to its own system. There is no distinguishable difference between the case before us and that detercnined in the admiralty of Great Britain. The complaint here, in my opinion, amounts to this : that the- judicial tribunals of Missouri have not denounced as odious the Constitution and laws under which they are organized, and have not superseded them on their own private authority, for the purpose of applying the laws of Illinois, or those passed by Congress for Minnesota, in their stead. • The eighth section of the act of Congress of the 6th of March, 1820, (3 Statutes at Large, 545,) entitled; “An act to authorize the people of Missouri to form a State Government,” &e., &e., is referred to, as affording the authority to this court to pronounce the sentence which the Supreme Court of Missouri felt themselves constrained to refuse. That section of the act prohibits slavery in the district of country west of the Mississippi, north of thirty-six degrees thirty minutes north latitude, vjhieh belonged to the ancient province of Louisiana, hot included in Missouri. It is a settled doctrine of this court, that the Eederal Government can exercise no power over the subject of slavery within the States, nor control the intermigration of slaves, "other than fugitives, among the States. . Kbr can that Government affect the duration of slavery within the States^ other than by a legislation over the foreign slave trade. The power of Congre* to adopt the section of the act above cited must therefore depend upon some condition of the Territories which distinguishes them from States, and subjects them to a control more extended. • The third section of the fourth article of the Constitution is referred to as the only and all-sufficient grant to support this claim. It is, that “ new States may be admitted by the Congress to this Union; but no hew State shall be formed or erected within the jurisdiction of any other. State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislar tures of the States concerned, as. well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the' territory of other propr *501 erty belonging to the United States; and nothing in this Con- ' stitution snail be so construed as to prejudice any claims of the United States, or of any particular State.” It is conceded, in the decisions of this court, that Congress may secure the rights of the United States in the public domain, provide for the sale or lease of any part of it, and establish the validity of the titlés of the purchasers, and may organize Territorial Governments, with powers of legislation. ( 3 How., 212 ; 12 How., 1 ; 1 Pet., 511 ; 13 P., 436 ; 16 H., 164 .) But the recognition of a plenary power in Congress to dispose of the public domain, or jfco organize a Government over it, does not imply a corresponding authority to determine the internal polity, or to adjust the domestic relations, or the persons who may lawfully inhabit the territory in which it is situated. A supremé power to make needful rules respecting the ■public domain,, and a! similar power of framing laws to operate upon persons and things within the territorial limits where it lies, are distinguished by broad lines of demarcation in American history. This court has assisted us to define them. In Johnson v. McIntosh, (8 Wheat., 595—543,) they say: “According to the theory of the British Constitution, all vacant lands are vested in the Crown; and the exclusive power to grant them is admitted to reside in the Crown, as a branch of the royal prerogative. “All the lands we hold were' originally granted by the Crown, and the Establishment of a royal Government has never been considered as impairing its right to grant lands within the chartered limits of such colony.” • 'And the British Parliament did claim a supremacy of legislation coextensive with the absoluteness of the dominion of the sovereign over the Crown lands. The American doctrine, to the contrary, is embodied in two brief resolutions of the people of Pennsylvania, in 1774: 1st. “ That the inhabitants of these colonies are entitled to the same rights and liberties, within the colonies, that the subjects born in England are entitled within the realm.” 2d. “ That the power assumed by-Parliament to bind the people, of these colonies by statutes, in all cases whatever, is unconstitutional, and therefore the source of these unhappy difficulties.” The Congress of 1774, in their statement of rights and grievances, affirm “ a free and' exclusive power of legislation” in their several Provincial Legislatures, “in all eases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed.” (1 Jour. Cong., 32.) . The unanimous consent of the people of the colonies, then, *502 to the power of their sovereign, “to dispose of and make all heedful rules and regulations respecting the territory ” of the Crown, in 1774, was deemed by them as entirely consistent with opposition, remonstrance, the renunciation of allegiance, and proclamation óf civil war, in preference to submission-to his claim of supreme power in the territories. . I pass now to the evidence afforded during the Revolution and Confederation. The American Revolution was not a social revolution. It did not alter the domestic condition or capacity of persons within the colonies, nor was it designed to disturb the domestic relations existing among them, ft was a political revolution, by which thirteen dependent colonies became thirteen independent States. “ The Declaration of Independence, was notj” says Justice Chase, “a declaration that the United Colonies jointly, in a collective capacity, were independent'States, &c., &c., &c., but .-that each of them was a-sovereign and independent State; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power on earth.” ( 3 Dall., 199 ; 4 Cr., 212.) These sovereign and independent States, being united as a Confederation, by various public acts of cession, became jointly interested in territory, and concerned to dispose of and make all needful rules and regulations respecting it. It is a conclusion not open to discussion in this court, “that there was no territory within the (original) United States, that was claimed by them in any other right than that of some-of the confederate‘States.” (Harcourt v. Gaillord, 12 Wh., 523 .) . “The question whether the vacant lands within the.United States,” says Chief Justice‘Marshall, “ became joint property, or belonged to the ' separate States, was 'a momentous question, whieh threatened to shake the American Confederacy to its foundations. This important and dangerous question has been compromised, and the compromise is .not now to be contestéd.” (6 C. R., 87.) The cessions of the States to the Confederation Were made on the condition that the territory ceded should be laid out and formed into distinct republican States, which should be admitted as members to the Federal Union, having the same rights of sovereignty, freedom, and independence, as the- other States. The first effort to fulfil this trust was made in 1785, < by the offer óf a charter or compact to the inhabitants who. might come to occupy the land., • Those' inhabitants were to .form for themselves temporary State Governments, founded on the Constitutions of any of the States, biit to be alterable at the will óf their Legislature; and *503 •permanent Governments were to succeed these, whenever the population became sufficiently numerous to authorize the State to enter the Confederacy; and Congress assumed to obtain powers from the States to facilitate this object. Neither in the deeds of cession of the States, nor in this compact, was a sovereign power for Congress to govern the Territories assérted. Congress retained power, by this act, “to dispose of and to make rules and regulations respecting the public . domain,” hut submitted to the people to organize a Government harmonious with those of the; confederate States. The next sta^e in the progress of 'colonial government was the adoption oí the ordinance of 1787, by eight 'States,-, in which the plan of a Territorial Government, established by act of Congress, is'first seen.- This was adopted while the Federal Convention to- form the Constitution was sitting. The plan placed the Government in the hands of a .Governor* Secretary, and Judges, appointed by Congress, and conferred power on them to select suitable laws from the codes of the States,-until the population should equal 5,000. A Legislative. Council,- elected by the people, was then to be admitted to a share of the legislative authority* under the supervision- of Congress; and States were to be formed whenever the'number of the. population should authorize the measure. This ordinance was addressed to the inhabitants as a fundamental compact,' and six of- its articles define the conditions to be observed in their Constitution and laws. These conditions were designed to fulfil the trust in the agreements of cession, that-the States'to he formed of the ceded Territories should be .“ distinct Republican States.” This ordinance was submitted to Virginia in 1788, and the 5th article, embodying as it does a summary of the entire act, was specifically ratified and confirmed 'by that State. This was an incorporation of the ordinance into1 her act of cession. It was conceded, in the argument, -that the authority of Congress was not adequate to the enactment of the ordinance, and that it cannot bé sup-portéd upon the Articles of Confederation. To a part of. the engagements, the assent of nine States was. required, and for another portion no provision had been made in those articles.. Mr. Madison said, in a writing nearly contemporary, but before the confirmatory act of Virginia, “Congress have proceeded to form new States, to erect temporary Governments, to appoint officers for’them, and to prescribe the conditions on which such States shall be admitted into the Confederacy; .all this has been done, and done without the least color of constitutional authority.” (Federalist, No. 38.) Richard Henry Lee, one of the committee who reported the ordinance to Con *504 gress, transmitted it to General "Washington, (15th July, 1787,) saying, “It seemed necessary, for the security of property among uninformed and perhaps licentious people, as the greater part of those who go there are, that a strong-toned Government should exist, and the rights of property he clearly defined.” The'consent of all the States represented in Congress, the consent' of the Legislature of Virginia, the consent of the inhabitants of the Territory, all concur to support the authority of this enactment. It is apparent, in the frame of the Constitution, that the Convention recognised jts validity, and adjusted parts of their work with reference to it. The authority to admit new States into the Union, the omission to provide distinctly for Territorial Governments, and the clause limiting the foreign slave trade to States then existing, which might not prohibit it, show that they regarded this Territory as provided, with a Government, and organized permanently with a restriction on the subject of slavery. Justice Chase, in the opinion already cited,' says of the Government before, and it is in some measure true during the Confederation, that “the powers of Congress originated from necessity, and arose' out of and were only limited by events, or, iñ other words, they were revolutionary in their very nature. Their extent depended upon the exigencies and necessities of public affairs; ” and there.is only one rule of construction, in regard to the acts done, Vhich will fully support them, viz: that the powers actually exercised were rightfully exercised, wherever they were supported by the implied sanction of the State Legislatures, and by the ratifications of the people. The clauses in the 3d .section, of the -4th article of the Constitution, relative to the admission of new States, and the disposal and regulation of the territory of-the United States, were adopted without debate pi the Convention; ■ There was a warm discussion on the clauses that relate to the subdivision of the States, and the reservation^ of the claims of the United States and each of the Statesi from any. prejudice. The Maryland members revived the controversy in regard to the Crown lands of thé Southwest.. There was nothing to indicate any reference to a government ■ of .Territories not included within the limits of the Union; and the whole discussion 'demonstrates that the Convention was consciously dealing with a Territory whose condition, as to government, had beeii arranged" by a fundamental and unalterable compact. An examination of this clause of the Constitution, by the light of the circumstances in which the Convention was placed, will aid us to determine its significance. The first clause is, “that new States may be admitted by the Congress to this *505 Union.” The condition of Kentucky, "Vermont, Rhode Island, and the' new States to be formed in the Northwest, suggested this, as a necessary addition to the powers of Congress. The next clause, providing for the subdivision of States, and the parties to consent to such an alteration, was required, by the plans on foot, for changes in Massachusetts, New York, Pennsylvania, North Carolina, and Georgia. The clause which enables Congress to dispose of and make regulations respecting the public domain, was demanded by the exigencies of an ex-haustéd treasury and a disordered finance, for relief by sales, and the preparation* for sales, Of the public lands; and the last clause, that nothing in the Constitution should prejudice the claims of the United States or a particular State, was to quiet the jealousy and irritation of those who had claimed for the United States all the unappropriated lands. I look in vain, among the discussions of the time, for the assertion of a supreme sovereignty for Congress over the territory then belonging to the United States, or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress. This disturbing element of thé Union entirely escaped the apprehensive previsions, of - Samuel Adams, George Clinton, Luther Martin, and "Patrick Henry; and, in respect to dangers from power vested .in acentral Government over distant settlements, colonies, or provinces, their instincts were always alive. Not a word escaped them, to warn their countrymen, that here was a power to threaten the landmarks of this federative Union, and with them ‘the safeguards of popular and constitutional liberty; or that under this article there might be introduced, on our soil, a single Government over avast extent of country— a Government foreign to the persons over whom it might be exercised; and capable of binding,those not represented, by statutes, in all cases whatever. I find nothing to ■ authorize these enormous pretensions, nothing in the expositions of the friends of the Constitution, nothing in the expressions of alarm by its opponents — expressions which have since been developed as prophecies. Every portion of the United States was then provided with a municipal Government, which this Constitution was not designed to supersede, but merely to modify as to its conditions. .The compacts of cession by North Carolina and Georgia are subsequent to the Constitution. They adopt the ordinance of 1787, except the clause respecting slavery. But the precautionary repudiation of that article forms an argument quite as satisfactory to the advocates for Eederal power, as its intro *506 duction would Rave done. The refusal of a power to Congress to legislate in one place, seems to justify the seizure of the samé power when another place for its exercise is found. This proceeds from a radical error, which lies at the foundation of much of this discussion. It is, that the Federal Government may lawfully do whatever is not directly-prohibited by the Constitution. This- would have been a fundamental error, if no amendments to the Constitution had been made. But the final expression of the will of the people of the States, in the 10th amendment, is, that the powers of the Federal Government are limited to the grants of the Constitution. Before the cession of Georgia was made, Congress asserted rights, in respect to a part of her territory, which, require a passing notice. In 1798 and 1800, acts for the settlement of limits with Georgia, and to establish a Government in the Mississippi Territory, wejre adopted. A Territorial Government was organized, between the Chattahoochee and Mississippi 'rivers. Tliis was within the limits of Georgia. These acts-dismemhered Georgia. They established a separate Government upon her soil, while they rather derisively professed, “that the establishment of that Government shall in no respects impair the rights of the State of Georgia, either ,to the jurisdiction or soil of the Territory.” The Constitution provided that the importation of such persons as any-of the existing States shall think proper to admit, shall-not be prohibited by Congress before 1808. By these enactments, a prohibition was placed, upon the importation of slaves into Georgia, although hfer Legislature had made nofie. This court have repeatedly affirmed the paramount, claim of Georgia to this Territory. They have denied the existence- of any title in the United States. (6 C. R., 87; 12 Wh., 523 ; 3 How., 212 ; 13 How., 381 .) Yet these acts were cited in the argument as precedents to show the power of Congress in the Territories. These statutes were the occasion of earnest expostulation and bitter remonstrance on .the part of the authorities of the State, and the memory of their injustice and wrong remained long after the legal settlement of the controversy by the compact of 1802. A reference td these acts terminates what I have to say upon the Constitutions of the Territory within the original limits of the United States. These Constitutions were framed by the- concurrence of the Spates making the cessions, - and Congress, and were tendered -to immigrants who might be attracted to the vacant territory. The -legislative, powers of the officers of this Government were limited to the selection of laws from the States; .and provision was made for the introduction of popular institutions, and their emanci *507 pation from Federal control, whenever a suitable opportunity occurred. The limited reservation of legislative power to the officers of the Federal Government was excused, on the plea of 'necessity; and the probability is, that the clauses respecting slavery embody some compromise among the statesmen of that time; beyond these, the distinguishing features of the system which the patriots of the Revolution had claimed as their birthright, from Great Britain, predominated in them. They acquisition of Louisiana, in 1808, introduced another system into the -United States. This vast'province was ceded by Napoleon, and its population had always been accustomed to a vieeroyal Government, appointed by the Crowns of France or Spain. To establish a- Government constituted on similar principles, and with like conditions, was not an unnatural proceeding. - But there was great difficulty in finding constitutional authority for the measure. The third section' of the fourth article of the Constitution was introduced into the Constitution, on the motion of Mr. Gouverneur Morris. In 1803, he was appealed to for information in regard to its meaning. He answers : “I am very certain I had it not in contemplation to insert a decree de eoercmdo imperio in the Constitution of America. * * * I knew then, as well as I do now, that all North America must at length be annexed to us. Happy indeed, if the lust of dominion‘stop here. It would therefore have been perfectly utopian to oppose a paper restriction to the violence of popular sentiment, in a popular Government.” (3 Mor. Writ., 185.) A few days later, he makes another reply to his correspondent. “I perceive,” he says, “I mistook the drift of your inquiry, which substantially is, whether Congress can admit, as a new State,- territory which did not belong to the United States when the Constitution was made. In my opinion, they cannot. I always thought, when we should acquire Canada , and Louisiana,, it would be proper to govern THEM AS PROVINCES, AND ALLOW THEM NO VOICE m OUT COUndls. In fording the third section oe the fourth article, I went as far as circumstances would permit, to establish the exclusion. CandoR OBLIGES ME TO ADD MY BELIEF, THAT HAD IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE.” (3 Mor. Writ., 192.) The first Territorial Government of Louisiana was an Imperial one, founded upon a French or Spanish model. • For a time, the Governor, Judges, Legislative Council, Marshal, Secretary, and officers of the militia,.were appointed by the President. * *508 Besides thes¿' anomalous arrangements, the acquisition gaye rise to jealous inquiries, as.to the influence it would exert in determining the men and States that were to he' “the arbiters áíxd- rulers ” of the destinies of the Union; and unconstitutional opinions,-having for'their aim to promote sectional divisions, were announced and developed. “Something,” said an eminent statesman,'?4 something has suggested to the members of Congress the policy of acquiring geographical majorities. This is ;a very direct step towards disunion, for it must foster the geographical enmities by which alone it can be effected. .This something must bh a contemplation of particular advantages to be derived from such majorities; and is it not notorious that they consist "of nothing else but usurpations over persons and property, by which, they can regulate the internal wealth and prosperity of States and individuals?" . The most dangerous of the efforts to employ ¿geographical political power, tó perpetúate- a geographical preponderance in the. Union, is to be found in the.deliberations upon the act of the 6th of March, 1820, before cited.' The attempt consisted of'a proposal to exclude' Missouri from a place in the Uriion, Unless her people would adopt a Constitution containing a prohibition won the subject of slavery, according to a prescription of Congress, The sentiment is now general, if not Universal,-that Congress had no constitutional power to impose the restriction. This was frankly admitted at the bar,' in the course of this argument. The principles which this court have .pronounced conderún the pretension then made on behalf of the legislative department. In Groves v. Slaughter, (15 Pet.,) the Chief Justice said: “The power over this subject ip exclusively with' the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to-be brought within its limits.” 'Justice McLean said: .“The Constitution of the United States operates alike in all the States,- and one State has the same powe^ over the subject of slavery as every other State.” In Pollard’s Lessee v. Hagan, ( 3 How., 212 ,) the court say: “The United States have no constitutional capacity to exercise municipal *509 jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by'treaty or compact.” This is a necessary consequence, resulting from the nature of the Federal Constitution, which is a federal compact among the' States, establishing a limited Government, with powers delegated by the people of distinct and independent communities, who reserved to their State Governments, and to themselves, the powers they did not grant. This claim to impose a restriction upon the people of Missouri involved a denial of the constitutional relation^ between the people of the States and Congress, and affirmed a concurrent right for the latter, with their people, to constitute the social and political system of the new States. A successful maintenance of this claim would have altered the basis of the Constitution. The new States would have become members of a Union defined in part by the Constitution and in part by Congress. They would not have been admitted to “this Union,-” Their sovereignly would have been restricted by Congress as well as the Constitution. The demand was unconstitutional and subversive, but was prosecuted with an energy, and aroused such animosities among the people, that patriots, whose confidence had not failed during the Revolution, begain to despair for the Constitution. * Amid the utmost violence of this extraordinary contest, the expedient contained in the eighth section of this act was proposed, to moderate it, and to avert the catastrophe at menaced. It was not seriously debated, nor were its constitutional aspects severely scrutinized by Congress. For the first time, in the history of the country, has its operation been embodied in a case at law, and been presented to this court for their judgment. The inquiry is, whether there are conditions in the Constitutions of the Territories which subject the capacity and status of persons within their limits to the direct action of Congress. Can Congress determine the. condition and status of persons who inhabit the Territories ? The Constitution permits Congress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States. This power applies as well to territory belonging to the United States within the States, as, beyond them. It comprehends all the ■ public domain, wherever it may be. The argument is, that *510 the power to make “all needful rules and regulations” “is a' power of legislation,”--“a' full legislative power;” “that ifl* includes all subjects of legislation in the .territory,” and is without any limitations, except the positive prohibitions which afféct all the powers of Congress. Congress may then regulate or prohibit slavery upon the public domain within the new States, and such a prohibition would permanently affect the capacity of a slave, whpse master might cany him to it. And why not? Because no power has been conferred on Congress. This is a conclusion universally admitted. But the power to “make rules and regulations respecting the territory” is not restrained by- State lines, nor are' there any constitutional prohibitions' upon its exercise in the domain of the United States within the States; and whatever rules and regulations respecting territory Congress may constitutionally make are supreme, and are not dependent on the situs of “the territory." .-The author of the Parmer’s tetters, so famous in the ante-revolutionary history, thus states the argument made by the-American loyalistssin favor of the claim of the British Parliament to legislate in all cases whatever over the colonies:' “It has been urged with great vehemence against us,” he says, “ and it seems to be thought their eoet by our adversaries, that a power of regulation is a power of legislation; and a power of legislation, if constitutional, must be universal and supreme, in the utmost sense of the word. It is therefore concluded that the, colonies, by acknowledging the power of regulation, acknowledged every other power.” ' This sophism imposed upon a portion of the patriots of that day. Qhief Justice Marshall, in his life of Washington, says “ that many of the best-informed men in Massachusetts had perhaps adopted the opinion of the' ’ parliamentary right of internal government over the colonies;” “that the English statute book furnishes many .instances of its. exercise; ” “that in no. case recollected, was their authority, openly controverted;” and “that the General Court of.Massachusetts, on a late occasion, openly recognised the principle.”’ (Marsh. Wash., v. 2, p. 75, 76.) ) But the more eminent men of Massachusetts rejected it; and -another patriot of the time employs the instance to warn us of. “the'stealth with which .oppression approaches,” and.“the enormities towards which precedents travel.” And the people of the United States, as we have seen, appealed to the last ár-fument, rather than acquiesce in their authority. . Could it' ave been the purpose of . Washington and his illustrious associates, by the nse of ambiguous, equivocal,, and expansite *511 ■words, such, as “rules,” “regulations,” “territory,” to re-establish. in the Constitution of their country that fort which had been prostrated amid the toils and with the sufferings and sacrifices of seven years, of war? Are these words-to be understood as the ITorths, the Grenvilles, Hillsboroughs, Huteh-insons, and Dunmores — in a word, as George. HE would have understood them — or are we to look for their interpretation to Ratrick Henry or Samuel Adams, to, Jefferson, and Jay, and Dickinson; to the sage Franklin, or to Hamilton, who- from his early manhood was engaged in combating British constructions of such words? we know that the resolution of Congress of 1780 contemplated that the new States to be formed under their recommendation were to have the same rights of sovereignty, freedom, and independence, as the old. That every resolution, cession, compact, and ordinance,' -of the States, observed the same liberal principle. That the Union of the Constitution is a union formed of equal States; and that new States, when admitted, were to enter “this Union,” Had another union been proposed in “any pointed manner,” it would have encountered not only “strong” but-successful opposition. The disunion between Great Britain and her colonies originated in the antipathy of the latter to “rules and regulations” made by a remote power respecting their internal policy. In forming the Constitution, this fact was ever pres-, .ent in the minds of its authors. The people were assured bv their most trusted statesmen “that the jurisdiction of the Federal Government is limited :to certain enumerated objects, which concern all members of the republic,”, and “that- the local or municipal authorities form distinct portions of su-premácy, no more subject within their respective spheres to the general authority, than the general authority-is subject to them within its own sphere.” Still, this did not content them. Upder the lead pf Hancock and Samuel Adams, of Patrick Henry and George Mason, they demanded an "explicit declaration that' no more power was to be exercised than they had delegated. And the ninth and tenth amendments to the Constitution- were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observance: Is it probable, therefore, that the supreme and irresponsible power, which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States, to its subversion, was ever within the contemplation of the statesmen who, conducted the counsels of the people in the formation of this Constitution! ? When *512 the questions that came to the surface upon the acquisition of Louisiana were presented to the mind of Jefferson, he wroté: “I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has hounds, they can he no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the Federal Government, and gives the powers necessary to carry them into execution.” The publication of the journals of the Federal Convention in 1819, of the debates reported by Mr. Madison in 1840, and the mass pf private correspondence of the early statesmen before and since, enable.us to approach the discussion Of the aims of those who made “the Constitution, with some insight and confidence. I have endeavored, with the assistancé of these, to find a solution for the grave and difficult question involved in -this inquiry. My opinion is, that the claim for Congress of supreme power in the Territories, under., the grant to “dispose of. and make all needful rules and regulations respecting territory,” is. not supported by the historical evidence drawn from the Revolution, the Confederation, or the deliberations which preceded the ratification of the Federal Constitution. The ordinance of 1787 depended upon the action of the Congress of the Confederation, the,assent of the State ■'of Virginia, and the acquiescence of the people who recognised-the validity of that plea of necessity which supported so many of the acts of the Governments of that time; and the Federal Government accepted the ordinance as a recognised and valid engagement of the Confederation. In referring to the precedents of ,1798 and 1800, 1 find the Constitution was plainly violated by the invasion of the rights of a sovereign State, both of soil and jurisdiction; and in reference to that of 1804, the wisest statesmen protested against it,' and' the President more than doubted its policy and the power of the Government. Mr. John Quincy Adams, at a later period, says of the last act; “that the President found Congress mounted to the pitch of pássing those acts, without inquiring where they acquired the authority, and he conquered his own scruples as they, had done theirs.” But this court cannot undertake for themselvés the same conquest. They acknowledge that our peculiar se *513 curity is in the possession of a written Constitution, andthpy cannot make it blank paper by construction. They look to its delineation of the operations of the Federal Government, and they must not exceed the limits it marks out, in their administration. ' The court have said “that Com gress cannot exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, .beyond what has been delegated.” "We are then to find the authority for supreme power in the Territories in the Constitution. "What are the limits upon the operations of á Government invested with legislative, executive, and judiciaiy powers, and charged with the power to dispose of and to make all needful rules and regulations .respecting a vast public dómain? The feudal system-would have recognised the claim made on behalf of the Federal Government for supreme. power over persons and things in the Territories, as an incident to this' title — that is; the title to dispose of and make rules' and regulations respecting it. . The Norman lawyers of "William the Conqueror would have yielded an implicit assent to the doctrine, that a supreme sovereignty is an inseparable incident to a grant to dispose of and to make all needful rules and regulations respecting the public domain. But an American patriot, in contrasting the European and American systems, may affirm, “that European sovereigns, give lands to their colonists, but reserve to themselves a power to 'control their property, liberty, -and privileges; but 'the American Government sells the lands belonging to the>people of the' several States (i. e., United States) to their citizens, who are already in the possession of 'personal and political rights; which the Government did not give, and cannot take away.” And the advocates for Government sovereignty in the Territories have been compelled to abate a portion of the pretensions originally, made'in its behalf,, and to admit that the constata-tional prohibitions upon Congress operate in the Territories. But a constitutional prohibition -is not requisite to ascertain a limitation upon the authority of the several, departments' of the Federal Government. Nor are the States or p sople restrained by any enumeration or definition of their rights or liberties. To impair ór diminish either, the department must produce an authority from the people themselves, in their Constitution; and, as we have seen,: a power to make rules and regulations respecting the public domain does not confer a municipal sov-ereignly' over persons and things upon it. But as this is “thought their fort ” by our adversaries, I propose a more definite.examination of it.- We-have seen, Congress does not *514 dispose of or make rules and regulations respecting domain belonging to themselves, but belonging to the United States. These conferred on their mandatory, Congress, authority to dispose of the territory which belonged to' them in common; and to accomplish that object beneficially and effectually, they gave an authority to make suitable rules and regulations respecting it. "When the power of disposition is fulfilled, the authority to make rules and regulations terminates, for it attaches only upon territory “belonging to the United States.” Consequently, the power to make rules and regulations, from the nature of the subject, is restricted to such administrative and conservatory acts as are needful for the preservation of the public domain, and its preparation for sale or disposition. The system of land surveys; the reservations for schools, internal improvements, military sites, and public buildings; the preemption claims of settlers; the establishment of land offices, and boards of inquiry, to determine the validity of land titles; the modes of entry, and sale, and of conferring titles;, the protection of the lands from trespass and waste; the partition of the public domain into municipal subdivisions, having reference" to the erection of Territorial Governments and States;- and perhaps the selection, under their authority, of suitable'laws for the protection of the settlers, until there may be a sufficient ¡number of them to form a self-sustaining municipal Government — these important rules, and regulations will sufficiently illustrate the scope and operation of the 3d section of the 4th article of the Constitution. - But this clause' in the Constitution ■does not exhaust the powers of Congress within the territorial .subdivisions,, or over the persons who inhabit them. Congress may exercise there all the powers of Government which belong to them as the Legislature of the United States, of which these 'Territories make a part. (Loughborough v. Blake, 5 "Wheat., 3817.) Thus the lays of taxation, for the regulation of foreign, Eederal, and Indian commerce, and so for the abolition of the slave trade, for the protection of copyrights and inventions, for the establishment of postal communication and courts of justice, and for the punishment of" crimes; are as operative there as within the States. I admit that to mark the bounds for ;thó jurisdiction of the Government of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and, in a great measure, is beyond the-cognizance of the judiciary.department of that Gov-' eminent. How much, municipal power may be exercised by the people of the Territory, before their admission to the Union, the courts ’©f justice cannot decide. This must depend, for *515 the most part, on political considerations, which cannot enter into the determination of a case of law or equity. I do not feel called upon to define the jurisdiction of Congress. It is sufii-cient for the decision of this case to ascertain whether the residuary sovereignty of the States or people has been invaded hy the 8th section of the act of 6th March, 1820,1 have1 cited, in so far as it concerns the capacity and status'oí persons in the condition and circumstances of the plaintiff and his family. These ’ States, at the adoption of the Federal Constitution, were organized communities, having distinct systems of municipal law, which, though derived from a common source, and recognising in the main similar principles, yet in some respects had become unlike, and on a particular subject promised to be antagonistic. . Their systems provided protection for life, liberty, and property, among their citizens, and for the determination of the condition and capacity of the persons domiciled within their limits. These institutions,, for the most part, were placed beyond the control of the Federal Government. The Constitution allows Congress to coin money, and1 regulate its value; to regulate foreign and Federal commerce; to secure, for a limited period, to authors and inventors, a property'in their writings and discoveries; and to make rules concerning captures in war; and, within the limits of these powers, it has. ■exercised, rightly, to a greater or less extent,.the power to determine what shall and what shall not be property. "But the great powers of war and Negotiation, finance, postal communication, and commerce, in general, when employed in respect to the property of a citizen, refer to, and depend upon, the municipal laws of the States,' t© ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held. . "Whatever these Constitutions' and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognise to be property. ■ And this principle follows from the structure of the respective Governments, State and Federal, and their reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their respective jurisdictions, are mutually .obligatory. They are respectively the depositories of such powers of legislation as .the people were willing to surrender, and their duty is to cooperate within their several jurisdictions to maintain the rights of the same citizens under, both Governments imim- *516 Íjaired. A proscription, therefore, of the Constitution and aws of one or more States, determining property, on the part of the Federal ’Government, by which the stability of its social system may be endangered, is plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government was designed, to accomplish. Each of the States surrendered its powers of war and negotiation, to raise armies and to support a navy, and all of these powers are sometimes required to preserve a State from disaster and ruin. The Federal Government was constituted to exercise these powers for the preservation of the States, respectively, and to ■secure to all their citizens the enjoyment of the rights which were not. surrendered to the Federal Government. The provident care of the statesmen who projected the Constitution was signalized by such a distribution of the powers of Government as to exclude many of the motives and opportunities for promoting provocations and spreading discord among the States, and for guarding against those partial combinations, so destructive of the community of interest, sentiment, and feeling, which are so essential to the support of the Union. The distinguishing features of their system consist in the exclusion of the Federal Government from the local and internal concerns of, and in the establishment of an independent internal Government within, the States. And it is a significant fact in the history of the United States, that those controversies which have been productive of the greatest animosity, and have occasioned most peril to the peace of the Union, have had their origin in the. well-sustained opinion of a minority among the people, that the Federal Government had overstepped its constitutional limits to grant some exclusive privilege, or to disturb the-legitimate distribution of property or power among the States or individuals. Kor can a more signal instance of this be found than is furnished by the act before us. Eo candid ■ or rational man can hesitate to believe, that if the subject of the eighth section of the act of March, 1820, had never been introduced into Congress and made the basis of legislation, no interest common to the Union would have been seriously affected... And, certainly, the creation, within this Union, of large confederacies of unfriendly and frowning States, which has been the tendency, and, to an alarming extent, the result, produced by the agitation arising from it, does not commend it to the patriot or statesman. This court have determined that the' intermigration of slaves was ,not committed to the jurisdiction or control of Congress. "Wherever a master is entitled to go within the United States, his slave may’accompany him; without any impediment from, or fear of, Congres *517 sional legislation or interference. The question then arisés, whether Congress, which can exercise no jurisdiction, over the relations of master and slave within the limits of the Union, and is bound to recognise and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit thé continuance-of .those relations, within the Territories. And the citation of State statutes prohibiting the immigrar tion of slaves, and of the decisions of State courts enforcing the-forfeiture of the master’s title in accordance with their rule, only darkens the discussion. Eor the question is, have Con-fress the municipal sovereignty in the Territories which the tate Legislatures have derived from the authority of the people, and exercise in the States? And this depends upon the construction of the article in the Constitution before referred to. And, in my opinion, that clause confers no power upon Congress to dissolve the relations pf the master and slave on the domain of the United States, either within or without any of the States. The eighth section of the act of Congress of the 6th of March, 1820, did not, in my opinion, operate to determine the domestic condition and status of the plaintiff and his family during their sojourn in Minnesota Territory, or after their return to Missouri. The question occurs as to the judgment to be given in'this case. It appeared upon the trial that the. plaintiff, in 1834, was in a state of slavery in Missouri, and he had been in Missouri for near fifteen years in that condition when this suit was brought. Nor does it appear that he at apy time possessed another state or condition,, de facto. -His claim to freedom depends upon his temporary elocation, from the domifeil of his origin, in company with his master, to communities where the law of slavery did not prevail. My examination is confined to the ease, as- it was submitted upon uncontested evidence, upon appropriate issues to the jury, and upon the instructions given and refused by the court upon that evidence. My opinion is, that the opinion of the Circuit Court was correct upon all the claims involved in those issues, and that the verdict of the jury was justified by the evidence and instructions. The jury have returned that the plaintiff and his family are slaves. Upon this record, it is apparent that this is not a controversy between citizens of different States; and that the plaintiff, dt no period of the life which has been submitted to the view of the court, has had a capacity to maintain a'suit in the courts *518 of the United States. And in so far as the argument of the Chief Justice upon the plea in abatement has a reference to the plaintiff or his family, in any of 'the conditions or circumstances of their lives, as presented in the evidence, I concur in that portion of his opinion. I concur in the judgment which ¿xpresses the conclusion that the Circuit Court should not have rendered a general judgment. The capacity .of the plaintiff to sue is involved in the pleas in bar, and the verdict of the jury discloses an incapacity under the Constitution. Under the Constitution of the United States, his is an incapacity to sue in their courts, while, by the laws of Missouri, the operation of the verdict would be more extensive. I think it a safe conclusion to enforce the lesser disability imposed by the Constitution of the United States, and leave to the plaintiff all his rights in Missouri. I think the judgment should be affirmed, on the ground that the Circuit Court had no jurisdiction, or that the case should be reversed and. remanded, that the suit may be dismissed. Mr. Justice C ATROhT. 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 abáte-, mént 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 oí 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.) ISTor 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 court — a controversy between citizens of different States. The plea in abatement,- impugning these jurisdictional aver-ments, 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 *519 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 aver-ments 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. Hnless 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 Kelson, 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 Franée to the United States, which lies north of thirty-six degrees thirty minutes north latitude, slavery and involuntaiy 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 *520 the Territories of the United States by force of the third see-, tion of the fourth article of the Constitution. And I will state my reasons for this opinion. . ' ' Almost 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 ou'r 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 Caro-, lina, 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 matter1 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 Vir *521 ginia 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 blew York had ceded hers. In August, 1787, South Carolina ceded to the Confederation her pretension of claim to territory west of that Stated And bTorth 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 mouth, 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 Confederartion. “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. Ko 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: “ jResolved, 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 Rational 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.) *522 These, with the resolution, that a district for the location of the seat of Government should he 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. ISTorth 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 sometimes stated, pleadings must not be argumentative. (Stephen on Pleading, 384, and authorities cited ,by .bjm.) In Com. Dig., Pleader E. 3, and Bac. Abridgement, Pleas I, 5, and Stephen on PL, many decisions under this rule are collected. . In trover, for . an indenture whereby A granted a. manor, it is no plea that A did not grant the manor, for it-does not. answer the declaration except by argument. (Yelv., 223.) ■So in trespass for taking-and carrying .away the plaintiff’s goods, the defendant pleaded that the plaintiff never had any goods.'. -The court said, “this is an infallible argument'that the defendant is not guilty, but it is.no plea.” (Dyer, a 43.) - In. ejectment, the defendant pleaded a surrender-of a copy-hold by the hand of Posset, the steward. The plaintiff replied, -that Posset was not steward. The court held this no issue, for it traversed the surrender only argumentatively. (Cro. Elis., 260.) In these cases, and many- others reported in the books, the inferences from the facts stated were irresistible. But the court held they did not, when, demurred to, amount to such inferable facts. " In the casó at bar, the inference that the de- . fendánt was a slave at the time of action brought, even if it. can -be made at-all, from the fact that his-parents were slaves, is certainly not a necessary inference. This case, therefore, is like that of Digby v. Alexander, (8 Bing., 116.) In that case, the defendant pleaded many facts strongly tending tó show that he ...was oñceCEarl of Stirling; hut as there'was no. positive alie- *571 gation that be was so at tbe time of action brought, and as every fact averred might be true, and yet the defendant not have been Earl of Stirling at the time of action brought* the plea was held to be insufficient. A lawful seizin of land is presumed to continue. But if, in an action of trespass quare clausum, the defendant were to plead that he was lawfully seized of the locus in quo, one month before the time of the alleged trespass, I should have no doubt it would be .a bad plea. (See Mollan v. Torrance, 9 Wheat., 537 .) So if á plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same State as the defendant, were to allege that the plaintiff’s ancestors were citizens of that State, I think the plea could not be supported. My judgment would be, as it is in this case, that if the defendant meant to aver a particular substantive fact, as existing at the time' of action brought, he must do it directly and explicitly, and not by way of inference from certain other averments, which are quite consistent with the contrary hypothesis. I cannot, therefore, treat this plea as containing an averment that the plaintiff himself was a slave at-the time of action brought; and the inquiry recurs, whether the facts, that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizenship in the State of Missouri, within the meaning of the Constitution and laws of the United States. , In Gassies v. Ballon, ( 6 Pet., 761 ,) the defendant was described on the record as a naturalized citizen of the United States, ■residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did theffireside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive th'e plaintiff of his right to sue citizens of States other than Missouri, in the-courts of the United States. ' So that, under the allegations contained in this plea, and admitted by the demurrer, the question is, whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be & citizen, this plaintiff has the right to the judgment of the court that he is so; for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors. The first section of the second article of the Constitution *572 uses the language,, “.a citizen of the United Státes at the time of the adoption, of the .Constitution.” ' One mode of approaching this question is, to inquire who were citizens of the United States at the time of the adoption of the Constitution, • Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was, “ The United States of America,” This Government was. in existence-when the Constitution was framed ,and proposed for adoption, and was to be superseded by the new Government of the United States of America, organized under the Constitution; When, therefore, the Constitution speaks. of citizenship of the United States, existing at the time of the -adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the time of such adoption. ■ Without going into any question concerning the powers of the Confederation to govern the territory,of the United.States out of the limits of the States, and consequently to sustain the relation.of Government'and citizen.in respeet to the inhabitants of such territory, it may safely he said that the citizens of the several States were citizens of the United States under the Confederation. ■ That Government, was simply a confederacy, of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the Government of the Confederation, to act on any question, of citizenship, or to make any rules in respect thereto.- The whole matter wás left to stand upon the action of the several States, and to the natural conseqhence of such action, that the citizens of each State should he citizens of that Confederacy into which that State had entered, the style whereof, was* “The United States of America.” To determine whether any free persons, descended from Africans held in slavery, were Citizens of-the United States under the Confederation, and consequently at the time of the adoption of the- Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution. . Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire,- Massachusetts, New *573 York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, hut such of them as had the other necessary qualifications pofesess-ed the franchise of electors, on'equal terms with other citizens. The Supreme Court of North Carolina, in the case of the State v. Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina. “According to the laws of this State,’-’ says Judge Gaston., in delivering the opinion of the court, “all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the. Roman laws between citizens and''free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color of complexion, were native-born British subjects— those, born out of his allegiance were aliens. Slavery did not exist in England, but it aid in the British colonies; Slaves were not in legal parlance persons, but property. The moment •the incapacity, the disqualification of slavery, was removed, they became ,persons, and were then either British subjects, qr not British subjects, according as they were or were not born within the allegiance of'the British King. TJpon the Revolution, no other ehange took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in- North Carolina became North Carolina freemen. Foreigners, until made members-of the' State, remained aliens. Slaves, manumitted here,-became freemen, and therefore, if born within . North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State! The Constitution' extended the elective franchise'to every, freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a ,matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution.” - In the State v. Newcomb, (5 Iredell’s R., 253,) decided in 1844, the same court referred to this casé of the State v. Manuel, and said: “That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be. one of great importance in principle. It was considered with an anxiety, and care worthy of the .principle involved, and which give it a control *574 ling influence and. authority on all questions of a. similar character.” An argument from speculative premises, however well cho.sen, that the then t state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born pn that soil, and that they were not* by the Constitution of 1780 of that State, admitted to the condition of citizens, would be -received with surprise by the people of that State, who know their own political history. . It is true, beyond all controversy, that persons of eolqr, descended from African slaves, were by that Constitution made citizens •of the State; and such of them as have had the necessary qualifications, have held and exercised the elective franchise, as ' citizens, from that time to the present. (See Com. v. Aves, 18 Pick. R., 210.) ) The Constitution of 'New Hampshire conferred the elective franchise, upon “every inhabitant of the State having the necessary qualifications,” of which color or descent-was not one. ■ The Constitution of New‘York gave the right to voté to “every male ¡inhabitant, whó shall" have resided1,” &c.; making no. discrimination between free colored persons and others. (See Con. of N. Y., Art. 2, Rev. Stats. of N. Y., vol. 1, p. 126.) That of New- Jersey, to “all inhabitants of. this colony, of full age, who' áre worth £50 proclamation money, clear estate.” ■ New York, by its Constitution of 1820, required colored persons to havé,some qualifications as prerequisites for voting, which white persons need not possess. And New- Jersey,' by. its present Constitution, restricts the right to vote to white male citizens! Rut these changes' can have no other effect upon the present inquiry, except to show, that before they were made, no such restrictions existed; and- colored in corn-mop with white persons, were- not only citizens of those States, • but entitled to the elective franchise on the samé qualifications as white persons, as they now are in New Hampshire and Massachusetts. I shall not enter into an examination of the' existing opinions.- of that period respecting the African race, < nor into any discussion concerning the meaning of those who asserted, in the JC>eclafatión of Independence, that all men.'are created equal; that they are endowed by their- Creator with ; certain inalienable rights; that among these are life; liberty, and the pursuit of happiness. ' My own opinion is,-that a cáíín comparison of these assertions of universal abstract truths,-iand of their own individual opinions and acts,’ would not leave *575 ' these men tinder any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a. necessary regard to circumstanbes, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true'in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the' Declaration of Independence asserts. But this is not the place to vindicate their memory. As I conceive, we should deal Here, not with such disputes, if there can Jbe a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States, and by the notorious practice under .them. And they show, in a manner which no •argument can obscure, that in some the original thirteen States, free colored persons, before and at the time of the formation of the Conptitution; were citizens of those States. The fourth of the fundamental articles of the Confederation was as follows: “ The free inhabitants of each of these States," paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States.” The fact that free persons of color were citizens .of some of the seveml States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such' persons the privileges and immunities of general citizenship, were not only known to those who framed and adopte'd those. articles, but the evidence is decisive, that the fourth article was intended to have that effect, and' that more restricted language, which would have'' excluded such persons, was deliberately and purposely rejected. ' On the 25th of June, 1-778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth _ article, by inserting after the \yord “free,” and before the word “inhabitants,” the word “white,” so that the privileges and immunities of General citizenship would be secured only to white persons. 'wo States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by, its terms of inclusion, “free inhabitants,” and the!strong implication from its terms of exclusion, “paupers, vagabonds, and-fugitives from justice,’.’ Who alone were excepted, it is-clear, that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, Were entitled to the *576 privileges and immunities of general citizenship of the United States. . Did the Constitution-of the United States deprive them' or their descendants of citizenship ? That Constitution was .ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of “the people of the United States,” by whom the Constitution was ordained and established, but in at least five of the States they had the-power to act, and doubtless did act, by their suffrages, -upon the question of its adoption. It would be strange, if we ^were to find in that instrument anything which deprived of their citizenship any part of the people of the United States Who Were among those by whom it was established. • I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons bom on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that,' .under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United "States. I will proceed to state' the grounds of that opinion. .The first section of the second article of the Constitution •uses the-language, “a naturahbom citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the ‘Constitution' was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the. received general doctrine has been, in conformity "with the common law, that free persons bom .within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignly by the several States, all such persons ceased to be subjects, and became citizens of the several.States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, *577 and thus to continue British subjects. (McIlvain v. Coxe’s Lessee, 4 Cranch, 209 ; Inglis v. Sailors’ Snug Harbor, 3 Peters, p. 99; Shanks v. Dupont, Ibid, p. 242.) The Constitution having recognised the rule that' persons horn within the several States .are citizens of the United States, one of four things must be true: First. That the Constitution itself has described what 'native-born persons shall or shall • not be citizens of the United States; or, Second. That it has empowered Congress to do so; or, Third. That all free persons, born within the several States, are citizens of the United States; or, Fourth. That it is left to each State to determine what free persons, rbom within its limits, shall be citizens of such State, and thereby be citizens of the United States. . If there be such a thing as citizenship of the United States acquired by birth within the States, which the Constitution expressly recognises, and no one denies, then these four alternatives embrace the entire subject, and it only remains to’ select that one which is true. That the Constitution itself has defined citizenship of the United States by declaring what persons, born within the several States, shall or shall not be citizens of the United States,, will not be pretended. It contains no such declaration. We may dismiss the first alternative, as without doubt unfounded. Has it empowered Congress to enact what free persons, born within the several States, shali of shall not be citizens of the United States'? Before examining the various provisions of the Constitution which may relate to this question, it is important to consider for a moment the substantial nature, of this inquiry. It is, in effect, whether the • Constitution has empowered Congress to create privilegéd classes within the States; who alone can be entitled to the franchises and powers of citizenship of the United States. If it be admitted that the Constitution has enabled Congress to declare what free persons, bom within the several States, shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power.. If this subject is' within1 the control of Congress, it' must depend wholly on .its discretion. Eor, certainly, no limits of that discretion can be found in the Constitution; which is wholly silent concerning it; and the necessary consequence is, that the Federal Government may select classes of- persons within the several States who alone can be entitled to the political privileges of citizenship of the United'States. If this power exists, what persons born within the States may be President or Vice Pres? *578 3dent of the United States, or members of either House of Congress, or bold- any office or enjoy any privilege -whereof citizenship of the United States is a necessary qualification, must depend solely on the will of Congress. By virtue of it, though Congress can grant no title of nobility, they may create an oligarchy, in whose hands would be concentrated the entire power of the Federal Government. It is a substantive power, distinct in its nature from all others; capable of affecting not only the relations of the States to the General Government, but of controlling the political condition of the people of the United States., Certainly we ought to find this power granted by the Constitution, at least by some necessary inference, before we can say it does not remain to the States or the people. I proceed therefore to examine all the provisions of the Constitution which may have some bearing on this subject. Among the powers expressly granted to Congress is. “the power'to establish a uniform rule of naturalization.” It is not doubted that this is a power to prescribe a-rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this, would do violence to the meaning of the term naturalization, fixed in the common-law, (Co. Lit., 8 a, 129 a; 2 Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who concurred in framing and adopting the Constitution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen, that it was (employed in the Declaration- of Independence. It was in this •sense it was expounded in the Federalist, (No. 42,) has been understood by Congress, by the Judiciary, ( 2 Wheat., 259, 269 ; 3 Wash. R., 313, 322; 12 Wheat., 277 ,) and by commentators on the Constitution. (3 Story’s Com. on Con., 1—3; 1 Rawle on Con., 84—88; 1 Tucker’s Bl. Com. App., 255—259.) It appears, then, that the only power expressly granted to 'Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth. "Whether there be anything in the Constitution from which ¡a broader power may be implied, will best be seen when we •some to examine the two other alternatives; which are, whether all free persons, born on the soil of the several States, or only such of them as may be citizens of each State, respectively, are thereby citizens of the United States.. The last of these alternatives, in my judgment, contains the truth. . '' Undoubtedly, as has already been said, it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights -of citizenship. But it must be remembered, that though *579 the Constitution was to form a Government, ana under it the United States of America were to be one united sovereign nation, to which loyalty and obedience on the one side, and from which- protection and privileges on the other, would be due, yet- the several sovereign States, whose people were then citizens, - were not only to continue in existence, but with powers unimpaired, except so far as they were granted by the people to the National Government. Among the powers unquestionably possessed by the several States, was that of determining what persons should and whgt persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may,1 well enough for the purpose nowin view, be divided into three parts. ,Mrst: The power to remove the .disabilities of alienage, either by special acts in reference to each individual case, or by establishing a rule of naturalization to be administered and applied by the courts. Second: Determining what persons,should enjoy the privileges of citizenship, in respect to the internal affairs of the several States. Third! What native-born • persons should be citizens of the United States. '' _ . ■. The first-named power, that of establishing a uniform rulé of naturalization, was granted; and here the grant, according to its terms, stopped. Construing a, Constitution containing . only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization, must be admitted to be .-exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But wheh this particular subject of citizenship was under consideration, and, in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from' the residue, and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left, to the States and to the people". And this presumption is,' in my opinion, converted into a certainty, by an examination of all such other clauses of the Constitution as touch this subject. ' I will examine each which can have any possible bearing on this question. The first clause of the second section of the third article of the Constitution is, “The judicial power shall extend to controversies between a State ,and citizens of another State; between citizens of different States; between citizens of the same' State, claiming lands under grants of different States; and between States, or the citizens thereof, and foreign States, *580 citizens, or subjects.” . I do not think this clause has any considerable bearing upon the particular inquiry now under consideration. Its purpose was, to extend the judicial power to -those controversies into which local feelings or interests might so enter as to disturb the course of Justice, or give rise to suspicions that they had done so, and thus possibly give occasion to jealousy or ill will between different States, or a particular State and a foreign nation.. At the same time, 1 would remark, in passing, that it has never been held, I do not know that it has ever been supposed, that any citizen of a State could bring himself under this clause and the eleventh and twelfth sections of the judiciary act of 1789, passed in pursuance of it, who was not a citizen of the United States. But I have referred to the clause, only because it is one of the places where citizenship is mentioned by the Constitution. Whether it is entitled to any weight in this inquiry or not, it refers only to citizenship of the several States; it recognises that;' but it does not recognise citizenship of the United States as something distinct, therefrom. As has been said, the purpose of this clause did not necessarily connect.it with citizenship of the United States, evén if that were something distinct from citizenship of the several States, in the contemplation of the Constitution. This cannot be said of other clauses of the Constitution, which I now proceed to refer to. ■ “The citizens of each State shall be entitled to all the privileges, and immunities of citizens of the several States.” Nowhere else in the Constitution, is-there anything concerning a.general citizenship; but here, privileges and immunities to be enjoyed throughout 'the United States, under and by force of the national compact, are granted and secured. In selecting those, who.- are to enjoy these national rights of citizenship, howare they described? As citizens of each State. It is to them these national rights' are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws. of. the. United States. They are to be citizens of the several States, and, as such, the privileges and immunities of general.citizenship,, derived from and guarantied by the Constitution, áre to be enjoyed by them. It would seem thát if it had been intended to constitute a class of native-born persons within the States,, who should derive their citizenship of the United States from the action of the Federal Government; this, was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States. *581 And if it was intended to secure these rights only to citizens of the United States, how has the Constitution here described such persons ? Simply as citizens of1 each State. But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is One of the chiefest attributes of citizenship under the American' Constitutions; and the just and constitutional possession of this right is decisive evidence of citizenship. The provisions madé by a Constitution on this subject-must therefore -be looked to 'as bearing directly on the question what persons are citizens under that Constitution ; and as being decisive, to this extent, that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Govern- r ment of the United States, must be deemed citizens of the' United States. ' Here, again, the consideration presses itself upon us, that if there was designed to be a particular class of native-born persons within the States, deriving their citizenship from the' Constitution and laws of the United States, they should at least have been referred to as those by whom the President1 and House of Representatives were to be elected, and to whom they should be responsible. ' ' Instead of that, we again find this subject referred to' the laws of the several States. The electors of President are to be appointed in such manner as the Legislature of each State, may direct, ‘ and the qualifications of electors of members of the House of Representatives shall be the same as for electors of the most numerous branch of the State Legislature. „ Laying aside, then, the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons bóm within the several State?, we. find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend' on the place ’of birth; that it has not attempted practically to apply this. ■ principle by designating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question, what free persons, born within the several States, are citizens of the United States, the only answer we can receive from any of its express provisions is, the citizens of the several States are to' enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends bn their citizenship in the several States. Add to this, that the Constitution was ordained by the citizens of the several States; that they were “the people of the United States,” for whom *582 ' and whose posterity the Government was declared in the preamble of the Constitution to be made; that each of them was “a citizen of the United States at the time of the adoption of the Constitution,” within the meaning of those words in that instrument; that by them the Government was to be and was in fact organized; and that no power is conferred on the Government of the '-Union to discriminate between them, or to disfranchise any of them — the necessary conclusion is, that those persons born within the several States, who, by force of their respective Constitutions and laws, are citizens of - the State, are thereby citizens of the United States. It may be proper here to notice some supposed objections to this view of the subject. It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown thatfin five of the thirteen original States, colored persons then possessed the elective franchise, and were among fihfiffA hvwTlíYm ■fiVíA f'írmafít.n+.írm w«.a nWlsnnorl q.tw-1 N exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. - AncJ/ás free colored persons were then citizens of at least five States^ and so in every sense part ,of the people of the United States, .they- were among those for whom and whose posterity the Constitution was ordained and' established/)» Again, it has been objected, that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens. The answer is obvious. The Constitution has left to the States the determination what persons, born within their respective limits,- shall acquire by birth citizenship of the United States; it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress. It has been further objected, that if free colored persons, born within a particular State, and made citizens of that State by its Constitution and laws, are thereby made citizens , of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States; and if so, then colored persons eould vote, and be *583 eligible to not only Federal offices, but offices even in those States whose Constitutions and laws disqualify colored persons from voting or being elected to office. But this position rests upon an assumption which I deem untenable. Its basis is, that no one can be deemed a citizen of the TJnited States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is not true, under the Constitution of the TJnited States, seems to me clear. A naturalized citizen, cannot be President of the TJnited States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet, as" soon as naturalized, he is certainly a citizen of the TJnited States. Nor is any inhabitant of the District of Columbia, or of either of the Territories,,eligible to the office of Senator or Representative in Congress, though they may be citizens of the TJnited States. So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is, that citizenship, under the Constitution of the TJnited States,' is not dependent on the possession of any particular political or even of all civil rights; and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided, is a question to be determined 'by each State, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way. One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But'■■irmfc that there. was then a settled opinion in the executive and legislative branches of the Government, that this power did not exist, cannot be admitted, without at the .same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary /to carry it into execution, a deliberate and known violation of their oaths to support the Constitution; and whatever doubts may then have existed, the question must now be •taken to have been settled. Eour distinct acquisitions of foreign territory have been made by as many different treaties, under as many different Administrations. - Six States, formed on such territory, are now in the Union. Every branch of this Government, during a period of more than fifty years, has participated in these .transactions. To question their validity now, is vain. As was said by Mr. Chief Justice Marshall, in the American Insurance Company v. Canter, ( 1 Peters, 542 ,) “the Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or treaty.” (See Cerré v. Pitot, 6 Cr., 336.) And I add, it also possesses the power of governing it, when acquired, not by resorting to supposititious powers, nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regular tions respecting the territory of the United States. There was to be established by the Constitution a frame of government, under which the people of the United States and their posterity were to continue indefinitely. Tq take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all territory of the United States, and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument, as it is with its language;, and I can have no hesitation in re-, jecting it. I construe this clause, therefore, as if it had. read, Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the *614 soil, so far as tbe soil may be tbe property of tbe party making tbe .cession, at tbe time of making it, ' It bas been urged that tbe words “rules and regulations ” - are not appropriate terms in which to convey authority to make law's for the government of tbe. territory. But it m.ust be remembered that this is a grant of power to tbe Congress — that it is therefore necessarily a grant of power to legislate — and, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do tbe particular terms 'employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a Legislature to. make all needful- rules and regulations respecting tbe territory, is a power, to pass all needful laws respecting it. Tbe word regulate, or regulation, is several times used in tbe Constitution. It is used in tbe fourtb section of tbe first article to describe those laws of tbe States, which prescribe the times, places, and manner, of choosing Senators and Representatives; m tbe second section-of tbe fourth article, to designate the legislative action of a State on the subject of fugitives .from service, having a very close relation to tbe matter of óur present inquiry; in tbe second section of tbe third article, to empower Congress to fix tbe extent of tbe appellate jurisdiction of this court; and, finally, in tbe eighth section of the first article are tbe words,ci Congress shall have power to regulate-eommerce.” It is unnecessary to describe the body of legislation which bas been enacted under this grant of power; its variety and extent are well known. But it may be mentioned, in passing, fbat under this power to regulate commerce, Congress bas .enacted a great system of municipal laws, and extended it over tbe vessels and crews of the United States on tbe high seas and in foreign ports, and even over citizens of tbe United States resident in China; and has established judicatures, with power to inflict even capital punishment within that country; ■ If, ’ then, this clause does contain a power to legislate. respecting tbe territory, what are the limits of that power? To' this I answer; that, in common with all the other legislative powers, of Congress, it finds limits in the express prohibitions on Congress not to do certain things'; - that, in the exercise of the legislative power, Congress cannot pass an ex post facto law.-or bill -of attainder; and so in respect to each-of tbe other prohibitions contained in tbe Constitution. ' Besides-this, the. rules and regulations must be needful. But undoubtedly tbe question whether a particular rule or regulation be needful, must be finally determined by Congress itself. Whether a law be needful, is a legislative of political, *615 not a judicial, question. Whatever Opngress deems needful is so, under