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The slave Dred Scott sued for his freedom in court because his former master had taken him to live where slavery had been prohibited by Congress through the Northwest Ordinance of 1787 and the Missouri Compromise of 1820. Chief Justice Roger Taney (1777–1864), writing the opinion of the Court, argued that Scott could not sue because he was not and could never be a citizen of the United States. Taney based this conclusion on an assertion that Founding-era Americans did not mean to include enslaved Africans or their descendants among “We the people.” Taney also concluded that Congress had no authority to prohibit slavery in the territories because that violated the constitutional right to hold property in slaves. Taney’s opinion contrasted with some previous decisions of the Supreme Court involving slaves, such as The Antelope (1825) or United States v. the Amistad (1841), which seemed to hold that freedom was the natural condition of Africans as well as Europeans. As Abraham Lincoln later observed, the Dred Scott decision raised doubts whether slavery could be banned by law anywhere in the United States—including in states where it was already prohibited. Rather than solve the political problem of slavery, as Taney seemed to hope it would, the Court’s decision in Dred Scott inflamed sentiment on both sides and thus made continued compromise on slavery much more difficult, paving the way for the Civil War. The document includes excerpts from the dissenting opinions of Justices John McLean (1785–1861) and Benjamin Curtis (1809–1874), which criticize Taney’s facts and analysis.
Source: 60 U.S. (19 How.) 393; https://www.law.cornell.edu/supremecourt/text/60/393.
Chief Justice TANEY delivered the opinion of the court, joined by Justices WAYNE, CATRON, DANIEL, NELSON, GRIER, and CAMPBELL.
. . . The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, 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 words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether class of persons [descendants of Africans who were imported into this country and sold as slaves] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.
It is not the province of the Court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the Court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. . . .
The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a state should be entitled, embraced the negro African race, at that time in this country or who might afterward be imported, who had then or should afterward be made free in any state, and to put it in the power of a single state to make him a citizen of the United States and endue him with the full rights of citizenship in every other state without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a state, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other state, and in its own courts?
The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error1 could not be a citizen of the state of Missouri within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.
It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognized as citizens in the several states became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges 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 afterward by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his state which he did not before possess, and placed him in every other state upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.
It becomes necessary, therefore, to determine who were citizens of the several states when the Constitution was adopted. And in order to do this, we must recur to the governments and institutions of the thirteen colonies when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognized as the people or citizens of a state whose rights and liberties had been outraged by the English government, and who declared their independence and assumed the powers of government to defend their rights by force of arms.
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.2
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English government and English people. They not only seized them on the coast of Africa and sold them or held them in slavery for their own use, but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world. The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence and 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, as a sample of the legislation which then generally prevailed throughout the British colonies, to give the laws of two of them, one being still a large slaveholding state and the other the first state in which slavery ceased to exist.
The province of Maryland, in 1717, ch. 13, s. 5, passed a law declaring “that if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court where such marriage so happens shall think fit, to be applied by them 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,” etc., and it provides, that “if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justices before whom the offender shall be convicted.” And “that none of her Majesty’s English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and 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 that a 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. And no 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 refer 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 [sic] intended to include them, or to give to them or their posterity the benefit of any of its provisions.
The language of the Declaration of Independence is equally conclusive:
It begins by declaring that, “[w]hen 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 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 be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is [sic] life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted, deriving 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 Independence would have been utterly and 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 reprobation.
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 language of the day, and no one misunderstood them. The unhappy 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 declares 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 and 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 formed 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 even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a state in every 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 to them. . . .
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 government 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 with the 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.
No 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 bear when the instrument was framed and adopted. Such an argument would be 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, the court is of opinion, that, upon the facts stated in the plea in abatement,3 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 proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him to his freedom.
The case, as he 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 Fort Snelling, situate[d] on the west bank of the Mississippi River, in the territory known as Upper Louisiana, acquired by the United States of France, and situated 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 1838, said Dr. Emerson removed the plaintiff [and Scott’s wife Harriet and their 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 to hold them, and each of them, as slaves.
In considering this part of the controversy, two questions arise: 1. Was he, together with his family, free in Missouri by reason of the stay in the territory of the United States hereinbefore 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?
We 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 of conferring freedom upon anyone 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 afterward 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. . . .
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. . . .
But, until that time arrives, it is undoubtedly necessary that some government should be established in order to organize 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 the through which they spoke and acted when the territory was obtained, it was not only within the scope of its powers, but 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. . . .
But the power of Congress over the person or property of 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 territory becomes a part of the United States, the federal government enters into possession in the character impressed upon it by those who created 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 territory 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 government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved. . . .
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 is not confined to the states, but the words are general, and extend to the whole territory over which the Constitution 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 concerned, on the same footing with citizens of the states, and guards them as firmly and plainly against any inroads which the general government might attempt under the plea of implied or incidental powers. And if Congress itself cannot do this—if it is beyond the powers conferred on the 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 the provisions of the Constitution.
It seems, however, to be supposed that there is a difference between property in a slave and other property and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which governments may exercise over it have been dwelt upon in the 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 the 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 have 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 recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be 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 in 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 guaranteed 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 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. . . .
Upon the whole, therefore, it is the judgment of this court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri in the sense in which that word is used in the Constitution, and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued directing the suit to be dismissed for want of jurisdiction.
Mr. Justice McLean, dissenting.
. . . In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the states have admitted persons of color to the right of suffrage, and, in this view, have recognized them as citizens, and this has been done in the slave as well as the free states. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida. No one ever doubted, and no court ever held that the people of these territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of Congress. . . .
In the formation of the federal Constitution, care was taken to confer no power on the federal government to interfere with this institution in the states. In the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Constitution.
We need not refer to the mercenary spirit which introduced the infamous traffic in slaves to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and states were chiefly engaged in the traffic. But we know as a historical fact that James Madison, that great and good man, a leading member in the federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.
I prefer the lights of Madison, Hamilton, and Jay4 as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom, and while I admit the government was not made especially for the colored race, yet many of them were citizens of the New England states, and exercised the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.
Many of the states, on the adoption of the Constitution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions, and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and states, the South were influenced by what they considered to be their own interests.
But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right. . . .
Mr. Justice Curtis dissenting.
. . . On the 25th of June, 1778, 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 word “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. Two 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 privileges and immunities of general citizenship of the United States.
I can find nothing in the Constitution which, proprio vigore,5 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 born 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. . . .
It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that, in five of the thirteen original states, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made 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. And as 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. . . .
I dissent, therefore, from that part of the opinion of the majority of the Court in which it is held that a person of African descent cannot be a citizen of the United States, and I regret I must go further and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri Compromise Act and the grounds and conclusions announced in their opinion. . . .
Slavery, being contrary to natural right, is created only by municipal law. This is not only plain in itself, and agreed by all writers on the subject, but is inferable from the Constitution and has been explicitly declared by this court. The Constitution refers to slaves as “persons held to service in one state, under the laws thereof.” Nothing can more clearly describe a status created by municipal law. In Prigg v. Pennsylvania, 10 Pet. 611 , this court said: “The state of slavery is deemed to be a mere municipal regulation, founded on and limited to the range of territorial laws.” In Rankin v. Lydia, 2 Marsh. 12, 470 , the Supreme Court of Appeals of Kentucky said:
Slavery is sanctioned by the laws of this state, and the right to hold them under our municipal regulations is unquestionable. But we view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten common law.
I am not acquainted with any case or writer questioning the correctness of this doctrine. . . .
Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regulations which are essential to the existence of slavery?
Is it not more rational to conclude that they who framed and adopted the Constitution were aware that persons held to service under the laws of a state are property only to the extent and under the conditions fixed by those laws that they must cease to be available as property, when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of slavery exist . . . ?
- 1. The party who appeals a decision of a lower court; in this case, Dred Scott.
- 2. For Abraham Lincoln’s rebuttal of Taney’s claims, see his speech on the Dred Scott decision, June 26, 1857, https://teachingamericanhistory.org/library/document/ speech-on-the-dred-scott-decision/.
- 3. An objection by a defendant (in this case John Sanford, who was Dred Scott’s owner of record when the case reached the Supreme Court) that a plaintiff’s (Dred Scott) claim is procedurally incorrect
- 4. Apparently a reference to The Federalist, a commentary on and argument for the adoption of the Constitution, written by Madison, Alexander Hamilton, and John Jay.
- 5. By its own force.