Dred Scott Case

Dred Scott v. Sandford

by Chief Justice Roger B. Taney, 1857

Introduction

By the mid-1850s there existed a widespread feeling that the slavery question, which Congress had been unable to resolve, should be dealt with by the courts; and President Buchanan, in his inaugural address (March 4, 1857), made reference to a coming decision that he hoped all would be able to abide by. Two days later, on March 6, the Supreme Court handed down its ruling in Dred Scott v. Sandford, a case as famous as any in its history. Dred Scott, a slave of mixed parentage, had been taken by his master to Illinois, where slavery had been forbidden by the Ordinance of 1787, and to the Wisconsin Territory, which also did not allow slavery. Scott, had remained on free soil during most of the period from 1834 to 1838. In 1846 he had sued for his liberty in a Missouri court, holding that he had become free because of his stay in free territory. The case involved three important issues: (1) whether Scott was a citizen of Missouri and thus able to sue in a federal court; (2) whether his sojourn in free territory had made him legally a free man; and (3) the constitutionality of the Missouri Compromise. Each of the judges handed down a separate opinion, although that of Chief Justice Roger Taney is customarily cited for the majority. In effect, the majority ruling held that Scott (and hence all slaves or their descendants) was not a citizen; that his status in free territory did not affect his status in Missouri, where slavery was legal; and that the Missouri Compromise was unconstitutional under the Fifth Amendment. The decision was eventually nullified by the Thirteenth and Fourteenth Amendments.

Source:
Reports of Cases Argued and Adjudged in the Supreme Court of the United States, Benjamin C. Howard, ed., Washington, 1857, Vol.,19, pp. 393ff.

Mr. Chief Justice Taney delivered the opinion of the Court. …

The question is simply this: Can a Negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities, guaranteed 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. …

In discussing this question, we must not confound the rights of citizenship which a state may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a state, that he must be a citizen of the United States. He may have all 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. …

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

It becomes necessary, therefore, to determine who were citizens of the several states when the Constitution was adopted. And, in order to do this, we must recur to the governments and institutions of the thirteen colonies when they separated from Great Britain and formed new 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.

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. …

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 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 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. …

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 vote; 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 mulattoes, 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 recognized as citizens but belong to 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 state.

And if persons of the African race are citizens of a state, and of the United States, they would be 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 guarantees rights to the citizen, and the state cannot withhold them. And these rights are of a character and would lead to consequences which 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. …

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, 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 … to inquire whether the facts relied on by the plaintiff entitled him to his freedom. …

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 36°30¢ 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. …

This brings us to examine by what provision of the Constitution 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 a 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 leading statesmen of the day. And in The Federalist (No. 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, the 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 recognize as within the limits of the United States, the judicial department is also bound to recognize 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 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 be 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. …

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.

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 establishment 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 anyone 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 offense 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 just 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 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.

We have so far examined the case as it stands under 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 Missouri.

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. … In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterward 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 case. 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.

...[W]hatever 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 of the United States had no jurisdiction when by the laws of the state, the plaintiff was a slave and not a citizen.

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Roger B. Taney " Dred Scott v. Sandford," Annals of American History.
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