would be received with surprise by the people of that State, who know their own political his tory. It is true, beyond all controversy, that persons of color, 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 i that time to the present. See Com. v. Ares, 18 Pick., 210.

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 several States, and the conseqence, that this 4th article of the Confed eration would have the effect to confer on such persons the privileges and immunities of gen'every ineral citizenship, were not only known to those who framed and adopted those articles, but the evidence is decisive, that the 4th article was intended to have that effect, and that more restricted language, which would have excluded such persons, was deliberately and purposely rejected.

The Constitution of New Hampshire conferred the elective franchise upon habitant of the State having the necessary qualifications," of which color or descent was not one.

The Constitution of New York gave the right to vote to "every male inhabitant, who shall have resided," &c.; making no discrimination between the colored persons and others. See Con. of N. Y., Art. 2, Rev. Stats. of N. Y., Vol. I., p. 126.

That of New Jersey, to "all inhabitants of this Colony, of full age, who are worth £50 proclamation money, clear estate.'

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 4th 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 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 cit izenship in certain States, were, entitled to the privileges and immunities of general citizenship of the United States.

New York, by its Constitution of 1820, required colored persons to have some qualifica tions 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. But these changes can have no other effect upon the present in quiry, except to show, that before they were made, no such restrictions existed; and colored, in common with white persons, were not only citizens of those States, but entitled to the elective franchise on the same 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 Did the Constitution of the United States dethose who asserted, in the Declaration of Indeprive them or their descendants of citizenship? pendence, 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 calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a neces sary regard to circumstances, which no statesmau 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, exclu sively, 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 be 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 of the original thirteen States, free colored persons, before and at the time of the formation of the constitution, were citizens of those States.

The 4th of the fundamental Articles of

That Constitution was ordained and estab lished 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 cit izens 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 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 citizens 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 1st Section of the 2d Article of the Constitution uses the language, "a natural-born 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 born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens or 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, and thus to continue British subjects. Mcllraine v. Core's Lessee, 4 Crauch, 209; Inglis v. Sailors' Snug Harbor, 3 Pet., p. 99; Shanks v. Dupont, Ibid., p. 242.

The Constitution having recognized the rule that persons born within the several States are citzens 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,

citizens of the United States, it must, at the same time, be admitted that it is an unlimited power. If this subject is within the control of Congress, it must depend wholly in its discretion. For, certainly, no limits of that discretion can be found in the Constitution, which is wholly silent concerning it; and the neces sary 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 VicePresident of the United States, or members of either house of Congress, or hold 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 nat ure 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, there fore, 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 naturalFourth. That it is left to each State to de- ization, fixed in the common law (Co. Litt.. 8 termine what free persons, born within its a, 129 a; 2 Ves., Sr., 286; 2 Bl. Com., 293). limits, shall be citizens of such State, and there- and in the minds of those who concurred in by be citizens of the United States. 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., 313, 322; 12 Wheat.. 277), and by commentators on the Constitution. 3 Story's Com. on Const., 1-3; 1 Rawle on Const., 84-88; 1 Tucker's Bl. Com., App., 225-259.

If there be such a thing as citizenship of the United States acquired by birth within the States, which the Constitution expressly rec ognizes, 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, shall or shall not be citizens of the United States?

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 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.

Whether there be anything in the Constitution from which a broader power may be imBefore examining the various provisions of plied, will best be seen when we come to the Constitution which may relate to this ques-examine the two other alternatives, which are, tion, 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 privileged 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, born within the several States, shall be

Undoubtedly, as has already been said, it is a principle of public law, recognized by the Constitution itself, that birth on the soil of a country

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both creates the duties and confers the rights of citizenship. But it must be remembered, that though the Constitution was to form a government, and 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 Govern

ment.

Among the powers unquestionably possessed by the several States, was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the government of the Union this entire power. It embraced what may, well enough for the purpose now in view, be divided into three parts: First. 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 inThird. ternal affairs of the several States. What native-born persons should be citizens of the United States.

The first named power, that of establishing a uniform rule 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 exceed. ingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But when 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 1st clause of the 2d Section of the The judi 3d Article of the Constitution is: cial power shall extend to controversies be tween 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, citi zens or subjects." I do not think this clause has any considerable bearing upon the particuIts under consideration. lar inquiry now 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, I 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 11th and 12th 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 recognizes that; but it does not recognize 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, even 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 naIn tional compact, are granted and secured. selecting those who are to enjoy these national It is to them these rights of citizenship-how are they described? The qualification As citizens of each State. national rights are secured. 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, are to be enjoyed by them. It would seem that 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.

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 of 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 made by a constitution on this subject must therefore be looked to as bearing directly on the question what per sons 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 Government 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 par

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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 One may confine the right of suffrage to opinion, not only an assumption not warranted white male citizens; another may extend it to by anything in the Constitution, but contra-colored persons and females; one may allow all dicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their pos terity. 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,

1856.

DRED SCOTT V. SANDFORD.

substantial difference.

If we look into the constitutions and state papers of that period, we find the inhabitants or people of these Colonies or the inhabitants of this State, or Comcitizens." The monwealth, employed to designate those whom we should now denominate substance and purpose of the article prove it was in this sense it used these words: It se cures to the free inhabitants of each State the privileges and immunities of free citizens in every State. It is not conceivable that the States should have agreed to extend the privi leges of citizenship to persons not entitled to enjoy the privileges of citizens in the States where they dwelt; that under this article there was a class of persons in some of the States, not citizens, to whom were secured all the privileges and immunities of citizens when they went into other States; and the just conclusion is, that though the Constitution cured an inaccuracy of language, it left the substance of this article in the National Constitution the same as it was in the Articles of Confederation.

to do so, I apprehend no one will deny that they when many, save the children of the soil, were Besides, willing to embark their fortunes in our cause; are citizens of the United States." this clause of the Constitution does not confer and though there might be an inaccuracy in on the citizens of one State, in all other States, the uses of words to call free inhabitants citispecific and enumerated privileges and immunizens, it was then a technical rather than a ties. They are entitled to such as belong to citizenship, but not such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain citizens of a State, by reason of the operation of causes other than mere citizenship, are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office, or the exercise of the elective franchise, citizens of all other States, coming thither to reside, and not possessing those qualifications, cannot enjoy those privi leges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State. must have the qualifications prescribed by law for the enjoyment of such privileges It rests under its constitution and laws. with the States themselves so to frame their constitutions and laws as not to attach a par ticular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity, if it confer it on all of them by reason of mere naked citizenship, then it may be claimed by every citizen of each State by force of the Constitution; and it must be borne in mind, that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens. they are not thereby made citizens of the United States, because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they become, as such, entitled to the benefits of this article, if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States.

There is one view of this article entitled to consideration in this connection. It is mani festly copied from the 4th of the Articles of Confederation, with only slight changes of phraseology, which render its meaning more precise, and dropping the clause which excluded paupers, vagabonds and fugitives from justice, probably because these cases could be dealt with under the police powers of the States, and a special provision therefor was not necessary. It has been suggested, that in adopt ing it into the Constitution, the words "free inhabitants" were changed for the word "citizens." An examination of the forms of expression commonly used in the state papers of that day, and an attention to the substance of this article of the Confederation, will show that the words "free inhabitants," as then When used, were synonymous with citizens. the Articles of Confederation were adopted, we were in the midst of the War of the Revolution, and there were very few persons then em'free inhabitants," who braced in the words It was not a time were not born on our soil.

The history of this 4th article, respecting the attempt to exclude free persons of color from its operation, has been already stated. It is reasonable to conclude that this history was known to those who framed and adopted the Constitution. That under this 4th article of the Confederation, free persons of color might be entitled to the privileges of general citizenship. if otherwise entitled thereto, is clear.

When this article was, in substance, placed in and made part of the Constitution of the United States, with no change in its language calculated to exclude free colored persous from the benefit of its provisions, the presumption is, to say the least, strong, that the practical effect which it was designed to have, and did have, under the former government, it was designed to have, and should have, under the new government.

It may be further objected, that if free col ored persons may be citizens of the United States, it depends only on the will of a master The whether he will emancipate his slave and thereby make him a citizen. Not so. master is subject to the will of the State. Whether he shall be allowed to emancipate his slave at all; if so, on what conditions; and what is to be the political status of the freed man, depend, not on the will of the master, but on the will of the State, upon which the Under the Constitution of the political status of all its native born inhabitants depends. United States, each State has retained this power of determining the political status of its native-born inhabitants, and no exceptien thereto can be found in the Constitution. And if a master in a slaveholding State should carry his slave into a free State, and there emancipate him, he would not thereby make him a nativeborn citizen of that State, and consequently no privileges could be claimed by such emancipated slave as a citizen of the United States. For, whatever powers the States may exercise to confer privileges of citizenship on persons

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