Mr. Chief Justice Marshall

delivered the opinion of the Court, and, after stating the case, proceeded as follows:

In prosecuting this appeal, the United States assert no property in themselves. They appear in the character of guardians, or next friends, of these Africans, who are brought, without any act of their own, into the bosom of our country, insist on their right to freedom, and submit their claim to the laws of the land, and to the tribunals of the nation.

The Consuls of Spain and Portugal, respectively, demand these Africans as slaves, who have, in the regular course of legitimate commerce, been acquired as property by the subjects of their respective sovereigns, and claim their restitution under the laws of the United States.

In examining claims of this momentous importance; claims m which the sacred rights of liberty and of property come in conflict with each other; which have drawn from the Bar a degree of talent and of eloquence, worthy of the questions that have been discussed; this Court must not yield to. feelings which might seduce it from the path of duty, and must obey the mandate of the law.

That the course of opinion on the slave trade, should be unsettled, ought to excite no surprise The Christian and civilized nations of the world. *115with whom we have most intercourse, have all been engaged in it. However abhorrent traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern limes by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully. interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence. That trade could not be considered as. contrary to the law of nations which was authorized and protected by the laws of all commercial nations; the right to carry on which was claimed by each, and allowed by each.

The course of unexamined opinion, which was founded on this inveterate usage, received its first check in America; and, as soon as these States acquired the right of self-government, the traffic was forbidden by most of them. In the beginning of this century, several humáne and enlightened individuals of Great Britain devoted themselves to the cause of the Africans; and* by frequent appeals to the nation, in which the enormity of this commerce was unveiled, and exposed to ¿he public eye, the general sentiment was at length roused against it, and the feelings of justice and humanity, regaining their long lost ascendency, prevailed so far in the British parliament as to obtain an act for its abolition. The utmost efforts of the British government, as well as of that of the United States, have since been as*116siduously employed in its suppression. It has been denounced by both in terms of great severity, and those concerned in it are subjected to the heaviest penalties which law can inflict. In addition to these measured operating on their own people, they have used all their influence to bring other nations into the same system, and to interdict this trade by the consent of all.

Public sentiment has. in both countries, kept pace with the measures of government; and the opinion is extensively, if not universally entertained, that this unnatural traffic Ought to be suppressed. While its illegality is asserted by some governments, but nót admitted by all; while the detestation in which it is held is growing daily, and even those nations who tolerate it. in fact, almost disavow their own conduct, and rather. connive at, than legalize, the acts of their subjects; it is not wonderful that public feeling should march somewhat in advance of strict law, and that opposite opinions should be entertained oh thé precise cases in which our own laws may control and limit the practice of others. Indeed, we ought not to be surprised, if, oil this, novel series of cases, even Courts of justice should, in some instances, have carried the principle of suppression farther than a more deliberate consideration of the subject would justify.

The Amedie, (1 Acton's Rep. 240.) which was an American vessel employed in the African trade, was captured by á British cruiser, and condemned in the Vice Admiralty Court of Tortola. *117An appeal was prayed; and Sir William Grant, in delivering the opinion of the Court, said, that the trade being then declared unjust and unlawful by Great Britain, “ a claimant could have no right, upon principles of universal law, to claim restitution in a prize Court, of human beings carried as his slaves. He must shoW some, right that has been violated by the capture, some property of which he has been dispossessed, and to which he ought to be restored. In this case, the laws of the claimant’s country allow of no right of property such as he claims. There can, therefore, be no right of restitution. The consequence is, that the judgment must be affirmed,”

The Fortuna (1 Dodson's Rep. 81.) was condemned on the authority of the Amedie, and the same principle was again affirmed.

The Diana (1 Dodson's Rep. 95.) was a Swedish vessel, captured with a cargo of- slaves, by a British cruiser, and condemned in the Court of Vice Admiralty at Sierra Leone. This sentence was reversed on appeal, and Sir William Scott, in pronouncing the. sentence, of reversal, said, “ the condemnation also took place on a principle which this Court cannot in any manner recognise, inasmuch as the sentence affirms, that the slave trade from motives of humanity, hath been abolished by most civilized nations, and is not at the present time, legally authorized by any.' This appears to me to be an assertion.by no means sustainable,” The ship and cargo were restored, on the principle that the trade was allowed by the laws of Sweden.

*118The principle common to these cases is, that the legality of the capture of a vessel engaged in the slave trade, depends on the law of the eountiyto which the vessel belongs. If that law gives its sanction to the trade, restitution will be decreed; if that law prohibits it, the vessel and cargo will be condemned as good prize.

This whole subject came on afterwards to be considered in the Louis, (2 Dodson's Rep. 238.) The Opinion of Sir William Scott, in that case, demonstrates the attention he had bestowed upon it, and gives full assurance that it may be considered as settling the law in the British Courts of Admiralty as far as it goes.

The Louis was a French vessel, captured on a slaving voyage, before she had purchased any slaves, brought into Sierra Leone, and condemned by the Vice Admiralty Court at that place. On an appeal to the Court of Admiralty In England, the sentence was reversed.

In the very Tull and elaborate opinion given on this case, Sir William Scott, in explicit terms, lays down the.broad principle, that the right of search is confined to a state of war. It is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except. against professed pirates, who are the enemies of the human race. The act of trading in slaves, however detestable, was not, he said, "the act of freebooters, enemies of the human race, renouncing every country, and ravaging very country, in its boasts and vessels, indiscriminately." It was not piracy.

*119He also said, that this trade could not be pronounced contrary to the law of nations. "A Court, in the administration of law, cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of morality; and, upon a question of this nature, that standard must be found in the law of nations, as fixed and evidenced by general, and ancient, and admitted practice, by treaties, and by the general tenor of the laws and ordinances, and the formal transactions of civilized states; and, looking to those authorities, he found a difficulty in maintaining that the transaction was legally criminal.”

The right of visitation and search being strictly a belligerent right, and the slave trade being neither piratical, nor contrary to the law of nations, the principle is asserted and maintained with great strength of reasoning, that it cannot he exercised on the vessels of a foreign power, unless permitted by treaty. France had refused to assent to the insertion of such an article in her treaty with Great Britain and, consequently, the right could not be exercised on the high seas by a British cruiser on a French vessel.

"It is pressed as a difficulty,” says the Judge, “ what i& to be done, if a French ship, laden with slaves, is brought in ? I answer, without hesitation, restore the possession which has been unlawfully devested; rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country.”

This reasoning goes far in support of the pro *120position, that, in the British Courts of admiralty, the vessel even of a nation which had forbidden the slave trade, but had not conceded the right of search, must, if wrongfully brought in, be restored to the original owner. But the Judge goes farther, and shows; that no evidence existed to prove that France had, by law, forbidden that trade. Consequently, for this reason, as well as for that previously assigned, the sentence of condemnation was reversed, and restitution awarded.

In the United States, different opinions have been entertained, in the different Circuits and Districts and the subject is now, for the first time, before this Court.

The question, whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness.

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted ; and that no other, person can rightfully deprive him of those fruits, and appropriate them, against his will, seems to be the necessary result of this admission. But from the earliest, times war has existed,, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one. of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced-repugnant to the law of nations, which is certainly to be tried by . the test of *121neral usage. That which has received the assent of all, must be the law of all.

Slavery, then, has its origin in force ; but as the world has agreed that it is a legitimate result, of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.

Throughout Christendom, this harsh rule has been exploded, and war is. no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal; The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet. adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims ?

Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a, part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on Without opposition, and without censure. A jurist could *122not say, that a practice thus supported was illegal, and that those engaged in it might be punished, either personally, or by. deprivation of property.

In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. How is this right to be lost ? Each may renounce it for its own people; but can this renunciation affect others?.

No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. . A right, then, which is vested in all by the consent of all, can be devested only by consent ; and this trade, in which all have, participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it.

If it. is consistent with the law of nations, it cannot in itself be. piracy It can be .made so only by statute; and the obligation of the statute cannot transcend the legislative power of the state which may enact it.

If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that tho right of bringing in for adjudication in time of peace, even where the vessel belongs to a, nation which has prohibited the trade, *123cannot exist. The Courts of no..country execute the penal, laws of another; and the course of the American government on the subject of visitation and search, would decide any case in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating our municipal laws, against the captors.

The Spanish claim.

It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored.

The general question being disposed of, it remains to examine the circumstances of the particular case.

The Antelope, a vessel unquestionably belonging to Spanish subjects, was captured while receiving a, cargo of Africans on the coast of Africa, by the Arraganta, a privateer, which was manned in Baltimore, and is said to have been then under the flag of the Oriental republic. Some other vessels, said to be Portuguese, engaged in the same traffic, were previously plundered, and the slaves taken from them, as well as from another vessel then in the same port, were put on board the Antelope,. of which vessel the Arraganta took possession, landed her crew, and put on board a prize master and prize crew. Both vessels proceeded to the coast of Brazil; where the Arraganta was wrecked, and her captain and crew either lost or made prisoners.

The Antelope, whose name was changed to the General Ramirez, after an ineffectual attempt *124to sell the Africans on board at Surinam, arrived coast, of Florida, and was hovering on that coast, near that of the United States, for several days. Supposing her to be a pirate, or a vessel wishing, to smuggle slaves into the United States, Captain Jackson, of the revenue .cutter Dallas, went in quest of her, and finding her laden with slaves, commanded by officers who were citizens of the United States, with a crew who spoke English, brought her in for adjudication.

On whom the onus probandi is thrown in this case.

She was libelled by the Vice Consuls of Spain and Portugal, each of whom claim that portion of the slaves which were conjectured to belong to the subjects of their respective sovereigns; which claims are opposed by the United States on behalf of the Africans.

In the argument, the question , on whom the onus probandi is imposed, has. been considered as of great importance, and the testimony adduced by the parties has been critically examined: It is contended, that the Antelope, having been wrongfully dispossessed of her slaves by American citizens, and being now, together with her cargo, in the power of the United States, ought to be restored, without farther inquiry, to those out of whose possession she was thus wrongfully taken. No proof of property, it is said, ought to be -required. Possession is in, such a case evidence of property.

Conceding this as a general proposition, the counsel for the. United States deny its application to this, case. A distinction is taken between *125 men, who are generally free, and goods, which are always property. Although, with respect to the last, possession may constitute the only proof of property which is demandable, something more is necessary where men are claimed. Some proof should be exhibited that the possession was legally. acquired. A distinction has been also drawn between Africans unlawfully taken from the subjects of a foreign power by persons acting under the authority of the United States, and Africans first captured by a belligerent privateer, or by a pirate, and then brought rightfully into the United States, under a reasonable apprehension that a violation of their Jaws was intended. Being rightfully in the possession of an American Court, that Court', it is contended, must be governed by the laws of its own country; and the condition of these Africans, must depend on the laws of the United States, not on the laws of Spain and Portugal.

Had the Arraganta been a regularly commissioned cruiser, which had committed no infraction of the neutrality of the United States, her capture of the Antelope must have been, considered as lawful, and no question could have arisen respecting the rights of the original claimants. The question of prize or no prize belongs solely to the Courts of the captor. But, having violated the neutrality of the United States, and having entered our ports, not voluntarily, but under coercion, some difficulty exists respecting the extent of the obligation to restore, on the mere *126proof of former possession, which is imposed on this government.

If, as, is charged in the libels of both the Consuls, as. well as of the United States, she was .a pirate, hovering on the coast with intent to introduce slaves in. violation of the laws of the. United States, our treaty requires that property rescued from pirates shall be restored to the Spanish owner on his making proof of his property.

Whether the General -Ramirez, originally the Antelope, is to be considered as the prize of a commissioned belligerent ship of war unlawfully equipped in the United States, or as a pirate, it seems proper to make some inquiry into the title of the claimants.

In support of the Spanish claim, testimony is produced, showing the documents under which the Antelope sailed from the Havana on the voyage on which she was captured; that she was owned by a Spanish house of trade in that place ; that she was employed in the business of purchasing slaves, and had purchased, and taken on board a considerable number, when she was seized as prize by the Arraganta.

Whether, on this proof, Africans brought into the United States, under the various circumstances belonging to.this case, ought to be restored or not, is a question on which much difficulty has been felt. It is unnecessary to, state the reasons in support of the affirmative or negative answer to it, because the Court is divided on it, and, consequently, no principle is settled. So much of the decree of the Circuit Court as di*127rects restitution to the Spanish claimant of the Africans found on board the Antelope when she was captured by the Arraganta, is affirmed.

There is some difficulty in ascertaining their number. The libel claims one hundred and fifty as belonging to Spanish subjects, and charges that one hundred or more of these were on board the Antelope. Grondona and Ximenes, Spanish officers of the Antelope before her capture, both. depose positively to the number of one hundred and sixty-six. Some deduction, however, is to be made from the weight of Grondona’s testimony, because, he says, in one of his depositions, that he did not count the slaves on the last day when’some, were brought on board, and adds, that he had lost his papers, and spoke from memory, and from the information he had received from others of the crew, after his arrival in the Havana. Such of the crew as were examined, concur with Grondona and Ximenes. as to numbers.

The depositions of the Spanish witnesses on this point, are opposed by those of John Smith, the Captain of the General Ramirez, and William Brunton, one of the crew of the Arraganta, who was transferred to the Antelope.

John Smith deposes, that ninety-three Africans were found on. board the Antelope when captured, which he believes to have been Spanish property. He also says, that one hundred and. eighty-three were taken out of Portuguese vessels.

William Brunton deposes, that more slaves *128were taken out of the Portuguese ship than were in any other, and that ninety odd were represented by the crew to have been on board the Antelope when she was captured.

If, to the positive testimony of these witnesses, we add the inferenfce tó be drawn from the statement of the libel, and the improbability that so large a number of Africans as are claimed could have Keen procured, under the circumstances in which the Antelope was placed, between the 13th, when she was liberated by the first pirate who seized her, and the 23d, when she was finally captured, we are rather disposed to think the weight of testimony is in favour of the smaller number. But supposing perfect equality in this, respéct, the decision ought, we think, to be against the claimant.

Whatever doubts may attend the question whether the Spanish claimants are entitled to restitution of all the Africans taken out of their possession with the Antelope, we cannot doubt the propriety of demanding ample proof of the extent of that possession. Every legal principle which requires the plaintiff to. prove his claim in any case, applies with full force to this point ; and.no countervailing consideration exists. The onus probandi, as to the number of Africans which were on board when the vessel was captured, unquestionably lies on the Spanish libellants. Their proof is not satisfactory beyond ninety-three. The individuals who compose this number must be designated to the satisfaction of the Circuit Court.

*129 The Portuguese claim.

We proceed next to consider the libel of the Vice-Consul of Portugal. It clhims one hundred and thirty slaves, or more, “ all of whom, as the libellant is. informed and believes,” are . the property of a subject or subjects of his Most Faithful Majesty; and although “ the rightful owners of such slaves be hot • at this time individually and certainly known to the libellant; hé hopes and expects soon to discover thera.”

John Smith, and William Brunton, whose depositions have already been noticed, both state, that several Africans were taken out of Portuguese vessels; but neither of them state the means by which they ascertained the national character of the vessels they had plundered}- It does not appear that their opinions were founded on any other fact than the flag under which the vessels sailed. Grondona,, also, states the plunder of a Portuguese vessel, lying in the same port, and engaged in the same traffic with the Antelope when she was captured ; but his testimony is entirely destitute of all those circumstances which would enable us to say, that he had any knowledge of the real character of the vessel, other than was derived from her flag. The cause furnishes no testimony of any description, other than these general declarations, that the proprietors of the Africans now claimed by the Vice-Consul of Portugal, were the subjects of his king; nor is there any allusion to the individuals to whom they belong. These vessels were plundered in March, 1820, and the libel was filed in August of the same year.. From *130that time to this, a period of more than five years, no subject, of the crown of Portugal has appeared to assert his -title to this property, no individual has been-designated as its probable owner. This inattention to a subject of so much real interest, this total disregard of a valuable property, is so contrary to the common course of human action, as to justify serious suspicion that the real owner dares not avow himself.

That Americans, and others, who cannot use the flag of their own nation, carry on this criminal and inhuman traffic under the flags of other countries, is a fact of such general notoriety, that Courts of admiralty may act upon it. It cannot be necessary to take particular depositions, to prove a fact which is matter of general and public history. This long, and otherwise unaccountable absence, of any Portuguese claimant, furnishes irresistible testimony, that no such claimant exists, and that the real owner belongs to some other nation, and feels the necessity of concealment.

An attempt has been made to supply this defect of testimony, by adducing a letter from the secretary to whose department the foreign relations of Portugal are supposed to be intrusted, suggesting the means of transporting to Portugal those slaves which may be in the possession of the Vice-Consul, as the property of his fellow subjects. Allow to this document all the effect which can be claimed,for it, and it can do no more than supply the want of an express power *131from the owners .of the slaves to receive them. It cannot be considered as ascertaining the owners, or as proving their property.

The difficulty, then, is not diminished by this paper. These Africans still remain unclaimed by the owner, or by any person professing to know the owner. They are rightfully taken from American citizens, and placed in possession of the law. No property whatever in them is shown. It is said, that possession, in a case of this description, is equivalent to property. Could this be conceded, who had the possession? From whom were they taken by the Arraganta? It is not alleged that they are the property of the crown, but of some individual. Who is that individual? No such person is shown to exist, and his existence, after such a, lapse of time, cannot be presumed.

The libel, which claims them for persons entirely unknown, alleges a state of things which is prima facie evidence of an intent to violate the laws of the United, States, by the commission of an act. which, according to. those laws, entitles these men to" freedom. Nothing whatever can interpose to arrest the course of the law, but the title of the real proprietor. No such title appears, and every presumption is against its existence, .

We think, then, that all the Africans, now in possession. of the Marshal for the District of Georgia, and binder the control of the Circuit Court of the United States for that District, which were brought in with the Antelope, other*132wise called the General Ramirez, except those which may be designated as the property of the Spanish claimants, ought to be delivered up to the United States, to be disposed of according to law. So much of the sentence of the Circuit Court as is contrary to this opinion, is to be reversed, and the residue affirmed.

Decree. This cause came on to be heard, &c.; On consideration whereof, this Court is of opinion, that there is error in so much of the sentence and decree of the said Circuit Court, as directs the restitution to the Spanish claimant of the Africans in the proceedings mentioned, in the ratio which one hundred and sixty-six bears to the whole number of those which remained alive at the time of pronouncing the said decree ; and also in so much thereof, as directs restitution to the Portuguese claimant; and that' so much of the said decree ought to be reversed, and it is hereby reversed and annulled. And this Court, proceeding to give such decree as the said Circuit Court ought to have given, doth, direct and order, that the restitution to be made to the Spanish claimant, shall be according to the ratio which ninety-three (instead of one hundred and sixty-six) bears to. the whole number, comprehending as well those originally on board the Antelope, as"those which were put on board that vessel by the Captain of the Arraganta. After making the apportionment-according to this ratio, and deducting from the number the rateable loss which must fall on the slaves to which the Spanish claimants were originally entitled, the *133residue of the said ninety-three are to be delivered to the Spanish claimant, on the terms in the said decree mentioned ; and all the remaining Africans are to be delivered to the United States, to be disposed of according to law; and the said. decree of the said Circuit Court is, in.all things not contrary to this decree, affirmed.

Marshall, Ch. J.,

delivered the opinion of the court. — This bill is brought by the Cherokee nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which, as is alleged, go directly to annihilate the Cherokee as a political society, and to seize for the use of Georgia, the lands of the nation which have been assured to them by the United States, in solemn treaties repeatedly made and still in force.

If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people, once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands, by successive treaties, each of which contains a solemn guarantee of the residue, until *11they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant, the present application is made.

Before we can look into the merits of the ease, a preliminary inqury presents itself. Has this court jurisdiction of the cause ? The third article of the constitution describes the extent of the judicial power. The second section closes an enumeration of the cases to which it is extended, with “ controversies ” “ between a state or citizens thereof, and foreign states, citizens or subjects.” A subsequent clause of the same section gives the supreme court original jurisdiction, in all *cases in which a state shall be a p party. The party defendant may then unquestionably be sued in *- this court. May the plaintiff sue in it ? Is the Cherokee nation a foreign state, in the sense in which that term is used in the constitution ? The counsel for the plaintiffs have maintained the affirmative of this pi’oposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state, from the settlement of our country. The numerous treaties made with them by the United States, recognise them as a people capable of maintaining the relations of peace' and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States, by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognise the Cherokee nation as a state, and the courts are bound by those acts.

A question of much more difficulty remains. • Do the Cherokees constitute a foreign state in the sense of the constitution? The counsel have shown conclusively, that they are not a state of the Union, and have insisted that, individually, they are aliens, not owing allegiance to the United States. An aggregate of aliens composing a state must, they say, be a foreign state; each individual being foreign, the whole must be foreign.

This argument is imposing, but we must examine it more closely, before we yield to it. The condition of the Indians in relation to the United States is, perhaps, unlike that of any other two people in existence. In general, nations not owing a common allegiance, are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else. '"The Indian ter- ..¡, ritory is admitted to compose a part of the United States. In all *- our maps, geographical treatises, histories and laws, it is so considered. In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens. They acknowledge themselves, in their treaties, to be under the protection of the United States ; they admit, that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper ; and the Cherokees in particular were allowed *12by the treaty of Hopewell, which preceded the constitution, “ to send a deputy of their choice, whenever-they think fit, to congress.” Treaties were made with some tribes, by the state of New York, under a then unsettled construction of the confederation, by which they ceded all their lands to that state, taking back a limited grant to themselves, in which they admit their dependence. Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government ; yet it may well be doubted, whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian. They look to our government for protection ; rely upon its kindness and its power ; appeal to it for relief to their wants ; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a jiolitical connection *181 them, would *be considered by all as an invasion of our territory J and an act of hostility. These considerations go far to support the opinion, that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the Union to controversies between a state or the citizens thereof and foreign states.

In considering this subject, the habits and usages of the Indians, in their intercourse with their white neighbors, ought not to be entirely disregarded. At the lime the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the Union. Be this as it may, the peculiar relations between the United States and the Indians occupying our territory are such, that we should feel much difficulty in considering them as desig-' nated by the term foreign state, were there no other part of the constitution which might shed light on the meaning of these words. But we think that in construing them, considerable aid is furnished by that clause in the eighth section of the third article, which empowers congress to “ regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In this clause, they are as clearly contradistinguished, by a name appropriate to themselves, from foreign nations, as from the several states composing the Union. They are designated by a distinct appellation ; and as this appellation can be applied to neither of the others, neither can the application distinguishing either of the others be, in fair construction, applied to them. The objects to which the power of regulating commerce might be directed, are divided into three distinct classes — foreign nations, the several states, and Indian tribes. When forming this article, the conven*13tion considered them as entirely distinct. We cannot assume that the distinction was lost, in framing a subsequent article, unless there be something in its language to authorize the assumption.

The counsel for the plaintiffs contend, that the words *“ Indian tribes ” were introduced into the article, empowering congress to reg- *- ulate commerce, for the purpose of removing those doubts in which the management of Indian affairs was involved by the language of the ninth article of the confederation. Intending to give the whole power of managing those affairs to the government about to be instituted, the convention conferred it explicitly ; and omitted those qualifications which embarrassed the exercise of it, as granted in the confederation. This may be admitted, without weakening the construction which has been intimated. Had the Indian tribes been foreign nations, in the view of the convention, this exclusive power of regulating intercourse with them might have been, and, most probably, would have been, specifically given, in language indicating that idea, not in language contradistinguishing them from foreign nations. Congress might have been empowered “ to regulate commerce with foreign nations, including the Indian tribes, and among the several states.”' This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them particularly.

It has been also said, that the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument ; their meaning is controlled by the context. This is undoubtedly true. In common language, the same word has various meanings, and the peculiar sense in which it is used in any sentence, is to be determined by the context. This may not be equally true with respect to proper names. “ Foreign nations ” is a general term, the application of which to Indian tribes, when used in the American constitution, is, at best, extremely questionable. In one article, in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate, in terms clearly contradistinguishing them from each other. We perceive plainly, that the constitution, in this article, does not comprehend Indian tribes in the general term “ foreign nations ;” not, we presume, because a tribe may not be a nation, but because it is not foreign to the United States. When, afterwards, the term “ foreign state ” is introduced, we cannot impute to the convention, the intention to desert its former meaning, and to comprehend Indian tribes within it, unless the context force that ^construction on us. We find nothing in the context, and nothing in the subject of the article, which leads to it. *-

The court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion, that an Indian tribe or nation within the United States is not a foreign state, in the sense of the constitution, and cannot maintain an action in the courts of the United States.

A serious additional objection exists to the jurisdiction of the court. Is the' matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighboring people, asserting their independence ; their right to which the state denies. On several of the matters alleged in the bill, for example, on the laws making it criminal to exercise the usual powers of self-government in their own country, by the Cherokee nation, this court *14cannot interpose ; at least, in the form in which those matters are presented.

That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be more doubtful. The mere question of right might, perhaps, be decided by this court, in a proper case, with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned ; it savors too much of the exercise of political power, to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question.

If it be true, that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true, that, wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. The motion for an injunction is denied.

Johnson, Justice.

— In pursuance of my practice, in giving an opinion on all constitutional questions, I must present my views on this. With the morality of the case, I have no concern ; I am called upon to consider it as a legal question.

*The object of this bill is to claim the interposition of this court, as the means of preventing the state of Georgia, or the public functionaries of the state of Georgia, from asserting certain rights and powers over the country and people of the Cherokee nation. It is not enough, in order to come before this court for relief, that a case of injury, or of cause to apprehend injury, should be made out. Besides having a cause of action, the complainant must bring himself within that description of parties, who alone are permitted, under the constitution, to bring an original suit to this court. It is essential to such suit, that a state of this Union should be a party ; so says the second member of the second section of the third article of the constitution ; the other party must, under the control of the eleventh amendment, be another state of the Union, or a foreign state. In this case, the averment is, that the complainant is a foreign state.

Two preliminary questions then present themselves : 1. Is the complainant a foreign state, in the sense of the constitution ? 2. Is the case presented in the bill one of judicial cognisance? Until these questions are disposed of, we have no right to look into the nature of the controversy any further than is necessary to determine them. The first of the questions necessarily resolves itself into two : 1. Are the Cherokees a state ? 2. Are they a foreign state ?

I. I cannot but think that there are strong reasons for doubting the applicability of the epithet “state,” to a people so low in the grade of organized society as our Indian tribes most generally are. I would not here be understood as speaking of the Cherokees, under their present form of government; which certainly must be classed among the most approved forms of civil government. Whether it can be yet said to have received the consistency which entitles that people to admission into the family of nations is, I conceive, yet to be determined by the executive of these states. *15Until then, I must think, that we cannot recognise it as an existing state, *under any other character than that which it has maintained hitherto rS! as one of the Indian tribes or nations. L

There are great difficulties hanging over the question, whether they can be considered as states, under the judiciary article of the constitution. 1. They never have been recognised as holding sovereignty over the territory they occupy. It is in vain now to inquire into the sufficiency of the principle, that discovery gave the right of dominion over the country discovered. When the populous and civilized nations beyond the Cape of Good Hope were visited, the right of discovery was made the ground of an exclusive right to their trade, and confined to that limit. When the eastern coast of this continent, and especially the part we inhabit, was discovered, finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic government, the right was extended to the absolute appropriation of the territory, the annexation of it to the domain of the discoverer.' It cannot be questioned, that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers. From that source we derive our rights, and there is not an instance of a cession of land from an Indian nation, in which the right of sovereignty is mentioned as a part of the matter ceded.

It may be suggested, that they were uniformly cessions of land, without inhabitants ; and therefore, words competent to make a cession of sovereignty were unnecessary. This, however, is not a full answer, since soil, as well as people, is the object of sovereign action, and may be ceded, with or without the sovereignty, or may be ceded, with the express stipulation that the inhabitants shall remove. In all the cessions to us from the civilized states of the old world, and of our transfers among ourselves, although of the same property, under the same circumstances, and even when occupied by these very Indians, the express cession of sovereignty is to be found. In the very treaty of Hopewell, the language or evidence of which is appealed to, as the leading proof of the existence of this supposed state, we find the commissioners of the United States expressing themselves in these terms. “ The commissioners plenipotentiary of the United States give peace to all the Cherokees, and l’eceive them into the favor and protection of the ■^'United States on the following conditions.” This is certainly the r.|:i language of sovereigns and conquerors, and not the address of equals L to equals. And again, when designating the country they are to be confined to, comprising the very territory which is the subject of this bill, they say, “ Art. 4. The boundary allotted to the Cherokees for their hunting-grounds ” shall be as therein described. Certainly, this is the language of concession on our part, not theirs ; and when the full bearing and effect of those words, “for their hunting-grounds,” is considered, it is difficult to think, that they were then regarded as a state, or even intended to be so regarded. It is clear, that it was intended to give them no other rights over the territory than what were needed by a race of hunters ; and it is not easy to see, how their advancement beyond that state of society could ever have been promoted, or, perhaps, permitted, consistently with the unquestioned rights of the states, or United States, over the territory within their limits. The pre-emptive right, and exclusive right of conquest in case of war, was never questioned to exist in the states, which circumscribed the whole or *16any part of the Indian grounds or territory. To have taken it from them by direct means, would have been a palpable violation of their rights. But every advance, from the huntsr-state to a more fixed state of society, must have a tendency to impair that pre-emptive right, and ultimately to destroy it altogether, both by increasing the Indian population, and by attaching them firmly to the soil. The hunter-state bore within itself the promise of vacating the territory, because when game ceased, the hunter would go elsewhere to seek it. But a more fixed state of society would amount to a permanent destruction of the hope, and, of consequence, of the beneficial character of the pre-emptive right.

But it is said, that we have extended to them the means and inducement to become agricultural and civilized. It is true : and the immediate object of that policy was so obvious, as probably to have intercepted the view of ulterior consequences. Independently of the general influence of humanity, these people were restless, warlike, and signally cruel in their irruptions, during the revolution. The policy, therefore, of enticing them to the arts of peace, and to those improvements which war might lay desolate, was obvious ; and it was wise, *to prepare them for what was probably then con- -* templated, to wit, to incorporate them in time into our respective governments ; a policy which their inveterate habits and deep-seated enmity has altogether baffled. But the project of ultimately organizing them into states, within the limits of those states which had not ceded or should not cede to the United States the jurisdiction over the Indian territory within their bounds, could not possibly have entered into the contemplation of our government. Nothing but express authority from the states could have justified such a policy, pursued with such a view.

To pursue this subject a little more categorically. If these Indians are to be called a state : then — 1. By whom are they acknowledged as such? 2. When did they become so ? 3. And what are the attributes by which they are identified with other states ?

As to the first question, it is clear, that as a state they are known to nobody on earth but ourselves, if to us : how then can they be said to be recognised as a member of the community of nations? Would any nation on earth treat with them as such ? Suppose, when they occupied the banks of the Mississippi, or the sea coast of Florida, part of which, in fact, the Seminóles now occupy, they had declared war and issued letters of marque and reprisal against us, or Great Britain, would their commissions be respected ? ' If known as a state, it is by us, and us alone ; and what are the proofs ? The treaty of Hopewell does uot even give them a name other than that of the Indians ; not even nation or state : but regards them as what they were, a band of hunters, occupying as hunting-grounds, just what territory wo chose to allot them. And almost every attribute of sovereignty is renounced by them, in that very treaty. They acknowledge themselves to be under the sole and exclusive protection of the United States. They receive the territory allotted to them as a boon, from a master or conqueror ; the right of punishing intruders into that territory is conceded, not asserted as a right; and the sole and exclusive right of regulating their trade and managing all their affairs in such manner as the government of f.TiA TTnif.ArJ Sf,a.f,A.s aha.ll thinlr rvrnr»AV ♦ nmrmnf.inrr in t.Avma f.A a. ■» *17United States, is yielded in the ninth article. It is true, that the twelfth article gives power to the Indians to send a deputy to congress ; but such deputy, though dignified by the name, was nothing and could be nothing but an agent, such as any other company might be represented by. It. cannot be supposed, that he was to be recognised as a minister, or to sit in the congress as a delegate. There is nothing express and nothing implied, that would clothe him with the attributes of either of these characters. As to a seat among the delegates, it could not be granted to him.

There is one consequence that would necessarily flow from the recognition of this puople as a state, which of itself must operate greatly against its admission. Where is the rule to stop ? Must every petty kraal of Indians, designating themselves a tribe or nation, and having a few hundred acres of land to hunt on exclusively, be recognised as a state? Wo should, indeed, force into the family of nations, a very numerous and very heterogeneous progeny. The Catawbas, having, indeed, a few more acres than the republic of San Marino, but consisting only of eighty or an hundred polls, would then be admitted to the same dignity. They still claim independence, and actually execute their own penal laws, such as they are, even to the punishment of death ; and have recently done so. We have many ancient treaties with them; and no nation has been more distinctly recognised, as far as such recognition can operate to communicate the character of a state.

But secondly, at what time did this people acquire the character of a state ? Certainly, not by the treaty of Hopewell; for every provision of that treaty operates to strip it of its sovereign attributes ; and nothing subsequent adds anything to that treaty, except using the word nation instead of Indians. And as to that article in the treaty of Holston, and repeated in the treaty of Tellico, which guaranties to them their territory, since both those treaties refer to and confirm the treaty of Hopewell; on what principle can it be contended, that the guarantee can go further than to secure to them that right over the territory, which is conceded by the Hopewell treaty ; which interest is only that of hunting-grounds. The general policy of the *United States, which always looked to these Indian lands as a certain future acquisition, not less than the express words of the treaty of Hopewell, must so decide the question.

If they were not regarded as one of the family of nations, at the time of that treaty, even though, at that time, first subdued and stripped of the attributes of a state, it is olear, that, to be regarded now as a state, they must have resumed their rank among nations, at some subsequent period. But at what subsequent period? Certainly, by no decisive act, until they organized themselves recently into a government; and I have before remarked, that, until expressly recognised by the executive, under that form of government, we cannot recognise any change in their form of existence. Others have a right to be consulted on the adnission of new states into the national family. When this country was first appropriated or conquered by the crown of Great Britain, they certainly were not known as members of the community of nations ; and if -they had been, Great Britain, from that time, blotted them from among the race of sovereigns. From that time, Great Britain considered them as her subjects, whenever she chose to claim their allegiance ; and their country as hers, both in soil and *18sovereignty. All the forbearance exercised towards them was considered as voluntary, and as their trade was more valuable to her than their territory, for that reason, and not from any supposed want of right to extend her laws over them, did she abstain from doing so.

And thirdly, by what attributes is the Cherokee nation identified with other states ? The right of sovereignty was expressly assumed by Great Britain over their country, at the first taking possession of it; and has never since been recognised as in them, otherwise than as dependent upon the will of a superior. The right of legislation is, in terms, conceded to congress, by the treaty of Hopewell, whenever they choose to exercise it. And the right of soil is held by the feeble tenure of hunting-grounds, and acknowledged on all hands subject to a restriction to sell to no one but the United States, and for no use but that of Georgia. They have, in Europe, sovereign and demi-sovereign states, and states of doubtful sovereignty. # . But this state, if it be *a state, is still a grade below them all; for not to be able to alienate, without permission of the remainder-man or lord, places them in a state of feudal dependence.

However, I will enlarge no more upon this point; because I believe, in one view, and in one only, if at all, they are or may be deemed a state, though not a sovereign state, at least, while they occupy a country within our limits. Their condition is something like that of the Israelities, when inhabiting the deserts. Though without land that they can call theirs in the sense of property, their right of personal self-government has never been taken from them ; and such a form of government may exist, though the land occupied be in fact that of another. The right to expel them may exist in that other, but the alternative of departing, and retaining the right of self-government, may exist in them. And such they certainly do possess ; it has never been questioned, nor any attempt made at subjugating them as a people, or restraining their personal liberty, except as to their land and trade.

But in no sense can they be deemed a foreign state, under the judiciary article. It does seem unnecessary, on this point, to do more than put the question, whether the makers of the constitution could have intended to designate them, when using the epithets “ foreign” and “ state.” State, and foreign state, are used in contradistinction to each other. Wo had then just emerged ourselves from a situation having much stronger claims than the Indians for admission into the family of nations ; and yet we were not admitted, until we had declared ourselves no longer provinces, but states, and showed some earnestness and capacity in asserting our claim to be enfranchised. Can it then be supposed, that when using those terms, we meant to include any others than those who were admitted into the community of nations, of whom, most notoriously, the Indians were no part ?

The argument is, that they were states ; and if not states of the Union, must be foreign states. But I think it very clear, that the constitution neither speaks of them as states or foreign states, but as just as what they were, Indian tribes ; an anomaly unknown to the books that treat of states, and which the law of nations would regard as nothing more than wandering .. hordes, held together only by ties of blood and habit, and *having -• neither laws nor government, beyond what is required in a savage state. The distinction is clearly made in that section which vests in congress *19power to regulate commerce between the United States with foreign nations, and the Indian tribes.

The language must be applied in one of three senses ; either in that of the law of nations, or of the vernacular use, or that of the constitution. In th« first, although it means any state not subject to our laws, yet it must be a state and not a hunter horde ; in the vernacular, it would not be applied to a people within our limits and at our very doors ; and in the constitution, the two epithets are used in direct contradistinction ; the latter words were unnecessary, if the first included the Indian tribes. There is no ambiguity, though taken literally ; and if they were, facts and circumstances altogether remove it.

But had 1 been sitting alone in this cause, I should have waived the consideration of personal description altogether; and put my rejection of this motion upon the nature of the claim set up, exclusively. I cannot entertain a doubt, that it is one of a political character altogether, and wholly unfit for the cognisance of a judicial tribunal. There is no possible view of the subject, that I can perceive, in which a court of justice can take jurisdiction of the questions made in the bill. The substance of its allegations may be thus set out. That the complainants have been, from time immemorial, lords of the soil they occupy. That the limits by which they hold it have been solemnly designated and secured to them by treaty, and by laws of the United States. That within those limits, they have rightfully exercised unlimited jurisdiction, passing their own laws and administering justice in their own way. That in violation of their just rights, so secured to them, the state of Georgia has passed laws, authorizing and requiring the executive and judicial powers of the state to enter their territory and put down their public functionaries. That in pursuance of those laws the functionaries of Georgia have entered their territory with an armed force, and put down all powers legislative, executive and judicial, exercised under the government of the Indians.

What does this series of allegations exhibit, but a state *oi war, and the fact of invasion ? They allege themselves to be a sovereign L independent state, and set out that another sovereign state has, by its laws, its functionaries, and its armed force, invaded their state and put down their authority. This is war, in fact ; though not being declared with the usual solemnities, it may perhaps be called war in disguise. And the contest is distinctly a contest for empire. It is not a case of meum and tuum, in the judicial, but in the political sense. Not an appeal to laws, but to force. A case in which a sovereign undertakes to assert his right upon his sovereign responsibility ; to right himself, and not to appeal to any arbiter but the sword, for the justice of his cause. If the state of Maine were to extend its laws over the province of New Brunswick, and send its magistrates to carry them into effect, it would be a parallel case. In the Nabob of Arcot's Case (3 Bro. C. C. 292 ; s. c. 1 Ves. jr. 371; 2 Ibid. 50), a case of a political character not one half so strongly marked as this, the courts of Great Britain refused to take jurisdiction, because it had its origin in treaties entered into between sovereign states : a case in which the appeal is to the sword and to Almighty justice, and not to courts of law or equity. In the exercise of sovereign right, the sovereign is sole arbiter of his own justice. The penalty of wrong is war and subjugation.

*20But there is still another ground, in this case, which alone would have prevented me from assuming jurisdiction ; and that is, the utter impossibility of doiug justice, at least, even-handed justice, between the parties. As to restoring the complainant to the exercise of jurisdiction, it will be seen at once, that this is no ease for the action of a court ; and as to quieting him in possession of the soil, what is the case on which the complainant would have this court to act ? Either the Cherokee nation are a foreign state, or they are not. If they are not, then they cannot come here ; and if they are, then how can we extend our jurisdiction into their country?

We are told, that we can act upon the public functionaries in the state of Georgia, without the limits of the nation. But suppose, that Georgia should file a cross-bill, as she certainly may, if we can entertain jurisdiction in this case ; and should, in her bill, claim to be put in possession of the whole Indian country ; and we should decide in her favor; how is ^ , *that decree to be carried into effect? Say, as to soil; as to jurisdicJ tion, it is not even to be considered. From the complainant’s own showing, we could not do justice between the parties. Nor must I be considered as admitting that this court could, even upon the other alternative, exercise a jurisdiction over the person, respecting lands under the jurisdiction of a foreign nation. I know of no such instance. In Penn v. Lord Baltimore, the persons were in England, and the land within the king’s dominions, though in America.

There is still another view in which this cause of action may be considered in regard to its political nature. The United States, finding themselves involved in conflicting treaties, or, at least, in two treaties respecting the same property, under which two parties assert conflicting claims ; one of the parties, putting itself upon its sovereign right, passes laws which in effect declare the laws and treaties under which the other party claims, null and void. It proceeds to carry into effect those laws, by means of physical force ; and the other party appeals to the executive department for protection. Being disappointed thex-e, the party appeals to this court, indirectly to compel the executive to pursue a course of policy, which his sense of duty, or ideas of the law, may indicate should not be pursued. That is, to declare war against a state, or to use the public force to repel the force, and resist the laws of a state, when his judgment tells him the evils to grow out of such a course may be incalculable. What these people may have a right to claim of the executive power is one thing ; whether we are to be the instruments to compel another branch of the government to make good the stipulations of treaties, is a very different question. Courts of justice are properly excluded from all considerations of policy, and therefore, are very unfit instruments to control the action of that branch of government, which may often be compelled, by the highest considerations of public policy, to withhold even the exex-cise of a positive duty.

There is then a gi-eat deal of good sense in the rule laid down in the Nabob of Arcot’s Case, to wit, that as between sovereigns, bx-eaches of treaty were not breaches of contract cognisable in '-a court of justice; independent of the general px-inciple, that for their political acts, states were not amenable to tribunals of justice.

*There is yet another view of this subject, which fox-bids our taking jux-isdiction. Thex-e is a law of the United States, which purports *21to make every trespass set out in the hill to be an offence cognisable in the courts of the United States. I mean the act of 1802, which makes it penal to violate the Indian territory. The infraction of this law is in effect the burden of complaint. What then, in fact, is this bill, but a bill to obtain an injunction against the commission of crimes? If their territory has been trespassed upon, against the provisions of that act, no law of Georgia could repeal that act, or justify the violation of its provisions. And the remedy lies in another court and form of action, or another branch of jurisprudénce.

I cannot take leave of the case, without one remark upon the leading argument, on which the exercise of jurisdiction here over cases occurring in the Indian country, has been claimed for the complainant; which was, that the United States, in fact, exercised jurisdiction over it, by means of this and other acts, to punish offences committed there. But this argument cannot bear the test of principle. For the jurisdiction of a country may be exercised over her citizens, wherever they are, in right of their allegiance ; as it has been in the instance'of punishing offences committed against the Indians. And also, both under the constitution and the treaty of Hopewell, the power of congress extends to regulating their trade, necessarily within their limits. But this cannot sanction the exercise of jurisdiction, beyond the policy of the acts themselves, which are altogether penal in their provisions. I vote for rejecting the motion.

Baldwin, Justice.

— As jurisdiction is the first question which must arise in every cause, I have confined my examination of this, entirely to that point, and that branch of it which relates to the capacity of the plaintiffs to ask the interposition of this court. I concur in the opinion of the court, in dismissing the bill, but not for the reasons assigned. In my opinion, there is no plaintiff in this suit; and this opinion precludes any examination into the merits of the bill, or the weight of any minor objections. My judgment stops *me at- the threshold, and forbids me to examine into ..¡, the acts complained of. *-

As the reasons for the judgment of the court seem to me more important than the judgment itself, in its effects on the peace of the country, and the condition of the complainants, and as I stand alone on one question of vital concern to both ; I must give my reasons in full. The opinion of this court is of high authority in itself ; and the judge who delivers it has a support as strong in moral influence over public opinion, as any human tribunal can impart. The judge, who stands alone in decided dissent on matters of the infinite magnitude which this case presents, must sink under the continued and unequal struggle ; unless he can fix himself by a firm hold on the constitution and laws of the countiy. He must be presumed to be in the wrong, until he proves himself to be in the right. Not shrinking even from this fearful issue, I proceed to consider the only question which I shall ever examine in relation to the rights of Indians to sue in the federal courts, until convinced of my error in my present convictions.

My view of the plaintiffs being a sovereign independent nation or foreign state, within the meaning of the constitution, applies to all the tribes with whom the United States have held treaties; for if one is a foreign nation or state, all others, in like condition, must be so, in their aggregate *22capacity ; and each of their subjects or citizens, aliens, capable of suing in the circuit courts. This .case, then, is the case of the countless tribes, who occupy tracts of our vast domain ; who, in their collective and individual characters, as states or aliens, will rush to the-federal courts, in endless controversies, growing out of the laws of the states or of congress.

In the spirit of the maxim obsta principiis, I shall first proceed to the consideration of the proceedings of the old congress, from the commencement of the revolution up to the adoption of the constitution ; so as to ascertain whether the Indians were considered and treated with, as tribes of savages, or independent nations, foreign states, on an equality with any other foreign state or nation; and whether Indian affairs were viewed as those of foreign nations, and in connection with this view, refer to the acts of the federal government on the same subject.

*In 1781 (1 Laws U. S. 586), a department for foreign affairs was established, to whieh was intrusted all correspondence and communication with the ministers or other officers of foreign powers, to be carried on through that office ; also with the governors and presidents of the several states ; and to receive the applications of all foreigners, letters of' sovereign powers, plans of treaties, conventions, See,., and other acts of congress relative to the department of foreign affairs ; and all communications, as well to as from the United States in congress assembled, were to be made through the secretary, and all papers on the subject of foreign affairs to be addressed to him. The same department was established under the present constitution in 1789, and with the same exclusive control over all the foreign concerns of this government with foreign states or princes. (2 Laws U. S. 6, 7.) In July 1775, congress established a department of Indian affairs, to be conducted under the superintendence of commissioners. (1 Ibid. 597.) By the ordinance of August 1786, for the regulation of Indian affairs, they were placed under the control of the war department (Ibid. 614) ; continued there by the act of August 1789 (2 Ibid. 32, 33), under whose direction they have ever since remained. • It is clear, then, that neither the old nor new government did ever consider Indian affairs, the regulation of our intercourse or treaties with them, as forming any part of our foreign affairs or concerns with foreign nations, states or princes.

I will next inquire, how the Indians were considered ; whether as independent nations, or tribes with whom our intercourse must be regulated by the law of circumstances. In this examination, it will be found, that different words have been applied to them in treaties and resolutions of congress ; nations, tribes, hordes, savages, chiefs, sachems and warriors of the Cherokees, for instance, or the Cherokee nation. I shall not stop to inquire into the effect which á name or title can give to a resolve of congress, a treaty or convention with the Indians, but into the substance of the thing done, and the subject-matter acted on ; believing it requires no reasoning to prove, that the omission of the words prince, state, sovereignty or nation, cannot divest a contracting party of these ^national attributes, which are •* inherent in sovereign power pre- and self-existing, or confer them, by their use, where all the substantial requisites of sovereignty are wanting.

The proceedings of the old congress will be found in 1 Laws U. S. 597, commencing 1st June 1775, and ending 1st September 1788, of which some *23extracts will be given. 30th June 1775 : “ Resolved, that the committee for Indian affairs do prepare proper talks to the several tribes of Indians ; as the Indians depend on the colonists for arms, ammunition and clothing, which are become necessary for their subsistence.” “ That the commissioners have power to treat with the Indians ;” “ to take to their assistance gentlemen of influence among the Indians.” “ To preserve the confidence and friendship of the Indians, and prevent their suffering for want of the necessaries of life, 40,000i. sterling of Indian goods be imported.”' “ No person shall be permitted to trade with the Indians, without a license “ traders shall sell their goods at reasonable prices ; allow them to the Indians for their skins, and take no advantage of their distress and intemperance ;” “the trade to be only at posts designated by the commissioners.” Specimens of the kind of intercourse between the congress and deputations of Indians may be seen in pages 602 and 603. They need no incorporation into a judicial opinion.

In 1782, a committee of congress-report, that all the lands belonging to the Six Nations of Indians have been in due form put under the crown, as appendant to the government of New York, so far as respects jurisdiction only ; that that colony has borne the burden of protecting and supporting the Six Nations of Indians, and their tributaries, for one hundred years, as the dependents and allies of that government; that the crown of England has always considered and treated the country of the Six Nations as one appendant to the government of New York ; that they have been so recognised and admitted, by their public acts, by Massachusetts, Connecticut, Pennsylvania, Maryland and Virginia; that by accepting this cession, the jurisdiction of the whole western territory, belonging to the Six Nations and their tributaries, will be vested in the United States, greatly to the advantage of the Union (p. 606). The cession alluded to is the *one r¡j¡ from New York, March 1st, 1781, of the soil and jurisdiction of all L 0 the land in their charter, west of the present boundary of Pennsylvania (1 Laws of U. S. 471), which was executed in congress and accepted.

This makes it necessary to break in on the historical trace of our Indian affairs, and follow up this subject to the adoption of the constitution. The cession from Virginia in 1784 was of soil and jurisdiction. So, from Massachusetts in 1785, from Connecticut in 1800, from South Carolina in 1787, from Georgia in 1802. North Carolina made a partial cession of land, but a full one of her sovereignty and jurisdiction of all without her present limits in 1789. (2 Laws U. S. 85.) Some states made reservations of lands to a small amount, hut, by the terms of the cession, new states were to be formed within the ceded boundaries, to be admitted into the Union on an equal footing with the original states ; of course, not shorn of their powers of sovereignty and jurisdiction, within the boundaries assigned by congress to the new states. In this spirit, congress passed the celebrated ordinance of July 1787, by which they assumed the government of the north-western territory, paying no regard to Indian jurisdiction, sovereignty, or their political rights, except providing for their protection ; authorizing the adoption of laws “ which, for the prevention of crimes and injuries, shall have force in all parts of the district; and for the execution of process, civil and criminal, the governor has power to make proper division thereof.” (1 Laws U. S. 477.) By the fourth article, the said terri*24tory, and the states which may bo formed therein, shall for ever remain a part of this confederacy of the United States ; subject to the articles of confederation, alterations constitutionally made, the acts and ordinances of congress. This shows the clear meaning and understanding of all the ceding states, and of congress, in accepting the cession of their western lands, up to the time of the adoption of the constitution. The application of these acts to the provisions of the constitution will be considered hereafter. A few more references to the proceedings of the old congress, in relation to the Indian nations, will close this view of the ease.

*In 1782, a committee, to whom was referred a letter from the secretary at war, reported, “ that they have had a conference with the two deputies from the Catawba nation of Indians ; that their mission respects certain tracts of land reserved for their use, in the state of South Carolina, which they wish may be so secured to their tribe, as not to be intruded into by force, nor alienated even with their own consent: — Whereupon, resolved, that it be recommended to the legislature of South Carolina to take such measures for the satisfaction and security of the said tribe, as the said legislature shall in their wisdom think fit.” (1 Laws U. S. 067.) After this, the Catawbas cannot well be considered an independent nation or foreign state. In September 1783, shortly after the preliminary, treaty of peace, congress, exercising the powers of acknowledged independence and sovereignty, issued a proclamation, beginning in these words : “ whereas, by the ninth of the articles of confederation, it is, among other things, declared, that the United States in congress assembled, have the solo and exclusive right and power of regulating the trade, and managing all affairs with the Indians, not members of any of the states, provided that the legislative right of every state, within its own limits be not infringed or violated prohibiting settlements on lands inhabited or claimed by Indians, without the limits or jurisdiction of any particular state, and from purchasing or receiving gifts of land, without the express authority and directions of the United States in congress assembled. Conventions were to be held with the Indians in the northern and middle departments, for the purpose of receiving them into the favor and protection of the United States, and of establishing boundary lines of property, for separating and dividing the settlements of the citizens from the Indian villages and hunting-grounds, &c. “ Resolved, that the preceding measures of congress, relative to Indian affairs, shall not be construed to affect the territorial claims of any of the states, or their legislative rights, within their respective limits. Resolved, that it will be wise and necessary, to erect a district of the western territory into a distinct government, and that a committee be appointed to prepare a plan for a temporary government, until the ^ , inhabitants shall form a permanent constitution *for themselves, and -* as citizens of a free, sovereign and independent state, be admitted to a representation in the Union.” In 1786, a general ordinance was passed for the regulation of Indian affairs under the authority of the ninth article of the confederation, which throws much light on our relations with them (page 614). It closes with a direction, that in all cases where transactions with any nation or tribe of Indians shall become necessary for the purposes of the ordinance, which cannot be done without interfering with the legislative rights of a state, the superintendent within whose district the same shall happen, shall act in conjunction with the authority of such state. After *25accepting the cessions of the soil and jurisdiction of the western territory, and resolving to form a temporary government, and create new, free, sovereign apd independent states, congress resolved, in March 1785, to hold a treaty with the western Indians. They gave instructions to the commissioners, in strict conformity with their preceding resolutions, both of which were wholly incompatible with the national or sovereign character of the Indians with whom they were about to treat. They will be found in pages Oil, &c., and need not be particularized.

I now proceed to the instructions which preceded the treaty of Hopewell with the complainants, the treaty, and the consequent proceedings of congress. On the 15th March 1785, commissioners were appointed to treat with the Cherokees and other Indians, southward of them, within the limits of the United States, or who have been at war with them, for the purpose of making peace with them, and of receiving them into the favor and protection of the United States, &c. They were instructed to demand that all prisoners, negroes and other property, taken during the war, be given up ; to inform the Indians of the great occurrences of the last war ; of the extent of country relinquished by the late treaty of peace with Great Britain ; to give notice to the governors of Virginia, North and South Carolina and Georgia, that they may attend, if they think proper; and were authorized to expend $4000 in making presents to the Indians ; a matter well understood in making Indian treaties, but unknown, at least, in our treaties with foreign nations, princes *or states, unless on the Barbary coast. A treaty was accordingly made, in November following, between the commissioners L plenipotentiaries of the United States, of the one part, and the head-men and warriors of all the Cherokees, of the other. The word nation is not used in the preamble, nor any part of the treaty, so that we are left to infer the capacity in which the Cherokees contracted, whether as an independent nation, or foreign state, or a tribe of Indians, from the terms of the treaty, its stipulations and conditions. “ The Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States.” (Art. 3, 1 Laws U. S. 322.) “ The boundary allotted to the Cherokees for their hunting-grounds between the said Indians and the citizens of the United States, within the limits of the United States, is and shall be the following,” viz. (as defined in Art. 4.) “ For the benefit and comfort of the Indians, and for the prevention of injuries and aggressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they shall think proper.” (Art. 9.) “ That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to congress.” (Art. 12.)

This treaty is, in the beginning, called “ article :” the word “ ti’eaty ” is only to be found in the concluding line, where it is called “this definitive treaty.” But article or treaty, its nature does not depend upon the name given it. It is not negotiated between ministers on both sides, representing their nations ; the stipulations are wholly inconsistent with sovereignty ; the Indians acknowledge their dependent character; hold the lands they occupy as an allotment of hunting-grounds; give to congress the exclusive right of *26regulating their trade, and managing all their affairs, as they may think proper. So it was understood by congress, as declared by them in their proclamation of 1st September l^S (1 U. S. Laws 619), and so understood at the adoption of the constitution.

*The meaning of the words “ deputy to congress ” in the twelfth article, may be as a person having a right to sit in that body, as, at that time, it was composed of. delegates or deputies from the states, not as at present, representatives of the people of the states; or it may be as an agent or minister. But if the former was the meaning of the parties, it is conclusive to show, that he was not and could not be the deputy of a foreign state, wholly separated from the Union. If he sat in congress as a deputy from any state, it must be one having a political connection with, and within the jurisdiction of, the confederacy; if as a diplomatic agent, he could not represent an independent or sovereign nation, for all such have an unquestioned right to send such agents, when and where they please. The securing the right, by an express stipulation of the treaty ; the declared objects in conferring the right, especially, when connected with the ninth article ; show beyond a doubt, it was not to represent a foreign state or nation, or one to whom the least vestige of independence or sovereignty as to the United States appertained. There can be no dependence so anti-national, or so utterly subversive, of national existence, as transferring to a foreign government the regulation of its trade, and the management of all their affairs, at their pleasure. The nation or state, tribe or village, headmen or warriors of the Cherokees, call them by what name we please ; call the articles they have signed a definitive treaty, or an indenture of servitude ; they are not, by its force or virtue, a foreign state, capable of calling into legitimate action the judicial power of this Union, by the exercise of the original jurisdiction of this court, against a sovereign state, a component part of this nation. Unless the constitution has imparted to the Cherokees a national character, never recognised under the confederation; and which, if they ever enjoyed, was surrendered by the treaty of Hopewell; they cannot be deemed, in this court, plaintiffs in such a case as this.

In considering the bearing of the constitution on their rights, it must be borne in mind, that a majority of the states represented in the convention had ceded to the United States the soil and jurisdiction of their western lands, or claimed it to be remaining in themselves ; that congress asserted, as to the ceded, and the states, as to the unceded territory, their right to the # , soil absolutely, and the dominion in full sovereignty, *within their ' respective limits, subject only fo Indian occupancy, not as foreign states or nations, but as dependent on, and appendant to the state governments ; that before the convention acted, congress had erected a government in. the north-western territory, containing numerous and powerful nations or tribes of Indians, whose jurisdiction was contemned, and whose sovereignty was overturned, if it ever existed, except by permission of the states or congress, by ordaining, that the territorial laws should extend over the whole district; and directing divisions for the execution of civil and criminal process in every part; that the Cherokees were then dependents, having given up all their affairs to the regulation and management of congress, and that all the regulations of congress over Indian affairs, were then in force over an immense territory, under a solemn pledge to the inhabitants, that *27whenever their population and circumstances would admit, they should form constitutions, and become free, sovereign and independent states, on equal footing with the old compenent members of the confederation ; that by the existing regulations and treaties, the Indian tenure to their land was their allotment as hunting-grounds, without the power of alienation, that the right of occupancy was not individual, that the Indians were forbidden all trade or intercourse with any person, not licensed, or at a post not designated by regulation ; that Indian affairs formed no part of the foreign concerns of the government, and that though they were permitted to regulate their internal affairs in their own way, it was not by any inherent right, acknowledged by congress or reserved by treaty, but because congress did not think proper to exercise the sole and exclusive right, declared and asserted in all their regulations from 1775 to 1788, in the articles of confederation, in the ordinance of 1787, and the proclamation of 1788 ; which the plaintiffs solemnly recognised and expressly granted by the treaty of Hopewell, in 1785, as conferred on congress, to be exercised as they should think proper.

To correctly understand the constitution, then, we must read it with reference to this well-known existing state of our relations with the Indians; the United States asserting the right of soil, sovereignty and jurisdiction, in full dominion ; the Indians, occupancy of allotted hunting-grounds.

We can thus expound the constitution, without a reference *to the definitions of a state or nation by any foreign writer, hypothetical L reasoning, or the dissertations of the Federalist. This would be to substitute individual authority in place of the declared will of the sovereign power of the Union, in a written fundamental law. Whether it is the emanation from the people or the states, is a moot question, having no bearing on the supremacy of that supreme law which, from a proper source, has rightfully been imposed on us by sovereign power. Where its terms are plain, I should, as a dissenting judge, deem it judicial sacrilege to put my hands on any of its provisions, and arrange or construe them according to any fancied use, object, purpose or motive, which, by an ingenious train of reasoning I might bring my mind to believe was the reason for its adoption by the sovereign power, from whose hands it comes to me as the rule and guide to my faith, my reason and judicial oath. In taking out, putting in, or varying the plain meaning of a word or expression, to meet the results of my poor judgment, as to the meaning and intention of the great charter, which alone imparts to me my power to act as a judge of its supreme injunctions, I should feel myself acting upon it by judicial amendments, and not as one of its executors. I will not add unto these things ; I will not take away from the words of this book of prophecy; I will not impair the force or obligation of its enactments, plain and unqualified in its terms, by resorting to the authority of names ; the decisions of foreign courts ; or a reference to books or writers. The plain ordinances are a safe guide to my judgment. When they admit of doubt, I will connect the words with the practice,' usages and settled principles of this government, as administered by its fathers, before the adoption of the constitution ; and refer to the received •opinion and fixed understanding of the high parties who adopted it; the usage and practice of the new government, acting under its authority ; and the solemn decisions of this court, acting under its high powers and responsibility ; nothing fearing, that in so doing, I can discover some sound and *28safe maxims of American policy and jurisprudence, which will always afford me light enough to decide on the constitutional powers of the federal and state governments, and all tribunals acting under their authority. They will, at . , least, enable me to judge of the true meaning and *spirit of plain •* words, put into the forms of constitutional provisions, which this court, in the great case of Sturges v. Crowninshield, say, “ is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, constructions become necessary, and a departure from the obvious meaning of words is justifiable.” But the absurdity and injustice of applying the provision to the case, must be so monstrous, that all mankind would, without hesitation, unite in rejecting the application. 4 Wheat. 202-3. In another great case, Cohens v. Virginia, this court say, “the jurisdiction of this court then, being extended, by the letter of the constitution, to all cases arising under it, or under the laws of the United States, it follows, that those who would withdraw any case Of this description from that jurisdiction, must sustain the exemption they claim, on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.” 0 Wheat. 379-80. The principle of these cases is my guide in this. Sitting here, I shall always bow to such authority ; and require no admonition to be influenced by no other, in a case where I am called on to take a part in the exercise of the judicial power over a sovereign state.

Guided by these principles, I come to consider the third clause of the second section of the first article of the constitution ; which provides for the apportionment of representatives and direct taxes “ among the several states-which may be included within this Union, according to their respective numbers, excluding Indians not taxed.” This clause embraces not only the old but the new states to bo formed out of the territory of the United States, pursuant to the resolutions and ordinances of the old congress, and the conditions of the cession from the states, or which might arise by the division of the old. If the clause excluding Indians not taxed had not been inserted, or should be stricken out, the whole free Indian ''"population of all the states would bo included in the federal numbers, co-exten*43] sively with the boundaries of all the states included in this Union. The insertion of this clause conveys a clear definite declaration, that there were no independent sovereign nations or states, foreign or domestic, within their boundaries, which should exclude them from the federal enumeration, or any bodies or communities within the states, excluded from the action of the federal constitution, unless by the use of express words of exclusion. The delegates who represented the states in the convention well knew the existing relations between the United States and the Indians, and put the constitution in a shape for adoption, calculated to meet them ; and the words used in this clause exclude the existence of the plaintiffs as a sovereign or foreign state or nation, within the meaning of this section, too plainly to require illustration or argument.

The third clause of the eighth article shows most distinctly the sense of *29the convention in authorizing congress to regulate commerce with the Indian tribes. The character of the Indian communities'had been settled by many years of uniform usuage, under the old government; characterized by the names of nations, towns, villages, tribes, head-men and warriors, as the writers of resolutions or treaties might fancy ; governed by no settled rule, and applying the word nation to the Catawbas as well as the Cberokees. The framers of the constitution have thought proper to define their meaning to bo, that they were not foreign nations nor states of the Union, but Indian tribes ; thus declaring the sense in which they should be considered, under the constitution, which refers to them as tribes only, in this clause. I cannot strike these words from the book ; nor construe Indian tribes, in this part of the constitution, to mean a sovereign state, under the first clause of the second section of the third article. It would be taking very great liberty, in the exposition of a fundamental law, to bring the Indians under the action of the legislative power as tribes, and of the judicial, as foreign states. The power conferred to regulate commerce with the Indian tribes, is the same given to the old congress, by the ninth article, of the old confederation, “ to regulate trade with the Indians.” The raising the word “ trade ” to the dignity of commerce, '“regulating it r4 4 with Indians or Indian tribes, is only a change of words. Mere L phraseology cannot make Indians nations, nor Indian tribes, foreign states.

The second clause of the third section of the fourth article of the constitution is equally convincing. “ The congress shall have power to dispose of, and make all needful regulations and rules respecting, the territory of the United States.” What that territory was, the rights of soil, jurisdiction and sovereignty claimed and exercised by the states and the old congress, has been already seen. It extended to the formation of a government whose laws and process were in force within its whole extent, without a saving of Indian jurisdiction. It is the same power which was delegated to the old congress, and according to the judicial interpretation given by this court in Gibbons v. Ogden, 9 Wheat. 209, the word “to regulate” implied, in its nature, full power over the thing to be regulated ; it excludes, necessarily, the action of all others that would perform the same operation on the same thing. Applying this construction to commerce and territory, leaves the jurisdiction and sovereignty of theTndian tribes wholly out of the question. The power given in this clause is of the most plenary kind. Rules and regulations respecting the.territory of the United States — they necessarily include complete jurisdiction. It was necessary to confer it, without limitation, to enable the new government to redeem the pledge given by the old, in relation to the formation and powers of the new states. The saving of “the claims” of “ any particular states,” is almost a copy of a similar provision, part of the ninth article of the old confederation ; thus delivering over to the new congress the power to regulate commerce with the Indian tribes, and regulate the territory they occupied, as the old had done, from the beginning of the revolution.

The only remaining clause of the constitution to be considered Is the second clause in the sixth article. “All treaties made, or to be made, shall be the supreme law of the land.” In Chirac v. Chirac, this court declared, that it was unnecessary to inquire into the effect of the treaty with France in 1778, under the old confederation, because the confederation had yielded *30to our present constitution, and this treaty had been the supreme law of the land. 2 Wheat. 271. I *consider the same rule as applicable to Indian -* treaties, whether considered as national compacts between sovereign powers, or as articles, agreements, contracts, or stipulations on the 'part of this government, binding and pledging the faith of the nation to the faithful observance of its conditions. They secure to the Indians the enjoyment of the rights they stipulate to give or secure, to their full extent, and in the plenitude of good faith ; but the treaties must be considered as the rules of reciprocal obligations. The Indians must have their rights; but must claim them in that capacity in which they received the grant or guarantee. They contracted, by putting themselves under the protection of the United States, accepted of an allotment of hunting-grounds, surrendered and delegated to congress the exclusive regulation of their trade, and the management of all their own affairs, taking no assurance of their continued sovereignty, if they had any before, but relying on the assurance of the United States that they might have full confidence in tbeir justice respecting their interests ; stipulating only for the right of sending a deputy of their own choice to congress. If, then, the Indians claim admission to this court, under the treaty of Hopewell, they cannot be admitted as foreign states, and can be received in no other capacity.

The legislation of congress under the constitution, in relation to the Indians, has been in the same spirit, and guided by the same principles, which prevailed in the old congress, and under the old confederation. In order to give full effect to the ordinance of 1787, in the north-west territory, it was adapted to the present constitution of the United States in 1789 (l U. S. Stat. 50) ; applied as the rule for its government to the territory south of the Ohio in 1790, except the sixth article (Ibid. 128) ; to the Mississippi territory in 1798 (Ibid. 549) ; and with no exception, to Indiana in 1800 (2 Ibid. 58) ; to Michigan in 1805 (Ibid. 809) ; to Illinois in 1809 (Ibid. 514).

In 1802, congress passed the act regulating trade and intercourse with the Indian tribes, in which they assert all the rights exercised over them under the old confederation, and do not alter in any degree their political relations. (2 U. S. Stat. 139.) In the same year, Georgia ceded her lands * -, west of her present boundary to the United States; and by the *sec- -■ ond article of the convention, the United States ceded to Georgia whatever claim, right or title they may have to the jurisdiction or soil of any lands south of Tennessee, North or South Carolina and east of the line of the cession by Georgia. So that Georgia now has all the rights attached to her by her sovereignty, within her limits, and which are saved to her by the second section of the fourth article of the constitution, and all the United States could cede either by their power over the territory, or their treaties with the Cherokees.

The treaty with the Cherokees, made at Holston, in 1791, contains only one article which has a bearing on the political relations of the contracting parties. In the second article, the Cherokees stipulate “ that the said Cherokee nation will not hold any treaty with any foreign power, individual state, or with individuals of any state.” (7 U S. Stat. 39.) This affords an instructive definition of the words nation and treaty. At the treaty of Hopewell, the Cherokees, though subdued and suing for peace, before divest*31ing themselves of any of the rights or attributes of sovereignty which this government ever recognised them as possessing by the consummation of the treaty, contracted in the name of the head-men and,warriors of all the Clierokees ; but at Holston, in 1791, in abandoning their last remnant of political right, contracted as the Cherokee nation, thus ascending in title as they descended in power, and applying the word treaty to a contract with an individual: this consideration will divest words of their magic.

In thus testing the rights of the complainants as to their national character, by the old confederation, resolutions and ordinances of the old congress, the provisions of the constitution, treaties held under the authority of both, and the subsequent legislation thereon, I have followed the rule laid down for my guide by this court, in Foster v. Neilson, 2 Pet. 307, in doing it “ according to the principles established by the political department of the government.” “If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous. However individual judges may construe them (treaties), it is the province of’ the court to conform its decisions to the will of the legislature, if that will has been clearly expressed.” That the existence of foreign states cannot be known to this court judicially, except by some *act or recognition of the other departments of this h government is, I think, fully established in the case of United States v. Palmer, 3 Wheat. 634-5; The Divina Pastora, 4 Ibid. 63; and The Anna, 6 Ibid. 193.

I shall resort to the same high authority as the basis of my opinion on the powers of the state governments. “ By the revolution, the duties as well as the powers of government devolved on the people of (Georgia) New Hampshire. It is admitted, that among the latter were comprehended the transcendent powers of parliament, as well as those of the executive department.” Dartmouth College v. Woodward, 4 Wheat. 651; 4 Ibid. 192; Green v. Biddle, 8 Ibid. 98 ; Ogden v. Saunders, 12 Ibid. 254, &c. “ The same principle applies, though with no greater force, to the different states of America ; for though they form a confederated government, yet the several states retain their individual sovereignties, and with respect to their municipal regulations, are to each other foreign.” Buckner v. Findley, 2 Pet. 591. The powers of government, which thus devolved on Georgia by the revolution, over her whole territory, are unimpaired by any surrender of her territorial jurisdiction, by the old confederation or the new constitution, as' there was in both an express saving, as well as by the tenth article of amendments.

But if any passed'to the United States by either, they were retroceded by the convention of 1802. Her jurisdiction over the territory in question is as supreme as that of congress, over what the nation has acquired by cession from the states, or treaties with foreign powers, combining the rights of the state and general government. Within her boundaries, there can be no other nation, community or sovereign power, which this department can judicially recognise as a foreign state, capable of demanding or claiming our interposition, so as to enable them to exercise a jurisdiction incompatible with a sovereignty in Georgia, which has been recognised by the constitution, and every department of this government acting under its authority. Foreign states cannot be created by judicial construction; Indian sovereignty cannot be roused from its long slumber, and awakened *32to action by our fiat. I find no acknowledgment of it by the legislative or *.g-, executive power. *Until they have done so, I can stretch forth no J arm for their relief, without violating the constitution. I say this with great deference to those from whom I dissent; but my judgment tells me, I have no power to act, and imperious duty compels me to stop at the portal, unless I can find some authority in the judgments of this court, to which I may surrender my own.

Indians have rights of occupancy to their lands, as sacred as the fee-simple, absolute title of the whites ; but they are only rights of occupancy, incapable of alienation, or being held by any other than common right, without permission from the government. 8 Wheat. 592. In Fletcher v. Peck, this court decided, that the Indian occupancy was not absolutely repugnant to a seisin in fee in Georgia ; that she had good right to grant land so occupied ; that it was within the state, and could be held by purchasers under a law, subject only to extinguishment of the Indian title. 6 Cranch 88, 142 ; 9 Ibid. 11. In the case of Johnson v. McIntosh, 8 Wheat. 548, 571, the nature of the Indian title to lands on this continent, throughout its whole extent, was most ably and elaborately considered ; leading to conclusions satisfactory to every jurist, clearly establishing that, from the time of discovery under the royal government, the colonies, the states, the confederacy and this Union, their tenure was the same occupancy, their rights occupancy, and nothing more; that the ultimate absolute fee, jurisdiction and sovereignty was in the government, subject only to such rights ; that grants vested soil and dominion, and the powers of government, whether the land granted was vacant or occupied by Indians.

By the treaty of peace, the powers of government, and the rights of soil, which had previously been in Great Britain, passed definitively to these states. 8 Wheat. 584. They asserted these rights, and ceded soil and jurisdiction to the United States. The Indians were considered as tribes of fierce savages ; a people with whom it was impossible to mix, and who could not be governed as a distinct society. They are not named or referred to in any part of the opinion of the court, as nations or states, and nowhere declared to have any national capacity or attributes of sovereignty, in their *, g-i ^relations to the general or state governments. The principles estabJ lished in this case have been supposed to apply to the rights which the nations of Europe claimed to acquire by discovery, as only relative between themselves, and that they did not assume thereby any rights of soil or jurisdiction over the territory in the actual occupation of the Indians. But the language of the court is too explicit to be misunderstood. “ This principle was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European gov1 ernments, which title might be consummated by possession.” Those relations which wore to subsist between the discoverer and the natives wore to be regulated by themselves. The rights thus acquired being exclusive, no other power'could interpose between them.

While the different nations of Europe respected the rights of the natives, as occupants, they asserted the ultimate dominion to be in themselves ; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all, to convey a title to the grantees, *33subject only to the Indian rights of occupancy. The history of America, from its discovery to the present day proves, we think, the universal reeog nition of these principles. 8 Wheat. 574. I feel it my duty, to apply them to this case. They are in perfect accordance with those on which the governments of the united and individual states have acted in all their changes ; they were asserted and maintained by the colonies, before they assumed independence. While dependent themselves on the crown, they exercised all the rights of dominion and sovereignty over the territory occupied by the Indians ; and this is the first assertion by them of rights as a foreign state, within the limits of a state. If their jurisdiction within their boundaries has been unquestioned, until this controversy; if rights have been exercised, which are directly repugnant to those now claimed ; the judicial power cannot divest the states of rights of sovereignty, and transfer them to the Indians, by decreeing them to be a nation, or foreign state, pre-existing and with rightful jurisdiction and sovereignty over the territory they occupy. This would reverse every principle on which our government have acted for fifty-five years; and force, by *mere judicial power, upon the other departments of this government, and the states of this ' Union, the recognition of the existence of nations and states, within the limits of both, possessing dominion and jurisdiction paramount to the federal and state constitutions. It will be a declaration, in my deliberate judgment, that the sovereign power of the people of the United States and Union must hereafter remain incapable of action over territory to which their rights in full dominion have been asserted with the most rigorous authority, and bow to a jurisdiction hitherto unknown ; unacknowledged by any department of the government; denied by all, through all time; unclaimed till now ; and now declared to have been called into exercise, not by any change in our constitution, the laws of the Union or the states ; but pre-existent and paramount over the supreme law of the land.

I disclaim the assumption of a judicial power so awfully responsible. No assurance or certainty of support in public opinion can induce me to disregard a law so supreme ; so plain to my judgment and reason. Those who have brought public opinion to bear on this subject, act under a mere moral responsibility ; under no oath, which binds their movements to the straight and narrow line drawn by the constitution. Politics or philanthropy may impel' them to pass it; but when their objects can be effectuated only by this court, they must not expect its members to diverge from it, when they cannot conscientiously take the first step, without breaking all the high obligations under which they administer the judicial power of the constitution. The account of my executorship cannot be settled before the court of public opinion, or any human tribunal. None can release the balance which will accrue by the violation of my solemn conviction of duty.

Thompson, Justice.

(Dissenting.) — Entertaining different views of the questions now before us in this case, and having arrived at a conclusion different from that of a majority of the court, and considering the importance of the case and the constitutional principle involved in it; I shall proceed, with all due respect for the opinion of others, to assign the reasons upon which my own has been formed.

In the opinion pronounced by the court, the merits of the *contro- [*61 *34versy between the state of Geoegia and the Cherokee Indians have not been taken into consideration. The denial of the application for an injunction has been placed solely on the ground of want of jurisdiction in this court to grant the relief prayed for. It became, therefore, unnecessary to inquire into the merits of the case. But thinking as I do, that the court has jurisdiction of the case, and may grant relief, at least, in part; it may become necessary for me, in the coui’se of my opinion, to glance at the merits of the controversy ; which I shall, however, do very briefly, as it is important only so far as relates to the present application.

Before entering upon the examination of the particular points which have been made and argued, and for the purpose of guarding against any erroneous conclusions, it is proper that I should state, that I do not claim for this court, the exercise of jurisdiction upon any matter properly falling under the denomination of political power. Relief to the full extent prayed by the bill may be beyond the reach of this court. Much of the matter therein contained, by way of complaint, would seem to depend for relief upon the exercise of political power; and as such, appropriately devolving upon the executive, and not the judicial, department of the government. This court can grant relief so far only as the rights of person or property are drawn in question, and have been infringed.,

It would very ill become the judicial station which I hold, to indulge in any remarks upon the hardship of the ease, or the great injustice that would seem to have been done to the complainants, according to the statement in the bill, and which, for the purpose of the present motion, I must assume to be true. If they are entitled to other than judicial relief, it cannot be admitted, that in a government like ours, redress is not to be had in some of its departments ; and the responsibility for its denial must rest upon those who have the power to grant it. But believing as I do, that relief to some extent falls properly under judicial cognisance, I shall proceed to the examination of the case under the following heads. 1. Is the Cherokee nation of Indians a competent party to sue in this court? 2. *Is a sufficient -1 case made out in the bill, to warrant this court in granting any relief ? 3. Is an injunction the fit and appropriate relief?

1. By the constitution of the United States it is declared (Art. 3, § 2), that the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority, &c. ; to controversies between two or more states, &c., and between a state or the citizens thereof, and foreign states, citizens or subjects. The controversy in the present case is alleged to be between a foreign state, and one of the states of the Union ; and does not, therefore, come within the 11th amendment of the constitution, which declares that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state. This amendment does not, therefore, extend to suits prosecuted against one of the United States by a foreign state. The constitution further provides, that in all cases where a state shall be a party, the supreme court shall have original-jurisdiction. Under these provisions in the constitution, the complainants have filed their bill in this court, in the character of a foreign state, against the state of Georgia; *35praying an injunction to restrain that state from committing vai.ous alleged violations of the property of the nation, claimed under the laws of the United States, and treaties made with the Cherokee nation.

That a state of this Union may be sued by a foreign state, when a proper case exists and is presented, is too plainly and expressly declared in the constitution, to admit of doubt; and the first inquiry is, whether the Cherokee nation is a foreign state, within the sense and meaning of the constitution. The terms state and nation are used in the law of nations, as well as in common parlance, as importing the same thing ; and imply a body of men, united together, to procure their mutual safety and advantage, by means of their union. Such a society has its affairs and interests to manage ; it deliberates, and takes resolutions in common, and thus becomes a moral ^person, having an understanding and a will peculiar to itself, and is ^ susceptible of obligations and laws. Vattel 1. Nations being com- *- posed of men naturally free and independent, and who, before the establishment of civil societies, live together in the state of nature, nations or sovereign states ; are to be considered as so many free persons, living together in a state of nature. Vattel 2, § 4. Every nation that governs itself,, under what form soever, without any dependence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural society, under the law of nations. It is sufficient, if it be really sovereign and independent : that is, it must govern itself by its own authority and laws. We ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. The conditions of these unequal alliances may be infinitely vailed ; but whatever they are, provided the inferior ally reserves to itself the sovereignty or the right to govern its own body, it ought to be considered an independent state. Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of the right of government and sovereignty, does not cease, on this account, to be placed among the sovereigns who acknowledge no other power. Tributary and feudatory states do not thereby cease to be sovereign and independent states, so long as self-government, and sovereign and independent authority, is left in the administration of the state. Vattel, c. I, pp. 16, VI.

Testing the character and condition of the Cherokee Indians by these rules, it not perceived how it is possible to escape the conclusion, that they form a sovereign state. They have always been dealt with as such by the goverment of the United States; both before and since the adoption of the present constitution. They have been admitted and treated as a people governed solely and exclusively by their own laws, usages, and customs, within their own territory, claiming and exercising exclusive iominion over the same ; yielding up by treaty, from time to time, portions of their land, but still claiming absolute sovereignty and self-government over what remained unsold. *And this has been the light in which _ ^ .hey have, until recently, been considered, from the earliest settle- L °' ment of the country, by the white people. And indeed, I do not understand, that-it is denied by a majority of the court, that the Cherokee Indians form a sovereign state, according to the doctrine of the law of nations; *36but that, although a sovereign state, they are not considered a foreign state, within the meaning of the constitution.

Whether the Cherokee Indians are to be considered a foreign state or not, is a point on which we cannot expect to discover much light from the law of nations. We must derive this knowledge chiefly from the practice of our own government, and the light in which the nation has been viewed and treated by it. That numerous tribes of Indians, and among others the Cherokee nation, occupied many parts of this country, long before the discovery by Européans, is abundantly established by history; and it is not denied, but that the Cherokee nation occupied the territory now claimed by them, long before that period. It does not fall within the scope and object of the present inquiry, to go into a critical examination of the nature and extent of the rights growing out of such occupancy, or the justice and humanity with which the Indians have been treated, or their rights respected. That they are entitled to. such occupancy, so long as they choose quietly and peaceably to remain upon the land, cannot be questioned. The circumstance of their original occupancy is here referred to, merely for the purpose of showing, that if these Indian communities were then, as they certainly were, nations, they must have been foreign nations, to all the world ; not having any connection, or alliance of any description, v/ith any other power on earth. And if the Cherokees were then a foreign nation ; when or how have they lost that character1, and ceased to be a distinct people, and become incorporated with any other community ?

They have never been, by conquest, reduced to the situation of subjects to any conqueror, and thereby lost their separate national existence, and the rights of self-government, and become subject to the laws of the conqueror. Whenever wars have taken place, they have been followed by regular treaties of peace, containing stipulations on each side, -1 according *to existing circumstances; the Indian nation always preserving its distinct and separate national character. And notwithstanding we do not recognise the right of the Indians to transfer the absolute title of their lands to any other than ourselves, the right of occupancy is still admitted to remain in them, accompanied with the right of self-government, according to their own usages and customs ; and with the competency to act in a national capacity, although placed under the protection of the whites, and owing a qualified subjection, so far as is requisite for public safety. But the principle is universally admitted, that this occupancy belongs to them as a matter of right, and not by mere indulgence. They cannot be disturbed in the enjoyment of it, or deprived of it, without their free consent; or unless a just and necessary war should sanction their dispossession.

In this view of their situation, there is as full and complete recognition of their sovereignty, as if they were the absolute owners of the soil. The progress made in civilization by the Cherokee Indians cannot surely be considered as in any measure destroying their national or foreign character, so long as they are permitted to maintain a separate and distinct government; it is their political condition that constitutes their foreign character, and in that sense must the. term foreign be understood, as used in the constitution. It can have no relation to local, geographical or territorial position. It cannot mean a country beyond sea. Mexico or Canada is certainly to ha *37considered a foreign country, in reference to the United States.' It is the political relation in which one government or country stands to another, which constitutes it foreign to the other. The Cherokee territory being within the chartered limits of Georgia, does not affect the question. When Georgia is spoken of as a state, reference is had to its political character, and not to boundary ; and it is not perceived, that any absurdity or inconsistency grows out of the circumstance, that the jurisdiction and territory of the state of Georgia surround or extend on every side of the Cherokee ten-itory. It may be inconvenient to the state, and very desirable, that the Cherokees should be removed ; but it does not at all affect the political relation between Georgia and those Indians. Suppose, the *Cherokee territory had p been occupied by Spaniards, or any other civilized people, instead of >- Indians, and they had, from time to time, ceded to the United States portions of their lands, precisely in the same manner as the Indians have done, and in like manner, retained and occupied the part now held by the Cherokees, and having a regular government established there ; would it not only be considered a separate and distinct nation or state, but a foreign nation, with reference to the state of Georgia or the United States? If we look to lexicographers, as well as approved writers, for the use of the term foreign, it may be applied with the strictest propriety to the Cherokee nation. In a general sense, it is applied to any person or thing belonging to another nation or country. We call an alien a foreigner, because he is not of the country in which we reside. In a political sense, we call every country foreign, which is not within the jurisdiction of the same government. In this sense, Scotland, before the Union, was foreign to England ; and Canada and Mexico, foreign to the United States. In the United States, all transatlantic countries are foreign to us.

But this is not the only sense in which it is used. It is applied, with equal propriety, to an adjacent territory, as to one more remote. Canada or Mexico is as much foreign to us, xas England or Spain. And it may be laid down as a general rule, that when used in relation to countries,'in a political sense, it refers to the jurisdiction or government of the country. In a commercial sense, we call all goods coming from any country, not within our own jurisdiction, foreign goods.' In the diplomatic use of the term, we call every minister a foreign minister, who comes from another jurisdiction or government. And this is the sense in which it is judicially used by this court, even as between the different states of this Union. In the case of Buckner v. Finley, 2 Pet. 590, it was held, that a bill of exchange, drawn in one state of the Union, on a person living in another state, was a foreign bill, and to be treated as such in the courts of the United States. The court says, that in applying the definition of a foreign bill, to the political character of the several states of this Union, in relation to each other, we are all clearly of opinion, *that bills drawn in one of these states upon per- p sons living- in another of them, partake of the character of foreign t bills, and ought to be so treated. That, for all national purposes embraced by the federal constitution, the states and the citizens thereof are one ; united under the same sovereign authority, and governed by the same laws. In all other respects, the states are necessarily foreign to, and independent of, each other ; their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions. So, in *38the ease of Warder v. Arell, decided in the court of appeals of Virginia, 2 Wash. 298, the court, in speaking of foreign contracts, and saying that the laws of the foreign country where the contract was made must govern, add, the same principle applies, though with no greater force, to the different states of America ; for though they form a confederated government, yet the several states retain their individual sovereignty ; and, with respect to their municipal regulations, are to each other foreign.

It is manifest from these cases, that a foreign state, judicially considered, consists in its being under a different jurisdiction or government, without any reference to its territorial position. This is the marked distinction, particularly in the case of Buckner v. Finley. So far as these states are subject to the laws of the Union, they are not foreign to each other. But so far as they are subject to their own respective state laws and government, they are foreign to each other. And if, as here decided, a separate and distinct jurisdiction or government is the test by which to decide whether a nation be foreign or not, I am unable to perceive any sound and substantial reason why the Cherokee nation should not be so considered. It is governed by its own laws, usages and customs ; it has no connection with any other government or jurisdiction, except by way of treaties entered into with like form and ceremony as with other foreign nations. And this seems to be the view taken of them by Mr. Justice Johnson in the case of Fletcher v. Peck, 6 Cranch 146. In speaking of the state and condition of the different Indian nations, he observes, “ that some have totally extinguished their national fire, and submitted themselves to the laws of the states ; others * , have by treaty acknowledged that they hold *their national existence J at the will of the state, within which they reside ; others retain a limited sovereignty, and the absolute proprietorship of their soil. The latter is the case of the tribes to the west of Georgia, among which are the Cherokees. We legislate upon the conduct of strangers or citizens within their limits, but innumerable treaties formed with them, acknowledge them to be an independent people ; and tbe uniform j>ractice of acknowledging their right of soil, by purchasing from them, and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their rights of soil.”

Although there are many cases in which one of these United States has been sued by another, I am not aware of any instance in which one of the United States has been sued by a foreign state. But no doubt can be entertained, that such an action might be sustained, upon a proper case being presented. It is expressly provided for in the constitution ; and this provision is certainly not to be rejected as entirely nugatory. Suppose, a state, with the consent of congress, should enter into an agreement with a foreign power (as might undoubtedly be done, Constitution, Art. 1, § 10), for a loan of money ; would not an action be sustained in this court to enforce payment thereof ? Or suppose, the state of Georgia, with the consent of congress, should purchase the right of the Cherokee Indians to this territory, and enter into a contract for the payment of the purchase-money ; could there be a doubt, that an action eould be sustained upon such a contract ? No objection would certainly be made for want of competency in that nation to make a valid contract. The numerous treaties entered into with the nation would be a conclusive answer to any such objection. And if an action could *39be sustained iu such case, it must be under that provision in the constitution which gives jurisdiction to this court in controversies between a state and a foreign state. For the Cherokee nation is certainly not one of the United States.

And what possible objection can lie to the right of the complainants to sustain an action ? The treaties made with this nation purport to secure to it certain rights. These are not gratuituous obligations assumed on the part of the United States. They are obligations founded upon a consideration paid by the *Indians, by cession of part of their territory. And if they, as a nation, are competent to make a treaty or contract, it L would seem to me, to be a strange inconsistency, to deny to them the right and the power to enforce such a contract. And where the right secured by such a treaty forms a proper subject for judicial cognisance, I can perceive no reason why this court has not jurisdiction of the case. The constitution expressly gives to the court jurisdiction, in all cases of law and equity arising under treaties made with the United States. No suit will lie against the United States, upon such treaty, because no possible case can exist, where the United States can be sued. But not so with respect to a state : and if any right secui-ed by -treaty has been violated by a state, in a case proper for judicial inquiry, no good reason is perceived, why an action may not be sustained for violation of a right secured by treaty, as well as by contract under any other form. The judiciary is certainly not the department of the government authorized to enforce all rights that may be recognised and secured by treaty. In many instances, these are mere political rights with which the judiciary cannot deal. But when the question relates to a mere right of property, and a proper case can be made between competent parties, it forms a proper subject for judicial inquiry.

It is a rule, which has been repeatedly sanctioned by this court, that the judicial department is to consider as sovereign and independent states or nations, those powers that are recognised as such by the executive and legislative departments of the government; they being more particularly intrusted with our foreign relations. 4 Cranch 241 ; 3 Wheat. 634 ; 4 Ibid. 64. If we look to the whole course of treatment by this country of the Indians, from the year 1775, to the present day, when dealing with them in their aggregate capacity as nations or tribes, and regarding the mode and manner in which all negotiations have been cai-ried on and concluded with them; the conclusion appears to me irresistible, that they have been regarded, by the executive and legislative branches of the government, not only as sovereign and independent, but as foreign nations or tribes, not within the jurisdiction, nor under the government of the states within -which they were located. This remark is to be ^understood, of course, as referring only to such as live together as a distinct community, under t their own laws, usages and customs ; and not to the mere remnant of tribes which are to be found in many parts of our country, who have become mixed with the general population of the country ; their national character extinguished, and their usages and customs in a great measure abandoned ; self government surrendered ; and who have, voluntarily, or by the force of circumstances which surround them, gradually become subject to the laws of the states within which they are situated. Such, however, is not the case with the Cherokee nation. It retains its usages and customs and self-*40government, greatly improved by the civilization which it has been- the policy of the United States to encourage and foster among them. All negotiations carried on with the Cherokees and other Indian nations have been by way of treaty, with all the formality attending the making of treaties with any foreign power. The journals of congress, from the year 1775, down to the adoption of the present constitution, abundantly establish this fact. And since that period, such negotiations have been carried on by the treaty-making power, and uniformly under the denomination of treaties.

What is a treaty, as understood in the law of nations ? It is an agreement or contract between two or more nations or sovereigns, entered into by agents appointed for that purpose, and duly sanctioned by the supreme power of the respective parties. And where is the authority, either in the constitution, or in the practice of the government, for making any distinction between treaties made with the Indian nations, and any other foreign power? They relate to peace and war; the surrender of prisoners; the cession of territory ; and the various subjects which are usually embraced in such contracts between sovereign nations.

A recurrence to the various treaties made with the Indian nations and tribes, in different parts of the country, will fully illustrate this view of the relation in which our government has considered the Indians as standing. It will be sufficient, however, to notice a few of the many treaties made with this Cherokee nation. By the treaty of Hopewell, of the 28th of November *«il *(* Laws U. S. 822), mutual stipulations are entered into, to •' restore all prisoners taken by either party, and the Cherokees stipulate to restore all negroes and all other property taken from tbe citizens of the United States ; and a boundary line is settled between the Cherokees and the citizens of the United States, and this embraced territory within the chartered limits of Georgia. And by the sixth article, it is provided, that if any Indian, or person residing among them, or who shall take refuge in their nation, shall commit a robbery or murder, or other capital crime, on any citizen of the United States, or person under their protection, the nation or tribe to which such offender may belong, shall deliver him up, to be punished according to' the ordinances of the United States. What more explicit recognition of the sovereignty and independence of this nation could have been made ? It was a direct acknowledgment, that this territory was under a foreign jurisdiction. If it had been understood, that the jurisdiction of the state of Georgia extended over this territory, no such stipulation would have been necessary. The process of the courts of Georgia would have run into this, as well as into any other part of the state. It is a stipulation analogous to that contained in the treaty of 1794 with England, (8 U. S. Stat. 129), by the 27th article of which it is mutually agreed, that each party will deliver up to justice all persons, who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of tho countries of the other. Upon what ground can any distinction be made, as to the reason and necessity of such stipulation, in the respective treaties ? The necessity for the stipulation in both cases must be, because the process of one government and jurisdiction will not run into that of another; and separate and distinct jurisdiction, as has been *41shown, is what makes governments and nations foreign to each other in their political relations.

The same stipulation, as to delivering up criminals who shall take refuge in the Cherokee nation, is contained in the treaty of Holston, of the 2d of July 1791. (7 U. S. Stat. 39.) And the 11th article fully recognises the jurisdiction of the Cherokee nation over the territory occupied hy them. It provides, that if any citizen of the United States shall go into *the p territory belonging to the Cherokees, and commit any crime upon, or *- trespass against, the person or property of any friendly Indian, which, if committed within the jurisdiction of any state, would be punishable by the laws of such state, shall be subject to the same punishment, and proceeded against in the same manner, as if the offence had been committed within the jurisdiction of the state. Here is an explicit admission, that the Cher.okee territory is not within the jurisdiction of any state. If it had been considered within the jurisdiction of Georgia, such a provision would not only be unnecessary but absurd. It is a provision looking to the punishment of a citizen of the United States, for some act done in a foreign country. If exercising exclusive jurisdiction over a country is sufficient to constitute the state or power so exercising it, a foreign state, the Cherokee nation may assuredly, with the greatest propriety, be so considered.

The phraseology of the clause in the constitution, giving to congress the power to regulate commerce, is supposed to afford an argument against considering the Cherokees a foreign nation. The clause reads thus, “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” (Constitution, Art. 1, § 8.) The argument is, that if the Indian tribes are foreign nations, they would have been included, without being specially named, and being so named, imports something different from the previous term “ foreign nations.” This appears to me to partake too much of a mere verbal criticism, to draw after it the important conclusion, that Indian tribes are not foreign nations. But the clause affords, irresistibly, the conclusion, that the Indian tribes are not there understood as included within the description of, the “several states ; ” or there could have been no fitness in immediately thereafter particularizing “ the Indian tribes.” It is generally understood, that every separate body of Indians is divided into bands or tribes, and forms a little community within the nation to which it belongs ; and as the nation has some particular symbol, by which it is distinguished from others, so each tribe has a badge from which it is denominated, and each tribe may have rights applicable to itself. Cases may arise, where the trade with a particular tribe may *require rH. to be regulated, and which might not have been embraced under the general description of the term nation, or it might at least have left the case somewhat doubtful; as the clause was intended to vest in congress the power to regulate all commercial intercourse, this phraseology was probably adopted to meet all possible cases ; and the provision would have been imperfect, if the term Indian tribes had been omitted. Congress could not then, have regulated the trade with any particular tribe that did not extend to the whole nation. Or, it may be, that the term tribe is here used as importing the same thing as that of nation, and adopted merely to avoid the repetition of the term nation : and the Indians are specially named, because there was a provision somewhat analogous in the confederation ; *42and entirely omitting to name the Indian tribes, might have afforded some plausible grounds for concluding that this branch of commercial intercourse was not subject to the power of congress.

On examining the journals of the old congress, which contain numerous proceedings and resolutions respecting the Indians, the terms “ nation ” and “ tribe ” are frequently used indiscriminately, and as importing the same thing ; and treaties were sometimes entered into with the Indians, under the description or denomination of tribes, without naming the nation. See Journals 30th June and 12th of July 1775 ; 8th March 1776 ; 20th October 1777 ; and numerous other instances.

But'whether any of these suggestions will satisfactorily account for the phraseology here used, or not, it appears to me, to be of too doubtful import, to outweigh the considerations to which I have referred, to show that the Cherokees are a foreign nation. The difference between the provision, in the constitution and that in the confederation on this subject, appears to me, to show very satisfactorily, that so far as related to trade and commerce with the Indians, wherever found in tribes, whether within or without the limits of a state, was subject to the regulation of congress. • The provision in the confederation, Art. 9 (1 U. S. Stat. 7), is, that congress shall'have the power of regulating the trade and management of all affairs with the Indians, not members of any of the states, provided that the legislative right of any state within its own limits be not infringed or violated. „ ^k® true import of this provision is certainly not very obvious : see -* Federalist, No. 42.- What were the, legislative rights intended to be embraced within the proviso, is left in great uncertainty. But whatever , . difficulty on that subject might have arisen, under the confederation, it is entirely removed, by the omission of the proviso in the present constitution ; thereby leaving this power entirely with congress, Avithout regard to any state right on the subject; and shoAving that the Indian tribes Avere considered as distinct communities, although within the limits of a state.

The provision, as contained in the confederation, may aid in illustrating what is' to be inferred from some parts of the constitution (Art. 1, § 1, par. 3), as to the apportionment of representatives, and acts of congress in re•lation to the Indians, to wit, that they are divided into two distinct classes. One -composed of those who are considered members of the state Avithin which they reside, and the other not: the former embracing' the remnant of the tribes who had lost their distinctive character as a separate community, and had become subject to the laws of the states ; and the latter, such as still retained their original connection as tribes, and live together under their own laws, usages and customs, and, as such, are treated as a community independent of the state. No very important conclusion, I think, therefore, can be drawn from the use of the term “ tribe,” in this clause of the constitution, intended merely for commercial regulations. If considered as importing the same thing as the term “ nation,” it might have been adopted, to avoid the repetition of the Avord nation.

Other instances occur in the constitution, where different terms are used, importing the same thing. Thus, in the clause giving jurisdiction to this court, the term “ foreign states” is used, instead of “ foreign nations,” as in the clause relating to commerce. And again, in Art. 1, § 10, a still different phi'aseology is employed. “No state, without the consent of *43shall enter into any agreement or compact with a ‘foreign power.'" But each of these terms, nation, state, power, as used in different parts of the constitution, imports the same thing, and does not admit of a different interpretation. In the treaties made with the Indians, they are sometimes designated under the name of tribe, and sometimes that nation. In the treaty of 1804, with the Delaware Indians, they [*65 are denominated the “ Delaware tribe of Indians.” (7 U. S. Stat. 81.) And in a previous treaty with the same people, in the year 1778, they are designated by the name of “ the Delaware nation.” (Ibid. 13.)

As this Avas one of the earliest treaties made with the Indians, its provisions may serve to show in what light the Indian nations Avere viewed by-congress at that day. The territory of the DelaAvare nation Avas within the limits of the states of NeAV York, Pennsylvania and New Jersey. Yet we hear of no claim of jurisdiction set up by those states over these Indians. This treaty, both in form and substance, purports to be an arrangement with an independent sovereign power. It even purports to be articles of confederation. It contains stipulations relative to peace and war, and for permission to the United States troops to pass through the country of the Delaware nation. That neither party shall protect, in their respective states, servants, slaves or criminals, fugitives from the other; but secure and deliver them up. Trade is regulated between the parties. And the sixth article shows the early pledge of the United States to protect the Indians in their possessions, against any claims or encroachments of the states. It recites, that whereas, the enemies of the United States have endeavored to impress the Indians in general Avith an opinion, that it is the design of the states to extirpate the Indians, and take possession of their country ; to obviate such false suggestions, the United States do engage to guaranty to the aforesaid nation of Delawares and their heirs, all their territorial rights, in the fullest and most ample manner, as it has been bounded by former treaties, &c. And provision is even made for inviting other tribes to join the confederacy ; and to form a state, and have a representation in congress, should it be found conducive to the mutual interest of both parties. All which provisions are totally inconsistent with the idea of these Indians being considered under the jurisdiction of the states, although their chartered limits might extend over them. The recital, in this treaty, contains a declaration and admission of congress of the rights of Indians in general; and that the impression which our enemies were *endeavoring to make, that it Avas the design of the states to extirpate them, and take their lands, wras false. And the same recognition of their rights runs through all the treaties made with the Indian nations or tribes, from that day down to the present time. [*60

The twelfth article of the treaty of Hopewell contains a full recognition of the sovereign and independent character of the Cherokee nation. To impress upon them full confidence in the justice of the United States respecting their interest, they have a right to send a deputy of their choice to congress. No one can suppose, that such deputy was to take his seat as a member of congress, but that he would be received as the agent of that nation. It is immaterial, what such agent is called, whether minister, commissioner or deputy ; he is to represent his principal. There could have been no fitness or propriety in any such stipulation, if the Cherokee nation *44had been considered in any way incorporated with the state of Georgia, oías citizens of that state. The idea of the Cherokees being considered citizens, is entirely inconsistent with several of our treaties with them. By the eighth article of the treaty of the 26th December 1817 (7 U. S. Stat. 159), the United States stipulate to give 640 acres of land to each head of any Indian family residing on the lands now ceded, or which may hereafter be surrendered, to the United States, who may wish to become citizens of the United States ; so also, the second article of the treaty with the same nation, of the 10th of March 1819, contains the same stipulation in favor of the heads of families, who may choose to become citizens of the United States ; thereby clearly showing that they were not considered citizens, at the time those stipulations were entered into, or the provision would have been entirely unnecessary, if not absurd. And if not citizens, they must be aliens or foreigners, and such must be the character of each individual belonging to the nation. And it was, therefore, very aptly asked, on the argument, and I think not very easily answered, how a nation composed of aliens or foreigners can be other than a foreign nation.

*67] The question touching the citizenship of an Oneida Indian came under the consideration of the supreme court of New *York in the case of Jackson v. Goodell, 20 Johns. 198. The lessor of the plaintiff was the son of an Oneida Indian, who had received a patent for the lands in question, as an officer in the revolutionary war; and although the supreme court, under the circumstances of the case, decided he was a citizen, yet Chief Justice Spencer observed, wo do not mean to say, that the condition of the Indian tribes (alluding to the Six Nations), at former and remote periods, has been that of subjects or citizens of the state ; their condition has been gradually changing, until they have lost every attribute of sovereignty, and become entirely dependent upon, and subject to, our government. But the cause being carried up to the court of errors, Chancellor Kent, in a very elaborate and able opinion on that question, came to a. different conclusion as-to the citizenship of the Indian, even under the strong circumstances of that case.

“ The Oneidas,” he observed, and “ the tribes composing the Six Nations of Indians, were originally free and independent nations, and it is for the counsel who contend that they have now ceased to be a distinct people, and become completely incorporated with us, to point out the time when that event took place. In my view, they have never been regarded as citizens, or members of our body politic. They have always been, and still are, considered by our laws, as dependent tribes, governed by their own usages and chiefs ; but place'd under our protection, and subject to our coercion so far as the public safety required it, and no further. The whites have been gradually pressing upon them, as they kept receding from the approaches of civilization. We have purchased the greater part of their lands, destroyed their hunting-grounds, subdued the wilderness around them,, overwhelmed them with our population, and gradually abridged their native independence. Still, they are permitted to exist as distinct nations, and we continue to treat with their sachems in a national capacity, and as being the lawful representatives of their tribes. Through the whole eo.urse of our colonial history, these Indians were considered dependent allies. The colonial authorities uniformly negotiated with them, and made and observed treaties *45"68 with them, as sovereign communities exercising the right of free deliberation and action ; but, in consideration of protection, owing *a qualified subjection, in a national capacity, to the British crown. No argument can be drawn against the sovereignty of these Indian nations, from the fact of their having put themselves and their lands under the protection of the British crown; such a fact is of frequent occurrence between independent nations. One community may be bound to another by a very unequal alliance, and still be a sovereign state. Yattel, lib. 1, c. 16, § 194. The Indians, though born within our territorial limits, are considered as born under the dominion of their own tribes. There is nothing in the proceedings of the United States, during the revolutionary war, which went to impair, and much less to extinguish, the national character of the Six Nations, and consolidate them with our own people. Every public document speaks a different language, and admits their distinct existence and competence as nations ; but placed in the same state of dependence, and calling for the same protection, which existed before the war. In the treaties made with them, we have the forms and requisites peculiar to the intercourse between friendly and independent states ; and they are conformable to the received institutes of the law of nations. What more demonstrable proof can we require, of existing and acknowledged sovereignty?”

If this be a just view of the Oneida Indians, the rules and principles here applied to that nation may, with much greater force, be applied to the character, state and condition of the Cherokee nation of Indians ; and we may safely conclude, that they are not citizens, and must, of course, be aliens : and if aliens in their individual capacities, it will be difficult to escape the conclusion, that, as a community, they constitute a foreign nation or state, and thereby become a competent party to maintain an action in this court, according to the express terms of the constitution.

And why should this court scruple to consider this nation a competent party to appear here ? Other departments of the government, whose right it is to decide what powers shall be recognised as sovereign and independent nations, have treated this nation as such. They have considered it competent, in its political and national capacity, to enter into contracts of the most solemn character ; and if these contracts contain matter proper for judicial inquiry, "why should we refuse to entertain jurisdiction of the case ? Such jurisdiction is expressly given to this court, in cases L arising under treaties. If the executive department does not think proper to enter into treaties or contracts with the Indian nations, no case with them can arise calling for judicial cognisance. But when such treaties are found, containing stipulations proper for judicial cognisance, I am unable to discover any reasons satisfying my mind that this court has not jurisdiction of the case.

The next inquiry is, whether such a case is made out in the bill, as to warrant this court in granting any relief ? I have endeavored to show, that the Cherokee nation is a foreign state ; and as such, a competent party to maintain an original suit in this court against one of the United States. The injuries complained of are violations committed and threatened upon the property of the complainants, secured to them by the laws and treaties of the United States. Under the constitution, the judicial power of the United States extends expressly to all cases in law and equity, arising under *46the laws of the United States, and treaties made or which shall be made, under the authority of the same.

In the ease of Osborn v. United States Bank, 9 Wheat. 819, the court say, that this' clause in the constitution enables the judicial department to receive jurisdiction to the full extent of the constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form presented by law. It then becomes a case, and the constitution authorizes the application of the. judicial power. The question j>resented in the present case is, under the ordinary form of judicial proceedings, to obtain an injunction to prevent or stay a violation of the rights of property claimed and held by the complainants, under the treaties and laws of the United States ; which, it is alleged, have been violated by the state of Georgia. Both the form and the subject-matter of the complaint, therefore, fall properly under judicial cognisance.

What the rights of property in the Cherokee nation are, "*may be discovered from the several treaties which have been made between the United States and that nation, between the years 1785 and 1819. It will be unnecessary to notice many of them. They all recognise, in the most unqualified manner, a right of property in this nation, to the occupancy, at least, of the lands in question. It is immaterial, whether this interest is a mere right of occupancy, or an absolute right of the soil. The complaint is for a violation, or threatened violation, of the possessory right. And this is a right, in the enjoyment of which they are entitled to protection, according to the doctrine of this court in the cases of Fletcher v. Peck, 6 Cranch 87, and Johnson v. McIntosh, 8 Wheat. 592. By the fourth article of the treaty of Hopewell, as early as the year 1785 (7 U. S. Stat. 18), the boundary line between the Cherokees and the citizens of the United States within the limits of the United States is fixed. The fifth article provides for the removal and punishment of citizens of the United States, or other persons, not being Indians, who shall attempt to settle on the lauds so allotted to the Indians ; thereby not only surrendering the exclusive possession of these lands to this nation, but providing for the protection and enjoyment of such possession. And it may be remarked, in corroboration of what has been said in a former part of this opinion, that there is here drawn a marked line of distinction between the Indians and citizens of the United States ; entirely excluding the former from the character of citizens.

Again, by the treaty of Holston, in 1791 (7 U. S. Stat. 39), the United States purchase a part of the territory of this nation, and a new boundary line is designated, and provision made for having it ascertained and marked. The mere act of purchasing and paying a consideration for these lands, is a recognition of the Indian right. In addition to which, the United States, by the seventh article, solemnly guaranty to the Cherokee nation, all their lands not ceded by that treaty. And by the eighth article, it is declared,, that any citizens of the United States, who shall settle upon any of the Cherokee lands, shall forfeit the protection of the United States ; and the ^. .. Cherokees may punish them or not as they shall please. *This treaty J was made soon after the adoption óf the present constitution. And in the last article, it is declared, that it shall take effect, and be obligatory *47upon the contracting parties, as soon as the same shall ha rc been ratified by the president of the United States, with the advice and consent of the senate ; thereby showing the early opinion of the government of the charac-' ter of the Cherokee nation. The contract is made by way of treaty, and to be ratified in the same manner as all other treaties ma.de with sovereign and independent nations ; and which has been the mode of negotiating in all subsequent Indian treaties. And this course was adopted by President Washington, upon great consideration, by and with the previous advice and concurrence of the senate. In his message sent to the senate on that occasion, he states, that the white people had intruded on the Indian lands, as bounded by the treaty of Hopewell, and declares his determination to execute the power intrusted to him by the constitution to carry that into faithful execution ; unless a new boundary should be arranged with the Cherokees, embracing the intrusive settlements, and compensating the Cherokees therefor. And he puts to the senate this question : shall the United States stipulate solemnly to guaranty the new boundary which shall be arranged ? Upon which, the senate resolve, that in ease a new, or other boundary than that stipulated by the treaty of Hopewell shall be concluded with the Cherokee Indians, the senate do advise and consent solemnly to guaranty the same. (1 Executive Journal, 60.) In consequence of which, the treaty of Holston was entered into, containing the guaranty.

Further cessions of land have been made at different times, by the Cherokee nation to the United States, for a consideration paid therefor; and, as the treaties declare, in acknowledgment for the protection of the United States (see treaty of 1798, 7 U. S. Stat. 62), the United States always recognising, in the fullest manner, the Indian right of possession: and in the treaty of the 8th of July, 1817, art, 5 (Ibid. 156), all former treaties are declared to be in full force; and the sanction of the United States is given to the proposition of a portion of the nation, to begin the establishment of fixed laws and a regular government; thereby recognising in the nation a political existence, capable of forming an*independent govern- pp ment separate and distinct from, and in no manner whatever under the *- jurisdiction of, the state of Georgia ; and no objection is known to have been made by that state. And again, in 1819 (7 U. S. Stat. 195), another treaty is made, sanctioning and carrying into effect the measures contemplated by the treaty of 1817; beginning with a recital that the greater part of the Cherokees have expressed an earnest desire to remain on this side of the Mississippi, and being desirous, in order to commence those measures which they deem necessary to the civilization and preservation of their nation, that the treaty between the United States and them, of the 8th of July 1817, might, without further delay, be finally adjusted, have offered to make a further cession of land, &c. This cession is accepted, and various stipulations entered into, with a view to their civilization, and the establishment of a regular government, which has since been accomplished. And by the fifth article, it is stipulated, that all white people who have intruded, or who shall thereafter intrude, on the lands reserved for the Cherokees, shall be removed by the United States, and proceeded against according to the provisions of the act of 1802, entitled “an act to-regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers. ” (2 U. S. Stat. 139.) By this act, the boundary *48lines, established by treaty with the various Indian tribes, are required to be ascertained and marked ; and among others, that with the Cherokee nation, according to the treaty of the 2d of October 1798.

It may be necessary here briefly to notice some of the provisions of this act of 1802, so far as it goes to protect the rights of property in the Indians ; for the purpose of seeing whether there has been any violation of those rights by the state of Georgia, which falls properly under j udicial cognisance. By this act, it is made an offence, punishable by fine and imprisonment, for any citizen, or other person resident in the United States, or either of the territorial districts, to cross over or go within the boundary line, to hunt or destroy the game, or drive stock to range or feed on the Indian lands, or to go into any country allotted to the Indians, without a passport, or to commit therein any robbery, larceny, trespass, or other crime, against the person or property of any friendly *Indian, which would be punishable, J if committed within the jurisdiction of any state, against a citizen of the United States ; thereby necessarily implying that the Indian territory secured by treaty was not within the jurisdiction of any state. The act further provides, that when property is taken or destroyed, the offender shall forfeit and pay twice the value of the property so taken or destroyed. And by the fifth section, it is declared, that if any citizen of the United States, or other pex-son, shall make a settlement on any lands belonging, ox-secured or guarantied, by treaty with the United States, to any Indian tribe; or shall survey or attempt to survey, sxxch lands, or designate any of the boundax-ies, by marking trees or otherwise ; such offender shall forfeit a sum not exceeding $1000 and suffer imprisonment not exceeding twelve months. This act contains various other provisions for the purpose of protecting the Indians in the free and uninterrupted enjoyment of their lands; and authority is given (§ 16) to employ the military force of the United States to apprehend all persons who shall be found in the Indian country, in violation of any of the px-ovisions of the act; and deliver them up to the civil axxthoi-ity, to be proceeded against in due coux-se of law.

It may not be improper here to notice some diversity of opinion that has been entertained with respect to the construction of the 19th section of this act, which declares, that nothing therein contained shall be construed to prevent any tx-ade or intercoux-se with the Indians, living on lands sux-rounded by settlements of citizens of the United States, and being within the ox-dinary jurisdiction of any of the individual states. It is understood, that the state of Georgia contends, that the Cherokee nation come within this section, and ax-e subject to the jurisdiction of that state. Such a construction makes the act inconsisteni with itself, and directly x-epugnant to the various treaties entered into between the United States and the Cherokee Indians. The act recognises and adopts the boundary line as settled by treaty. And by these treaties, which ai-e in full force, the United States solemnly guaranty to the Cherokee nation all their lands, not ceded to the United States; and these lands lie within the chartered limits of Geox-gia: and this was a ^ subsisting guarantee, under the ^treaty of 1791, when the act of -I 1802 was passed. It would require the most unequivocal language to authorize a construction so directly repxxgnant to these treaties. But this section admits of a plain and obvious interpretation, consistent with other parts of the act, and in harmony with these tx-eaties. The reference *49undoubtedly is, to that class of Indians which has already been referred to, consisting of the mere remnants of tribes, which have become almost extinct, and who have, in a great measure, lost their original character, and abandoned their usages and customs, and become subject to the laws of the state, although, in many parts of the country, living together, and surrounded by the whites. They cannot be said to have any distinct government of their own, and are within the ordinary jurisdiction and government of the state where they are located.

But such was not the condition and character of the Cherokee nation, in any respect whatever, in the year 1802, nor at any time since. It was a numerous and distinct nation, living under the government of their own laws, usages and customs, and in no sense under the ordinary jurisdiction of the state of Georgia ; but under the protection of the United States, with a solemn guarantee- by treaty of the exclusive right to the possession of their lands. This guarantee is to the Cherokees in their national capacity. Their land is held in common, and every invasion of their possessory right is an injury done to the nation, and not to any individual. No private or individual suit could be sustained : the injury done being to the nation, the remedy sought must be in the name of the nation. All the rights secured to these Indians, under any treaties made with them, remain unimpaired. These treaties are acknowledged by the United States to be in full force, by the proviso to the 7th section of the act of the 28th of May 1830, which declares, that nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any Indian tribes.

That the Cherokee nation of Indians have, by virtue of these treaties, an exclusive 'right of occupancy of the lands in question, and that the United States are bound, under their guarantee, to protect the nation in the enjoyment of such ^occupancy, cannot, in my judgment, admit of a doubt; and that some of the laws of Georgia set out in the bill are in violation [*75 of, and in conflict with, those treaties, and the act of 1802, is, to my mind, equally clear. But a majority of the court having refused the injunction, so that no relief whatever can be granted, it would be a fruitless inquiry for me to go at large into an examination of the extent to which relief might be granted by this court, according to my own view of the case. I, certainly, as before observed, do not claim, as belonging to the judiciary, the exercise of political power ; that belongs to another branch of the government. The protection and enforcement of many rights, secured by treaties, most certainly do not belong to the judiciary. It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon the constitutionality of a state law. Such law must be brought into actual or threatened operation, upon rights properly falling under judicial cognisance, or a remedy is not to be had here.

The laws of Georgia, set out in the bill, if carried fully into operation, go the length of abrogating all the laws of the Cherokees, abolishing their government, and entirely subverting their national character. Although the whole of these laws may be in violation of the treaties made with this nation, it is probable, this court cannot grant relief to the full extent of the *50complaint. Some of them, however, are so directly at variance with these treaties and the laws of the United States, touching the rights of property secured to them, that I can perceive no objection to the application of judicial relief. The state of Georgia certainly could not have intended these laws as declarations of hostility, or wish their execution of them to be viewed, in any manner whatever, as acts of war ; but merely as an assertion of what is claimed as a legal right : and in this light ought they to be considered by this court.

The act of the 2d of December 1830, is entitled “ an act to authorize the governor to take possession of the gold and silver and other mines lying and being in that section of the chartered limits of Georgia, commonly called _ the Cherokee ^country, and those upon all other unappropriated lands ‘ of the state, and for punishing persons who may be found trespassing on the mines.” The preamble to this act asserts the title to these mines to belong to the state of Georgia ; and by its provisions, $20,000 are appropriated, and placed at the disposal of the governor, to enable him to take possession of those mines ; and it is made a crime, punishable by imprisonment in the penitentiary of Georgia, at hard labor, for the Cherokee Indians to work these mines. And the bill alleges, that under the laws of the state in relation to the mines, the governor has stationed at the mines an armed force, who are employed in restraining the complainants in their rights and liberties in regard to their own mines, and in enforcing the laws of Georgia upon them. These can be considered in no other light than as acts of trespass ; and may be treated as acts of the state, and not of the individuals employed as the agents. Whoever authorizes or commands an act to be done, may be considered a principal, and held responsible, if he can be made a party to a suit; as the state of Georgia may undoubtedly be. It is not perceived, on what ground, the state can claim a right to the possession and use of these mines. The right of occupancy is secured to the Cherokees by treaty, and the state has not even a reversionary interest in the soil. It is true, that by the compact with Georgia of 1802, the United States have stipulated to extinguish, for the use of the state, the Indian title to the lands within her remaining limits, “ as soon as it can be done, peaceably, and upon reasonable terms.” But until this is done, the state can have no claim to the lands.

The very compact is a recognition by the state of a subsisting Indian right; and which may never be extinguished. The United States have not stipulated to extinguish it, until it can be done “ peaceably, and upon reasonable terms ;” and whatever complaints the state of Georgia may have against the United States for the non-fulfilment of this compact, it cannot affect the right of the Cherokees.. They have not stipulated to part with that right; and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of the territory.

Again, by the act of the 21st December 1830, surveyors *are authorized to be appointed to enter upon the Cherokee territory, and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on,_ with the lots on which such improvements may stand, and even excepting from such reservation, improvements recently made near the *51gold mines. This is not only repugnant to the treaties with the Cherokees, but directly in violation of the act of congress of 1802 ; the fifth section of which makes it an offence, punishable with fine and imprisonment, to survey or attempt to survey or designate any of the boundaries, by marking trees or otherwise, of any land belonging to or secured by treaty to any Indian tribe ; in the face of which, the law of Georgia authorizes the entry upon, taking possession of, and surveying, and distributing by lottery, these lands guarantied by treaty to the Cherokee nation ; and even gives authority to the'governor to call out the military force, to protect the surveyors in the discharge of the duty assigned them.

These instances are sufiicient to show a direct and palpable infringment of the rights of property secured to the complainants by treaty, and in violation of the act of congress of 1802. These treaties, and this law, are declared by the constitution to be the supreme law of the land ; it follows, as matter of course, that the laws of Georgia, so far as they are repugnant to them, must be void and inoperative. And it remains only very briefly to inquire, whether the execution of them can bo restrained by injunction according to the doctrine and practice of courts of equity.

According to the view which I have already taken of the case, I must consider the question of right as settled in favor of the complainants. This right rests upon the laws of the United States, and treaties made with the Cherokee nation. The construction of these laws and treaties are pure questions of law, and for the decision of the court. There are no grounds therefore, upon which it can be necessary to send the cause for a trial at law of the right, before awarding an injunction ; and the simple question is whether such a case is made out by the bill, .as to authorize the granting an injunction? *This. is a prohibitory writ, to restrain a party from ^ doing a wrong or injury to the rights of another. It is a beneficial 1 process, for the protection of rights ; and is favorably viewed by courts of chancery, as its object is to prevent rather than redress injuries ; and has latterly been more liberally awarded than formerly. 7 Yes. 307. The bill contains charges of numerous trespasses, by entering upon the lands of the complainants, and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses, when there is a clear and adequate remedy at law, yet it will be done, when the case is special and peculiar, and when no adequate remedy can be had at law and particularly, when the injury threatens irreparable ruin. 6 Yes. 147 ; Eden 207. Every man is entitled to be protected in the possession and enjoyment of his property ; and the ordinary remedy by action of trespass may generally be sufiicient to afford such protection. But where, from the peculiar nature and circumstances of the case, this is not an adequate protection, it is a fit case to interpose the preventive process of injunction. This is the principle running through all the cases on this subject, and is founded upon the most wise and just considerations ; and this is peculiarly such a case. The complaint is not of a mere private trespass, admitting of compensation in damages ; but of injuries which go to the total destruction of the whole right of the complainants ; the mischief threatened is great and irreparable. 7 Johns. Ch. 330. It-is one of the most beneficial *52powers of a court of equity to interpose and prevent an injury, before any has actually been suffered ; and this is done by a bill, which is sometimes called a bill quia timet. Mitford 120.

The doctrine of this court in the case of Osborn v. United States Bank, 9 Wheat.. 738, fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the state of Ohio, to restrain him from executing a law of that state, which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. The only *question of doubt entertained by the court in that case was, as to issuing an injunction against an officer of the state, to restrain him from doing an official act enjoined by statute — the state not being made a party. But even this was not deemed sufficient to deny the injunction ; the court considered, that the Ohio law was made for the avowed purpose of expelling the bank from the state, and depriving it of its chartered privileges, and they say, if the state could have been made a party defendant, it would scarcely be denied, that it would be a strong case for an injunction ; that the application was not to interpose the writ of injunction, to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the state of Ohio. In that case, the state could not be made a party according to the 11th amendment of the constitution ; the complainants being mere individuals, and not a sovereign state. But according to my view of the present case, the state of Georgia is properly made a party defendant; the complainants being a foreign state. The laws of the state of Georgia in this case go as fully to the total destruction of the complainants’ rights, as did the law of Ohio to the destruction of the rights of the bank in that state ; and an injunction is as fit and proper in this case to prevent the injury, as it was in that.

It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary, to give full effect and operation to the injunction ; and it is immaterial, where the subject-matter of the suit, which is only affected consequentially, is situated. This principle is fully recognised by this court, in the case of Massie v. Watts, 6 Cranch 157 ; where this general rule is laid down, that in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable, wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. And reference is made to several cases in the English chancery recognising the same principle. In the case of Penn v. Lord Baltimore, 1 Ves. 444, a specific performance of a *sol “’contract respecting lands lying in North America was decreed ; the -1 chancellor saying, the strict primary decree of a court of equity is in personam, and may be enforced in all cases when the person is within its jurisdiction.

Upon the whole, I am of opinion : 1. That the Cherokees compose a foreign state, within the sense and meaning of the constitution, and constitute a competent party to maintain a suit against the state of Georgia. 2, That the bill presents a case for judicial consideration, arising under the laws of the United States, and treaties made under their authority with the *53Cherokee nation, and which laws and treaties have been, and are threatened to be still further violated by the laws of the state of Georgia referred to in this opinion. 3. That an injunction is a fit and proper writ to he issued, to prevent the further execution of such laws, and ought, therefore, to he awarded. And I am authorized by my brother Story to say, that he concurs with me in this opinion.

Motion denied.

*536Mr Chief Justice Marshall

delivered the opinion of the Court.

This cause, in every point of view in which it can be placed, is of the deepest interest.

The defendant is a state, a member of the union, which has exercised the powers of government over a people who deny its jurisdiction, and are under the protection of the United States.

The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four' years in the penitentiary of Georgia; under colour of an act which he alleges to be repugnant to the constitution, laws, and treaties of the United States.

The legislative power of a state, the controlling power of the constitution and laws of the United States, the rights, if they have any; the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject now to be considered.

It behoves this court, in every case, more especially in this, to examine into its jurisdiction with scrutinizing eyes; before it proceeds to the exercise of a power which is controverted.

The first step in the performance of this duty is the inquiry whether the record is properly before the court.

It is certified by the clerk of the court, which pronounced the judgment of condemnation under which the plaintiff in error is imprisoned; and is also authenticated by the seal of the court. . It is returned with, and annexed to, a writ of error issued in regular form, the citation being signed by one of the associate justices of the supreme court, and served on thegovr ernor and attorney-general of the state, more than thirty days before the commencement of the term to which the writ of error was returnable.

The judicial act (sec. 22, 25, 2 Laws U. S. 64, 65), so far as it prescribes the mode of proceeding, appears to have been literally pursued.

In February 1797, a rule (6 Wheat Rules) was made on this subject, in the following words: “It is ordered by the court, that the clerk of’the court to which any writ of error shall be directed, may make return of the same by transmitting a true *537copy of the record, and of all proceedings in the same, under his hand and the seal of the court.”

This.has been done. But the signature of the judge has not been added to that of the clerk. . The law does not require it. The rule doés not require it.

In the case of Martin v. Hunter’s Lessee, 1 Wheat. 304, 361, an exception was taken to the return of the refusal of the state court to enter a prior judgment of reversal by this court; because it was .not made by the judge of the state court to which the' writ was directed: but the exception was overruled, and . the return was held sufficient. In Buel v. Van Ness, 8 Wheat. 312, also a writ of error to a state court, the record was authenticated in the same manner. No exception was taken to it. These were civil cases. But it has been truly said at the bar, that, in regard to this process, the law makes no distinction between a criminal and civil case. The same return is required in both. If the sanction of the court cpuld be necessary for the establishment of this position, it has been, silently given.

M’Culloch v. The State of Maryland, 4 Wheat. 316, was a qui tam action, brought to recover a penalty, and the record was authenticated by the seal of the court and the signature of the clerk, without that of a judge; Brown et al. v. The State of Maryland, was an indictment for a fine and forfeiture. The record in this case, too, was authenticated by the seal of the court and the certificate of the clerk. The practice is both ways.

The record, then, according to the judiciary act, and the rule and. the practice of the court, is regularly before us. The more important inquiry is, does it exhibit a case cognizable by this tribunal ?

The indictment charges the plaintiff in error, and others, being white persons, with the offence of “ residing within the limits of the Cherokee nation without a license,” and “without having takén the oath to support and defend the' constitution and laws of the state of Georgia.”

The defendant in the state court appeared in proper person, and filed the following plea:

“ And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to take fur*538ther cognizance of the action and. prosecution aforesaid, because, he says, that, on the 15th day of July in the year 1831, he .was, and still is, a resident in the Cherokee nation; and that the said supposed crime or crimes, and each of them, were committed, if'committed at all, at the town of New Echota, in the said Cherokee nation, out of the jurisdiction of this court, and not'in the county Gwinnett, or elsewhere, within the jurisdiction of this'court: and this defendant saith, that he is a citizen of the state of Vermont, one of the United States of America, atid that he entered the'aforesaid. Cherokee nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United. States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred scriptures into their language, with the permission and approval .of the said Cherokee nation, and in accordance with the humane policy of the government of the United States for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged, in the aforesaid indictment: and this defendant further saith, that this prosecution the state of Georgia ought not to haye or maintain, because, he saith, that several treaties have, from time tó time, been entered into between the United States and the Cherokee nation of Indians,- to wit, at Hopewell, on the 28th day of November 1785; at Holston, on the 2d day of July 1791; at Philadelphia, on the 26th day of June 1794; at Tellico, on the 2d day of October 1798; at Tellico, On the 24th day of October 1804; at Tellico, on the 25th day of October 1805; at Tellico, dn the 27th day of October 1805'; at Washington city, on the 7th day of January 1805; at Washington city, on the 22d day of. March 1816; at the Chickasaw Council House, on the 14th day of September 1816; at the Cherokee Agency, on the 8th day of July 1817; and at Washington city, on the 27th day of February 1819: all which trealiés have been duly ratified by the senate of the United States of America; and, by which treaties, the United Stales of .America'.asknowlédge the 3aid Cherokee nation to be a sovereign nation, authorised io govern themselves, and all persons- who have- settled within their territory, free from any right of legislative interference by the several states composing *539the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole .of the territory -now occcupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied to them; all of which treaties are existing treaties at this day, and in full force. By these treaties,and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several states composing the union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the governor of -a state, or from some one duly authorised thereto, by the president of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid,, held by them, under the guarantee of the United States: that, for those acts, the defendant is. not amenable to the laws of Georgia, nor to the jurisdiction-of the courts of the said state; and that the laws of the state of Georgia, which profess to add the said territory to the several adjacent counties of the said state, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the act on which this indictment against this defendant is grounded, to wit, {an act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority frond the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of -Georgia occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of. the state within the. aforesaid'territor.y/ are repugnant to the aforesaid treaties; which, according to the. constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect; that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the vaiious. contracts formed by and between the aforesaid Cherokee nation and the said United States of America, *540as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with; «and attempt to regulate and control the intercourse with the said Cherokee nation,, which, by the said constitution, belongs exclusively to the congress .of the United States; and because the said laws are repugnant to the st'atute'of the United States, passed on the A— day of- March 1802, entitled ‘ an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on.the frontiers:’ and that, therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further,to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: and, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment. ”

This plea was overruled by the court.. And the prisoner, being arraigned, plead not guilty. The jury found a verdict against him, and the court sentenced him to hard labour, in the penitentiary, for .the term of four years.

By overruling this plea, the court decided that the matter it contained was not a bar to the action. The plea, therefore, must be examined, for the purpose of determining whether it makes a case' which brings.the party within the provisions of the twenty-fifth section of the “act to establish the judicial courts of the United States.”

The plea avers, that the residence, charged in the indictment, was under the authority of the president of the United States, and with the permission and approval of the Cherokee nation. That the treaties, subsisting between the United States and the Cherokees, acknowledge their right as a sovereign nation to govern, themselves and all persons who have settled within their-territory, free from any right of legislative interference by the several states composing the United States of America. • That the act under "which the prosecution was instituted is repugnant to the said treaties, and is, therefore, unconstitutional and void. That the said act is, also, unconstitutional; because it interferes-with, and'attempts to regulate and control, the intercourse with the Cherokee nation, which, belongs, exclusively, to congress;- and, because, also, it is re-, pugpant to the statute of the United States, entitled “ an act to *541regulate trade arid intercourse with the Indian tribes, and to preserve peace on the frontiers.”

Let the averments of this plea be compared with the twenty-fifth section of the judicial act.

That section enumerates the cases in which the final judgment or decree of a state court may be revised in the supreme court of tixe United States. These'are, ei where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; dr where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party under such clause of the .said constitution, treaty, statute or commission.”

The indictment and plea in this case draw in question, we think, the validity of the treaties ma'de by the-United States with the Cherokee Indians; if not so, their construction is certainly drawn. in. question; and the decision has been, if not against their validity,. “ against the right, privilege or exemption, specially set up and claimed under them.” They also draw into question the validity of a statute of the state of Georgia, “ on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision is in favour of its validity.”

It is, then, we think, too clear for controversy, that the act of congress, by which this court is constituted, has given it the power, and of course imposed on it the, duty, of exercising jurisdiction in this case. This duty, however unpleasant, cannot be avoided. Those who fill the judicial department have no discretion in selecting the subjects to be- brought before them. We must examine the defence set up in this plea. We must inquire and decide whether the act of the legislature of Georgia, under which ihe plaintiff in error has been prosecuted and condemned, be consistent with, or repugnant to, the constitution, laws and treaties of the -United States.

*542It has. been said at the bar, that the acts of the legislature of ''Georgia seize On the whole Cherokee country, parcel it out .among the neighbouring counties of the state,extend her code over the whole country, abolish its institutions and its laws, ánd annihilate its- political existence.

If this.be the general effect of the system, let us inquire into the effect of the particular statute and section on which the indictment is founded.

It enacts that “ all white persons, residing within the limits of the Cherokee nation on the 1st day of March next, or at any time thereafter, without a license or permit from his excellency the governor, or from such agent as his excellency the governpr shall authorise to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and, upon conviction thereof, shall be punished by confinement to the. penitentiary, at hard labour, for a term not less than four years.”

The eleventh section authorises the governor, should he deem it necessary for the protection of the mines,, or the enforcement of the laws in force within the Chérokee nation, to raise and organise a guard,” &c.

The thirteenth section enacts, “ that the said guard or any member of them,-shall be, and they are hereby authorised and empowered to arrest any. person legally charged with or detected in a violation of the laws of this state, and to convey, as soon as practicable, the person so arrested, before a justice of the peace, judge of the superior, or justice of inferior court of this state, to be dealt with according to law.” .

The extra-territorial power of every legislature being limited ,in its action, to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee nation, and of the rights and powers consequent on jurisdiction.

The first step, then, in the inquiry, which the constitution and laws impose on this court, is an examination of the fight-fulness of this, claim.

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, háv'íng ihstitutions of their own, and governing themselves by their *543own laws. It is difficult to comprehend the proposition; that the inhabitants of either quarter of the globe could have rightful original ■ claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country.discovered, which annulled the nre-ekisting rights of its.ancient possessors.

After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a people who had made small progress in agriculture or manufactures, and .whose general employment was-war, hunting, arid fishing.

Did these adventurers, by sailing along the coast; and occasionally landing on it, acquire for the several governments tó whom they belonged, or. by whom they were commissioned, a rightful property in the soil) from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers?

But power, war, conquest, give rights, which, after.possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions.

The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts,'which mightterminate disastrously to all; it was necessary for the nations of Europe to establish somej>.rinciple which all would acknowledge, and which should decide their.respective rights as. between themselves. This principle, suggested by the actual state of things, was, “ that discovery gave title- to the government by whose subjects or by whose authority it was made, against all other European *544governments, which title might be consummated by possession.’’ 8 Wheat. 573.

This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it¿ not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of. man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.

The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all the .claims of Great Britain, both territorial and political; but no attempt, so far. as is known', has been made to enlarge them. So far as they existed merely in theory, or were in their .nature only exclusive of the claims of other Europeap nations, they still retain their original character, and remain dormant. • So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, .and admitted by the other.

Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching th.emselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied b£ numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from *545sea to sea,-did not enter the mind of any msfh. They were well understood to convey the title which, according to the' common law of European sovereigns respecting America, they might rightfully convey, and no more. . This was the exclusive right of purchasing such lands as. the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood.

The power, of making war is conferred by these charters on the colonies, but defensive war alone seems to have been contemplated. In the first- charter to the first and second colonies, they are empowered, “for their several defences, to encounter, expulse, repel, and resist, all persons who shall, without-license,” attempt to inhabit “within the said precincts and limits of the said several colonies, or that shall enterprise or attempt at any time hereafter the least detriment or annoyance of the said several colonies or plantations. ”

The charter to Connecticut concludes- a general power to make defensive war with these terms: “ and upon just causes to' invade and destroy the natives or other enemies -of the said colony.”

The same power, in the same- words, is conferred on the government of Rhode Island.

This power to repel, invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only “on just cause.” The very terms imply the existence of a country to be invaded, and of an enemy who has given just cause of war.

The charter to William Penn contains the following recital: “and because, in so remote a country, near so many barbarous nations, the incursions, as well of the savages themselves, as of other enemies, pirates, and robbers, may probably be feared, therefore we have given,” &c.. The instrument then confers the power of war.

These barbarous nations, whose incursions weré feared, and to repel whose incursions the power to make war was given, .were surely not considered as the subjects of Penn, or occupying his lands during his pleasure. .

The same clause is introduced into the charter to Lord Baltimore.

*546The charter to Georgia professes to be granted for the charitable purpose of enabling poor subjects to gain a comfortable subsistence by cultivating lands in the American provinces, “at present waste and desolate.” It recites: “and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that' of South Carolina, which, in the late war by the neighbouring savages, was laid waste by fire and sword', -and great numbers of the English inhabitants miserably massacred; and our loving Subjects, who now. inhabit there, by reason of the smallness of their numbers, will, in case of any new war, be exposed to.tbe.like calamities, inasmuch as' their whole southern frontier contiuueth unsettled, and lieth open to the said savages.”

These motives for planting the new colony are incompatible with the lofty ideas of granting the soil, and all its inhabitants from sea to sea'. They demonstrate the truth, that these grants asserted a title against Europeans only, and were considered as blank pápér so far as the rights of the natives were concerned. The power of war is given only for defence, not for conquest.

The .charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity — -objects, to be accomplished by conciliatory conduct and good example; not by extermination.

•' The. actual state of things, and the practice of European nations, on so much.of the American continent as lies between the Mississippi and the Atlantic, .explain, their claims, and the charters they granted. Their pretensions unavoidabty-interfered with each other; though the .discovery of one was admitted by all to exclude the claim of any other, the extent of that discovery was the subject of unceasing contest.. Bloody conflicts arose between them, which gave importance and security to the neighbouring*nations. Fierce and warlike in their character,'théy might be formidable enemies, or. effective friends. Instead of rousing-their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. The English, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well acquainted with the exact meaning of *547words, nor supposing it to be material whether they were called the subjects, or the children of the':r father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their, aotugj independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in.absolute need, and restrained dangerous intruders from entering their country: and this-was probably the sense in which the term was understood.by them.

Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, .farther' than to keep out the agents of foreign powers, who, as traders' or otherwise, might seduce them into foreign alliances. The king purchased their lands when they wére willing to-sell, at a price they were' willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so. far as respected themselves only.

The general views of Great Britain, with regard to the Indians, were detailed by Mr Stuart, superintendent, of Indian affairs, in a speech delivered at Mobile, in presence of several persons of distinction, soon after the peace'of 1763. Towards the conclusionhe says, “lastly, I inform yóuthatit is the king’s order :to all his governors and subjects, to treat Indians with. justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly, all individuals are prohibited from purchasing any of your lands; but, as,you know that, as your white brethren cannot feed you when you visit them unless you give them ground to plant, it is expected that you wiil cede lands to the king for that purpose. But, whenever you shall be pleased to surrender any of your territories to his majesty, it must be done, for the futhre, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settlement permitted to be made upon them. As you may be assured that all treaties. *548with your people'will be faithfully kept, so it is expected that you, also, will be careful strictly to observé them.” ,

The proclamation issued by the king of Great Britain, in 1763, soon after the rátification of the articles of peace, forbids the governors of any of the colonies to grant warrants of survey, or .pass patents upon any lands whatever, which, hot having been ceded to,, or purchased by, us (the king), as aforesaid, aré reserved to the said Indians, or any of them.-

The proclamation proceeds: “and-we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve, under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories lying to the westward of the sources of the rivers which .fall into the sea, from the west and northwest as aforesaid: and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or 'settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained.

“ And we do’ further strictly enjoin-and require all persons whatever, who have, either wilfully or inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased; by us; are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements.”

"A proclamation, issued by Governor Gage,' in 1772, contains the following passage: “ whereas many persons, contrary to the positive orders of, the king, upon this subject, have undertaken to make settlements beyond the boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as. a' barrier between, the whites and the sa:d nations; • particularly on the Ouabache.” The proclamation orders such persons to quit those countries without delay.

Such was - the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition of the charters she had granted: she considered them as nations capable of maintaining the relations of peace and .war; of governing themselves, under her protection; and she *549made treaties with them, the obligation of which she acknowledged.

This was the settled state' of things when the war of. our revolution commenced. The- influence of Our enemy was established;- her resources enabled her to keep up that influence; and the colonists had much cause for the apprehension that the Indian-nations would, as the’allies of ¡Great Britain] add their arms to hers. This, as was to be expected, became an object of great solicitude to congress, Far from advancing a claim to their lands, or asserting any right of dominion over them, congress resolved “ that the securing and preserving the friendship of the Indian nations appears to be- a-subject.of the utmost moment to these colonies.”

The. early journals of congress exhibit the most ánxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, “ to treat with the. Indians.in their respective departments,'in the name and on the behalf -of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking-any part in-the present commotions.”

The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and every thing which .might excite hostility was avoided..

The first treaty was made .with the Delawares, in September 1778.

The language-of equality in which it is drawn, evinces the-temper with which the negotiation was undertaken,, and the opinion which then prevailed in the United States.

“ 1. That all offences or acts of hostilities, by one or either-.of the contracting parties against the other, be mutually forgiven, and buried in -the depth of oblivion,- never more to be. had in. remembrance.

“ 2. That a perpetual peace and friendship shall, from henceforth, take place and subsist between the contracting parties aforesaid, through all succéeding generations:'and if .either of the parties are-.engaged in a just and necessary war, with .any other nation.,or nations, that then each shall assist the other, in due proportion’to their abilities, till their enemies are brought to reasonable terms of accommodation,” &c.

3. The third article stipulates, among other, things, a free *550passage for the American troops through the Delaware nation'- and engages that they shall be furnished with provisions and other necessaries at their value.

“ 4. For the better security of the peace and friendship now entered into by the contracting parties against all 'infractions of the. Same by the citizens of either party, to the prejudice of the other, neither party shall proceed to the infliction of pun-' ishments on the citizens of the other, otherwise than by securing the offender or offenders, by imprisonment, or any other competent means, till a fair and impartial trial can be hád by judges or juries of both parties, as near as can be to the laws, customs and usages of the contracting parties, and natural justice,” &c.

•5. The fifth article regulates the trade between the contracting parties, in a manner entirely equal.

6. The sixth article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time, ascribed to the United Sta .es, by their enemies, and from the imputation of 'which- congress was then peculiarly anxious to free the government. It is in- these words; “Whereas the enemies of the United' States have endeavoured, by every artifice in their power, to possess the .Indians in general with án opinion that it is the design of the states aforesaid to extirpate the Indians, and take possession of their country: to obviate such false suggestion the Unitéd States do engage to guaranty to the aforesaid nation of Delawares, and.their heirs, all their territorial rights, in the fullest and most ample manner, as it hath been bounded by former treaties, as long as.the said Delaware nation sháll abide by, and hold fast the chain of friendship now entered into.”

The parties further agree, -that other tribes, friendly to the interest of the United States, may be invited to form a state, whereof the Delaware nation shall be the heads, and have a representation in congress.'

This treaty, in its language, and in its provisions, is formed, as near as may be, on the model of treaties between the crowned heads ,of Europe.

.The sixth article shows how congress then treated the injurious calumny of cherishing designs' unfriendly to the political amd civil rights of the Indians.-

*551During the war of the revolution, the Cherokees took part with the British. After its termination, -the United States, though desirous of peace, did not feel its necessity so strongly as while the war continued. Their political situation being changed, they might very well think it advisable to assume.a higher tone, and to- impress on the Cherokees the same respect for congress which was before felt for the king of Great Britain. This may account for the language of the treaty of Hopewell. There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable-the .treaty was interpreted to them.

•The-treaty is introduced with the declaration, that “the commissioners plenipotentiary of the United States give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following conditions.”

When the United States gave peace, did they not.also receive it? Were not both'parties desirous.of it? If we-consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as. the Cherokees? We may ask, further: did the Cherokees come to the .seat of the. American government to solicit peace; or, did the American commissioners go to them to Obtain it? The treaty was made at Hopewell, not at New York. The word “ give,” then, has no real importance attached tó it,

The first and second articles stipulate for. the mutual restoration of prisoners, and are of course equal.

The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power.

This stipulation is found in Indian treaties, generally. It was introduced into their treaties with Great Britain; and may probably be found in those with other European powers-. Its origin may be traced to the nature of their connexion with those powers; and its true meaning is discerned in their relative situation.

The general law of European . sovereigns, respecting their claims in America, limited, the intercourse of Indians, in a *552great degree, to the particular potentate whose ultimate right pf domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort* in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions info their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection only what was beneficial to themselves — an engagement to punish aggressions on them. It involved, practically, ho claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as. a dependent ally, claiming the protection óf a powerful friend and neighbour, and receiving the advantages of that protection, without involving a sunsnder of their national character.

This is the true meaning of the stipulation, and is undoubtedly the sense in which it was made. ■ Neither the British government, nor the Cherokees, ever understood it otherwise.

The same stipulation entered, into with the United States, is undoubtedly to be construed in the same manner. They receive the Cherokee nation into their favour and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected. The manner in which this stipulation was understood by the American government, is explained by the language and acts of our first president.

The fourth article draws the boundary between the Indians ahd the citizens of the United States. But, in describing this boundary, the term “ allotted” and the term " hunting ground1’ are used.

Is it reasonable to suppose, that the Indians, who could not write, and most probably could not read, who Certainly were not critical judges of our language, should distinguish the word “allotted” from the words “marked out.” The actual subject of contract was the dividing line between the two nations; *553and their attention may very well be supposed to have been confined to that subject. ■ When, in fact,, they were ceding lands to. the United States, and describing the extent of their cession, it may very well be supposed that they might not understand the term employed, as indicating that, instead of granting, they were receiving lands. If the term would admit of no other signification, which is not conceded, its being misderstood is so apparent, results so necessarily from the whole transaction; that it must, we think, be taken in the sense in which it was most obviously used.

So with respect to the words “ hunting grounds. ” Hunting. was at that time the principal occupation of the Indians, and their land was mere used for that purpose than for any other. It could not,, however, be supposed, that any intention existed! of restricting the full use of the lands they reserved.

To the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting grounds, or whether an occasional village, and an occasional corn field, interrupted, and gave some variety to the scene.

These, terms had been used in their treaties with Great Britain, and had never been misunderstood. They had never been supposed to imply a right in the British government to take their lands, or to interfere with their internal government.

The fifth article withdraws the protection of the United States from any citizen who has settled, or shall settle, on the ■lands allotted to the Indians, for their hunting grounds; and stipulates .that, if he shall not remove within six months the Indians may punish him.

The sixth and seventh articles stipulate for the punishment of the citizens of either country, who may commit offences on or ágainst the citizens of the other. The only inference to be drawn from them is, that the United States considered the Cherokees as a nation.

The ninth article is in these words: “for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing .all their; affairs, as they think proper.”

To construe the expression “managing all their affairs,” *554into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure frofn the construction which has been uniformly put on them. The great subject of the article is the Indian trade. The influence it gave, made it desirable that congress should possess it, . The commissioners brought forward the claim, with the profession that their motive was “the benefit and comfort of the Indians, and the prevention of injuries or oppressions. ” This may be true, as respects the regulation of their' trade, and' as respects the regulation of all affairs connected with their trade, but cannot .be true, as respects the management of all their affairs. The most important of these, aré the cession of their lands, and security against intruders on them. I's it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future eessions, and the terms on which they should be made?, or to compel their submission to the violence of disorderly and licentious intruders ? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and most interesting subject, to have divested themselves of the right of' self-government on subjects not connected with trade. .Such a measure could not be for their benefit and comfort,” or for “the prevention of injuries and oppression.” Such a construction would be inconsistent with the spirit of this and of all subseqúenMreaties; especially of those articles which recognise the right of the Cherokees to declare hostilities, and to make war. It would convert a treaty of peace covertly» into an act, annihilating the political existence of one of the parties.'' Had such a result been intended, it would have been openly avowed. • •

This treaty contains a few terms capable of being used in a sense which could not have been intended at the time, and which is inconsistent with the practical construction which has always been put on them; but its essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the boundaries between them and the United States.

The treaty of Hopewell seems not to hav¿ established a solid-peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of *555Holston was negotiated in July 1791. The existing constitution of the United States had been then adopted, and the government, having more intrinsic capacity to enforce its just claims, was perhaps less mindful of high sounding expressions, denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States óf America, and all the individuals composing the Cherokee nation.

The second article repeats the important acknowledgement, that the Cherokee nation is under the protection of the United' States of America, and of no other sovereign whosoever.

The meaning of this has been already explained. The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into theit country. That power was naturally termed their protector. They had been arranged under the protection of Great Britain: but the extinguishment of the British power in their neighbourhood, and the establishment of that of the United States in its place, led naturally to the declaration, on the part óf the Cherokees, that they were under the protection of the United. States, and of no other power. They assumed the relation with the United States, which had before subsisted with Great Britain.

This relation -was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, ¿nd submitting as subjects to the laws of a master.

The third article contains a perfectly equal stipulation for the surrender of prisoners.

The fourth article declares, that “the boundary between the United States and the Cherokee nation shall be as follows: beginning,” &c.' We hear no more, of “allotments” or of hunting grounds.” A boundary is described, between nation and nation, by mutual consent. The national character óf each; the abjility of each to establish this boundary, is acknowledged by the other. To preclude for ever all disputés, it is agreed *556thatitshall .be plainly marked by commissioners, to be appointed by each party; and, in order to extinguish for ever all claim of the Cherokees to the ceded lands, an additional consideration is to be paid by the United States. For'this additional consideration the Cherokees release all right to the ceded -land, for ever.

By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these cessions is an acknowledgement of the right of the Cherokees to make or withhold them.

By the sixth article, it is agreed, on the part of the Cherokees, that the United States shall have the sole and exclusive, right of regulating-their trade. No claim'is made to the management of all their affairs, This stipulation has already been explained. The observation may be repeated, that the stipulation is itself, an admission of their right to make or refuse it.

By the seventh article the United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded.

The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and the ninth forbids any citizen of the United States to hunt on theif lands, or to enter their country without a passport.

The remaining articles are equal, and contain stipulations which could be made only with a nation admitted to be capa-, ble of governing itself.

This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of.self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.

To the general pledge of protection .have been added several specific pledges, deemed valuable by the Indians. Some of these restrain the citizens of the United • States from encroachments on the Cherokee country, and provide for thh punishment of intruders.

From the commencement of our government, congress has passed acts to regulate trade and intercourse with the InN'c vvhieh treat them as nations, respect théir rights, and m: ..ifest *557a firm purpose to afford that protection which treaties stipulate. All these acts, and' especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.

In 1819, congress passed an act for promoting those humane designs of civilizing.the neighbouring Indians, which had Jong been cherished by the executive. It. enacts, “ that, for the purpose of providing against the further decline and final ex-tinctionof the Indian tribes adjoining to the frontier settlements of the United States, and' for introducing among them th'e habits and arts of civilization, the president of- the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition Of such Indians practicable, and that the means of instruction can be introducéd with their own Consent, to émploy capable persons, of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing and arithmetic; and for performing such other duties as may be enjoined, according to such instructions and rules as the president may give and prescribe for the regulation of .their conduct in the discharge of their duties.”

This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists. Though the Cherokees had already made considerable progress in this improvement, it cannot be doubted that the general words of the act comprehend them. Their advance in the “ habits and arts of civilization,” rather encouraged perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional evidence of a settled purpose to fix the Indians-in their country by giving them security at home.

The treaties and laws of the United States contemplate the. Indian - territory as completely separated from that of the states; and provide that all intercourse with them shall be carried, on exclusively by the government of the uniofl.

*558Is this the rightful exercise of power, or is it usurpation?

While these states were colonies, this power, in its utmost extent, was admitted to reside in the crown. When our revolutionaiy struggle commenced, congress was composed of an assemblage of deputies acting under specific powers granted by the legislatures, or conventions of the several colonies. It was a great popular movement, not perfectly organized; por were the respective powers of those who were entrusted with •the management of affairs accurately defined. The necessities •of.our situation produced a general conviction that those measures which concerned all, must be transacted by a body in. which the representatives of all were assembled, and which could command the confidence of all: congress, therefore, was considered as invested with all the powei ^ of war and p'eace, and congress dissolved our connexion with the mother .county, and declared these United Colonies to be independent states. Without any written definition of powers, they employed diplomatic agents to represent the United States at the several courts of Europe; offered to negotiate treaties with them, and did actually negotiate treaties with France. From the same . necessity, and on the same principles, congress assumed the management of Indian affairs; first in the name of these United Colonies; and, afterwards, in the name of the United States. Early attempts were made at negotiation, and to regulate trade with them. These not proving successful, war was carried on under the direction, and with the forces of the United States, and the efforts to make peace, by treaty, were earnest and incessant. The Confederation found congress in the exercise of the same powers of peace and war," in our relations with Indian nations, as with those of Europe.

Such was the state of things when- the confederation was adopted. That instrument surrendéred the powers of peace and war to congress, and prohibited them to the states, respectively, unless a'staie be actually invaded, “ or shall have received certain advice of a resolution being fonfied by some, nation-of Indians to invade such state, and the danger is so imminent as not .to admit-of delay till the United States in congress assembled can'be consulted.77 This instrument also gave the United States ■in congress assémbled the sole and exclusive right of “ regulating the trade and managing all the affairs with the Indians, not *559members of any of the states: provided, that the legislative power of any state within its own limits be hot infringed or violated. ”

The ambiguous phrases which follow thé grant of power to the United States, were so construed by'the states of North Carolina and Georgia as to annul the power itself. The discontents and confusion resulting from these conflicting claims, produced representations to congress, which were referred to a committee, who matde their report in 1787. The report-does not assent to the construction of ’the two states, but recommends an' accommodation, by liberal cessions of territory, or by an admission, on their part, of the powers claimed by congress. The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles imposed on this power, in the confederation, are discarded.

The Indian nations had always been considered as distinct, independent political communities, retaining their ^original natural rights, as the undisputed possessors of the soil,-from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the-coast of the particular region claimed: and this, was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term “ nation,” so generally applied to them, means “ a people distinct from others.” The constitution, by declaring treaties already made, as well, as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “ treaty” and “ nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning- We *560have applied them to Indians, as we have applied them to .the other nations of the earth. They are applied to all in the same sense.

Georgia, herself, has furnished conclusive evidence that her former opinions on tips subject concurred with those enter-. tained by hter sister states, and by the government of the United States. Various acts of her legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the' universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be-extinguished by the United States, with their consent: that their- territory Was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, Would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her newseriesmf laws, manifesting her abandonment of these opinions, appears to have commenced in December 1828.

In opposition to this original right, possessed by the-undisputed occupants of every country; to this recognition of that right, which is evidenced by our history, in every change through which-we have passed; is placed the charters granted by the monarch of a distant and distinct.region, parcelling out a territory in possession of others whom he could not remove and did not attempt to remove, and the cession made of his claims by the treaty of peace.

The actual state of things at the time, and all history since, explain these charters; and the king of Great Britain, at the treaty of peace; could cede only what belonged to his crown: These newly assexted titles can derive no aid from the articles so often repeated in Indian treaties; extending to them, first,, the protection of Gréat Britain, and afterwards that of the United States. Thesé articles are associated with others, recognizing their title to self government. The very fact of repeated treaties with them recognizes it; and the settled doc*561trine of the law of nations is, that a weaker power does not 'surrender its independence — its right to self government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Exam-, pies of this kind are not wanting in Europe, “ Tributary and feudatory states,” says Vittel,.“ do not thereby cease to be .sovereign and independent states, so long as self government and sovereign and independent authority are left.in the administration, of the state.” At the present day, more than one state may be considered as holding its right of self government under the guarantee and protection of one or more allies.

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and-with the acts of congress. Thé' whole intercourse between the United States and this nation, is, by oúr constitution' and laws, vested in the-government of the United States.

The act of the state of Georgia, under which the plaintiff in .error was prosecuted, is consequently void, and the. judgment a nullity. Can this court, revise, and reverse it?

If the objection to the system of legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete,-so far as respected mere right, would give'this court no power over the subject. But it.goes much further. If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States.

They interfere forcibly with-the relations, established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union.

They are in direct hostility with .treaties, repeated in a. succession of years, which mark out the boundary that separates *562the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself.'

They are in equal hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the nation wi.th its permission, and by authority of the president of the United States, is also a violation of the acts which authorise the chief magistrate to exercise ■this authority.

Will, these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided, and taking it under the protection of the United States. He was seized while performing, under the sanction of the chief magistrate of the union, those duties which the humane policy adopted by congress had recommended. He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court-It cannot be less clear when the judgment affects personal liberty, .and inflicts disgraceful punishment, if punishment could disgrace when inflicted' on innocence. The plaintiff in error is not'less interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country.

This point has been elaborately argued and, after deliberate consideration, decided, in the case of Cohens v. The Commonwealth of Virginia, 6 Wheat. 264.

. It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of Geor-r gia, condemning Samuel A. Worcester to hard labour, in the ■penitentiary of the state of Georgia, for four years, was pronounced by that court ünder colour of a law which is void, as being repugnant to the constitution, treaties, and laws of the *563United States, and ought, therefore, to be reversed and annulled.'

Mr Justice' M’Lean.

As this case involves principles of the highest importance, and may lead to consequenpes which shall have ap enduring influence on the institutions of this country; and as there are some points in the case on which I wish to state, distinctly, my opinion, I embrace the privilege of doing so.

With the decision, just given, I concur.

The plaintiff in error was indicted under a law of Georgia, <£ for residing in that part of the Cherokee nation attached, by the laws of said state, to the county of Gwinnett, without a license or permit from his excellency the governor of the state, or from any agent authorised by his excellency the governor to grant such permit or license, and without having taken the oath to support and defend the constitution and laws of the state of Georgia, and uprightly to demean himself as a citizen thereof.”

On this indictment the defendant was arrested, and, on being arraigned before the superior court for Gwinnett county, he filed, in substance, the following,plea:

He admits that, on the 15th of July 1831, he was, and still continued to be, a resident in the Cherokee nation, and that the crime, if any were committed, was committed at the town of New Echota, in said nation, out of the jurisdiction of the court. That he is a citizen of Vermont, and that he entered the Indian country in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United States, and has not since been required by him to leave it. That he .was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the Cherokee nation, and in accordance with the humane policy of the government of the United States, for the improvement of the Indians.

He then states, as a bar to .the prosecution, certain treaties made between the United States and the Cherokee Indians, by *564which the possession of the territory, they now inhabit was solemnly guarantied to them; and also a certain act of congress, passed in March 1802, entitled “ aa act to regulate trade and intercourse with the Indian tribes.” He also alleges, that this, subject, by the constitution .of the United States, is.exclusively vested in congress;- arid that the law of Georgia, being repugnant to the constitution of the United States, to the treaties referred to, and to the act of congress specified-, is void, and cannot-be enforced against him.-

This plea was overruled by the court, and the defendant pleaded not guilty.

The jury returned a verdict of guilty; and the defendant was sentenced, by the court, to be kept in close custody, by the-sheriff of the county, until he could be transported to the penitentiary of the. state, and the keeper thereof was directed to receive, him into'custody, and keep him at hard labour in the penitentiary, during the term of four years.

Another individual was included in the same indictment, and joined in the plea to the jurisdiction of the court, and was also included in the sentence; but his name is not adverted to, because the principles of the case are fully presented in the above statement.

To reverse this judgment, a writ, of error Was obtained, which, having been returned, with the record of the proceedings, is now before this court.

The first question which it becomes necessary to examine, is, whether the record- has been duly certified, so as to bring the proceedings regularly before this tribunal.

A writ of error was allowed, in this case, by one of the justices of this court, and the requisite security'taken. A citation was also issued, in the form prescribed, to the state of Georgia, a true, copy of which, as appears by the oath of William Patten, was delivered to the governor, on the 24th day of November last; and another true copy was delivered, on the 22d day of the same month, to the attorney-general of the state.

The recofd was returned by the clerk, under the seal of the court, who certifies that it is a full and complete exemplifica.tion of the proceedings and judgment had' in the case; and he’ *565further certifies, that the original bond, and a copy of the writ of error, were duly deposited and filed in the clerk’s office erf said court, qn the 10th day of November last.

Is it necessary, in such a case, that the record should be certified by the'judge who held the court?

In the case of Martin v. Hunter’s Lessee, which was' a writ .of error to the .court of appeals of Virginia, it was objected that the return to the writ of error was defective, because the record was not so certified; but the 'court, in that case, said, «the forms of process, and the modes of proceeding in the exercise of jurisdiction, are, with few exceptions, left -by the legislature to be regulated and changed as this court may, in its discretion, deem, expedient.” By a rule of this court,the return óf a copy of a record of the proper court, annexed to the writ of error, is declared to be a sufficient compliance with the mandate of the writ. The record, in this case, is duly certified by the clerk of the court of appeals, and annexed to the writ of error. The objection, therefore, which has been urged to the sufficiency of the return, cannot prevail.” — 1 Wheat. 304.

In 9 Wheat. 526, in the case of Stewart v. Ingle and others, which was a writ of error to the circuit court for the district of Columbia, a certiorari was issued, upon a suggestion of diminution in the record, which, was'returned by the clerk with another record; whereupon, a motion was made for a new certiorari,:on the ground that the return ought to Iiave been made, by the judge of the court below, and not by the clerk; The writ of certiorari, it is known, like the writ of error, is, directed to the court.

Mr Justice Washington, after consultation with the judges, stated that, according to the rules and practice of the court, a return made by the clerk was-a sufficient return.

To ascertain what has been the general course of practice on this subject, an examination has been made into the manner in which recqrds have been certified from state courts' to this' court; and it appears that, -in the year 1817, six' causes w.ere certified, in obedience to writs óf error, by the clerk, under the seal of the court. In the year 1819, two were¡ so certiffied, one of them being the case of M’Cullough v. The State of Maryland.

*566In the year 1821, three eases werq so certified; and in the year 1823, there was one. In 1827, there were five, and in the ensuing year, seven.

In the year 1830, there were eight causes so certified, in five of which,, a state was a party on the record. There were three causes thus certified in the year 1831, and five in the present year.

Uuring the above periods, there were only fifteen causes from state courts, where the records were certified by the court or the presiding judge, and one of these was the case of Cohens v. The State of Virginia.

This court adopted the following rule on this subject in 1797:

“ It is ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make, the return of the same, by transmitting a true copy of the record, and of all proceedings in t ie cause, under his hand, and the seal, of the court.”

The [lower of the court to adopt this rule, cannot be questioned: and it seems to have regulated the practice ever since its adoption. In some cases, the certificate of the court, or the presiding judge, has been affixed to the record; but this court has decided, where the question has been raised, that such certificate is unnecessary.

So far as the authentication of the record is concerned, it is impossible to make a distinction between á civil and a criminal case. What may be sufficient to authenticate the proceedings in a civil case, must be equally so in a. criminal one. The verity of the record is of as much importance in the one case as the other..

.This is a question of practice; and it would seem that, if any one point in the practice of this court can be considered as settled, this one must be so considered.

In the progress of the investigation, the next inquiry which seems naturally to arise, is, whether this is a case in which a writ of error may be issued.

By the twenty-fifth section of the judiciary act. of 1789, it is provided, “that a final judgment or decree in any suit in the. highest court, of law or equity of a state, in which a decision in thé suit could be had, where is drawn in question the valid*567ity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or-where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the. constitution, treaties, or laws; of the United States, and the decision is in favour of such their validity; or- where is drawn in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed, in the supreme court of the United States.”

Doubts have been expressed whether a writ of error to a state court is not limited to civil cases. These doubts could not have arisen from reading the above section. Is not a cri. minal case, as much a suit as a civil case. What is a suit, but a prosecution; and can any one suppose that it was the intention of congress, in using the word suit, to make a distinction between a civil prosecution and a criminal one.

It is more important that jurisdiction should be given to this court in criminal than in civil cases, under the twenty-fifth section of the judiciary act. Would it nót be inconsistent,, both with the spirit and letter of this law, to revise the judgment of a state court, in a matter of controversy respecting, damages, where the decision is against a right asserted under the constitution or a law of the United States; but to deny the jurisdiction, in a case where the property, the character, the liberty and.life of a citizen may be destroyed, though protected by the solemn guarantees of the constitution?

But this is not an open question; it has long since been settled by the solemn adjudications of this court. The above' cónstruction, therefore, is sustained both on principle and. authority; The. provisions of the section apply as well to criminal as to civil cases, where the constitution, treaties, or laws of-the United States come in conflict with the laws of a state; and the latter is sustained by the decision of the court.

It has been said, that this court ean have no power to arrest *568the proceedings of a state tribunal in the enforcement of the criminal laws of the state. This is undoubtedly, true, so long as a state court, in the execution of its penal laws, shall not infringe upon the constiiution of the United States, or some treaty or law of the union.

Suppose a state should make it penal' for an officer of the United States to discharge his duties within it's jurisdiction! as, for instance, a land officer,- an officer of the customs, or a postmaster, and punish the offender by confinement in the penitentiary: could not the supreme court "of the United States .interpose their power, and arrest or reverse the state proceedings ? Cases of this kind are so' palpable, that they need only to be stated to gain the assent of every judicious mind. And would not this be an interference with the administration of the criminal laws of a státe ?

This court have repeatedly decided, that they havé no appellate jurisdiction in criminal cases from the circuit courts of the United States: writs of error and appeals are given, from those courts only in civil cases. But, even in those -courts, where the judges áre divided on any point, in a criminal case, the .point may be brought before thitf court, under a general provision in cases o.f division of opinion.

Jurisdiction is taken in the cáse' under consideration exclusively by the provisions of the twenty-fifth section of the law which has been quoted. These provisions, as .has been remarked, apply, indiscriminately, to criminal and civil cases, wherever,a right is claimed under the constitution, treaties, or laws of the United States, and the decision, by the state court, is against such right. In the present case, the decision- was against thé -right expressly set up by the defendant, and it was' made by the highest judicial tribunal of Georgia.

To give jurisdiction .in such a case, this court need look no further than to ascertain whether the right; thus asserted, was decided against by the state court. The case is clear of difficulty on this point.

The name of the state of Georgia is used in this .case, because such was the designation given to the cause jn the state court. No one ever supposed, that the state, in its sovereign capacity, in such a case, is a party to the cause. The form of *569the prosecution here must.be the same as it was in the state court; but so far as the name of the state is used, it is matter of form. Under a rule of this court, notice was given to the governor and attorney-general of the state, because it is a part of their duty to see that the laws -of the state are executed.

In prosecutions for violations of the penal laws of the union, the name of the United States is used in .the same manner. Whether the prosecution be under a federal or state law, the defendant has a right to question the constitutionality of the’ law.

Can any doubt exist as to the power of congress to pass the law, under which jurisdiction is taken in this case? Since its passage, in 17S9, it has been the law of the land; and has been sanctioned by an uninterrupted course of decisions in this court, and acquiesced in by the state tribunals, with perhaps a solitary exception: and whenever the attention of the national legislature has been called to the subject, their sanction has been given to the law by so large a majority as to approach almost to unanimity.

Of the policy of this act there can be as little doubt as of the right of congress to pass it.

The constitution of the United States was formed, not, in my opinion, as some have contended, by the people of the United States, .nor, as others, by the states; but by a combined power, exereised by the people, through their delegates, limited in their sanctions, to the respective states.

Had the constitution emanated from the people, and the states had been referred to,, merely as convenient districts, by which the public expression could be ascertained, the popular vote throughout the union would have been the only rule for the adoption of the constitution. This course was not pursued; and in this fact, it clearly appears that our fundamental law was not formed, exclusively, by the popular suffrage of. the people.

The vote of the people was limited to the respective states in which they resided. So that it appears there was an expression of popular suffrage and state sanction, most happily united, in the adoption of the constitution of the union.

Whatever differences of opinion may exist, as to the means *570by which the constitution was adopted, there would seem to be no ground for any difference as to certain powers conferred by it.

Three co-ordinate branches of the government were established; the executive, legislative, and judicial. These branches are essential to the existence of any free'.government, and that they should possess powers, in their respective spheres, coextensive with each other.

If the executive have not'powers which will enable him to execute the functions of his office, the system is essentially defective; as those .duties must, in such case, be discharged by One of the other branches. This would destroy that balance which is admitted to be essential to the existence of free government, by thé wisest and most enlightened statesmen of the present day.

It is not less important that the legislative power should be •exercised by the appropriate branch of the government, than that the executive duties should devolve upon the proper fuñe-. tionary. And if the judicial power fall Short of giving effect to' the laws of the union, the existence of. the federal government is at an end,

It is in vain,- and worse than in vain, that the national legislature enact laws, if thdse laws are to remain upon the statute book as monuments of the imbecility of the national power. It is in vain that the executive is' called to superintend the execution of the laws, if he have no power to aid in their enforcement.

• Such weakness and folly are, in no degree; chargeable to the distinguished men through whose instrumentality-th,e coRestitution was formed. The power^ given, it is true, an-limited;' and no powers,, which are not expressly given, can bp exercised by the- federal government: but, where given, they are supreme. Within the sphere allotted to them, the co-ordinate branches of the general government revolve, un-. obstructed by any legitimate-exercise of power by the state governments. , The powers exclusively- given to' the federal government are limitations" upon the state authorities. But, with, the exception pf these limitations, the states are supreme; átíd their sovereignty can be no more invaded by the action of -the general government, than the action of the state ;governmentp m arrest or .obstruct the course of the national power.

*571It has been asserted that the federal government is foreign to the state governments; and that it must consequently be hostile -to them. Such an opinion could not have resulted from a thorough investigation of the great principles which lie at the foundation of our system. The federal government is neither foreign to the state governments, nor is it hostile tp them. It proceeds from the same people, and is as much under their control as the state governments.

Where, by the constitution, the power of legislation is exclusively vested in congress, they legislate for the people of the union, and their acts are as binding as are the constitutional enactments of a state legislature on the people of the state. If this were not so, the federal government would existonly in name. Instead of being the proudest monument of human wisdom and patriotism, it would be the frail memorial of the ignorance and mental imbecility of its framers.

In the discharge of his constitutional duties, the federal executive acts upon the people of the union, the same as a governor of a state, in the performance of his duties, acts upon the people of the state. And the judicial power of the United States acts in the same mánner on the people. It rests qpon the same basis as the other departments of the government. The powers of each are derived from the same source, and are.conferred by the same instrument. They have the same limitations and extent.

The supreme court of a state, when required to give effect to a statute of the state, will examine its constitution, which they are sworn to maintain, to see if the. legislative act be repugnant to it; and if a repugnancy exist, the statute must yield to the paramount law.

The same principle-, governs the supreme tribunal of the union. No one can deny, that the constitution of the United States is the supreme law of the land; and consequently, no act of any state legislature, or of congress, which is repugnant to it, can be of any validity.

Now if an act of a state legislature be repugnant to the constitution of the state, the state court will declare it void; and if such act be repugnant to the constitution of the union, or a law made under that constitution, which is declared to be the supreme law of the land, is it not equally void? And, under *572such circumstances, if this court should shrink from a discharge of their duty, in giving effect-to the supreme lasv of the land, would they not violate their oaths, prove traitors to the constitution, and forfeit all just claim, to the public conñdencé?

It is sometimes objected, if the federal judiciary may declare an act of a state legislature void, because it is repugnant to the constitution of the United States, it places the legislation of a state within the power of this court. And might not the same argument be urged with equal force against the exercise of a similar power, by the supreme court of a state. Such an argument must end in the destruction of all constitutions, and the will of the legislature, like the acts of the parliament of Greát Britain, must be the supreme, and only law of the land.

It is impossible to guard an investiture of power so that it may not, in some form, be abused: an argument, therefore, against, the exercise of power', because it is liable to abuse, would go to the destruction of all governments.

The powers of this court are expressly, not constructively, given by the constitution; and within this delegation of power, this court are the supreme court of the people of the United States, and they are bound to discharge their duties, under the same responsibilities as the supreme court of a state; and are equally, within.their powers, the supreme court of the people of each state.

When this court are required to enforce the laws of any state, they are governed by those laws. So closely do they adhere to this rule, that during the present term, a judgment of a circuit court of the United States, made in pursuance of decisions of this court, has been reversed and annulled, because .it did not conform to the decisions of the state court, in giving a construction to a local law. But while this court conforms its decisions to those of the state courts, on all questions arising •under the statutes and constitutions of the' respective states, they are bound to revise and correct those decisions, if they annul, either the constitution of the United States, or the laws made under it.

It appears,-then, that on all questions arising under the laws of a state, the decisions of the courts of such state form a rule for the decisions of this court, and that on all questions arising under the laws of the United States, the decisions of this court *573form a rule for the decisions of the state courts. Is there any thing unreasonable in this? Have not the federal, as well as the state courts, been constituted by the people? Why then should one tribunal more than the other, be deemed hostile to the interests of the people.

In the second section of the third article of the constitution, it is- declared, that “ the judicial power shall extend to all cases, in law and equity, arising under the constitution, the laws of the United States, and treaties made, or which shall be made, tinder their authority.

Having shown that a writ' of error will l¡e in this case, and that the record has been duly certified, the next inquiry that arises is, what are the acts of the United States which relate to the Cherokee Indians and the acts óf Georgia.; • and were these acts of the United States sanctioned by the federal constitution?

Among the enumerated powers of congress, contained in the eighth section of the first article of the constitution, it is dedared u that congress shall have power to regulate commerce with foreign nations, and among the Indian tribes.” By the articles of confederation, which were adopted on the 9th day of July 1778, it was provided “ that the United States, in congress assembled, shall also have the sole and exclusive riglff and power of regulating the alloy and value of coih struck, by their own authority, or by that of the respective states; fixing-the. standard of weights and measures throughout the United States; regulating the trade and management of all affairs with the Indians, not members of any of the states: Provided, that the legislative right of any state, within its own limits, be not infringed or violated.”

As early as June 1775, and before the adoption of the articles of confederation, congress took into their consideration the subject of Indian affairs. The Indian country was divided into three dépaijtmerrts, and the .superintendence of each was committed to commissioners, who were authorised to hold treaties with the Indians, make disbursements of money for their use, and to discharge various.duties, designed to preserve peace and cultivate a friendly feeling with them towards the colo.nies. No person was permitted to trade with them with*574out alicense from one or more of' the commissioners of the respective departments.

In April 1776, it was “ resolved, that the commissioners of Indian affairs in the middlé department, or any one of them, be desired to employ, for reasonable salaries, a minister of the gospel, to reside among the Delaware Indians, and'instruct them in the Christian religion; a school master, to teach their youth reading, writing, and arithmetic; also, a blacksmith, to do the work of the Indians..” • The general intercourse with the Indians continued to be managed under the superintendence of the continental congress.

Qn the 28th of November 1785, the treaty of Hopewell was formed, which was the first treaty made with the Cherokee Indians. The commissioners! of the United States were required to give notice to the executives of Virginia, North Carolina,.South Carolina and Georgia, in order that each might appoint one or more persons to attend the treaty, but they seem to have had no power to act ort the occasion.

In this treaty it is stipulated, that “• the commissioners plenipotentiary of the United States in congress assembled, give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following conditions:”

1. The Cherokees to restore all prisoner's- and property taken during the war.

2. The United States to restore to the Cherokees all prisoners.

3. The 'Cherokees acknowledge themselyes to be under the protection of the United States, and of no other sovereign whatsoever.

4. The boundary line between the Cherokees and the citizens of the United States was-agreed .to as designated.

5. If any person, riot being an Indian, intrude upon the land “ allotted” to the Indians, or, being settled on it, shall refuse to remove within six months after the ratification of the treaty, he forfeits the protection of the United States, and the Indians were at liberty to punish him as they might think proper.

6. The Indians are bound to deliver up to the United States any Indian who shall commit robbery, or other capital crime, on a white person living within their protection.

*575. 7. If the same offence be committed on an Indian by a citizen of the United States, he is to be punished.

8. .It is understood that the punishment of the innocent, under the idea of retaliation, is unjust, and shall not be practised on either side, except where there is a manifest violation of this treaty; and then it shall be preceded, first, by a demand of justice; and, if refused, then by a declaration of hostilities.

“That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have a right to send a deputy of their choice, whenever they think fit, to. congress.”■

The treaty of Holston-was entered into with the same people, on the 2d day of July 1791.

This was a treaty of peace, in which the -Cherpkees again placed themselves under-the protection of the United States, and engaged to hold no treaty with any foreign power, individual state, or with individuals of any state. Prisoners were agreed to be delivered up on both sides; a new Indian boundary was fixed; and -a cession- of land made to the United States on the payment of a stipulated consideration.

A free, unmolested road, wás agreed to be given through the Indian lands, and the free navigation of the Tennessee river. It was agreed that the United States should have the exclusive right of regulating their trade, and a solemn guarantee of their land, not ceded, was made. A similar provision, was made, as to the punishment of offenders, and as to all-persons who might enter the Indian territory, as was contained in thé treaty of Hopew.ell. Also, that reprisal or retaliation shall not be committed, until satisfaction shall have been demanded of the aggressor.

On the 7th day of August 1786, an ordinance, for the regulation of Indian affairs was adopted, which repealed the former system.

In 1794 another treaty was made with the Cherokees, the object of which Was to carry into effect the treaty of Holston.And on the plains of Tellico, on the 2d of October 1798, the CheroKees, in another treaty, agreed to give a right of way, in a certain direction, over their lands. Other engagements were also entered into, which need not be referred to.

Yarious other treaties were made by the United States with *576the Cherokee Indians, by which, among other arrangements, cessions of territory were procured and boundaries agreed on.

. In a'treaty made in 1817, a distinct wish is expressed by the Cherokees, to assume a more regular form of government, in which they are encouraged by the United States. By a treaty held at Washington, on the 27th day of February 1819, a reservation of land is made by the Cherokees for a school fund, which was to be surveyed and sold by the United States for that purpose. And it was agreed, that all white persons, who had intruded on the Indian lands, should be removed.

To give effect to various'treaties with this people, the power of the executive has frequently been exercised; and atone time General Washington expressed a firm determination to resort to. military force to remove intruders from the Indian territories.

On the 30th of March 1802, congress passed an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.

In this act it is provided, that any citizen or resident in the United States, who shall enter into the Indian lands to hunt, or for 'any other purpose, .without a license, shall be subject to a fine and imprisonment. And if any person shall attempt to survey, or actually survey, the Indian lands, he shall be liable to. forfeit a sum not exceeding one thousand .dollars, and be imprisoned not exceeding twelve months. No person is permitted to reside as a trader within the Indian boundaries, without a license or permit. All persons are prohibited, under a heavy penalty, from purchasing the Indian lands; and all such purchases are declared to be void. And it is made lawful for the military force of the United States to arrest offenders against the provisions of the act.

By the seventeenth section, it is provided, that the act shall not be so. construed as to “prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the'United States; and being within the ordinary jurisdiction of any of the individual states; or the unmolested use of a road, from Washington district to Mero district, or to prevent the citizens of Tennessee from keeping in repair said road.” Nor was the act to be so construed as to prevent per.sons from travelling from Knoxville to Price’s settlement, *577provided they shall .travel in the tract or path which is usually travelled, and the Indians do not object; but if they object, then all travel on this road to be prohibited, after proclamation by the president, under the penalties provided in the act'.

Several acts, having the same object in view, were passed prior to this one; but as they were repealed either before, or by the act of. 1802, their provisions need not be specially noticed.

The acts of the state of Georgia, which the plaintiff in error complains of, as being repugnant to the constitution, treaties, and laws of the United States, are found in two statutes.

The first act was passed the 12th of December 1829; and is entitled “ an act to add the territory lying within the chartered limits of Georgia, and now in the occupancy of the Cherokee Indians, to the counties of Carroll, Dekalb, Gyvinnett and Habersham; and to extend the laws"of the state over ithe same, and to annul all laws made by the Cherokee nation of Indians, and to provide for the compensation of officers serving legal process in said territory, and to regulate the testimony of Indians, and to repeal the ninth section of the act of 1828 on this subject.”

This act annexes the territory of the Indians, within the' limits of Georgia, to the counties named in the title; and extends the jurisdiction of the state over it. It annuls the laws, ordinances, orders and regulations, of any kind, made by the Cherokees, either in council or in any other way, and they are not permitted to be given in evidence in the courts of the state. By this law, no Indian, or the descendant of an Indian, residing within the Creek or Cherokee nation of Indians, shall be deemed a competent witness in any court of the state, to which a white person may be a party, except such white person reside within the nation. Offences under the act a, be punished by confinement in the penitentiary, in some cases not less than four nor more than six years, and in others not exceeding four years.

The second act was passed on the 22d day of December 1830, and is entitled “an act to prevent the exercise of assumed and arbitrary power,- by all persons, on pretext of authority from the Cherokee Indians arid their laws; and to prevent white persons from residing within that part of the *578chartered limits of Georgia, Occupied by the Cherokee Indians; and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory.”

By the first section of this act, it is made a penitentiary offence, after the 1st day of February 1831, for any person or persons, under colour or pretence of authority from the said Cherokee tribe, or as headmen, chiefs or warriors of said tribe, to cause or procure, by any means, the assembling of any council or other pretended legislative body of the said Indians; for the purpose of legislating, &c.

They are prohibited from making laws, holding courts of justice, or executing process. And all white persons, after the 1st of March 1831, who shall reside within the limits of the Cherokee nation, without a license or permit from his excellency the governor, or from such agent as his excellency the governor shall authorize to grant such' permit or license, or who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour; and, upon conviction thereof, shall be punished by confinement to the penitentiary at hard labour, for a term not less than four years. From this punishment, agents of the United States are excepted, white females, and male children under twenty-one years of age.

Persons who have obtained license, are required to take the following oath: “ 1, A. B., do solemnly swear, that I will support and defend the constitution and laws of the state of Georgia, and uprightly demean myself as a citizen thereof. So help me God.”

The governor is authorized to organize a guard, which shall not consist of more than sixty persons, to protect the mines in the Indian territory, and the guard is authorized to arrest all offenders, under the act.

It is apparent that these laws are repugnant to the treaties with the Cherokee Indians which have been referred to, and to the law of 1802. This repugnance is made so clear by an exhibition of the respective acts, that no force of demonstration can make it more palpable.

By the treaties and laws of the' United States, rights are guarantied to the Cherokees, both as it respects their territory and internal polity. By the laws of Georgia these rights are *579abolished; and not only abolished, but an ignominious punishment is inflicted on the Indians and others; for the exercise of them. The important question then arises, which shall stand, the laws of the United States, or the laws of Georgia? No rule of construction, or subtlety of argument, can evade an answer to this question. The response must be, so far as the punishment of the plaintiff in error is concerned, in favour of the one or the other.

Not to .feel the full weight of this momentous subject, would evidence an ignorance of that high responsibility.which is devolved upon this tribunal, and upon its humblest member, in giving a decision in this case.

Are the treaties and law which have been cited, in force? and what, if any, obligations, do they impose on the federal government within the limits of Georgia?

A reference has been made to the policy of the United States on the subject of Indian affairs, before the adoption of the constitution, with the view of ascertainiiig in what light the Indians have been considered by the first official acts, in relation to them, by the United States. For this object, it might not be improper to notice how they were considered by the European inhabitants, who first formed settlements in this part of the continent of America.

The abstract right of every section of the human race to a reasonable portion of the soil, by which to acquire the means of subsistence, cannot be controverted. And it is equally clear, that the range of nations or tribes, who exist in the hunter state, may be restricted within reasonable limits. They shall not be permitted to roam, in the pursuit of game, over an extensive and rich country, whilst in' other parts, human beings are crowded so closely together, as to render the means of subsistence precarious. The law of nature, which is paramount to all other laws, gives the right to every nation, to the enjoyment of a reasonable extent of country, so as to derive the means of subsistence from the soil.

In this view perhaps, our ancestors, when they first migrated to this country, might have taken possession of a limited extent of the domain, had they been' sufficiently powerful, without negotiation or purchase from the native Indians. But this course is believed to have been nowhere taken. A more *580conciliatory mode was preferred, and one which was better calculated to impress the Indians, who were then powerful, •with a sense of the justice of their white neighbours. The occupancy of their lands was never assumed,.except upon the basis of contract, and on the payment of a valuable consideration.

. This policy nas obtained from the earliest white settlements .in this country, down to the present time. Some cessions of territory may have been made by the Indians, in compliance with the terms on which peace was offered by the whites; but the soil, thus taken, wras taken by the laws of conquest,, and always as an indemnity for the expenses of the war, commenced by the Indians.

At no time has the sovereignty of the country been recognized as existing in the Indians, but they have been always admitted t<? possess many of the attributes of sovereignty. All the rights which belong to, self government have been recognized as vested in them. Their right of occupancy has never been questioned, but the fee in the soil has been considered in the government. This may be called the right to the ultimate domain, but the Indians have a present right of possession.

In some' of the old states, Massachusetts, Connecticut, Rhode Island and others, where small remnants of tribes remain, surrounded by ' white’ population, and who, by their reduced numbers, had lost the power of self government, the laws of the state have been. extended over them,.for the protection of their persons and property.

Before the adoption of the constitution, the mode of treating with the Indians was various. After the formation of the confederacy, this subject was placed under the special superintendence of the United Colonies; though, subsequent to that time, treaties may have been occasionally entered into between a state and the Indians in its neighbourhood. It is not considered to be at all important to go into a minute inquiry on this subject.

By the constitution, the regulation of commerce among the Indian tribes is given to congress. This power must be considéred as exclusively vested ih congress, as the power to' regulate commerce ’ with foreign nations, to coin money, to *581establish post offices, and to declare war. It is enumerated in the .'same section, apd belongs to the same class of powers.

This investiture o°f power has been exercised in the regulation .of commerce with the Indians, sometimes by treaty, and, at. other times, by enactments of congress. In this respect they have been placed by; the federal authority, with but few exceptions, on the same footing as foreign nations.

It is said that these treaties are nothing more than compacts, which cannot be considered as obligatory on the United States, from a.want of power in the Indians to enter into them.

What is a treaty? The answer is, it is a compact formed between two nations or communities, having the right_of self government.

Is it essential that each party shall possess the same attri-' butes of sovereignty, .to give force to the treaty? This will not be pretended: for, on this ground, very few valid treaties could be formed. The only requisite is, that each of the contracting parties shall possess the right of self government, and the power to perform the stipulations of the treaty.

Under the constitution, no state can enter into any treaty; and it is believed that, since its adoption, no state, under its own authority, has held a treaty with the Indians. •

It must be admitted, that the Indians sustain a peculiar relation to the United States. They do not constitute, as was decided at the last term, a foreign state, so as to claim the right to sue in the supreme court of the United States: and yet, having the right of self government, they, in some sense, form a state. In the management of their internal concerns, they are dependent on.no power. They punish offences under their own laws, and, in doing so, they are responsible to no earthly tribunal. They.make war, and form treaties of peace. The exercise of these and other powers, gives to them a distinct character as a people, and constitutes them, in some respects, a state, although they may not be admitted to possess the right of soil.

By various treaties, the Cherokees have placed themselves under the protection of the United States: they have agreed to trade with no other people, nor to invoke the protection of any other sovereignty. B.ut such engagements do not divest *582them of the right of self government, nor destroy their capacity to enter into treaties or compacts.

Every state is more or less dependent on those which sur-, round.it; but, unless this dependence shall extend so far as to merge the political existence of the protected people into that of their protectors, they may still constitute a state. They may exercise the powers not relinquished, and bind themselves as a distinct and separate community.

The language used in treaties with tire Indians should never' he construed to their prejudice. If words be made use of which are susceptible of a more extended meaning .than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. To contend that the word ee allotted,” in reference to the lane, guarantied to the Indians in certain treaties, indicates a favour conferred, rather than a right acknowledged, would, it would seem to me, do injustice to the understanding of the parties. How the w.ords of the treaty wére ■ understood by this unlettered people, rather than their critical meaning, should form the rule of construction.

The question may be asked, is no distinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nhtions of Europe, with whom we have made treaties?

The inquiry is not, what station shall • now be given' to the Indian tribes in our country?, but, what relation have they sustained to us, since the commencement of our government?

We have made treaties with them; and are those treaties to be disregarded on our part, because they were .entered into with an uncivilized people? Does this .lessen the obligation of such treaties? By entering into them, have we not admitted the power of this people to -bind themselves, and to impose obligations on us?

The president ai\d senate, except under the treaty-making power, cannot enter into compacts with the Indians, or with foreign nations. This power has been uniformly exercised in forming treaties with the Indians.

Nations differ from each- other in condition, and that of the. same nation may change by the revolutions of time, but the *583principles of justice are the same. They rest upon a base which will remain beyond the endurance of time.

After a lapse of more than forty years since treaties with the Indians have been solemnly ratified by the general government, it is too late to deny their binding force. Have the numerous treaties which have been formed with them, and the ratifications by the president and senate, been nothing more than an idle pageantry?

By numerous treaties with the Indian tribes, w.e have acquired accessions of territory, of incalculable value to the union. Except by compact, we have not even claimed a right of way through the Indian lands. We have recognised .in them the right to make war. No one has ever supposed that the Indians could commit treason against the United States. We have punished them for their violation of treaties; but we have inflicted the punishment bn them as a nation, and not on individual offenders among them as traitors.

In the executive, legislative, and judicial branches of our government, we have admitted, by the most solemn sanctions, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a state, .or separate community — not a foreign, but a domestic community — not as belonging to the confederacy, but as existing .within it, and, of necessity, beáring to it a peculiar relation.

But, can the treaties which have been referred to, and the law of 1802, be considered in force within the limits of the state of Georgia? ■

•In the act of cession, made by Georgia, to the United States, in 1802, of all lands claimed by her west of the line designated,.one of the conditions was, “that the United States shoald, at their own expense, extinguish, for the úse of Georgia, as early as. the same cán be peaceably obtained, on reasonable terms, the Indian title' to lands within the state of Georgia.”

One of the counsel, in the argument,, endeavoured to show, that no part of the country now inhabited by the Cherokee Indians, is within what is called the chartered limits of Georgia.

It appears that the charter of Georgia was surrendered *584by the trustees, and that, like the state of South Carolina, she became a regal colony. The effect of this change was, to authorise the crown to alter the boundaries, in the exercise of its discretion. Certain alterations, it seems, were subsequently made: but I do not. conceive it can be of any importance to enter into a minute consideration -of them. . Under its charter, it may be observed, that Georgia derived a right' to the soil, subject to the Indian title, by occupancy. By the act of cession, Georgia designated a certain line as the limit of that cession, and this line, unless subsequently altered, with the assent of the parties interested, must be considered as the boundary of the state of Georgiá. This line having been thus recognized, cannot be contested on any question which may incidentally arise for judicial decision.

It is important, on this part of the.case, to ascertain inwh'at light Georgia has considered the Indian title to lands, generally, and particularly, wi.hinher own boundaries; and also, as to the right of the Indians to self-government.

In the first place, she was a party to all the treaties entered into between the United States and the Indians, sipce the adoption of the constitution. And prior to that period, she was represented in making them, and was bound by their provisions, although it is alleged that she remonstrated against the treaty of Hopewell... In the passage of the intercourse law of 1802, as one of the constituent .parts of the union, she was also a party.

The stipulation made in her act of cession, that the United States should extinguish the Indian title to lands within the state, was a distinct recognition of the right in the federal government, to make the extinguishment; and also, that, until it should be made, the right of occupancy would remain in the Indians.

In a law of the state of Georgia, a for opening the land office and for other purposes,” passed in 1783, it is declared that surveys made on Indian lands were null and void; a fine was inflicted on the person making the survey, which, if not paid by the,offender, he was'punished by imprisonment. By a subsequent act, a line'was fixed for the Indians, which was a boundary between them and the whites. A similar provision is found in other laws of Georgia, passed before the adoption *585of the constitution. By an act of 1787, severe corporeal punishment was inflicted on those who made or attempted to make surveys, “ beyond the temporary line designating the Indian hunting ground.”

On the 19th of November 1814, the following resolutions were adopted by the Georgia legislature.

“ Whereas, many of the citizens of this state, without regard to existing treaties between the friendly Indians and the United States, and contrary to the interest and good policy of this' - state, have gone,' and -are. frequently going over, and settling and cultivating the lands allotted to the friendly Indians for their hunting ground, by which means the state is not only deprived of their services in the army, but considerable feuds are engendered between us and oür- friendly neighbouring Indians:

“ Resolved, therefore, by the senate and house of representatives of the state of Georgia in general assembly met, that his excellency, the governor, be, and is hereby requested to take the necessary means to have all intruders remóyed off the Indian lands, and that proper steps be taken to prevent future aggressions.”

In 1817, the legislature refused to take any steps to dispose of lands acquired by treaty with the Indians, until the treaty had been ratified by the senate; and, by a resolution, the governor was directed to have the line run between the' state of Georgia and the Indians, according to the late treaty. The same thing was again done in the-year 1819, under a recent treaty.

In a memorial to the president of the United States, by the legislature of Georgia, in 1819, they say, “ it has long been the desire of Georgia, that her settlements should be extended to her ultimate limits.” “That the soil within her boundaries should be subjected to her control; and, that her police organization and government should be fixed and permanent.” “ That the state of Georgia claims a right to the jurisdiction and soil of the territory within her limits;” “ She admits, however, that the right is inchoate — remaining to be perfected by the United States, in the extinction of the Indian title; the United States juro hac vice as their agents.”

The Indian title was also distinctly acknowledged by the act *586of 1796, repealing the Yazoo act. It is there declared, in reference to certain lands, that “ they are the sole property of the state, subject only to the right of the treaty of the United States, to enable the state to purchase, under its pre-emption right, the Indian title to the same;” and also, that the land is vested in the “ stale, to whom the right of pre-emption to the same belongs, subject only to the controlling power of the United Stat'e , to authorise any treaties for, arid to superintend the same.” This language, it will be Observed, .was used long before the act of cession.

On the 25th of March 1835, the governor of Georgia issued the following proclamation:

«Whereas it is provided in said treaty, that the United States shall protect the Indians against the incroachments, hostilities, and impositions of the whites, so that they suffer no imposition, molestation, or injury in their persons, goods, effects, their dwellings,' or the lands they occupy, until their removal shall have been acomplished, according to the terms of the treaty,” which had been recently made with the Indians.

“I,have'therefore thought proper to issue this my proclamation, warning all persons, citizens of Georgia or others, against trespassing or intruding upon lands occupied by the Indians, within the limits of Georgia, either for the purpose of settlement or otherwise, as ever}' such act will be in* direct violation of the provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary punishment, by the authorities of the state, and the United States.” «All good citizens, therefore, pursuing the dictates'of good faith, will unite in enforcing the obligations of the treaty, as the supreme law” &c.

Many other references might he made to the public acts of the state of Georgia, to show that she admitted the obligation of Indian treaties, but the above are believed to be sufficient. These acts, do honour to the character of that highly respect able state.

Under, the act of cession, the United State? were bound,, in good faith, to extinguish the Indian title to lands within the limits of Georgia, so soon as it could be done péaeeably and on reasonable terms.

*587The state of Georgia has repeatedly remonstrated to the president .on this subject, and called upon t.he government to lake the necessary steps to fulfil its engagement. She complained that, whilst the Indian title to immense tracts of country had been extinguished elsewhere, within, the limits of Georgia but little progress had been made; and this was attributed, either to a want of effort on the part of the federal government, or to the effect of its policy towards the Indiaqs. In one or more of the treaties, titles in fee.simple were given to the Indians, to certain reservations of land; and this was complained of, by Georgia, as a direct infraction of the condition of the cession. It has also been asserted, that the policy of the government, in advancing the cause of civilization among the Cherokees, and inducing them to assume the forms of a regular government and of civilized life, was calculated to increase their attachment to the soil they inhabit, and to render the purchase of their title more difficult, if not impracticable.

A full investigation of this subject may not be considered as strictly within the scope of the judicial inquiry which belongs to the present case. But, to some extent, it has a direct bearing on the question before the court; as it tends to show how the rights and powers of Georgia were construed by her public functionaries.

By the first president of the United States, and by every succeeding one,. a strong solicitude has been expressed for the civilization of the Indians. Through the agency of the government, they have been partially induced, in some parts of the union, to change the. huntér state for that of the agriculturist and herdsman.

In a letter addressed by Mr Jefferson to the Cherokees, dated the 9th of January 1809, he recommends them to adopt a regular government, that crimes might be punished and property, protected. He points out the mode by which a council should be chosen, who should have power to enact laws; and he also recommended the appointment of judicial and executive agents, through whom the law might be enforced. The agent of the government, who resided among them, was recommended to be associated with their council, that he might give the necessary advice on all subjects relating to their government.

*588In the treaty of 1817, the Cherokees are encouraged to adopt a regular form of government.

Since that time, a law has been passed making an annual appropriation of the sum of ten thousand dollars, as a school •fund, for the education of Indian youths, which has been distributed among the different tribes where s.chools had been established. Missionáry labours among the Indians have also been sanctioned by the government, by granting permits, to those who were disposed to engage in such a work, to reside ■in the Indian country.

That the means adopted by the general government to reclaim the savage from his erratic life, and induce him to assume the forms of civilization, have had a tendency to increase the attachment of the Cherokees to the country they now inhabit, is extremely probable; and that it increased the difficulty of purchasing their lands, as by act of cession the general government agreed to do, is equally probable.

Neither Georgia, nor the United States, when the cession was made, contemplated that force should be used in the ex-tinguishment of. the Indian title; nor that it should be procured on terms that are not reasonable. But, may it not be said, with equal truth, that it was not contemplated by either party that any obstructions to the fulfilment of the compact should be allowed, much less sanctioned, by the United States?

The humane policy of the government towards these children of the wilderness must afford pleasure to every benevolent feeling; and if the efforts made have not proved as successful as was anticipated, still much has been done. Whether the advantages of this policy should not have been held out by the government to the Cherokees within the limits of Georgia, as an inducement for them to change their residence and fix it elsewhere, rather than by such means to increase their attachment to their present home, as has been insisted on, is a question which may be considered by another branch of the government. Such a course might, perhaps, have secured to the Cherokee Indians all the advantages they have realized from the paternal superintendence of the .government; and have enabled it, on peaceable and reasonable terms, to comply with the act of cession

Does the intercourse law of 1802 apply to the Indians who *589live within the limits of Georgia ? The nineteenth section of that act provides, “that it shall not be construed to prevent any trade or intercourse with Indians living on landp surrounded by settlements'of the citizens of the United States, and being within the ordinary jurisdiction of any of the individual states ? This provision, it has been supposed, excepts from the operation of the law the Indian lands which lie within any state. A moment’s reflection will show that this construction is most clearly erroneous.

To constitute an exception to the provisions of this act, the Indian settlement, at the time of its passage, must have been surrounded by settlements of the citizens of the United States, and within the ordinary jurisdiction of a state; not only within the limits of a state, but within the common exercise of its jurisdiction.

No one will pretend that, this was the situation of the Cherokees who lived within the state of Georgia in 1802; or, indeed, that such is their present situation. If, then, they are.not embraced by the exception, all the provisions of the act of 1802 apply to them.

In the very section which contains the exception, it is provided, that the use of the road from Washington district to Mero district should be enjoyed, and that the citizens of Tennessee, under the orders of the governor, might keep the road in repair. And in the same section, the navigation of the Tennessee river is reserved, and a right to travel frotfi Knoxville to Price’s settlement; provided the Indians should not object.

Now, all these provisions relate to the Cherokee country; and can it be supposed, by any one, that such provisions would have been made in the act, if congress had not considered it as applying to the Cherokee country,, whether in the state of Georgia, or in the state of Tennessee ?

The exception applied, exclusively, to those fragments of tribes which are found in several of the states, and which came literally within the description used.

Much has been said against the existence of an independent power within a sovereign state; and the conclusion has been drawn, that the Indians, as a matter of right, cannot enforce their own laws within the territorial limits of a state. The refutation of this argument is found in our past history.

*590That fragments of tribes, having lost the power of self-government, and'who lived within the ordinary jurisdiction of a state, have been taken under the protection of the laws, has already been admitted. But there has been no instance, where the state laws have, been generally extended over a numerous tribe of Indians, living within the state* and exercising the right of self-government, until recently.

Has Georgia ever, before her late laws, attempted to regulate the Indian communities within her limits ? It is true, New York.extended her criminal laws over the remains of the tribes within that state, more for their protection than for any other purpose. These tribes were few in n.umber, and were surrounded by a white population. But, even the state of New York has never asserted the power, it is believed, to regulate their concerns beyond the suppression of crime.

Might not the same objection to this interior independent power, by Georgia, have been urged, with as much force as at present, ever since the adoption of the constitution? Her chartered limits, to the extent claimed, embraced a great number of different nations of Indians, all of whom were governed by their own laws, and were amenable only'to them. Has not this been the condition of the Indiahs within Tennessee, Ohio, and other states?

The exercise of thiis independent power surely does not become more objectionable, as it assumes the basis of justice and the forms of civilization. Would it not be a singular argument to admit, that, so long as the Indians govern by the rifle and the tomahayvk, their government may be tolerated; but, that it must be*suppressed, so soon as it shall be administered upon the enlightened principles of reason and justice?

Are not those nations of Indians who have made some advances. in civilization, better, neighbours than those who are still in a savage state? And is not the principle, as to théir self government, within the. jurisdiction -of a state, the same?

When Georgia sanctioned the constitution, and conferred on the national legislature the exclusive right to regulate commerce or intercourse with the Indians, did she reserve the right to regulate intercourse with the Indians within her limits? This will not be pretended. If shch had been the construction of her own powers,, would they riot have-been exercised? *591Did her senators object to the numerous treaties which have been formed with the different tribes, who lived within her acknowledged boundaries? Why did she apply to the executive of the union, repeatedly, to have the Indian title extinguished; to establish.a.line between the Indians and the state, and to procure a right of way through the Indian lands?

The residence of Indians, governed by their own laws, within the limits of a state, has never been deemed incompatible with state sovereignty, until recently. And yet, this has been the condition of many distinct tribes of Indians, since the foundation of the federal government.,

How is the question varied by the residence of the Indians in a territory of the United States? Áre mot the United States sovereign within their territories? And has it evet been conceived, by any one, that the Indian governments, which exist in the territories, are incompatible with the sovereignty of the union?

A state claims the right of sovereignty, commensurate with her territory;, as the United States claim it, in their proper sphere, to the extent of the federal limits. This right or power, in some cases, may be exercised, but not in others. Should a hostile force invade the country, at its most remote boundary, it would become the duty of the general government to expel the invaders. But it would violate the solemn compact's with the Indians, without cause, to dispossess them of rights which they possess by nature, and have been uniformly acknowledged by the federal government.

Is it incompatible, with state sovereignty to grant, exclusive jurisdiction to the federal government over a number of acres of land, for military purposes ? Our forts and arsenals, though situated in the different states, are not within their jurisdiction.

Does not the constitution give to the United States as exclusive jurisdiction in regulating intercourse with the Indians, as has been given to them over any other subjects ? Is there any doubt as to this investiture of power ? Has it not been exercised by the federal government, ever since its formation, not only without objection, but under the express sanction of all the states ?

The power to dispose of the public domain is an attribute *592of sovereignty. Can the new states dispose of the lands within their limits, which are owned by the federal government? The power to tax is also an attribute of sovereignty; but, can. the new states tax the lands of the United States ? Have they not bound themselves, by compact, not to tax the public lands, nor until five years after they shall have been sold ? May they violate this compact, at discretion ?

Why may not these powers be exercised by the respective states ? The answer is, because they have parted .with them, expressly for the general good. Why may not a state coin money, issue bills of- credit, enter into a treaty of alliance or confederation, or regulate commerce with foreign nations? Because these powers have been expressly and exclusively given to the federal government.

Has not the power been as expressly conferred on the federal government, to regulate intercourse with the Indians; and is it not as exclusively given, as any of the powers above enumerated? There being no exception to the exercise of this power, it must operate on all communities of Indians, exercising the right of self-government; and consequently, include those who reside within the limits of a state, as well as others. Such has been the uniform construction of this power by the federal government, and of. every state government, until the question was raised by the state of Georgia.

Under this clause of the constitution, no political jurisdiction over the Indians, has been claimed or exercised. The restrictions imposed by the law of 1802, come strictly within the power to regulate trade; not as an incident, but as a part of the principal, power. It is the same power, and is conferred in the same words, that has often been exercised in regulating trade with foreign countries. Embargoes have been imposed, laws of non-intercourse have been passed, and numerous acts, restrictive of trade, under the power to regulate commerce with foreign nations.

In the regulation of commerce with, the Indians, congress have exercised a more limited power than has been exercised in reference to foreign countries. The law acts upon ohr own cit zens, and not upon the Indians, the same as the laws referred to act upon our own citizens in their foreign commercial intercourse.

*593It will scarcely be doubted by any one, that, so far as the Indians, as distinct communities, have formed a connexion with the,federal government, by treaties; that such connexion is political, and is equally binding on both parties. This cannot be questioned, except, upon the ground, that in making ■these treaties, the federal government has transcended the treaty-making power. Such an objection, it is true, has been stated, but it is one of modern', invention, which arises out of focal circumstances; and is not only opposed to the uniform practice of .the government, but also to the letter and spirit of the constitution.

But the inquiry may be made, is there no end to the exercise of this power over Indians within the limits of a state, by the general government? The answer is, that, in its nature, it must be limited by .circumstances.

If a tribe of Indians shall become so degraded or reduced in numbers, as to lose the power of self-government, the protection of the local law, of necessity, must-be extended over them. The point at which this exercise of power by a state would be proper, need not now be considered: if indeed it be a judicial question. Such a question does not seem to arise in this case. So long as treaties and laws remain in full force, and apply to Indian nations, exercising the riglit of self-government, within the limits of a state, the judicial power can exercise no discretion in refusing to give effect to those laws, when questions arise under them, unless they shall be deemed unconstitutional.

The exercise of the power of self-government by the Indians, within.a state, is undoubtedly contemplated to be temporary. This is shown by the settled policy of the government, in the extinguishment of their title, and especially by the compact with the state of Georgia. It is a question, not of abstract right, but of public policy. I do not.mean to say, that the same moral rule which should regulate the affairs of private life, should not be regarded by communities or nations. But, a sound national policy does require that the Indian tribes within our states should exchange their territories, upon equitable principles, or, eventually, consent to become amalgamated in our political-communities.

At best they can enjoy a very limited independence within *594the boundaries, of a state, and such a . residence must always subject them to encroachments from the settlements around them; and their existence within a state, as a separate-and independent community, may seriously embarrass or obstruct the operation of the state laws. If, therefore, it would be inconsistent-with the political welfare of the states, and the social advance of their citizens, that an independent and permanent power should exist within their limits, this power must give way to the greater power which surrounds it, or seek its exercise beyond the sphere of state authority.

This state of things can only be produced by a co-operation of the state and federal governments. The latter has the exclusive regulation of intercourse with the Indians; and, so long as this power shall be exercised, it cannot be obstructed by the state. It is a power given by the constitution, and sanctioned by the most solemn acts of both the federal and state governments: consequently, it cannot be abrogated at the will of a state. lit is one of the powers parted with by the states, and vested in the federal government. But, if a contingency shall qccur, which shall render the Indians who reside in a state, incapable of self-government, either by moral degradation or a reduction of their numbers, it would undoubtedly be in the power of a state government to extend to them the aegis of its laws. Undér such circumstances, the agency of the general government, of necessity, must cease.

But, if it shall be the policy of the government to withdraw its protection from the Indians who reside within the limits of the respective states, ánd who not only claim the right of self government, but have uniformly exercised it; the laws and treaties which impose duties and obligations on the general government should be abrogated by the powers competent to do so. So long as those laws and treaties exist, having been formed within, the sphere of the federal powers, they must be respected and enforced by the appropriate organs of the federal government.

The plaintiff who prosecutes this writ of error, entered the Cherokee country, as it appears, with the express permission of the president, and under the protection of the treaties of the United States, and the law of 1802. He entered, not to corrupt the morals of this people, nor to profit by their substance; but to *595teach them, by precept and example, the Christian religion. If he be unworthy of this sacred office; if he had any other object than the one professed; if besought, by his influence, to counteract the humane policy of the federal government towards the Indians, and to embarrass its efforts to comply with its solemn engagement with Georgia; though his sufferings be illegal, he is not a proper object of public sympathy.

It has been shown, that the treaties and laws referred to come within the due exercise of the constitutional powers of the federal government; that they remain in full force, and consequently must be considered as the supreme laws of the land. These laws throw a shield over the Cherokee Indians. They guarantied to them their rights of occupancy, of self-government, and the full enjoyment of those blessings which might be attained in their humble condition. But, by the enactments of the state of Georgia, this shield is broken in pieces — the infant institutions of the Cherokees are abolished, and their laws annulled. Infamous punishmént is denounced against them, for the exercise Of those rights which have been most solemnly guarantied to them by the national faith.

Of these enactments, however, the plaintiff in error has no right to complain, nor can he question their validity, except in so far as they affect his interests. In this view and in' this view only, has it become necessary, in the present case, to consider the repugnancy of the laws of Georgia to those of the union.

Of the justice or policy of these laws, it is not my province to speak: such considerations belonging to the legislature by whom they were passed. They have, no doubt, been enacted under a conviction of right, by a sovereign and independent state, and their policy may have been recommended, by a sense of wrong under the compact. Thirty years have elapsed since the federal government engaged to extinguish the Indian title, within the limits of Georgia. That she has strong ground of complaint arising from this delay, must be admitted; but such considerations are not involved in the present case; they belong to another branch of the government. We can look only to the law, which defines our power, and marks out the path of our duty.

Under the administration of the laws of Georgia, a citizen of *596the United States has been deprived of his liberty; and, claiming protection under the treaties and laws of the United States, he makes the question, as he has a right to make it, whether the laws of Georgia, under which he is now suffering an ignominious punishment, are not repugnant to the constitution of the United States, and the treaties and laws made under it. This repugnancy has been shown; and it remains only to say, what has before been often said by this tribunal of the local laws of many of the states in this union, that, being repugnant to the constitution of the United States, and to the laws made under it, they can have no force to divest the plaintiff in error of his property or liberty.

Mr Justice Baldwin

dissented: stating that-in his opinion, the record was. not properly returned upon the writ of error; and ought to have been returned by the state court, and not by the clerk of. that court. As to the merits, he said his opinion remained the same as was expressed by him in the case of the Cherokee Nation v. The State of Georgia, at the last term.

The opinion of Mr'Justice Baldwin wasnotdelivéred to the reporter.

This cause came on to be heard on the transcript of the. record from the superior court for the county of Gwinnett, in the state of Georgia, and was argued by counsel; on consideration whereof, it is the opinion of this .Court, that the act of the legislature of the state of Georgia, upon which the indictment in this case is founded, is contrary to the constitution, treaties, and laws of the United States; and that the special plea in bar pleaded by the said Samuel A. Worcester, in manner aforesaid, and relying upon the constitution, treaties, and laws of the United States aforesaid, is a good bar and defence to the said indictment, by the said Samuel A. Worcester; and as such ought to have been allowed and admitted bjr the said superior court for the county of Gwinnett, in the state of Georgia, before which the said indictment Was pending and tried;’ and that there was error in the said superior court of the state of Georgia, in overruling the plea so pleaded as aforesaid. ■ It is therefore ordered and adjudged, that the judgment rendered in *597the premises, by the said superior court of Georgia, upon the verdict upon the plea of Not guilty afterwards pleaded by the said Samuel A. Worcester, wherebythe said Samuel A. Worcester is sentenced to hard labour in the penitentiary of the state of Georgia, ought to be reversed and annulled. And this court proceeding to render such judgment as the said superior Court, of the state of Georgia should have rendered, it is'further ordered and adjudged, that the said judgment of the said.superior court be, and hereby is reversed and annulled; and that judgment be, and hereby is awarded, that the special plea in bar, so as aforesaid pleaded, is a good and sufficient plea in bar in law to the indictme.nt aforesaid; and that all proceedings on the said indictment do for ever surcease; and that the said Samuel A. Worcester be, and hereby is henceforth dismissed therefrom, and that he go thereof quit without day. And that a special mandate-do go from this court, to the said superior court, to carry this judgment into execution.

In the case of Butler, Plaintiff in Error v. The State of Georgia, the same judgment was given by the court, and a special mandate was ordered from the court to the superior court of Gwinnett county, to carry the judgment into execution.

Mr. Chief Justice TANEY

delivered the opinion of the court.

This case has been twice argued. After the argument at the last term, differences of opinion were found to exist among the members of the court; and as the questions in controversy are of the highest importance,,and the court was at that, time ' much pressed by the ordinary business of the term, it was deemed advisable to continue, the case, and direct a‘re-argument on some,of the points, in order that we'-might have an opportunity- of giving to the whole subject a rdore delibérate *400consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion. . .

There are two leading questions presented by the record:

1.' Had the Circuit Court of the United States jurisdiction to bear and determine the case between these parties ? And

2. If it bad jurisdiction, is the judgment it has given erroneous or not?

The plaintiff in error, who was also the plaintiff in the court below, was, with his wife and children, held as slaves by the defendant, in the. State of Missouri; and he brought this • action in the Circuit Court of the United States for that district, to assert the'title of himself and his family to freedom.

The declaration is in the form usually adopted in that State to try questions of this description, and contains the averment necessary to give the court jurisdiction; that he and the defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant a citizen of Hew York.

The .defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of Afrieah descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.

To this plea the plaintiff demurred, and the defendant joined in demurrer. The court overruled the plea, and gave judgment that the defendant should answer over.. And he thereupon put in sundry pleas in bar, upon which issues were joined; and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error. ■

Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement.

' That plea denied the right of the plaintiff’ to sue in a court of the United States, for the reasons therein stated.

If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then' the judgment of the Circuit Court is erroneous, and must be reversed.'

It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in . favor of. the plaintiff, he does not seek to reverse it, or bring it before the court, for revision by his writ of error; and also that, the defendant waived this- defence by pleading over, and thereby admitted the jurisdiction of the court.

*401But, in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been adverted to. . This peculiar and limited jurisdiction has made it necessary, in these courts, to adopt different rules and principles of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England, and in the different States of the Union which have adopted the common-law rules.

In these last-mentioned courts, where their character and rank are analogous to that of a Circuit Court of the United States; in other words, where they are what the law terms' courts of general jurisdiction; they are presumed to have jurisdiction, -unless the contrary appears. ISTo averment in the pleadings of the plaintiff is necessary, in order to give jurisdiction. If the defendant objects to it, he must plead it specially, and unless the fact on which he relies is found to be true by a jury, or admitted to be true by the plaintiff, the jurisdiction cannot be disputed in an appellate court.

Now, it is not necessary to inquire whether in courts of that description a party who pleads over in bar, .when a plea to the jurisdiction has been ruled against him, does or does not waive his plea;’ nor whether upon a judgment in his favor on the pleas in bar, á!nd a writ of'error brought by the plaintiff, the question upon the plea in abatement would be open for revision in the appellate court. Cases that may have been decided in such courts, or rules that may have been laid down by com-, mon-law pleaders, can have no influence in the decision in this-court. Because, under the Constitution and laws of the United States, the rules which govern the pleadings in its courts,, in questions of jurisdiction, stand on different principles and are regulated by different laws.

. This difference arises, as we have said, from the peculiar-character' of the G-overnment of the United States. Eor although it is sovereign and supreme in its appropriate sphere-of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers,, enumerated in the Constitution, have been conferred upon it;: and neither the legislative, executive, nor judicial departments-, of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution. And in regulating the judicial department, the .cases 'in which the courts of the-United States shall have jurisdiction are particularly and specifically enumerated and defined; and they are not authorized to take cognizance of any case which does not come within! the description-therein specified. Hence, when a plaintiff sue® in a court of the United States, it is necessary that he should *402stow, in his pleading, that the suit he brings is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by any oversight of the Circuit Court, obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not he, presumed, as in the case of a common-law English or State court, unless the contrary appeared. But the record, when it comes before the appellate court, must show, affirmatively, that the inferior court had authority, under the Constitution, to héar and determine the case. And if the plaintiff claims a right to sue in a Circuit Court of the United States, under that provision .of the Constitution which gives jurisdiction in controversies between citizens of different States, he must distinctly aver in his pleading that they are citizens of different States; and he cannot maintain his suit without showing that •fact in the pleadings.

This point was decided in the case of Bingham v. Cabot, (in 3 Dall., 382,) and ever since adhered to by the court. And. in Jackson v. Ashton, (8 Pet., 148,) it was held that the objection "to which it was open could not be waived by the opposite par- ‘ ty, because, consent of parties could not give jurisdiction.

It is needless to accumulate cases oh this subject. Those already referred to,- and the cases of Capron v. Van Noorden, (in 2 Cr., 126,) and Montalet v. Murray, (4 Cr., 46,) lire sufficient to show the rule of which we have spoken-. The case of Capron v. Van Roorden strikingly illustrates the difference between a common-law court and a court of the United States.

If, however, the fact of citizenship is averred in the declaration, and the defendant does not deny it, and put it in issue by plea in abatement, he cannot offer evidence at the trial to disprove it, and consequently cannot avail himself of the objection in the appellate court, unless the defect should be apparent in some other part of the record. For if there is no plea in abatement, and. the want of jurisdiction does not appear in any other part of the transcript brought up by the writ of error,'the un•disputed averment of citizenship in the declaration must he taken in this court to be true. In this case, the citizenship is •averred, hut it is denied by the defendant in the manner required by the rules of pleading, and the fact upon which the •denial is based is admitted by the demurrer. And, if the plea and demurrer, and judgment of the court below upon it, are before us upon this record, tile question to be decided is, whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United -States.

*403"We think they are before us. The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and áre there recorded as such; and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of the United States v. Smith, (11 Wheat., 172,) this court said, that the case being brought up by writ of error, the whole record was under the consideration of this court. And this being the case in the present instance, the plea in abatement is necessarily under consideration ; and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.

This is certainly a very serious question,, and one that now for the first time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it is our. duty to meet it and decide it.

The question;is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and ns such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

It will be observed, that the plea applies to that-class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the- pleadings, the court must be understood as speaking in this opinion,of that class only, that is,' of those persons- who are the descendants of Africans who were imported into this country, and sold as slaves.

The situation of this population was altqgether unlike that of the Indian race. The latter, it is,true, formed no part of the . colonial communities, and never amalgamated with them in social connections }or'in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their, own laws. Many of these political communities were , situated in territories to which the white race claimed the ultimate

*404tight of dominion. But that claim was acknowledged to he subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it'was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded. and treated as foreign Governments, as much so as if an ocean had separated the red- man from the white; and their freedom has constantly been acknowledged, from the time of the first emi-Sration to the English colonies to the present day, by the ifferent Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living • under our Government. It is true that the course of events has brought the Indian tribes within the limits of thé United States under subjection to the white race; -and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to.legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any.- other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up hiB abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.

We proceed to examine the case as presented by the pleadings-

The words “people of the United States” and “citizens” are‘synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the .Government through their represéntatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the; word “citizens” in the Constitution, and can therefore claim none of the rights and privileges' which that instrument, 'provides for and. secures to citizens- of the United States. On the contrary, they were at that time considered as a subordi*405nate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no. rights or privileges but such as those who held the power and the Government might choose to grant them.

It is'not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or. law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have-framed, with1 the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. .

In discussing this question, we must not confound the rights of citizenship whiqh a'State may confer within its own limits,. and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had' the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of confeiring these rights and privileges by adopting the Constitution of the United States. Each State may still .confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the- Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire-would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish' an uniform rule of naturalization, and this right is evidently exclusive, and has always been held-by this court to be so.' Consequently,-no State, since the adoption of the Constitution, can by naturalizing an alien invest-him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, -he would undoubtedly be entitled to the rights of a citizen, and clothed with all the *406rights and immunities which the Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, hy any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution, of the United States. It cannot make him a member of this community hy making him a member of its own. And for the same reason it cannot introduce any person, or. description of persons, who were not intended to he embraced in this new political family, which the Constitution brought' into existence, but were intended to be excluded from it.

The. question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro 'African race, at that time in this country, or who might afterwards be imported, who had then or should after-wards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and'endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts ?

The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, -within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.

. It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise 'become members., according to, the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time- members of. distinct and separate political communities .into one political family, -whose power, for -certain specified purposes, was to extend.oyer the whole 'territory Of the United States. And it gave to each citizen rights ana privileges outside of his State *407-which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

' It becomes necessary, therefore, to' determine who were citizens of the several States when the Constitution was adopted. And in order , to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereign-ties, and took their places in the family of independent nations. "We must inquire who, at that time, were recognised as the people or citizens of a State, whose rights and. liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free, or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence; and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. .

They had for more than a century before, been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced tó slavery for his benefit. He was bought and sold, and tréated as an ordinary article of merchandise and traffic, whenever, a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of"the white race. It was regarded as an axiom in morals as well as in politics, which no one thought pf disputing, or supposed to be open to .dispute; and men in every grade and position in society daily and habitually acted. upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. .

And in .no nation was this opinion more firmly fixed or more *408uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or fyeld them in slavery for their own use; hut they took them .as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged, in this commerce than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African, race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the-thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable.. But no one seems to have doubted the correctness of the prevailing opinion of the time.

. The legislation of the different colonies furnishes positive and indisputable proof of this fact.

It would be tedious, in this opinion,.to enumerate the various laws they passed upon this subject. It will be sufficient, aé a sample of the legislation which then generally'prevailed throughout the British colonies, to-give the laws of two of them; one being still, a large slaveholding State, and the. other the • first State in which slavery ceased to eiist.

The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law declaring “thát if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life^ excepting mulattoes born of white women, .who, for such intermarriage, shall only become servants for seven years, to be disposed of as the; justices of the county court, where such marriage so happens, shall think fit; to be applied by them towards the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid, with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed; of by the justices as aforesaid; and be applied to the uses aforesaid.”

The other colonial law to. which we refer was passed by Massachusetts in 1705, (chap. 6.) It is entitled “An act for the better preventing'of a spurious and mixed issue,” &c.; and' it provides, that “if any negro or mulatto shall presume to smite or strike any person of the English or other Christian' nation, such negro' or mulatto shall be severely whipped, at *409the discretion of the justices before whom the offender shall be convicted.”

And “that none of her Majesty’s English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and towards the support of the Government within this province, and the other moiety to him or them- that shall inform and sue for the same, in any of her Majesty’s courts of record within the province, by bill, plaint, or information.”

We give both of these laws in the words used by the respective legislative bodies, because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood, the degraded condition of this unhappy race. They were still in force when the Revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the-men who framed the Declaration of Independence and established the State Constitutions and Governments. They show thaígi perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to Slavery^and governed as subjects with absolute and despotic power, and which they-then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but .in the person who joined them in marriage. Andmo distinction in this respect was made between - the free negro or mulatto and the slave, but this stigma, of the' deepest degradation, was fixed upon the whole race.

We fefer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them of their posterity the benefit of any of its provisions.

The language .of the Declaration of Independence is equally conclusive:

It begins by declaring that, “when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to *410assume among the powers of- the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to.the separation.”

It then proceeds to say: “We hold these truths to he self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriying their just powers from the consent of the governed.”

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of - the people who framed and adopted this declaration; for if the language, as understood in that, day, would embrace them, the conduct of the distinguished men who-framed the Declaration of Independ-' ence would have been utterly andt flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed; they would have deserved and received universal rebuke and reproba* lion.

Yet the men who framed this declaration were great men— high in literary acquirements — high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world, be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary lan-fuage Of the day? and no one misunderstood thém. The un-appy black race were separated from the white by indelible marks, and laws long before established-, and were never thought of or spoken of except as- property, and when the claims of the owner or the profit of the trader were supposed to need protection.

This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.

. The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection.- It de-*411dares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was'necessary.

But there are two clauses in the Constitution which point directly find specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right to import slaves. until the year 1808, if it thinks ' proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then forined should endure. And these two provisions' show, conclusively, that neither the description of persons therein referred to,, nor their descendants, were embraced in any of the .other provisions of the Constitution; for certainly these “two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.

No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not *412even in the ininds of the framers of the Constitution when ■ they were conferring special rights and privileges upon the citizens of a State in eveiy. other part of the Union.'

Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended fo them.

It is very true, that in that portipn of the Union where the labor of the negro race was found to be únsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. ■ But this -change had hot been produced by any change of opinion in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and productions of these States: for some of the States, where it had ceased or nearly ceased to exist, were actively engaged in the slave trade, procuring cargoes on the coast of Africa* and transporting them for sale to those parts of the Union where their labor was found to be profitable, and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided. And it can hardly be supposed that, in the States where it was then countenanced .in its worst form — that is, in the seizure and transportation — the people could have regarded those who were emancipated as entitled to equal rights with them-sélves.

And we may here again refer, in support of this proposition, to the plain-and unequivocal , language of the laws of the several States, some passed after the Declaration of Independence and before the Constitution was adopted, and some since the Government went into operation.

We need not refer, on, this point, particularly to the .laws of the present slaveholding States. Their statute books are full of provisions in relation to this class, in the same spirit with the Maryland law which we have before quoted. They -have continued to treat them as an inferior class, and to subject them to strict police regulations, drawing a broad line of distinction between the citizen and the slave races, and legislating in relation to them upon the same principle which prevailed át the time of the Declaration of Independence.. As relates to these States, it is too plain for argument, that they have never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleas- *413, ure. And as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and xnulattoes were not citizens within the meaning of the Constitution of the United. States; and the correctness of this decision is recognised, and the same doctrine affirmed, in 1 Meigs’s Tenn. Reports, 331.

And if we turn to the legislation of the States where slavery had worn out, or measures takeh for its speedy abolition, we shall find the same opinions and principles equally fixed and equally acted upon.

Thus, Massachusetts, in 1786, passed a law similar to the colonial one of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person with any negro, Indian, or mulatto, and inflicts a penalty of .fifty pounds upon any one who shall join them in marriage; and declares all such marriages- absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And this mark of degradation was renewed, and again impressed upon the race, in the careful and deliberate preparation of their revised code published in 1836; This code forbids any person from joining in marriage any white person with any Indian, negro, or mulatto, and subjects the party who shall offend in this respect, to imprisonment, not exceeding six months, in the common jail, or to hard labor, and to a fine of not less than fifty nor more than two hundred dollars; and, like the law of 1786, it declares the marriage to he absolutely null and void. It will he seen that the punishment is increased by the code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty.

' So, too, in Connecticut. We refer more particularly to the legislation of this State, because it was not only among the ..first to put an end to slavery within its.own territory, hut was the first to fix a mark of reprobation upon the African slave . trade. The law last mentioned was passed in October, 1788, about nine months after the State had ratified and adopted . 1he present Constitution of the United States; and by that law . it prohibited its own citizens, under severe penaltiesj from engaging in the trade, and declared all policies of insurance on the vessel or cargo made in" the State to be null and void; But, üp to the' time of the adoption of the Constitution, there is . nothing in the legislation of the State indicating any change of opinion as to the relative rights and position of the white and black races in this, country, or indicating that it meant to place the latter, when free, upon a level with its citizens. And . certainly ..nothing which would have led the slaveholding States to suppose, that Connecticut designed to claim for them, under *414the new Constitution, the equal rights and privileges and rank of citizens- in every other State.

The first step taken by Connecticut upon this subject was as early as 1774, when it passed an act forbidding the further importation of slaves into the State. Biit the section containing the prohibition is introduced .by-the following preamble:

“And whereas the increase of slaves in this State is injurious to the poor, and inconvenient.”

This recital would appear to have been carefully introduced, in order to prevent any misunderstanding of the motive which induced the Legislature to pass the law, and places it distinctly upon the interest and convenience Of the white-population— excluding the inference that it might have been intended in any. degree for the benefit of the other.

And in the act of 1784, by which, the issue of slaves, horn after the time therein'mentioned, were to be free at a certain age, the section is again introduced by a preamble assigning a similar motive for the act. It is in these words: .

“Whereas sound policy requires that the abolition of slavery should he effected as soon as may he consistent with the rights Of individuals, and the public safety and welfare” — showing that the right of property in the master was to he protected, and that the measure was one of policy, and to prevent the injury and inconvenience, to the whites, of a slave population in the State.

And still further pursuing its legislation, we find that in the same statute passed in 1774, which prohibited the further importation of slaves into the State, there is also a provision by which any negro, Indian, or mulatto servant, who was found wandering out of the town or place to which he belonged, without, a written pass such as is therein described, was- made liable to be seized by any one, and taken before the next authority to be examined and delivered up to his master — who was required to pay the charge which had accrued thereby. And a subsequent section of the same law provides, that if any free negro shall travel without such pass* and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted, and was not repealed till 1797. So that up to that .time frefe negroes and mulattoes were associated with servants and .slaves in the police regulations established by the laws of the State.-

And again, in 1833, Connecticut passed another law, which made it penal to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the State, or to instruct or teach in any such school or *415institution, or board or harbor for that purpose, any sucb person, without the previous consent in writing of the civil authority of the town in which such school or institution might be.'

And it appears by the case of Crandall v. The State, reported, in 10 Conn. Rep., 340, that upon am information filed , against Prudence Crandall for a violation of this law,-one of-the points raised in the defence was, that the law was a violation of the Constitution of the United States; and that the persons instructed, although of the African race, were citizens of other States, and therefore entitled to the rights and privileges of citizens in the State of Connecticut, But Chief Justice Dag-tet, before whom the case was tried, held, that persons of that escription were not citizens of a State, within the meaning of the word citizen in the Constitution of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States.

■ The case was carried up to the Supreme Court of Errors of the State, and the question fully argued there. But the case went off upon another point, and no opinion was expressed on this question.

"We have made this particular examination into the legislative and judicial action of Connecticut, because, from the early hostility it displayed to the slave trade on the coast of Africa, we may expect to find the laws of that State as lenient and favorable to the subject race as those of any other State in the Union; and if we find that at the time the Constitution was adopted, they were, not evfen there raised to the rank of citizens, but were still held and treated as property, .and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank anywhere else. .

A-brief notice of the laws of two other States, and we shall pass on to other' considerations.

By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State, but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could' more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen ? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it.

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It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, ana exercised so much'' influence in procuring its adoption, could.have been so forgetful or regardless of their own safety and the ■ safety of those who trusted and confided in them.

Besides, this want' of foresight and care would have been utterly inconsistent with the caution displayed in providing for the admission of new members into this political family. For, when they gave to the citizens of each State the privileges and immunities of citizens in the several States, they at the same time took from the several States the power of naturalization, and confined that power exclusively to the Federal Government. ÍTo State was willing to permit another State ■ to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to tibe rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an -inferior and subordinate class. And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much *418more important power — that is,, the power of transforming into citizens a numerous class of persons, who in that character would be much more dangerous to the peace and safely ■of a large portion of the Union, than the few foreigners one of the States might improperly naturalize. The Constitution upon its adoption obviously took from the States' all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was horn, or what might he his character or condition; and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory.

A clause similar to the one in the Constitution, in relation to the rights and immuniti.es of citizens of one State in the other States, was contained in the Articles of Confederation. But there is a difference of language, which is worthy of note-. The provision in the Articles of Confederation was, “that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should he entitled to all the privileges and immunities of free citizens in the several States.” ,

It will he observed, thát under this Confederation, each State had the right to decide for itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of another State. The term free inhabitant, in the generality of its terms, would certainly include one of the African race who had been manumitted. But no example, we think, can be found of his admission to all the privileges of citizenship in any State of the Union after these Articles were formed, and while they continued in force. And, notwithstanding the generality of the words “free inhabitants,” it is veiy clear that, according to their accepted meaning in that day, they did not include the African race, whether free or not: for the fifth, section of the ninth article provides that Congress should have the power “to agree upon the number of land forces to be raised, and to malee inquisitions from each State for its quota in proportion to the number of white inhabitants in such State, which requisition should be binding.”

"Words could hardly have been used which more strongly mark the line of distinction between the citizen and the •‘subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be .embodied in proportion to its numbers for the general defence. A.nd it cannot for a moment be supposed, that a class of *419persons thus separated and rejected from those who formed ■the sovereignty of the States, were yet intended to he included under the words “free inhabitants,” in the preceding article, to whom privileges and immunities were so carefully secured in every State.

But although this clause of the Articles of Confederation is the same in principle with that inserted in the Constitution, yet the comprehensive word inhabitant, which might' be corn strued to include an emancipated slave, is omitted; and the privilege is confined to citizens of the State. And this alteration in words would hardly have been made, unless a different meaning was intended to be conveyed, or a possible doubt removed. The just and fair inference is, that as this privilege was about to be placed under the protection of the General Government, and the words expounded by its tribunals, and all power in relation to it taken from the State and its courts, it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given — and the word citizen was on that account substituted for the words free inhabitant. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted; and also every description of persons who were not fully recognised as citizens in the several States. This, upon any fair construction of the instruments to which we have' referred, was evidently the object and purpose of this change of words.

To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the Government went into operatiofi, will be abundantly sufficient to show this. The two first are particularly worthy of notice, because many ofithe men who assisted in framing the Constitution, and took an active part in procuring its adoption, were then in the halls of legislation, and certainly understood what they’meant when they used the words “people of the United States” and “citizen” in that well-considered instrument.

The first of these acts is the naturalization law, which was passed at the second session of the first Congress, March 26, 1790, and confines the right of becoming citizens “to aliens being free white ‘persons.”

. 3n ow, the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one, of any color, who was born under allegiance to another Government. But the language of the law above quoted, shows that citizenship *420at that time was perfectly'understood to be confined to the white race; and that they alone constituted the sovereignty in the Government.

Congress might, as we before said, have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even then guarding themselves against the threatened renewal of Indian hostilities. ÍTo one supposed then that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word white was not used with any particular reference to them.

ÍTeither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore there was no necessity for using particular words to exclude them.

It would seem to have been used merely because it followed out the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subjection and slavery, and governed at their own pleasure.

Another of the early laws of which we have spoken, is the first militia law, which was passed in 1792, at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every “free able-bodied white male citizen” shall be enrolled in the militia. The word white is evidently used to exclude the African race, and the word “citizen” to exclude unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free; but it is repudiated, and rejected from the duties and obligations of citizenship in marked language.

The third act to which we have alluded is even still inore decisive; it was passed as late as 1813, (2 Stat., 809,) and it provides: “That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States.

*421Here the line of. distinction is drawn in, expresswords. Peiv sons of color, in the judgment of Congress, were not included in the word citizens, ana they are described as another and different class of persons, and authorized to be employed, if born in the United States.

And even as late as 1820, (chap. 104, sec. 8,) in the' charter to the city of Washington, the corporation is authorized “to restrain and prohibit the nightly and other disorderly meet* ings of slaves, free negroes, and mulattoes,” thus associating them together in its legislation: and after prescribing the pun* ishment that may be inflicted on the slaves, proceeds in the following words: “And to punish such free negroes and mulattoes by penalties not exceeding twenty dollars for any one offence; and in case of the inability of any such free negro or mulatto to pay any such penalty and cost thereon, to cause him or her to be confined to labor for any time not exceeding six calendar months.” And in a subsequent part of the same ^section, the act authorizes the corporation “to prescribe the terms and conditions upon which free negroes and mulattoea may reside in the city.”

This law, like the laws of the States, shows that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white citizens. And after such an uniform course of legislation as we have stated, by the colonies, by the States, and by Congress, running through a period of more than a century, it would seem that to call persons thus marked and stigmatized, “citizens” of the United States, “fellow-citizens,” a constituent part of the sovereignty, would be an abuse of terms, and not calculated to exalt the character of ah American citizen in the eyes of other nations.

.The conduct of the Executive Department of the Government has been in perfect harmony upon this subject with this course of legislation. The question was brought officially before the late "William Wirt, when he was the Attorney General of the United States, in 1821, and he decided that the words “citizens of the United States” were used in the acts of Congress in the same sense as in the Constitution; and that free persons of color were not citizens, within the meaning of the Constitution and laws; and this opinion has been confirmed by that of the late Attorney General, Caleb Cushing, in a recent case, and acted upon by the Secretary of State, wbn refused to grant passports to them as “citizens of the United States.”

But it is said that a person may be a citizen,' and entitled to *422that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognised there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship.

This argument overlooks the language of the provision in the Constitution of which we are speaking.

Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot votó; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens.

So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoés, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States, does not apply to them.

Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State .from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognised as citizens, but belong tó an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens.

But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State, as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another' State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which .belong to citizens of the *423State. And if persons of the African race are citizens of a State, and of the United States, they would he entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws- of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences Avhich make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.

The case of Legrand v. Darnall (2 Peters, 664) has been referred to for the purpose of showing that this court has decided that the descendant of a slave may sue as a citizen in a court of the United States; but the case itself shows that the question did not arise and could not have arisen in the case.

. It appears from the report, that Darnall was born in Maryland, and was the son of a white man by one of his slaves, and his father executed certain instruments to manumit him, and devised to him some landed property in the State. This property Darnall afterwards sold to Legrand, the appellant, who gave his notes for the purchase-money. But becoming after-wards apprehensive that the appellee had not been emancipated according to the laws of Maryland, he refused to pay the notes until he could bé' better satisfied as to Darnall’s right to convey. Darnall, in the mean time, had taken up his residence in Pennsylvania, and brought suit on the notes, and recovered judgment in the Circuit Court for the district of Maryland.

The whole proceeding, as appears by the report, was an amicable one; Legrand being perfectly willing to pay the money, if he could obtain a title, and Darnall not wishing him to pay unless he could make him a good one. In point of fact, the whole proceeding was under the direction of the counsel who argued the case for the appellee, who was the mutual friend o£ the parties, and confided in by both of. them, and whose only *424object was to have the rights of both parties established by judicial decision in the' most speedy and least expensive manner.

Legrand, therefore, raised no objection to the jurisdiction of the court in the suit at law, because he was himself anxious to obtain the judgment of the court upon his title. Consequently, there was nothing in the record before the court to show that Darnall was of African descent, and the usual judgment and award of execution was entered. And Legrand thereupon filed his bill on the equity side of the Circuit Court, stating that Darnall was born .a slave, and had not been legally emancipated, and could not therefore take the land devised to him, nor make Legrand a good title; and praying an injunction to restrain Darnall from proceeding to execution on the judgment, which was granted. Darnall answered, averring in his answer that he was a free man, and capable of conveying a good title. Testimony was taken on this point, and at the hearing ‘the Circuit Court was of opinion that Darnall was a free man and his title good, and dissolved the injunction and dismissed the bill; and that decree was affirmed here, upon the appeal of Legrand.

Sow, it is difficult to imagine how any question about the citizenship of Darnall, or his right to sue in that character, can be supposed to have arisen or been decided in that ease. The fact that he was of African descent was first brought before the court upon the bill in equity. The suit at law had then passed into judgment and award' of execution, and the Circuit Court, as a court of law, had no longer any authority over it. It was a valid and legal judgment, which the court that rendered it had not the power to reverse or set aside. And unless it had jurisdiction as a court of equity to restrain him from using its process as a court of law, Darnall, if he thought proper, would have been at liberty to proceed on his judgment, and compel the payment of the money, although the allegations in the bill were true, and he was incapable of making a title. No other court could have enjoined him, for certainly no State equity court could interfere in that way with the judg-. ment of a Circuit Court of the United States.

But the Circuit Court as a court of equity certainly had equity jurisdiction over its own judgment as a court of law, without regard to the character of the parties; and had not only the right, but it was its duty — no matter who were the parties in the judgment — to prevent them from proceeding to enforce it by execution, if the court was satisfied that the money was not justly and equitably due. The ability of Dar-pall to convey did not depend upon his citizenship, but upon his title to freedom. And if he was free, he could hold and *425convey property, by the laws , of Maryland, although he was not a citizen.. ‘ But if he was by law still a slave, he could not. It was therefore the duty of the court, sitting as a court of equity in the latter ease, to prevent him from using its process, as a court of common law, to compel the payment of the purchase-money, when it was evident .that the. purchaser must lose the land. But if he was free, and could make a title, it. was equally the duty of the court not. to suffer Legrand to keep the land, and refuse the payment of the money, upon the ground that Darnall was incapable of suing or( being sued as a citizen in a court of the United States. The character or citizenship of the parties had no connection with the question of jurisdiction, and the matter in dispute had no relation to the citizenship of Darnall. Nor is such a.question alluded to in the opinion, of the court.

Besides, we are by no means prepared to say that thpre are not many cases, civil as well as criminal, in which a Circuit Court of the United States may exercise jurisdiction, although one of the.African race is a party; that broad question is not before the court. The question with which we are now dealing is, whether a person of the African race can be a citizen of the United States, and become thereby entitled to a special privilege, by virtue of his title to that character, and which, under .the Constitution, no one but a citizen can claim. It is manifest that the case of Legrand and Darnall has no bearing on that question, and caD have no application to the case now before the court.

This ease, however, strikingly illustrates the consequences that would follow the construction of the Constitution which would give the power contended for to a State. It would in effect give it also to an individual. For if the father of young T>arnall had manumitted him in hi3 lifetime, and sent him to reside in a State which recognised him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the. State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the layra and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship, without respect to the laws of Maryland, although such laws were deemed by it absolutely essential, to its own safety.

The only two provisions which point to them and include them, treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Govern*426ment of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting, the rights of the owner, leaving it altogether withothe several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves.

Ho one, we presume, supposes that any" change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to hear when the instrument was framed and adopted. Such an argument wotfld he altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on ..and adopted by'the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to. it, and it must not falter in the path of duty.

What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition, to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution-can be regarded as settled, it is that which we now give to the word “citizen” and the word “people.”

And upon a full and careful consideration of the subject, *427the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not. entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous.

We are aware that doubts are entertained by some of the members of the court, whether the plea in abatement is legally before tiie court upon this writ of error; but if that plea is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial; for he admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and upon their return to Missouri became citizens of that State.

Now, if the removal of which he speaks did not give them their freedom, then by his own admission he is still a slave; and whatever opinions may be entertained in favor,of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States. If, therefore, the acts done by his owner did not make them free persons, he is still a slave, and certainly incapable of suing in the character of a citizen.

The principle of law is too well settled to be disputed, that a court can give no judgment for either party, where it has no jurisdiction; and if, upon the showing of Scott himself, it appeared that he was still a slave, the case ought to have been dismissed, and the judgment against him and in favor of the defendant for costs, is, like that on the plea in abatement, erroneous, and the ■ suit ought to have been dismissed by the Circuit Court for want of jurisdiction in that court.

But, before we proceed to examine this part of the case, it may be proper to notice an objection taken to the judicial authority of this court to decide it; and it has been said, that as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement, it has no right to examine any question presented by the exception; and that anything it may say upon that part of the case will be extra-judicial, and mere obiter dicta.

This is a manifest mistake; there can be no doubt as to the jurisdiction of this court to revise the judgment of a Circuit Court, and to reverse it for any error apparent on the record, *428whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this, too, whether there is a plea in abatement or not.

The objection appears to have arisen from confounding writs of error to a State court, with writs of error to a Circuit Court of the United States. Undoubtedly, upon a writ of error to a State court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jurisdiction in this court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exceptions, or any other part of the record. But writs of error to a State court, and to a Circuit Court of the United States, are regulated by different laws, and stand upon entirety different principles. And in a writ of error to a Circuit Court of the United States, the whole record is before this court for examination and decision; and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but'it is the judicial duty of the court, to examine the whole case as presented by the record; and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment, and remand the; case. And certainly an error in passing a judgment upon the merits in favor of either party, in a case which it was not authorized to try, and over' which it had no jurisdiction, is as grave an error as a court can commit. , . - ■

The plea in abatement is not a plea to the jurisdiction of this court, but to the jurisdiction óf the Circuit Court. And it appears by the record before us, that the Circuit Court committed an error, in deciding that it had jurisdiction, upon the facts in the ease, admitted by the pleadings. It is the duty of the appellate tribunal to correct this error; but that could not be done by dismissing the case for want of jurisdiction here— for that would leave the erroneous judgment in' full force, and the injured party without remedy. And the appellate court therefore exercisés the power for which alone appellate courts are constituted, by reversing the judgment of the court below for this error. It exercises its proper and appropriate jurisdiction over the judgment and proceedings of the Circuit Court, as they appear upon the record brought up by the writ of error.

The correction óf one error in the court below does not deprive the appellate court of the power of examining further into the record, and correcting any other material errors which may have been committed by the inferior court. There is certainty no rule of law — nor any practice — nor any decision of a *429court — which even questions this power in the appellate tribunal. On the contrary, it is the daily practice of this court, and of all appellate courts where they reverse the judgment of an inferior court for error, to correct by its opinions whatever errors may appear on the record material to the case; and they have always held it to be their duty to do so where the silence of the court might' lead to misconstruction or future controversy, and the point has been relied on by either side, and argued before the court.

In the case before us, we have already decided that the Circuit Court erred in deciding that it had jurisdiction upon the facts admitted by the pleadings. And it appears that, in the further progress of the case, it acted upon the erroneous principle it had decided on the pleadings, and gave judgment for the defendant, where, upon the facts admitted in the exception, it had no'jurisdiction.

We are at a loss to understand upon what principle of law, applicable to appellate jurisdiction, it can be supposed that this court has not judicial authority to correct the-last-mentioned error, because they had before corrected the former; or by what process of reasoning it can be made out, that the error of an inferior court in actually-pronouncing judgment for one of the parties, in a case in which it had no jurisdiction, cannot be looked into or corrected by this court, because we have decided a similar question presented in the pleadings. The last •point is distinctly presented by the-facts contained in the plaintiff’s own bill of exceptions, which he himself brings here by this writ of error. It was the point which chiefly occupied the attention of the counsel on both sides in the argument — and the judgment which this court must render upon both errors is precisely the same. It must, in each of them, exercise jurisdiction over the judgment, and reverse it for the errors committed by the court below; and issue a mandate to the Circuit Court to conform its judgment to the opinion pronounced by this court, by dismissing the case for want of jurisdiction in the Circuit Court. This is the constant and invariable practice of this court, where it reverses a judgment for want of jurisdiction in the Circuit Court.

It can scarcely be necessary to pursue such a question further. The want of jurisdiction in the court below may appear on the record without any plea in abatement. This is familiarly the case where a court of chancery has exercised jurisdiction in a case where the plaintiff had a plain and adequate remedy at law, and it so appears by the transcript when brought here by appeal. So also where it appears that a court of admiralty has exercised jurisdiction in a case belonging ex-*430clusivety to a court of common law. In these cases there is no plea in abatement. And for the same reason, and upon the same principles, where the. defect of jurisdiction is patent on the record, this court is bound to reverse the judgment, although the defendant has not pleaded in abatement to the jurisdiction of the inferior court.

The cases of Jackson v. Ashton and of Capron v. Van Noorden, to which we have referred in a previous part of this opinion, are directly in point. In the last-mentioned case, Capron brought an action against Van Hoorden in a Circuit Court of the. United States, without showing, by the usual averments of citizenship, that the court had jurisdiction. There was no plea in abatement put in, and the parties went to trial upon the merits. The court gave judgment in favor of the defendant with costs. The plaintiff thereupon brought his writ of error, and this court reversed the judgment given in favor of the defendant, and remanded the case with directions to dismiss it, because it did not appear by the transcript that -the Circuit Court had jurisdiction.

The case before us still more strongly imposes upon this court the duty of examining whether the court below has not committed an error, in taking jurisdiction and giving a judgment for costs in favor of the defendant; for in Capron v. Van Noorden the judgment was reversed, because it did not appear that the parties were citizens of different States. They might or might not be. But in this case it does appear that the plaintiff was born a slave; and if the facts upon which he relies have not made him free, then it appears affirmatively on the record that he is not a citizen, and consequently his suit against Sandford was not a suit between citizens of different States, and the court had no authority to pass any judgment between the parties. The suit ought, in this view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is erroneous, and must be reversed.

It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a pecuniary or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment, would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be , drawn into precedent, and lead to serious mischief and injustice in some future suit.

We proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him to his freedom.

*431The case, as be himself states it, on the record brought here by his writ of error, is this:

The plaintiff was a negro slave, belonging to Dr. Emerson, ' who was a surgeon in the army of the United States. In the year 1834, he took the 'plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month- of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Eort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson- held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff’s declaration-, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at said Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and ownei*. Eliza and Lizzie, named in the third count of the plaintiff’s declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi.. Lizzie "is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson' removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided.

Before the commencement of this /suit, Said Dr. Emerson sold and'conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed tq hold them, and each of them, as ¿laves.

In considering this, part of the controversy, tw.o questions arise: 1. -Was he, together with1 Ms family, free in Missouri by reason of the stay in the territory of the United States herein-*432before mentioned? And 2. If they were not, is Scott himself free by reason of his- removal to Rock Island, in the State of Illinois, as stated in the above admissions ?

Ve proceed to examine the first question.

The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits. of Missouri. And the difficulty which meets us at the threshold- of this part of the inquiry is, whether Congress was authorized to pass this law. under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it .void and inoperative, and incapable' óf conferring freedom upon any one who' is held as a slave under the laws of any.one of the States.

The counsel for the plaintiff has laid much stress upon that ' article in the Constitution which confers on Congress ■ the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;"’ but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon-a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more.

A brief summary of the histoty of the times, as well as the careful and measured terms in which the article is framed, will show the correctness of this proposition;

It will ,be remembered that, from the commencement of the Revolutionary war, serious difficulties existed between the States, , in relation to ■ the disposition of large and unsettled territories which were included in the chartered limits of some of the States. And some of the other .States, and. more especially Maryland, which had no unsettled lands, insiste'd that as the unoccupied lands, if wrested from Great Britain, would owe .their preservation to the common' purse and the. common sword, the money arising from them ought to be applied in just proportion among the several States to pay the expenses of the war, and ought not to be appropriated to the. use of the State, in wliose chartered. limits they might happen *433to lie, to.the exclusion of the other States, by whose combined efforts and common expense the territory was defended and preserved against the claim of the British Government.

These difficulties caused much uneasiness during the war, while'the issue was in some degree doubtful, and the future boundaries of the United States yet to be defined by treaty, if we achieved our independence.

The majority of the Congress of the Confederation obviously concurred in opinion with the State of Maryland, and desired to obtain from the States which claimed it a cession of this territory, in order that Congress might raise money on this security to carry on the war. This appears by the resolution passed on the 6th of-September, 1780, strongly urging the States to cede these lands to the United States, both for the sake- -of peace and union among themselves, and to maintain the. public credit; and this was followed by .the resolution of October 10th; 1780, by which Congress pledged itself, that if the lands were'ceded, as recommended by the resolution above' mentioned, .they should be disposed of for the common benefit of the United States, and.be settled, and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, and freedom, and independence, as other States.

But these difficulties became much more serious after peace took place, and the boundaries of the United States were established. . Every State, at. that time, felt severely the pressure-of its war debt; but in Virginia, and some other States, there were large territories of unsettled lands, the sale of which would enable them to discharge their obligations without much inconvenience ;■ while other States, which had no such resource, saw before them many years of heavy and burdensome taxation-; and the latter insisted, for the reasons before-stated, that these unsettled. lands should be treated as the common property of the States, and the proceeds applied to their common benefit.

, The letters- from -the statesmen of that day will show how much this controversy occupied their thoughts, and the dangers that were apprehended from itl. It was thé disturbing-element of the time, and fears were entertained that it might' dissolve ■ the Confederation by which the States were then united.

These fears and dangers were, however, at on,ce removed, ■ when-the;State of. Virginia, in 17.84, voluntarily ceded to the United States the immense tract of country lying northwest of the river Ohio, and which was within the'’acknowledged limits of the State. The only object of the State, in making, *434this cession, was to put an end to the threatening and exciting controversy, and to enable the Congress of that time to dispose of the lands, and appropriate the proceeds as a common fund for the common benefit of the States. It was not ceded, be-causé it was inconvenient to the State to hold and govern it, nor from any expectation that it could be better of more conveniently governed by the United States.

The example of Virginia was soon afterwards followed by other States, and, at the .time of the adoption of the Constitution, all of the States, similarly situated, had ceded their unappropriated lands, except North Carolina and Georgia. The main object for which these cessions were desired and made, was on account of their money value, and to put an end to a' dangerous controversy, as to who was justly entitled to the proceeds when the lands should be sold. It is necessary to bring this part of the history of these cessions thus distinctly into view, because it will enable us the better to comprehend the phraseology of the article in the'Constitution, so often'referred to in the argument.

Undoubtedly the powers of sovereignty and the eminent domain were ceded with the land. This was essential, in order to make it effectual, and to accomplish its objects. But it must be remembered that, at that time, there was no Government. of the United States in existence with enumerated and limited powers; what was then called the United States, were thirteen separate, sovereign, independent ■ States, which had ■entered into a league or confederation for their mutual protection and advantage, and the Congress of the United States was composed of the representatives of these separate sovereign-ties, meeting together,' -as equals, to discuss and decide ,on certain measures which the States, by the Articles of Confederation, had agreed to submit to their decision. But this Confederation had none of the attributes of sovereignty in legisla^ five, executive, or judicial power. -It was little more than a congress of ambassadors, authorized to represent separate nations, in matters in which they had a common concern.

It was this Congress that accepted the cession from Virginia. ’They had no power to accept it under the Articles of Confederation. But they had an undoubted right, as independent sovereignties, to accept any cession of territory for their common 'benefit, which all of them assented to; and it is equally clear, that as their common property, and having no superior to control them, they had the right to exercise absolute dominion over it, subject only to the restrictions which Virginia had imposed in her act of cession. There was, as we have said, no Government of .the United' States then in existence *435with special enumerated and limited powers. The territory-belonged to sovereignties, who, subject to the limitations above mentioned, had- a right to establish any form of government they pleased, by compact or treaty among themselves, and to regulate rights of person and rights of property in the territory, as' they might deem proper. It was by a Congress, representing the authority of these several and’separate sovereignties, and acting under their authority and command, (but not from any authority derived from the Articles of Confederation,) that the instrument usually called the ordinance 'of 1787 was adopted; regulating in much detail the principles and the laws by which this territory should be governed; and among other provisions, slavery is prohibited in it. We do not question the power of the States, by,agreement among themselves, to pass this ordinance, nor its obligatory force in the territory, while the confederation or league of the States in their separate sovereign character continued to exist.

This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated States as common properly, and they had united in establishing in it a system of government and jurisprudence, in order to prepare it for admission as States, according to the terms of the cession. They were about to dissolve this federative "Union, and to surrender a portion of their independent sovereignty to a new Government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States; but this Government was to be caremlly limited in its powers, and to exercise no authority beyond those expressly - granted by the ^Constitution, or necessarily, to be implied from the language of the instrument, and the objects it was intended to-accomplish; and as this league of States would, -upon the adoption of the new Government, cease to have any power over the territory, and the -ordinance they had agreed upon be incapable of execution, and a mere nullity, it was obvious that some provision was necessary to give the new Government sufficient power to enable it to carry into effect' the objects for which it was ceded, and the compacts and agreements which the States had made with each other in'the exercise of their powers of Sovereignty. It was necessary that the lands should be sold to pay the war debt; that a Government and. system of jurisprudence should be maintained in it, to protect the citizens of the United States who should migrate to the territory, in their-' rights of person and of property, It was also necessary that, the new Government, about to be *436adopted, should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been ceded, but the cession of which was confidently anticipated upon some terms that would 'be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land, such as arms, military •stores, munitions, and ships of war, which were the common property of the States, when acting in their independent characters as confederates, which neither the new Government nor any one else would have a right to take possession of, or control, without authority from them; and it was to place these things under the guardianship and protection of the new Government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which gives Congress the power' lfto dispose of and make all needful rules" and regulations respecting the territory or other property belonging to the United States.” It was intended for a specific purpose, to provide for the things we haVe mentioned. It was to transfer to the new Government the property then held in common by" the States, and to give to that Government, power to apply it to the objects, for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and h,as no reference whatever to any territory or other property which the new sovereignty might after- • wards itself acquire.

The language -used in the clause, the arrangement and combination of the powers, arid the somewhat unusual phraseology it-uses, when it speaks of. the political power to be exercised in the. government of the territory, all indicate the design and meaning of the-clause to be such as we have mentioned. It does not-speak of any territory, nor of Territories, but uses language which, according to its legitimate meaning, points to . a particular thing. < The power is given in relation only to the ' territory of the United States — that is, to a territory then in existence, and then known or claimed as the territory of the United States.-, It begins its enumeration of powers by that of disposing; in other words, making sale of the lands, of raising money from them, which, as we have already said, was the main object oí the cession, and which is accordingly the first thing provided for in the article. It then gives the power, •which was necessarily associated with the disposition and sale of the lands — that is, the power- of making needful rules and •regulations respecting the territory. And whatever construe- . tion may now be given to these words, every one, we think, *437must admit that they are not tbe words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new Government might af-terwards itself obtain by cession from a State, either for its seat of Government, or for forts, magazines, arsenals, dock yards, and other needful buildings. -

And the same power of making needful rules respecting the territory is, in precisely the same language, applied to the other property belonging to the United States — associating the power over- the territory in this respect with the power over movable or personal property — that is, the ships, arms, and munitions of war, which then belonged in common to the State sover-eignties. And it will hardly be said, that this power, in relation to the last-mentioned objects, was deemed necessary fo be thus specially given to the new Government, in order to authorize it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might itself manufacture or provide for the public service.

No one, it is believed, would think a moment of deriving the power of Congress to make needful rules and regulations in relation to property of this kind from this clause of the Constitution. Nor can -it, upon any fair construction, be applied to any property but that which the new Government was about to receive from the confederated States; And if this be true as to this property, it must be equally true and limited as to the territory, which is so- carefully and precisely coupled with it — -and like it referred to as property in the power granted. The concluding words of the clause appear to render this construction irresistible; for, after the provisions we have mentioned,-it proceeds to say, “that nothing in'the Constitution shall be so construed as to prejudice any claims of the United States, or of-any, particular State.”

Now, as we have before said, all of the States, except North Carolina and Georgia, had made the cession before the Constitution was adopted, according to the resolution of Congress of October 10, 1780. The claims of other States, that the unappropriated lands in these two States should be applied to the common benefit, in like manner, was still insisted on, but refused by the States. And this-member of the clause in question evidently applies to them, and can apply to nothing else. It was to exclude the conclusion that either party, by-adopting the Constitution, would surrender what they deemed their rights. And when the latter provision relates so obviously to the unappropriated lands not yet ceded by the States, and the first clause makds provision for "those then actually ceded, it is *438impossible, by any just rule of construction, to make the first provision general, and extend to all territories, which the Federal Government might in any way afterwards acquire, when the latter is plainly and unequivocally confined to a particular territory; which was apart of the same controversy, and. involved in the same dispute, and depended upon the same principles. The union of the two provisions in the same clause shows that they were kindred subjects; and that the whole clause is local, and relates only to lands, within the limits of the United States, which had been or then were claimed by a State; and that no other territory was in the mind of the framers of the Constitution, or intended to be embraced in it; Upon any other construction it would be impossible to account for the insertion of the last provision in the place where it is found, or to comprehend why, or for what object, it was associated'with the previous provision.

' This view of the subject is confirmed by the .manner in which the present Government of the United States dealt with the subject as soon as it came into existence. It must be borne in mind that the same States that formed the Confederation also formed and adopted the new Government, to which so large a portion of their former sovereign powers were surrendered. It must also be borne in mind th.at all of these same States which had then ratified the new Constitution were represented in the Congress which passed the first law for the government of this territory; and many of the members of that legislative body had been deputies from the States under the Confederation — had united in adopting the ordinance of 1787, and assisted in forming the new Government under which they were then acting, and whose powers they were then exercising. And it is obvious from the law they passed to carry into effect the principles and provisions of the ordinance, that they regarded it as the act of the States done in the exercise of their legitimate powers at the time. The new Government took the territory as it found it, and in the condition in which it was transferred, and did not attempt to undo anything that had been done; And, among the earliest laws passed under the new Government, is one reviving the ordinance of 1787, which had become inoperative and a nullity upon the adoption of the Constitution. This law introduces no new form or principles for its government, but recites, in the preamble, that it is passed in order that this ordinance-may continue to have full effect, and proceeds to make, only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen.. It appears, therefore, that this Congress regarded the purposes *439to which the land in this Territory was to be applied, and the form of government and principles of jurisprudence which were to prevail there, while it remained in the Territorial state, as already determined on by the States when they had full power and right to make the decision; and that the new Government, having received it in this condition, ought to carry substantially into effect the plans' and principles which had been previously adopted by the States, and which no doubt the States anticipated when they 'surrendered their power to the new Government. And.if we regard this clause of the Constitu- • tion as pointing to this Territory, with a Territorial Government already established in it, which had been ceded to the States for the purposes hereinbefore mentioned — every word in it is perfectly appropriate and easily understood, and the provisions it contains are in perfect harmony with the objects for which it was ceded, and with the condition of its government as a Territory at the time. ,Ve can, then, easily.account for the manner in which the first Congress legislated on the subject — and can also understand why this power over the territory was associated in the same clause with the other property of the United States, and subjected to the like power of making needful rules and regulations. But if the clause is construed in the expanded sense contended for, so as to embrace any territory acquired from a foreign nation by the present Government, and to give it in such territory a despotic and .unlimited power over persons and property, such as the confederated States might exercise in their common property, it would be difficult to account for the phraseology used, when compared with other grants of power — and also for its association with the other provisions in the same clause.

The Constitution has always been remarkable for the felicity of its arrangement of different subjects, and the perspicuity and appropriateness of the language it uses. But if this clause is construed to extend to territory acquired by the present Government from a foreign nation, outside of the limits of any charter from the British Government to a colony, it would be difficult to say, why it was. deemed necessary to give the Government the power to sell any vacant lands belonging to the sovereignty which might be found within it; and if this was necessary, why the grant of this power should precede the power to legislate over, it and establish a Government there; and still more difficult to say, why it was deemed necessary so specially and particularly to grant the power to make needful yules and regulations in relation to any personal or movable property it might acquire there. Eor the words, other property necessarily, by every known rule of interpretation, must mean *440property of a different description from territory or land. And. the difficulty would perhaps be insurmountable in endeavoring to account for the last member of the sentence, which provides that ‘/nothingin this.Constitution shall be so construed.as to prejudice any claims pf the United States or any particular State.,” or to say how any particular State could have claims in or" to a territory ceded by a foreign Government,. or to account for associating this provision with the preceding provisions of the clause, with which it would appear to have no connection.

The words “needful, rules; and regulations” would seem, also, to Have been cautiously used for some definite object. Théy are not the words usually employed by statesmen, when they mean to give the powers of sovereignty, or to establish a Government, or to authorize its establishment. Thus, in the law to renew and keep alive the ordinance of 1787, and to reestablish the Government, the title of the law is: “An act to provide for the government of the territory northwest of the river Ohio.” . And in the Constitution, when granting the power to legislate over the territory that may be selected for the Seat of Government independently of a State, it does not say Congress shall have power “to make all needful rules and ■regulations respecting' the territory;” but it declares that “ Congress shall have povfer to exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square)^as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States.

The words “rules and regulations” are usually employed in ' the Constitution in speaking of some particular specified power which it means to confer op the Government, and not, as we have seen, when granting general powers of legislation. As, for example, in the particular power to Congress “to make rules for the government and regulation of the land and naval forces, or the particular and specific power to regulate commerce;” “to establish an uniform rule o,f naturalization;” _“to coin money and regulate the value thereof.” And to construe the words of which we are speaking as a general and unlimited grant of sovereignty over territories which the Government might afterwards acquire, is to use them' in a sense and for a purpose for which they were not used in any other part of the instrument. But if confined to a particular Territory, in which a Government and laws had already been established, but which would require some alterations to adapt it to the new Government, the words are peculiarly applicable and appropriate for that purpose.

*441The necessity of this speeial provision in relation to property and the rights or property held in common by the confederated ■States, is illustrated by the first clause of the sixth article. This clause provides that “ail debts, contracts, and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Government as under the Confederation.” This provision, like the one under consideration, was indispensable if the new Constitution was adopted. The new Government was not a mer¿ change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and hound by all the obligations of the preceding one. But, when the present United States came into existence under the new Government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution. And as the several States would cease to exist in their former confederated character upon the adoption of the Constitution, and could not, in that character, again assemble together, special provisions - were indispensable to transfer to the new Government the property and rights which at that time they held in common; and at the same time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted; and this power could only be given to it by special provisions in the Constitution. The clause in relation to the territory and other property of the United States provided for the first, and the clause last quoted provided for the other. . They have no connection with the general powers and rights, of sovereignty delegated-to the new Government, and can neither enlarge nor diminish them. They were inserted to meet a present emergency, and not to regulate its powers as a Government.

Indeed, a similar provision was deemed necessary, in relation to treaties made by the Confederation; and when1 in the clause next succeeding the one of which we have last spoken, it is declared that treaties shall be the supreme law of the land, care is taken to include, by express words, the treaties made by the confederated States. The language is: “and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”

Whether, therefore, we take the particular clause in question, by itself or in connection with the other provisipns of the Constitution, we think it clear, that it applies only to the par*442ticular territory of which we have spoken, and cannot, by any just rule of interpretation, be extended to territory which the new Government might afterwards obtain from a foreign nation. Consequently, the power which Congress may have lawfully exercised in this Territory, while it remained under a ■Territorial Government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory af-terwards acquired by the Federal Government. "We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us.

But the case of the American and Ocean Insurance Companies v. Canter (1 Pet., 511) has been quoted as establishing a different construction of this clause of the Constitution. There is, however, not the slightest conflict between the opinion now given and the one referred to; and it is only by taking a single sentence out of the latter and separating it from the context, that even an appearance of conflict can be shown. "We need not comment on such a mode of expounding an opinion of .the court. Indeed it most commonly misrepresents instead of expounding it. And this is fully exemplified in the case referred to, where, if one sentence is taken by itself, the opin- : ion would appear to,.be in direct conflict with that now given; but. the words which immediately follow that sentence show that the court did not mean to decide the point, but merely affirmed the power of Congress to establish a Government in the Territory, leaving it an open question, whether that power-was derived from this clause in the Constitution, dr was to be necessarily inferred from a power to acquire territory by cession from a foreign Government. The opinion on this part of the case is short, and we give the whole of it to show how well the selection of a single sentence is calculated to mislead.

' The passage referred .to is in page 542, in which the court, in speaking of the power of Congress to establish a Territorial Government in Florida until it should become a State, usés the following language:

“In the mean time Florida continues to be a Territory of the •United States, governed by that clause of the Constitution which empowers . Congress to make alb needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired-the means of self-government, may result, necessarily, from the facts that it is not within the jurisdiction of any par*443ticular State, and is within the power and jurisdiction of the United States.- The right to govern may. he the inevitable consequence of the right to acquire territory. ’Whichever may he the source from which the power is derived, the possession of it is unquestionable.”

It is thus clear, from the whole opinion on this point, that the court did not mean, to decide whether the power was derived from the clause in the Constitution, or was the necessary consequence of the right to acquire. They do decide that the power in Congress is unquestionable, and in, this we entirely concur, and nothing will he found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court — that is, as “the inevitable consequence of the right to acquire territory ”

And what still more clearly demonstrates that the court did not mean to decide the question, hut leave it open for future consideration, is the fact that the case was decided in the Circuit Court by'Mr. Justice Johnson, and his decision was affirmed by the Supreme Court. His opinion at the circuit is given in full in a note to the case, and in that opinion he states, in explicit terms, that the clause of the Constitution applies only to the territory then within the limits of the United States, and not to Florida, which had been acquired by cession from Spain. This part of his opinion will be found in the note in page 517 of the report. But he does not dissent from the opinion of the Supreme Court-; thereby showing that, in his judgment, as well as that of the court, the pase before them did not call for a decision on that particular point, and the court abstained from deciding it. And in a part of its opinion subsequent to the passage we have quoted, where the court speak of the legislative power of Congress in Florida, they still speak with the same reserve. And m page 546, speaking of the power of Congress to authorize the Territorial Legislature to establish courts there, the court say: “They are legislative courts, created in virtue of the -general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States.”

It has been said that the construction given to this clause is new, and now for the first time brought forward; The case of which we are speaking, and which has been so much discussed, shows that the fact is otherwise. It shpws- that precisely the same question canie before Mr. Justice Johnson, at his circuit, thirty years ago — was fully considered by him, and the same construction given to the clause in the Constitution which is now given by this court. And that upon an appeal *444from, his decision the same question was^ brought before this court, but was not decided because a decision upon it was not required by the case before, the court.

There is another sentence in the opinion which hás been commented on, which even in a still more striking manner shows how one may mislead or be misled by taking out as single sentence from the opinion of a court, and leaving out of view what precedes and follows. It is in page 546, near the close of the opinion, in which the court say.: “In legislating for them,” (the territories of the United States,) “ Congress exercises the combined, powers of the Genera] and of a State. Government.” Arid it is said, that as a State may unquestionably prohibit slavery within its territory, this sentence decides in effect that Congress may do the same in a Territory of the United States, exercising there the powers of a State, as well as the power of the G-eneral Government.

' The examination of this passage in the case referred to, - would be more appropriate when we come to consider in another part of this opinion what power Congress can constitu-tiorially exercise in a Territory, ■ over the rights of person or rights pf property of a citizen. But, as it is in the same case with the passage we have before commented on, we dispose of it now, as- it will save the court from the necessity of referring again to the case. And it will be seen upon reading the page in which this sentence is found, that it has no reference whatever to the power of Congress Over rights of person or rights of property — but relates altogether to the power of establishing judicial tribunals to administer the laws constitutionally passed, and defining the jurisdiction they may exercise.

The law of Congress establishing a Territorial^ Government in Florida, provided that the Legislature of the Territory should havelegislative powers over “all,rightful objects of legislation;, but no law should be valid which was inconsistent with the . laws and Constitution of the United States.”

Under the power thus conferred, the ¡Legislature of Florida passed an act, erecting a tribunal at Key West to decide cases of salvage. Arid in the case of which we are speaking, the question arose whether the Territorial Legislature .could be authorized by Congress to establish such a tribunal, with such powers; and one of the parties, among other objections, insisted that Congress could not under the Constitution authorize the Legislature of the Territory to establish such a tribunal with such powers, but that it must be established by Congress itself;, and that a sale of cargo made under its order, to pay salvors, was Void, as made without legal authority, and passed no property to the purshaser.

*445It is in disposing of this objection tbat tbe sentence relied on occurs, and the court begin that part of the opinion by stating with great precision the point which they are about to decide.

They say: “It has been contended that by the Constitution of the United States, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction; and that the whole of the judicial power must be vested ‘ in one Supréme Court, and in such inferior courts as Congress shall from time to tipie ordain and establish.’ Hence it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the Territorial Legislature.”

And after thus clearly stating the point before them, and which they were about to decide, they proceed to show that these Territorial tribunals Were not constitutional courts, but merely legislative, and that Congress might, therefore, delegate the power to the Territorial Government to establish the court in question; and they conclude that part of the opinion in the following words: “Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the Territories. In legislating for them-, Congress exercises the combined powers of the General and State Governments.”

Thus it will be seen by these quotations from the opinion, that the court, after stating the question it was about to decide in a manner too plain to be misunderstood, proceeded to decide it, and announced, as the - opinion of the tribunal, that in organizing the judicial department of the Government in a Territory of the United States, Congress does not act under, and is not restricted by, the third article in the Constitution, and is not bound, in a Territory, to ordain and establish courts in which the judges hold their offices during good behaviour, but may exercise the discretionary power which a State exercises in establishing. its judicial department, and regulating the jurisdiction of its courts,- and may authorize th'e Territorial Government to establish, or may itself establish,- courts in which the judges bold their offices for a.term of years only; and may vest in them judicial power upon subjects confided to the judiciary of the United States. And in doing this, Congress undoubtedly exercises the combined power of the General and a State Government. It exercises the discretionary power of a State Government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only, and not during good behaviour; and it' ex- • erases the power of the General Government in investing that *446court with admiralty jurisdiction, over which the General Gov-ernmént had exclusive jurisdiction in the Territory.

No one, we presume, will question the correctness of that opinion; nor is there anything in conflict with it in the opinion now given: The point decided in the case cited has no rela- ' tion to the question now before the- court. That depended on the construction- of the third article of the Constitution, in relation to the judiciary of the United States, and the poorer which Congress might exercise in a Territory in organizing vthe judicial department of the Government. The case before us depends upon other and different provisions of the Constitution, altogether separate and-apart from the one above men*' tioned. The questipn as to what courts Congress may ordain or establish in a Territory to administer laws which the Constitution authorizes it to pass, and what laws it is or is not authorized by the Constitution to pass, are widely different— are regulated by different and separate articles of the Constitution, and stand'upon different principles. -Ánd-we are satisfied that no one who reads attentively the page in Peters’s Reports to which we have referred, can suppose that the attention of the court was drawn for a moment to the question now before -this court, or that it meant in that ease to say that Congress hkd a right to prohibit a citizen of the United States from taking any property which he lawfully held into a Territory of the United States. _

This brings us to examine by wha-t provision of the Consti--tution the present Federal Government, under its delegated and restricted powers, is' authorized to acquire territory, outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the.United States, while it remains a Territory, and-until it shall be admitted as one of the States of the Union.

There is certainly no power given by the Constitution to the Federal Government to establish - or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That, power is plainly given; and if a new- State is admitted!, it needs no further legislation by Congress, because the Constitution- itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire á Territory to be held and governed permanently in that character.

And indeed the power exercised by Congress to acquire territory and establish a Government there, according to its own Unlimited discretion, was viewed with great jealousy by the *447-leading statesmen of the-day. And in the Federalist, (Nt). 38,) written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the confederated States, by the cession from Virginia, and the establishment of a Government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power. •

We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of .the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory, not fit for admission at-the time, but. to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State; and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, thef power-to acquire territory for -that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government, and not the judicial; and whatever the political department of the Government shall recognise as within the limits of the United States, the judicial department is also bound to recognise, and to administer in it the laws of the United States, so far as they apply, and to maintain in the Territory the authority and rights of the Government and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no. express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a Territory thus acquired, the court must necessarily look to the provisions and'principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed.

Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose. The principle upon which our Governments rest, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own- limits in *448their internal and domestic concerns,'' and bound together as one people by a General Government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the General Government to obtain and hold colonies and dependent territories, over which they might legislate without restriction, would bo inconsistent with its own existence in its present form. "Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests- of the whole people of the Union in the exercise of the powers specifically granted.

At the time when the Territory in question was obtained by cession from France, it contained no population fit to be associated together and admitted as a State; and it therefore was absolutely necessary to hold possession of it, as a Territory belonging to the United States, until it was settled and inhabited by a civilized community capable of self-government; and in a condition to be admitted on equal terms with the.other States as a member of the Union. But, as we have before said, it was acquired by the General Government, as the representative and trustee of the people of the United States, and' it must therefore be held in that character for their common and equal benefit; for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union.

But until that time arrives, it is undoubtedly necessary that some Government should be established, in order to oi'ganize society, and to protect the inhabitants in their persons and property; and as the people of the United States could act in this matter only through the Government which represented them, and through which they spoke and acted when the Territory was obtained, it was not only within the scope of its powers, hut it was its duty to pass such laws and establish such a Government as would enable those by whose authority they acted to reap the advantages anticipated from its acquisition, and to gather there a population which would enable it to assume the position to which it was destined among the States of the Union. The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be. estab-*449listed necessarily rested in the discretion of Congress. It was their duty to establish the one that would be best suited for the protection and security of the citizens of the United States, and other inhabitants who might be authorized to take up their abode there, and that must always depend upon the existing condition of the Territory, as to the number and character of .its inhabitants, and their situation in the Territory. In-some cases a Government, consisting of persons appointed by the Federal Government, would best subserve the interests of tlje Territory, when the inhabitants were few and scattered, and new to one another. In other instances, it would be more advisable to commit the powers of self-government to the people who had settled in the Territory, as being the most competent to determine what was best for their own interests. But some form of civil authority would be absolutely necessary to organize and preserve civilized society, and prepare it to become a State; and what is the best form must always depend on the condition of the Territory at the time, and the choice of the mode must depend upon the exercise of a discretionary' power by Congress, acting within the scope of its constitutional authority, and not infringing upon the rights of person or rights of property of -the citizen who might go there to reside, or for any other lawful purpose. It was acquired by the exercise of this discretion, and it must be held and governed in. like manner, until it is fitted to be a State.

But the power of Congress over the person or property óf a citizen can never be a mere discretionary power under our’ Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territoi’y becomes a part of the United States, the Federal Government enters into possession in the character impressed upon'it by those who cx-eated it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence', and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Tei’ritory of-the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Gov-*450eminent can exercise no power over Ms person or property, beyond what that instrument confers, nor lawfully deny any right which it' has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the estab-' lishment.of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in, relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without' due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of. the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person .convicted; nor take private property for public use ■without jsust compensation.

The powers over person and property of which we speak •are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition as not confined to the States, but the words are general, and extend to the whole territory over which the institution gives it power to legislate, including those portions-of it remaining under Territorial Government, as well as .that covered by States. It is a total absence of power everywhere within the dominion of. the United States, and places the citizens of a Territory, so far as these rights are *451concerned, on tbe same footing with citizens of tbe States, and guards them as firmly and plainly against any inroads which tbe General Government might attempt, under tbe plea of implied or incidental powers. And if Congress itself cannot do tbis — :if it is beyond tbe powers conferred on tbe Federal Government — it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It ■ could confer no power on any local Government, established by its authority, to violate tbe provisions of tbe Constitution.

It seems, however, to be supposed, that there is a difference between property in a sl'ave and other property, and that different rules may be applied to it in expounding tbe Constitution .of tbe United States. And the law's and usages of' nations, and tbe writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and tbe powers which Governments may exercise over it, have been dwelt upon in tbe argument.

But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of tbe United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated .powers, and forbidden it to exercise others; It has no power over the person or property of a citizen but what the citizens of the United States hate granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other properly owned by a citizen, no tribunal, acting under the authority of the United States, whether it he legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.

Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property bn a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like , an ordinary .article of merchandise and property, was guarantied to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms .is pledged to protect *452it in all future time, if the slave escapes from his owner. This is done in plain words — too plain to be misunderstood. And no word can be found.in the Constitution which gives Congress a greater power over slave property, -or which , entitles .property of that kind to’ less protection than property of any other description. The only power conferred is the power coupled • with the duty of guarding and protecting the owner' in his rights.

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of . the line therein mentioned, is-not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were, made free by being carried into this territory; even if they had been carried there by the owner-, with the intention of becoming a permanent resident.

We have so far examined the ease, as it stands under1 the Constitution of the United States, and the powers thereby delegated to the Federal Government.

'But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States; and being so made free, he was not again reduced to a state of slavery by being brought back-to Missoirri.

Our notice of this part of the case will be very brief; for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. v. Graham, reported in 10th Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition, as free or slave, depended upon the laws of Kentucky, when they were brought back into that State, and not of Ohio; and that this court had no jurisdiction to. revise the judgment of a State court upon its own. laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case,

So in this ease. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and» not of Illinois.

It has,, however, been urged in the argument, that by the laws of Missouri he .was free on his return, and that this case, *453therefore, cannot be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may, at one time, have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State, that Scott and his. family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court ¿f the United States had no jurisdiction, when, by. the laws of the State, the plaintiff was a slave, and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State; was fully argued there; and that court decided that neither the plaintiff nor his family were entitled to freedom^ and were still the slaves of the defendant;' and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of • the Supreme Court of the State was erroneous, and that this court had jurisdiction to revise and reyerse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument .that the writ must have been dismissed for want of jurisdiction in this court. The case of Stráder and others v. Graham is directly in point; and, indeed, independefit of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy.'

But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence, and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the *454State court. And if this court takes jurisdiction in this form, tbe result, so far as tbe rights of tbe respective parties are concerned,, is in every respect Substantially tbe same as if it bad in open violation of law entertained jurisdiction over tbe judgment of tbe State court upon a* writ of error,, and revised and reversed its judgment upon the ground that its opinion, upon tbe question of law was erroneous. It would ill become this court to sanction such an attempt to evade tbe law, or to exercise an appellate power in this circuitous way, which it is forbidden to exercise in tbe direct and regular and invariable forms of judicial proceedings.

Upon tbe whole, therefore, it is the judgment of this court, that it appears by tbe record before us that tbe plaintiff in error is not a citizen of Missouri, in tbe sense in which that word is used in the Constitution; and that tbe Circuit Court of tbe United States, for that reason, bad no jurisdiction in tbe case,, and couíd give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing tbe suit to be dismissed for want of jurisdiction.

Mr. Justice "WAYNE.

Concurring as I do entirely in tbe opinion of the court, as it has been written and read by tbe Chief Justice — without any qualification of its reasoning or its conclusions — I shall neither read nor file an opinion of . my own in this case, which I prepared when I supposed it might be necessary and proper for me to do so.

The opinion of the court meets fully and decides every point which was made in the argument of the case by the counsel on either side of it. Nothing belonging to the case has been left undecided, nor has any point beeli discussed and decided which was not called for by the record, or which was not necessary for the judicial disposition of it, in the way that it .has been done, by more than a majority of the court.

In doing this, the court neither sought nor made the case. „ It was brought to us in the course of that administration of ’ the laws which Congress has enacted, for the review of cases from the Circuit Courts by the Supreme Court.

■ In .our action upon it, we have only discharged our duty as .a distinct and efficient department of the Government, as the framers of the Constitution meant the judiciary to be, and as the States of the Union and-the people of those States.intended -it should be, when they ratified the Constitution of the United ".'States. " _

■. The case involves private rights of value, and constitutional principles of the highest importance, 'about which, there had *455become such a difference of opinion, that' the peace and harmony of the country required the settlement of them by judicial decision.

It would certainly be a subject of regret,, that the conclusions of the court have not been assented to by all of its members, if I did not know from its history and my own experience how rarely it has happened that the judges have been unanimous upon constitutional questions of moment, and if our decision in this case had not been made by as large a majority of them as has been usually had on constitutional questions of importance.'

Two of the judges, Mr. Justices McLean and Curtis, dissent from the opinion of the court. A third, Mr. Justice Nelson, gives a separate opinion upon a single point in the case, with which I concur, assuming that the Circuit Court had jurisdiction; but he abstains altogether from expressing any opinion upon the eighth section of the act. of 1820, known commonly as the Missouri Compromise law, and six of us declare that it was unconstitutional.

But it has been assumed, that this court has acted extra-judicially in giving an opinion upon the eighth section of the act of 1820, because, as it lias decided that the Circuit Court had no jurisdiction of the case, this court had no jurisdiction to examine the ease upon its merits-. ,

But the error of such an assertion has ai'isen in part from a misapprehension of what has been heretofore decided by the Supreme Court, in cases of a like kind with that before us; in part, from a misapplication to the Circuit Courts of the United States, of the rules of pleading concerning pleas to the jurisdiction which prevail in common-law courts; and from its having been forgotten that this ease was not brought to this court by appeal or writ of error from a State court, but by a writ of error to the Circuit Court of the United States.

The cases cited by the Chief Justice to show that this court has now only done what it has repeatedly done before in other cases,, without any question of its correctness, speak for themselves. The differences between the rules concerning pleas to the jurisdiction in the courts of the United States and "common-law courts, have been stated and sustained by reasoning and adjudged cases; and it has been-shown that writs of error to a State court and to the Circuit Courts of the United States are-to be determined by different laws and principles. In the first, it is our duty to ascertain if this court has jurisdiction, under the twenty-fifth section of the judiciary act, to review the case from the State court; and if it shall be found that it has not, the case is at end, so far as this court is concerned; for our power *456to review the ease upon its merits has been made, by the twenty-fifth section, to depend upon its having jurisdiction; when it has not, this court cannot criticise, controvert, or give any opinion upon the merits of a case from a State court.

But in a case brought -to this court, by appeal or by writ of error from a Circuit Court of the United States, we begin a review of it, not by inquiring if this court has jurisdiction, but if that court has it. „ If the case has been decided by that court upon its merits, but the record shows it to be deficient in those aver-ments which by the law of the United States must be made by the .plaintiff in the . action, to give the court jurisdiction of his case, we send it back to the court from which it was brought, with directions to be dismissed, though it has been decided there upon its merits.

So, in a case containing the averments by the plaintiff which are necessary to give the Circuit Court jurisdiction, if the defendant shall file his plea in abatement denying the truth of them, and the plaintiff shall demur to it, and the court should' erroneously sustain the plaintiff’s demurrer, or declare the plea to be insufficient, and by doing so require the defemlant to answer over by a plea to the merits, and shall decide the case upon such pleading, this court has the same authority to inquire into the jurisdiction of that court to do so, and to correct its error in that regard, that it had in the other case, to correct its error, in trying a case in Much the plaintiff had not made those averments which were necessaiy to give the court jurisdiction. ‘ In both cases the record is resorted to, to determine the point of jurisdiction; but, as the power of review of cases, from a Federal court, by this court, is not limited by the law to a part of the case, this court may correct an error upon the merits; and there is the same reason for. correcting an erroneous judgment of the Circuit- Court, where the want of jurisdiction appears from any part of the record, that there is for declaring a want of jurisdiction for a want of necessary averments. Any attempt to control the court from doing so by the technical common-law rules of pleading in cases of jurisdiction, when a defendant has been denied his plea to it, would tend to enlarge the jurisdiction of the Circuit Court, by limiting this court’s review of its judgments in that particular. But I will not argue a point already so fully discussed. I have every confidence in the opinion of ■ the court upon the point of jurisdiction, and do not allow myself to doubt that the error of a contrary conclusion wijl be fully understood by all who shall read the-argument of the Chief Justice.

I have already said that the opinion of the court has my unqualified assent. ■

*457Mr. Justice NELSON.

. I shall proceed to state tbe grounds upon which I have arrived at the conclusion, that the judgment of the court below should be affirmed. The suit was brought in- the court below by the plaintiff, for the purpose of asserting his freedom, and that of Harriet, Lis wife, and two children.

The defendant plead, in abatement to the suit, that the cause of action, if any, accrued'to the plaintiff out of the .jurisdiction of the court, and exclusively.within the jurisdiction of the courts of the State of Missouri; for, that the said -plaintiff is not a citizen of the State of Missouri, as alleged in tie declaration, because.he is a negro of African descent; his ancestors were of pure African blood, and were bi’ought into this country and sold as negro slaves.

To this plea the plaintiff demurred, and the defendant joined in.demurrer. The court below sustained the demurrer, hold-'hat the plea was insufficient in law to abate the suit.

The defendant then plead over in bar of-the action:

1. The general issue. 2. That the plaintiff was- a negro slave, the lawful property of the defendant. And 3. That Harriet, the wife of said plaintiff, and the two ' children, were the lawful slaves of the said defendant. Issue was taken upon these pleas, and the cause went down to trial before the court and jury, and an agreed state of facts was presented, upon which the trial proceeded, and resulted in a verdict for the defendant, under the instructions of the court.

The facts agreed upon were substantially as follows:

That in the year 1834, the plaintiff, Scott, was a negro slave of Dr. Emerson, who was a surgeon in the army of the United States; and in that year he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At this date, Dr. Emerson removed, with the plaintiff, from the Rock Island post to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory of Upper Louisiana, and north of the latitude thirty-six degrees thirty minutes, and north- of' the State of Missoui’i. That he held the plaintiff in slavery, at Fort Snelling, from the last-mentioned date until the year 1838.

That in the year 1835, Harriet, mentioned in the declaration, was a negro slave of Major Taliaferro, who belonged to the army of the United States; and in that year he took her to Fort Snelling, already mentioned, and kept her there as a slave until the year 1836, and then sold and delivered her to Dr. Emerson, who held her in slavery, at Fort Snelling, until the year 1838. That in the year 1836, the plaintiff, and Harriet *458were married, at Eort Snelling, with • the consent of tbeir master. The two children, Eliza and Lizzie, are the fruit of this marriage. The first is about fourteen years of age, and was born on board the steamboat Gipsey, north of the State of Missouri, and upon the Mississippi river; the other, about seven yeai’s of age, was born in the State of Missouri, at the military post called Jefferson Barracks.

In 1888, Dr. Emerson removed the plaintiff, Harriet, ar.d their daughter Eliza, from Eort Snelling to the State of Missouri, where they have ever since resided. And that, before the commencement of this suit, they were sold by the Doctor to Sandford, the defendant, who has claimed and held them as slaves ever since.

The agreed case also states that the plaintiff brought a suit for his freedom, in the Circuit Court of the State of Missouri, on which' a judgment was rendered in his favor; but that, on a writ of error from the Supreme Court of the State, the judgment of the court below was reversed, and the cause remanded to the circuit for a new trial.

On closing the testimony in the court below, the counsel for the plaintiff prayed the court to instruct the jury, upon the agreed state of facts, that they ought to-find for the plaintiff; when the court refused, and instructed them that, upon the facts, the law was with the defendant.

'With respect to the plea in abatement, which went to the citizenship of the plaintiff, and his competency to bring, a suit in the Federal courts, the common-law rule of pleading is, that upon' a judgment against the plea on demurrer, and that the defendant answer over, and the defendant submits to the judgment, and pleads over to the merits, the plea in abatement is deemed to be waived, and is -not afterwards to be regarded as -a part of the record in deciding upon the rights of the parties. There is some question, however, whether this rule of pleading applies to the peculiar system and jurisdiction of the Eederal courts. As, in these courts, if the facts appearing on the record show that the Circuit Court had no jurisdiction, its judgment will be reversed in the appellate court for that cause, and the case- remanded with directions to be dismissed.

Tn the view we have taken of the case, it will not be necessary to pass upon this question, and we shall therefore proceed at once to an examination of the case upon its merits. The question upon the merits, .in general terms, is, whether or not the removal of the plaintiff, who was a slave, with his master, from the State of Missouri to the State of Illinois, with a view, to a temporary residence, and after such residence and *459return to tbe slave State, sucb residence in tbe free State works an emancipation.

As appears from an agreed statement of facts, tbis question bas been before tbe highest court of tbe State of Missouri, and a judgment rendered that 'tbis residence in the free State bas no sucb effect; but, on tbe contrary, that bis original condition continued unchanged.

Tbe court below, the Circuit Court of tbe United States for Missouri, in which this suit was afterwards' brought, followed the- decision of the State court, and rendered a like judgment against the plaintiff. _

_ Tbe argument against these decisions is, that tbe laws of Illinois, forbidding slavery within her territory, bad tbe effect to set tbe slave free while residing in that State, and to impress upon him tbe condition and status of a freeman;, and that, by force of these laws, tbis status and condition accompanied him on bis .return to the slave State, and of consequence be coúld not be there held as a slave.

Tbis question has been examined in tbe courts of several of tbe slaveholding States, and different opinions expressed and conclusions arrived at. We shall hereaftér refér .to some of them, and to the principles .upon which they are founded. Our opinion is, that the question is one which belongs to each State to decide for itself, either by its Legislature or courts of justice; and hence, in respect to tbe ease before us, to tbe State of Missouri — a question exclusively of Missouri law, and which, when determined by that State, it is tbe duty of tbe Federal courts to follow it. In other words, except in cases where the power is restrained by tbe Constitution of tbe United States, tbe law of tbe State is supreme over tbe subject of slavery within its jurisdiction.

As a practical illustration of tbe principle, we may refer to tbe legislation of tbe free States in abolishing slavery, and prohibiting its introduction into their territories. Confessedly, except as restrained- by tbe Federal Constitution, they exercised, and rightfully, complete and absolute power over tbe subject. Upon what principle, then, can it be denied to tbe State of Missouri? The power flows from tbe sovereign character of tbe States of tbis Union; sovereign, not merely as fespects tbe Federal Government — except as they have consented to its limitation — but sovereign as respects each other. Whether, therefore, tbe State of Missouri will recognise or give effect to tbe laws of Illinois within her territories on tbe subject of slavery, is a question for her to determine. Nor is there any constitutional power in tbis Government that can rightfully control her.

*460Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory; and, her laws affect and bind all property and persons residing within it. It may regulate the manner and circumstances under which property is held, and the condition, capacity, and state, of all persons therein; and, also, the remedy: and modes of administering justice. And.it is equally true, that no State or nation can affect or bind property out of its territory, or persons not residing within it. No State, therefore, can enact -laws to' operate beyond its own dominions, and, if it attempts to do so, it may be lawfully refused obedience. Such laws can have no inherent authority extra-territorially. This is the necessary result of the independence of distinct and separate sovereign-ties.

Now; it follows from these principles, that whatever force, or effect the laws of one State or nation may have in the territories of another, must depend solely upon the laws and municipal regulations of the latter, upon its own jurisprudence and polity, and upon its own express or tacit consent.

Judge Story observes, in his Conflict of Laws, (p. 24,) “that a State may prohibit the operation of all foreign laws, and the fights growing out of them, within its territóries.” “And that when its code speaks positively on the subject, it must he obeyed by all persons who are within'reach of its sovereignty; when its customary unwritten or common law speaks directly on the subject, it is equally to be obeyed.”

Nations, from convenience and cpmity, and from mutual interest, and a sort of moral necessity to do justice, recognise and administer the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself; and is never bound, even upon the ground of comity, to recognise them, if prejudicial to her own interests. The recognition is purely from comity, and not from any absolute or paramount obligation.

Judge Story again observes., (898,) “ that the true foundation. and extent of the obligation of the laws of one nation within another is the voluntary consent of the latter, and is inadmissible when they are contrary to its known interests.” And he adds, “in'the silence of any positive rule affirming or denying or restraining the operation of the foreign laws, courts of justice presume the tacit adoption of them by their own Government, unless they are repugnant to its policy or prejudicial to its interests.” (See also 2 Kent Com., p. 457; 13 Peters, 519, 589.)

These principles fully establish, that it belongs to the sóver-*461eign State of Missouri to determine by her laws tbe question of slavery within her jurisdiction, subject only to such limitations as may be found in the Federal Constitution; and, further, that the laws of other States of the Confederacy, whether enacted hy their Legislatures or expounded by their courts, can have no operation within her territory, or affect rights growing out of her own laws on the subject. This is the necessary result of the independent and sovei’eign character of the State.. The principle is not peculiar to the State of Missouri, but is equally applicable to each State belonging to the Confederacy. The laws of each have no extra-territorial operation within the jurisdiction of another, except such as may be voluntarily conceded by her laws or courts of justice. To the extent of such concession upon the rule of comity of nations, the foreign law may operate, as it then becomes a part of the municipal law of the State. When determined that the foreign law shall have effect, the municipal law of the State retires, and gives place to the foreign law.

In view of these principles, let us examine a little more closely the doctrine of those who maintain that the law of Missouri is not. to govern the status and condition of the plaintiff. They insist that the removal and temporary residence with his master in Illinois, where slavery is inhibited, had the effect to set him free, and that the same effect is to be given to the law of Illinois, within the State of Missouri, after his return. Why was he set free in Illinois? Because the law of Missouri, under which he.was-held.as a slave, had no operation by its own force extra-territorially; and the State of Illinois refused to recognise its effect within her limits, upon principles of comity, as a state of slavery was inconsistent with her laws, and contrary to her policy. But, how is the case different on the return of the plaintiff to the State of Missouri? Is she bound to'recognise and enforce the law of Illinois? Eor, unless she is, the status and condition of the slave upon his return remains the same as originally existed. Has the law of Illinois any greater force within the jurisdiction of Missouri, than the laws of the latter within that of the former? Certainly not. They stand upon an equal footing. Neither has any force extra-territorially, except what may be voluntarily conceded to them.

It has been supposed, by the counsel for the plaintiff that a rule laid down by Iluberus had some bearing upon this question. Huberus observes that “personal qualities, impressed by the laws of any place, surround and accompany the person wherever he goes, with this effect: that in every place he enjoys and is subject to the same law which other persons qf his *462class elsewhere enjoy or are subject to.” (De Confl. Leg., lib. 1, tit. 3, sec. 12; 4 Dallas, 375 n.; 1 Story Con. Laws, pp. 59, 60.)

The application sought to be given to the rule was this: that as Dred Scott was free while residing in the State of Illinois, by the laws of that State, on his return to the State of Missouri he carried with him the personal qualities of freedom, and that the same effect must be given to his status there as in the former State. But'the difficulty in the case is in the total misapplication of thé rule.

■ These personal qualities, to which Huberus refers, are those impressed upon the individual by the law of the domicil; it is this that the author claims should be permitted to accompany the person into whatever country he might go, and should supersede the law of the place where he had taken up a temporary residence.

Now, as the domicij. of Scott was in the State of Missouri, where he was a slave, and from whence he was taken by his master into Illinois for a temporary residence, according to the doctrine of Huberus, the law of his domicil would have accompanied him, and during his residence there he would remain in the sainé condition as in the State of Missouri. In order to have given effect to the rule, as claimed in the argument, it should have been first shown that a domicil had been acquired in the free State, which cannot be pretended upon the agreed facts in the case. But the true answer to the doctrine of Huberus is, that the rule, in any aspect in which it may be viewed, haS no bearing upon either side of the question before ús, even if conceded to the extent laid down by the author; for he admits that foreign Governments give effect to these laws of the domicil no further than they are consistent with their own laws, and not prejudicial to their own subjects; in other words, their force and effect depend upon the law of comity of the foreign Government. "We should add, also, that this general rule.of Huberus, referred to, has not been admit-, ted in the practice of nations, nor is it sanctioned by the most. approved jurists of international law. (Story Con., sec. 91, 96, 103, 104; 2 Kent. Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, 127.)

"We come now to the decision of this court in thé case of Strader et al. v. Graham, (10 How., p. 2.) The case came up from the Court of Appeals, in the. State of Kentucky. The question in the case was, whether certain slaves of Graham, a resident of Kentucky, who had been employed temporarily at several places in the State of Ohio, with their master’s consent, and had returned to Kentucky into his service, had thereby *463become entitled to their freedom. The . Court of Appeals held that they had not. The case was brought to this court under -the twenty-fifth section of the Judiciary act. This court held that it -had no jurisdiction, for the reason, the question was one that belonged exclusively to the State of Kentucky. The Chief Justice, in delivering the opinion of the court, observed that “ every State has an undoubted right to determine the status or domestic and social condition of the persons domiciled within its territory, except in so far as the powers of the States in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of- the United States, he observes, that can in. any degree control the law of Kentucky upon this subject. And the condition of the negroes, there- ■ fore, as to freedom or slavery, after their return, depended altogether upon the laws of that State, and could not be influenced by the laws of Ohio. It was exclhsively in the power of Kentucky to determine, for herself, whether their employment in another State should or should not make them free on their return.’’

■ It has been supposed, in the argument on the part of the plaintiff, that the eighth section of the act of Congress passed March 6, 1820, (3 St. at Large, p. 544,) which prohibited slavery north of thirty-six degrees thirty miutes, within which the plaintiff and his wile temporarily resided at Fort Snelling, possessed some superior. virtue and effect, extra-territorially, and' within the State of Missouri, beyond that of the laws of Illinois, or those of Ohio in the case of Strader et al. v. Graham. A similar ground was taken and urged upon the court in the case just mentioned, under the ordinance of 1787, which was enacted during the time 'of the Confederation, and reenacted by Congress after the adoption of the Constitution, with some amendments adapting it to the new Government.

(1 St. at Large, p. 50.)

_ ... In answer to this ground, the Chief Justice, in delivering the opinion of the court,, observed: “ The argument assumes that the six articles which that ordinance declares to be. perpetual, are still in force in the. States since formed within the territory, and admitted into the Union. If this proposition 'could be maintained, it would not alter the question; for the regulations of Congress,1 under the old Confederation or the present Constitution, for the government of a particular Territory, could have no force beyond its linlits. It certainly could not restrict the power of the States, within their respective territories, nor'in any maimer interfere with their laws and institutions, nor give this court control over them..

*464“The ordinance' in question, he observes, if still in force, could have no more operation than the laws of Ohio in thé State of Kentucky, and could not influence the decision upon the rights of the -master or the slaves in that State.”

.This view, thus authoritatively declared, furnishes a conclusive answer to the distinction attempted to be set up between the extra-territorial eftect of a State law and the act of Congress in question.

It must be admitted, that Congress possesses no power to regulate or abolish slavery within the States; and that, if this act had attempted any such legislation, it would have been a nullity. And yet the argument here, if thez’e be any force in it, leads to. the result, that effect may be given to such legislation; for it is only by giving the act of Congress operation within the State of Missouri, that it can have any effect upon the question between the parties. Having no such effect directly, it will be difficult' to maintain, upon any consistent reasoning, that it can be made to operate indirectly upon the subject.

The argument, we think, in any aspect in which it may be viewed, is utterly destitute of support upon any principles of constitutional law, as, according to that, Congress has no power whatever over the subject of slavery within the State; and is also subversive of the established doctrine of international jurisprudence, as, according to that, it is an axiom that the laws of one Government have no force within the limits of another, or extra-territorially, except from the consent of the latter.

It is perhaps not unfit to potice, in this connection, that many of the most eminent statesmen and jurists of the country entertain the opinion that this provision of the act of Congress, even within the territory to which it relates, was not authorized by any'power under the Constitution. The doctrine here contended for, not only upholds its validity in the territory, but claims for it .effect beyond and within the limits of a sovereign State — an effect, as insisted, that displaces the laws of the State, and substitutes', its own provisions in their-place.

The consequences of any such construction are apparent. If Congress possesses the power, under the Constitution, to abolish slavery in a Territory, it must necessarily possess the like power to establish it. It cannot be a one-sided power, as may suit the convenience or particular views of the advocates. . It is a power, if it exists at all, over the whole subject; and then, upon the process of reasoning which seeks to extend its influence beyond the Territory, and within the limits of a State, if Congress should establish, instead of abolish, slavery, we do *465not see but that, if a slave should be removed from the Territory into a free State, bis status would accompany him, and continue, notwithstanding its laws against slavery. The laws • of the free State, according to the argument, would be displaced, and the act of Congress, in its effect, be substituted in their place. "We do not see how this conclusion could be avoided, if the construction against which we are contending should prevail. "We are satisfied, however, it is unsound, ana that the true answer to it is, that even conceding, for the purposes of the argument, that this provision of the act of Congress is valid within the Territory'for which it was enacted, it can have no operation or effect beyond its limits, or within the jurisdiction of a State. It can neither displace its laws, nor change the status or condition of its inhabitants.

Our conclusion, therefore, is, upon this branch of the case, that the question involved is one depending solely upon the law of Missouri, and that the Federal court sitting in the State, and trying the case before us,- was bound to follow it.

The remaining question for consideration is, "What is the law of the State of Missouri on this subject? And it would be a sufficient answer to refer to the judgment of the highest court of the State in the very case, were it not due to that tribunal to state somewhat at large the course of decision and the principles involved, on account of some diversity of opinion, in the cases. As we have already’ stated, this case was. ■originally brought in the Circuit Court of the State, which-resulted in a judgment for.-the plaintiff. The case was carried, up to the Supreme Court for revision. That court reversed! the judgment below; and remanded the cause to the circuit, for a new trial. In that state of the proceeding, a new suit; was brought by the plaintiff in the Circuit Court ofthe United! ■ States, and tried upon the issues and agreed case before us,, and a verdict and judgment for the defendant, that • court following the decision of the Supreme Court of the States The judgment of the Supreme Court is reported in the 15 Misso. R., p. 576. The court placed the decision upon the» temporary residence of the master with the slaves in the State- and Territory to which they removed, and their return to the-slave State; and upon the principles of international law, that foreign laws have no extra-territorial force, except such as the-State within which they are sought to be enforced.may see fit; to extend to them, upon the doctrine of comity of nations..

This is the substance of the grounds of the decision.

The same question has been twice before that court since;, and the saíne judgment given, (15 Misso. R., 595; 17 Ib., 434.); It must be admitted, therefore, as the. settled law of the State, *466and, according to the decision in the case of Strader et al. v. Graham, is conclusive of the case in this court.

It is said, however, that the previous cases and course of decision in the State of Missouri on this subject were different, and that the courts' had held the slave to be free on his return from a temporary residence in the free State. We do not see, were this to be admitted, that the circumstance would show that the settled course of decision, at the time this case was tried in the court below, was not to be considered the law of the State. Certainly, it must be, unless the first decision of a principle of law by a State court is to be permanent and irrevocable. The idea seems to be, that the courts of a State are not to change their opinions, or, if they do, the first decision is to be regarded by this court as the law of the State. It is certain, if this be so, in the case before us, it is an exception to the rule governing this court in all other cases. But what court has not changed its opinions ? What judge has not changed his ?

Waiving, however, this view, and turning to the decisions of the courts of Missouri, it will be found that there is no discrepancy between the earlier and the present cases upon this subject. There are some eight of them reported previous to the decision in the case before us, which was decided in 1852. The last of the earlier cases was decided in 1836.. In each one of these, with two exceptions, the master or mistress rémoved into the free State with the slave, with a view to a permanent residence — in other words, to make that his or her domicil. And in several of the cases, this removal and permanent residence were relied on, as the ground of the decision in favor of the plaintiff. All these cases, therefore, are not necessarily in conflict with the decision in the case before us, but consistent with it. In one of the two excepted cases, the master had hired the slave in the State of Illinois from 1817 tó 1825. In the other, the master was an officer in the army, and removed with his slave to .the military post of Port Snelling, and at Prairie du Chien, in Michigan, temporarily, while acting under the orders of his Government. It is ■ coneeded the decision in this case was departed from in the case before us, and in those that have followed it.' But it is to be observed that these subsequent cases are in conformity with those in all the slave States bordering on the free — in Kentucky, (2 Marsh., 476; 5 B. Munroe, 176; 9 Ib., 565)—in Virginia, (1 Rand., 15; 1 Leigh, 172; 10 Grattan, 495)—in Maryland, (4 Harris and McHenry, 295, 322, 325.) In conformity, also, with the law of England on this subject, Ex parte Grace, (2 Hagg. Adm., R., 94,) and with the opinions of the *467most, eminent jurists of tbe country. (Story’s Confl., 396 a; 2 Kent Com., 258 n.; 18 Pick., 193, Chief Justice Shaw. See Corresp. between Lord Stowell and Judge Story, 1 vol. Life of Story, p, 552, 558.)

.) Lord Stowell, in communicating his opinion in 'the case of the slave Grace to Judge Story, states, in his letter, what the question was before him, namely: “Whether the emancipation of a slave brought to England insured a complete emancipation to him on his return to his own country, or whether it only operated as a suspension of slavery in England, and his original character devolved on him again upon his return.” He observed, “the question had never been examined since an end was put to slavery fifty years ago,” having reference to the decision of Lord Mansfield in the case of Somersett; but the practice, he observed, “has regularly been, that on his return to his own country, the slave resumed his original character of slave.” .And-so-Lord Stowell held in the case.

Judge Story, in his letter in reply, observes: “ I have read with great attention your judgment in the slave case, &c. Upon the fullest consideration which I have been able to give the subject, I entirely concur in your, views. If I had been called upon to pronounce a judgment in a like case, I should have certainly arrived at the same result.” Again he observes: “In my native State, (Massachusetts,) the state of slavery is not recognised as legal; and yet, if a slave should come hither, and afterwards return to his own home, we should certainly think that the local law .attached upon him, and that his servile character would b.e redintegrated.”

We may remark, in this connection, that the case before the Maryland court, already referred to, and which was decided in 1799, presented the same question as that before Lord Stowell, and received a similar decision. This was nearly thirty years before the decision in that case, which was in 1828. The Court of Appeals observed, in deciding the Maryland ease, that “however the laws of Great Britain in sueh instances, operating upon such persons there, might ifiterfere so as to prevent the exercise of certain acts by the masters, not permitted, as in the case of Somersett, yet, upon the bringing Ann Joice into this State, (then the province of Maryland,) the relation of master'and slave continued in its extent, as authorized by the laws of'this State.” And Luther Martin, one of the counsel in that case, stated, on the argument, that the question had been previously decided the same way in the case of slaves returning from a residence in Pennsylvania, where, they had become free under her laws.

The State of Louisiana, whose courts had gone further in *468"holding the slave free on his return from a residence in a free State than the courts of her sister States, has settled the law, by an act of her Legislature, in conformity with the law of the court of Missouri in the case before us. (Sess. Law, 1846.)

The case before Lord Stowell presented much stronger features for giving effect to the law of England in the case of the slave Grace than exists in the cases that have arisen in this country, for in that case the slave returned to a colony of England over which the Imperial Government exercised supreme authority. Yet, on the return of the slave to the colony, from á temporary residence in England, he held that the original condition -of the slave attached. The question presented in cases arising here is as to the effect and operation to be given to the laws of a foreign State, on the return of the slave within, an independent sovereignty.

Upon the whole, it must be admitted that the current of authority, both in England and in this country, is in accordance with the law as declared by the courts óf Missouri in the case before us,.and we think the court below was not only right, but'bound to follow it.

Some question has been made as to the character of the residence in this case in the free State. But we regard the facts as sét forth in the agreed case as decisive. The removal of Dr. Emerson from Missouri to the military posts was in thé discharge of his duties as surgeon in the army, and under the orders of his Government. He was' liable at any moment to be recalled, as he was in 1888, and ordered to another post. The same is also true as it respects Major'Taliaferro. In such a case, the officer goes to his post for- a temporary purpose, to remain there for an uncertain time, and not for the purpose of fixing his permanent abode. The question we think too plain to require argument. The ease of the Attorney General v. Napier, (6 Welsh, Hurtst. and Gordon Exch. Rep., 217,) illustrates .and applies the principle in the case of an officer of the English army.

A question has been alluded to, on the argument, namely: the right of the master with his slave of transit into or through a free State, on business or commercial pursuits, or in the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common • citizen of the republic under the Constitution of the Unitéd States. When that question, arises, we shall be prepared to decide it. '

*469Our conclusion is, that tlie judgment of tbe court below should be affirmed.

Mr. Justice GRIER.

I concur in the opinion delivered by Mr. Justice Nelson on the questions discussed by him.

I also concur with the opinion of the court as delivered by the Chief Justice, that thé act of Congress of 6th March, 1820, is unconstitutional and void; and that, assuming the facts as stated in the opinion, the plaintiff cannot sue as a citizen of Missouri in the courts of the United States. But, that the record shows a prima facie case of jurisdiction, requiring the court to decide all the questions properly arising in it; and as the decision of the pleas in bar shows that the plaintiff is a slave, and therefore not entitled to sue in a court of the United States, the form of the judgment is. of little importance; for, whether the judgment be affirmed or dismissed for want of jurisdiction, it is justified- by the decision of the court, and is the same in effect between the parties to the suit.

Mr. Justice DANIEL.

It may with truth be affirmed, that since the establishment of the several communities now constituting the States of this Confederacy, there never has been submitted to any tribunal within its limits questions surpassing in importance those now claiming the consideration of this court. Indeed it is difficult, to imagine, in connection with th¿ systems of polity peculiar to th,e United States,-a conjuncture of graver import than that must be, within which it is aimed to comprise, and to control, not only the .faculties and practical operation appropriate to the American Confederacy as such, but also the rights and •powers of its separate and independent members, with reference alike to their internal and domestic authority and inter- . ests, and the relations they sustain to their confederates.

To my mind it is evident,, that nothing less than the ambitious and far-reaching pretensionJ;o compass these objects of vital concern, is either directly essayed or necessarily implied in the positions attempted in the argument for the plaintiff in' error.

How far these positions have any foundation in the nature ' of the rights and relations of separate, equal, and independent Governments," or in the provisions of oúr own Federal compact, or the laws enacted under and in pursuance of the authority of that compact, will be presently investigated.

In order correctly to comprehend the tendency and force of those positions, it is proper here succinctly to advert to the *470facts upon which'the questions of law propounded in the argument have; arisen.

This was. an action of trespass'^" et armis, instituted in the Circuit Court of the United States for the district of Missouri, in the name of the plaintiff in error, a negro held as a. slave, for the recovery of freedom for himself, his wife, and two children■, also negroes.

To the declaration in this case the defendant below, who-is also the defendant in error, pleaded in abatement that the court could not take cognizance of the cause, because the plaintiff" was not a citizen of the State of Missouri, as averred in the declaration, but was a negro of African descent, and that his ancestors, were of pure African blood, and were brought into this country and sold as negro slaves; and hence it followed, from the sécond section of the third article of the Constitution, which creates the judicial power of the United States, with respect to controversies between citizens of different States, that the Circuit Court could not take cognizance of the action:

To this plea in abatement, a demurrer having been interposed on behalf of the plaintiff, it was sustained by the court. After the decision sustaining the demurrer, the defendant, in pursuance, of a previous agreement between counsel, and with the leave of the court, pleaded in bar of the action:' lsi, not guilty; Idly, that the plaintiff was a negro slave, the lawful property of the defendant, and as such the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do; 3dly, that with respect to the wife and/ daughters of the plaintiff, in the second and third counts of the declaration mentioned, the defendant had, as to them., only acted in the same manner, and in virtue of the same legal right.

Issues having been joined upon the above pleas in bar, the following statement, comprising all the evidence in the cause, was agreed upon and signed by the counsel of the respective parties, viz:

“In the year 1884, the plaintiff was a negro slave belonging to Doctor Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the Ílaintiff from the State of Missouri to the military post at lock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1886. At the time last mentioned, said Dr. Emerson removéd the plaintiff from said military post at Rock Island to the military post at Fort Snel-ling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France* and situate north of the latitude of thirty-six *471degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Eort Snelling, from said last-mentioned date until the year: 1838.

“In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the TThited States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post situated as herein-before stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snel-ling unto the said Dr. Emerson, hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

“In the year 1836, the- plaintiff and said Harriet, at said' Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the .third count of the plaintiff’s declaration, are the fruit of that marriage. Eliza is about fourteen years old, ánd was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at a military post called Jefferson barracks.

“ In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided.

“Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves. ,

. “At the times mentioned in the plaintiff’s declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff j Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times.

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

“R. M. Field, for Plaintiff.,

“H. A. GARLAND, for Defendant.

“It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court, the judgment below was reversed, and the *472"cause remanded to the Circuit Court, where it . has been continued to await the decision of this case.

“Field, for Plaintiff.

“ Garland, for Defendant.”

■ Upon the aforegoing agreed facts,- the plaintiff prayed the court to instruct the jury that they ought to find for the plaintiff, ana upon the refusal of the instruction thus prayed for, the plaintiff excepted to the court’s opinion. The court then, upon the prayer of the defendant, instructed the 'jury, that upon the facts of this cáse agreed as above, the law was with the defendant. To this opinion, also,, the plaintiff’s counsel excepted, as-he did to the opinion of the court denying to the plaintiff a- new trial after the verdict of the jury in favor of the defendant.

' The question first in or,der presented by the record in this cause, is that which arises upon the plea in abatement, and the demurrer to that plea;. and upon this question it is my opinion that the demurrer should have been overruled, and the plea sustained.

■ On behalf of the plaintiff it-has been urged, that by the pleas interposed'in bar of a recovery in the court below, (which pleas both in fact and in. law aré essentially the same With the objections averred in abatement,) the defence in abatement has been displaced or waived; that it eould therefore no longer be relied on in the Circuit Court,'' and cannot claim the consideration of this court in reviewing this cause.. This position is regarded as wholly untenable. On the contrary, it would seem to follow conclusively from the peculiar character of the courts of the United States, as organized under the Constitution and the statutes, and as defined by numerous and unvarying adjudications from'this bench, that-there is not one of those courts whose jurisdiction and powers can be deduced from mere custom or tradition; not one, whose jurisdiction and powers must not be traced palpably to, and invested exclusively by, the Constitution and statutes of the United States; not one' that is not bound, therefore, at all timés, and at all stages of its pro- . ceedings, to look to and -to i-egard, the special and declared extent and bounds of its commission and authority. There is no such tribunal of the United States as a court of ‘general jurisdiction, in the sense in which that phrase is applied to the superior courts under the- eommon law; and even with respect to the courts existing under that system, it is a well-settled principle, that consent can never give jurisdiction.

.. The principles above , stated, and the .consequences regularly deducíale from them,-have,, as already remarked, been repeat*473edly and unvaryingly propounded from this bench. Beginning with the earliest decisions of this court, we have the cases of Bingham v. Cabot et al., (3 Dallas, 382;) Turner v. Eurille, (4 Dallas, 7;) Abercrombie v. Dupuis et al., (1 Cranch, 343;) Wood v. Wagnon, (2 Cranch, 9;) The United States v. The brig Union et al., (4 Cranch, 216;) Sullivan v. The Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. v. Torrence, (9 Wheaton, 537;) Brown v. Keene, (8 Peters, 112,) and Jackson v. Ashton, (8 Peters, 148;) ruling, in unifprm and unbroken current, the doctrine that it is essential to the jurisdiction of the courts of the United States, that the facts upon which it is founded should appear upon the record. Nay, to such an extent and so inflexibly has this requisite to the jurisdiction been enforced, that in the case of Capron v. Van Noorden, (2 Cranch, 126,) it is declared, that the plaintiff in this court may assign for error his own omission in the pleadings in the court below, where they go to the jurisdiction. This doctrine has been, if possible, more strikingly illustrated in a later decision, the case of The State of Rhode Island v. The State of Massachusetts, in the 12th of Peters.

In this case, on page 718 of the volume, this court, .with reference to a motion to dismiss the cause for want of jurisdiction, have said: “However late this objection has been made, .or may be made, in any, cause in an inferior or appellate court of the United States, it must be considered and decided before, any court can move one farther step in the cause, as any movement is necessarily to exercise the jurisdiction. Jurisdiction is the power to hear and determine the subject-matter in controversy between 'the parties to a suit; to adjudicate or exercise any judicial power over them. The question is, whether on the case before the court their action is judicial or extra-judicial; with or without the authority of law to render a judgment or decree upon the rights-of the litigant parties. A motion to dismiss a-cause pending in the courts of the United States, is not analogous to a plea to the jurisdiction of a court of common law or. equity in England; there, the superior courts have a general jurisdiction over all persons within the realm, and all causes of action between them. It depends on the subject-matter, whether the jurisdiction shall be exercised by a court of law or equity ; but that court to which it appropriately belongs can act judicially upon the party and the subject of the suit, unless it shall be made apparent to the court that the judicial determination of the- case has been withdrawn- from the court .of general jurisdiction to an inferior and limited one. It is a necessary presumption that the court of general jurisdiction can act upon the given case, when nothing to the *474contrary appears; hence has arisen the rule that the party claiming ah exemption from its process must set out the reason by a special.plea in abatement, and show that some inferior court of law or equity has the .exclusive cognizance of the case, otherwise the superior court must proceed in virtue .of its general jurisdiction. ■ A motion to dismiss, therefore, cannot be entertained, as it does not disclose a case of exception; and if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. There are other classes of cases where the objection to the jurisdiction is of a different nature, as on á bill in chancery, that the subject-matter is cognizable only by the King in Council, or that the parties defendant cannot be 'brought before any municipal court on account of their sovereign character or the nature of the controversy; or to the very common .cases which present the question, whether the cause belong /to a court of law or equity. . To such cases, a plea in abatement would not be applicable, because the plaintiff could not sue An ah inferior court. The objection goes to a denial of any jurisdiction of a municipal court in the one class of cases, and to the jurisdiction of any court of equity or. of law in the other, on which last the court decides according to its discretion.

“Ail objection,to jurisdiction on the ground of exemption from the process of ..the court in which the suit is brought, or the manner in which a defendant is brought -into it, is waived by appearance and pleading to issue; but when the objection goes to the power of the court over the parties or the subject-matter, the defendant need not, for he cannot, give the plaintiff . a better writ. Where an inferior court can have no jurisdiction of á case of law or equity, the ground of objection is not taken by plea in abatement, as an exception of the given casé .from ■ the otherwise general jurisdiction of the court; appearance 1 does not cure the defect of judicial power, and it may be relied on by plea, answer, demurrer, or at the. trial or hearing. As a denial of jurisdiction over the subject-matter ,of a suit between parties within the realm, over which and whom the court has power to act, cannot be successful in an English court.of general jurisdiction, a motion like the present could not bp sustained consistently with the principles of its constitution. But as this court is one of limited and'special original jurisdiction, its action must he confined to the particular cases, controversies, and parties, over which the Constitution and laws have authorized it to act; any proceeding without the limits prescribed is coram non judice,. and its action a nullity. And whether the want or excess of power is objected by a party, or is apparent *475to the court, it must surcease its action or proceed extra-judi-cialiy.”

In the constructing of pleadings either in1 abatement or in' bar, every fact or position constituting a portion of the public law, or of known or general history, is necessarily implied. Such fact or position need not be specially averred and set forth; it is what the world at large and every individual are presumed to know — nay, are bound to know and to be governed by.

If, on the other hand, there exist facts or circumstances by which a particular case would' be withdrawn or exempted from the influence of public law or necessary historical knowledge, such facts and circumstances form an. exception to the general principle, and these must be specially set forth and established by those who would avail themselves of such exception.

blow, the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know — that the African negro race never have been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recog-nised by the inhabitants of other countries anything partaking of the character of nationality, of civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of éommeree or traffic;. and that the introduction of that race into every section of this country was not as members of civil, or political society, but as slaves, as property in the strictest sense of the term.

Tn the plea in abatement, the character or capacity of citizen on the part of the plaintiff is denied; and the causes which show the absence of that character or capacity áre set forth by averment. The verity of those causes, according to the settled rules of pleading, being admitted by the demurrer; it only remained for the Circuit Court to decide upon their legal sufficiency to abate the plaintiff’s action. And it now becomes the province of this court to determine whether the plaintiff below, (and in error here,) admitted to be a negro of African descent, whose anéestors were of pure African blood, and were brought into this country and sold as negro slaves — such being his' status, and such the circumstances surrounding his position; — whether he can, by correct legal induction from that status and those circumstances, be clothed with the character and capacities of a citizen of the State of Missouri?

It may be assumed-ás a postulate, that to a slave, as such, there appertains and can appertain no relation, ciyil or political, with the State or the Government. He is himself strictly property, to be used in subserviency to the interests, the con*476venience, or the will, of his owner; and to suppose, with respect to the former, the' existence of any privilege or discretion, or of any obligation to others incompatible with the magisterial rights just defined, would be by implication, if not directly, to deny the relation of master and slave, since none can possess and enjoy, as his own, that which another has a paramount right and power to withhold. Hence it follows, necessarily, that a slave, the peculium or property of a master, and possessing within himself no civil nor political rights or capacities, cannot be a citizen. For who, it may be asked, is a citizen ? What do the character and status of citizen import ? "Without fear of contradiction, it does not import the condition of being private property,'the subject of individual power and ownership. Upon a principle of etymology alone, .the term citizen, as derived from civitas, conveys the ideas of connection or identification with "the State or Government, and a participation of its functions. But beyond this, there is not, it is believed, ,to be found, in the theories of writers- on Government, or in’ any actual experiment heretofore tried, an exposition of .the term citizen, which has not. been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political.

Thus Vattel, in the preliminary chapter to his Treatise on the Law of Rations,, says': “Rations or States are bodies politic ; societies of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength. Such a'society has her affairs and her interests; she deliberates and-takes resolutions in common; thus becoming a moral person, who possesses an understanding and a.will peculiar, to herself.” Again, in the first chapter of the first book of the Treatise just - quoted, the same writer, after repeating hi.s. definition .of. a State,' proceeds to remark, that, “from /the. very Resign that- induces a number of men to'form a-society, which has its common interests and which is -to act in/.concert, it is necessary that there should, -be' established a public authority, to order and direct what is to be done by each, iji relation to the end of the association. This political authority is/the sovereignty.” -Again this writer remarks; “The authority of all over each member essentially belongs to the body politic pr the State.”

By this same writer it is also said: “ The citizens are the members of the civil society; bound to this society by certain ■duties, and subject to its authority; they 'equally participate in its advantages. The natives, or natural-born citizéns, are those born in the country, of parents who -are citizens. As so-*477eiety cannot perpetuate itself otherwise than hy the children of the citizens, those children naturally follow the condition of their parents, and succeed to all' their rights.” Again: “I say, to be of the country, it is necessary to' be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.” (Vattel, Book 1, cap. 19, p. 101.)

From the views here expressed, and they seem to be unexceptionable, it must follow, that with the slave, with one devoid of rights or capacities, civil or political, there could be no pact; that one thus situated could be no party to, or actor in, the association of those possessing free will, power, discretion. He could form no part of the design, no constituent ingredient or portion of a society based upon common, that is, upon equal interests, and powers. He could not at the same time be the sovereign and the slave.

But it has been insisted, in argument, that the emancipation of a slave, effected either by the direct act and assent of the master, or by causes operating in contravention ■ of his will, produces a change in the status or capacities of the slave, such as will transform him from a mere subject of property, into a being possessing a social, civil, and political equality with a citizen.. In other words, will make him a citizen of the State within which he was, previously to his emancipation, a slave.

It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties,' can create a citizen, of that State? Much more emphatically may it be asked, how such a result could be accomplished by means wholly extraneous, and entirely foreign to the Government of the State ? The argument thus urged must lead to these - extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the analogies of history.

The institution of slavery, as it exists and has existed from the period of its introduction into the United States, though more humane and mitigated in character than was the same institution, either under the republic or the empire of Rome, bears, both in its tenure and in the simplicity incident to the *478mode of its exercise, a closer resemblance to Roman slavery than it does to the condition of villanage, as it formerly existed in England. Connected with the latter, there were peculiarities, from custom or positive regulation, which varied it materially frorq the slavery pf the Romans, or from slavery at any period within the United States.

But with regard to slavery amongst the Romans, it is by no means true .that ¿mancipation, either during the republic or the empire, conferred, by the act itself, or implied, the status or the rights of citizenship.

_ _ The proud title of Roman citizen, with the immunities and rights incident thereto, and as contradistinguished alike from the condition of conquered subjects or of the lower grades of native domestic residents, was-maintained throughout the duration of the. republic, and until a late period of the eastern empire, and at last was in effect destroyed less by an elevation of the inferior classes than by the degradation of the free,, and the previous possessors of, rights and immunities civil and political, to the indiscriminate abasement incident to absolute and simple despotism; .

By the léarned and elegant historian of the Decline and Fall of the Roman Empire, we are told that' “In the decline of the Roman empire, the proud distinctions of the republic were gradually .abolished; and the reason or instinct of Justinian completed the .simple form of an absolute monarchy. The’ emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the •memory of famous ancestors. He delighted to honor with titles and- emolument's his generals, magistrates, and senators, and his precarious indulgence communicated some rays of their glory to tjieif wives and children. But in the eye of the law all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name. ■ The voice of -a Roman could no longer enact his laws, or create the annual ministers of his powers; his constitutional rights might have checked the arbitrary-will of a master; and the bold adventurer. from Germany or Arabia was admitted with equal favor to the civil and military command .which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Csesars'had scrupulously guarded-the distinction of ingenuous and servile birth, which was decided by the condition of the mother. The slaves who were liberated by a generous master immediately entered into the middle class of Iweriini or freedmen; but they could never be enfranchised from the duties of. obedience and gratitude; whatever were the fruits of *479their industry, their patron and his family inherited the third part, or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons, but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained without reserve or delay the station of a citizen; and at length the dignity of an ingenuous birth was created or supposed by the omnipotence of the emperor.”*

The above account of slavery and its modifications will be found in strictest conformity with the Institutes of Justinian. Thus, book 1st, title 3d, it is said: “The first general division of persons in respect to their rights is into freemen and slaves.” The same title, sec. 4th: “ Slaves are born such, or become so. They are born such of bondwomen; they become so either by the law of nations, as by capture*, or by the civil law. Section 5th: “In the condition of slaves there is no diversity; but among free persons there are many. Thus some are ingenui or freemen, others libertini or freedmen.”

Tit. 4th. De Ingenuis. — “A freeman is one who is born free by being born in matrimony, of parents who both are free, or both freed; or of parents one free and thé other freed. . But one born of a free mother, although the father be a slave or unknown, is free.”

Tit. 5th. De Libertinis. — “Freedmen are those who have been manumitted from just servitude.”

Section third of the same .title states that “freedmen were formerly distinguished by a threefold division.” But the emperor proceeds .to say: “Our piety leading us to reduce all things into a better state, we have amended our laws, and reestablished the ancient usage; for anciently liberty was simple and' undivided — that is, was conferred upon the slave as his manumittor possessed it, admitting this single difference, that the person manumitted became only a freed man, although his manumittor was a free man.” And he further declares: “We have made all freed men in general become citizens of Rome, regarding neither the age of the manumitted, nor the manu-mittor, nor the ancient forms of manumission. We have also introduced many new methods by which slaves may become Roman citizens.”

By the references above.given it is shown, from the nature and objects of civil' and political associations, and uporr the direct authority of history, that citizenship was not conferred *480by the simple fact of emancipation, but that such a result was deduced therefrom in violation of the fundamental principles of free political association; by the exertion of despotic will to establish, under a false and misapplied denomination, one equal and universal slavery; and to effect this result required the exertions of absolute power — of a,power both in theory and practice, being in its most plenary acceptation the sovereignty, the State itsele — it could not be produced by a less or inferior authority, much less by the will or the act of one who, with reference to civil and political rights, was himself a slave. The master might abdicate or abandon his interest or owner-, ship in his property, but his act would be a mere abandonment. It seems to involve an absurdity to impute to it the investiture of rights which the sovereignty alone had power to impart. There is not perhaps a community in which slavery is recognised, in which the power of emancipation and the modes of its exercise are not regulated by law — that is, by thq sovereign authority; and none can fail to comprehend the necessity for such regulation, for the preservation of order, and even of political and social existence.

By the argument for the plaintiff in error, a power equally despotic is.vested in every member of the association, and the most obscure or unworthy individual it comprises may arbitrarily invade and derange its most deliberate and solemn ordinances. At assumptions anomalous ás these, so fraught with mischief and ruin, the mind at once is revolted, and goes directly to the conclusions, that to change or to abolish a fundamental principle of the society, must be the act of the society itself — of the sovereignty; and that none other can admit to a participation of that high attribute. It may further expose the character of the argument urged for the plaintiff, to point out some' of the revolting consequences which it would authorize. If that argument possesses any integrity, it asserts the power in any citizen, or quasi citizen, or a resident'foreigner of any one of the States, from a motive either of corruption or caprice, not only to infract the inherent and necessary authority of such State, but also materially to interfere with the organization of the Federal Government, and with the authority of the separate and independent States. He may emancipate his negro slave, by which process- be first transforms that slave into a eitizén of his own State; he may next, under color of article fourth, section second, of the Constitution of the United States, obtrude him, and on terms of civil and political equality, upon any and every State in this Union, in defiance of all regular tions of necessity or policy, ordained by those States for their internal happiness or safety. Hay, more: this manumitted slave *481may, by a proceeding springing from the will or act of his master alone, be mixed up with the institutions of the Federal Government, to which he is not a party, and in opposition to the laws of that Government which, in authorizing the exten- „ sion by naturalization of the rights and immunities of citizens of the United States to those not originally parties to the Federal compact, have restricted that boon to free white aliens alone.; If the rights and immunities connected with or practiced un-' der the institutions of the United States can by any indirection be claimed or deduced from sources or modes other than the Constitution and laws of the United States, it follows that the power of naturalization vested in Congress is not exclusive — that it has in effect no existence, but is repealed or abrogated.

But it has been strangely contended that the jurisdiction of the Circuit Court might be maintained upon the ground that the plaintiff was a resident of Missouri, and that, for the purpose of vesting the court with jurisdiction over the parties, residence within the State was sufficient.

The first, and to my mind a conclusive reply to this singular argument is presented in the fact, that the language of the Constitution restricts the jurisdiction of the courts to cases in which the parties shall be citizens, and is entirely silent with respect to residence. A second answer to this strange and latitudinous notion is, that it so far stultifies the sages by whom the Constitution was framed, as to impute to them ignorance of the material distinction existing betweén eitiéenship and mere residence or domicil, and of the well-known facts, that a person confessedly aii alien may be permitted to reside in a? country in which he can possess no civil or political rights,, or of which he is neither a citizen nor subject; and that for certain purposes a man may have a domicil in different countries, in no ojie of which he is an actual personal resident.

The correct conclusions upon the question here'considered would seem to be these:

That in the establishment of the several communities how-the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union, as property merely, and as such was not and could not be a party or an actor,, much less a peer in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignly — the'. State — exert*482ed to that end,.either in the form of legislation, or in some other mode of operation. It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That so far as rights and immunities appertaining to citizens have been defined and- secured by the Constitution and laws of the United States, the African race is not aiid never was recognised either by the language or purposes of the former; and it has been expressly excluded by . every act of Congress providing for the creation of citizens by naturalization, these laws, as has already been remarked, being restricted to free white aliens exclusively.

- But it is evident/that, after the formation of the Federal Government by the adoption of'the Constitution, the highest exertion of State power would be incompetent to bestow a character or status created by the Constitution, or conferred in virtue of its authority only. Upon those, therefore, who were not originally parties to the Federal compact, or who are not admitted and adopted'as parties thereto, in the mode prescribed by its paramount authority, no State could have power to bestow the character or the rights and privileges exclusively-reserved by the States' for the action of the Federal Government by that compact.

The States, in the exercise of their political power, might, with reference to their peculiar Government and jurisdiction, guaranty the rights of person and property, and the enjoyment of civil and political privileges, to those whom they should be disposed to make the objects of their bounty; but they could not reclaim or exert the powers which they had .vested - exclusively in' the Government of the United States. They could not add to or change in any respect the class of (persons' to whom alone the character of citizen of the United States appertained at the time of the adoption.of the Federal (Constitution. They could not create citizens of the United ^States by any direct or indirect proceeding.

According to the view taken of the law, as applicable .to the demurrer to the plea in abatement in this cause,- the questions subsequently raised upon the several pleas, in-bar might be passed by, as requiring neither a particular examination, nor an adjudication directly upon them.- But as-these questions are intrinsically of primary interest and magnitude, and have been elaborately discussed in argument, and as with respect to them the opinions of a majority of the court, including my own, - are perfectly coincident, to me it seems proper that they should here be fully considered, and, so far as it is practicable , for this court to accomplish such an end, finally put to rest. .

*483The questions tRen to be considered upon the several pleas in bar, and upon the agreed statement of facts between the counsel, are: 1st. "Whether the admitted master and owner of the plaintiff, holding him as his . slave in the State of Missouri, and. in conformity with his rights guarantied to him by ''the laws of Missouri then and still m force,-by carrying with him for his own benefit and accommodation, and as his own slave, the person of the plaintiff into the State of Illinois, within which State slavery had been prohibited by the Constitution thereof, and by retaining the plaintiff during the com-morancy of the master within the State of Illinois, had, upon his return with his slave into the State of Missouri, forfeited his rights as master, by reason of any supposed operation of the prohibitory provision in the Constitution of Illinois, beyond the proper territorial jurisdiction of the latter State? 2d. Whether a similar removal of the plaintiff by his master from the State of Missouri, and his retention in service atapoiht included within no State, but situated north of thirty-six degrees thirty minutes of north latitude, worked a forfeiture of' the right of property of the master, and the manumission of the plaintiff?

. In considering the first of these questions, the acts or declarations of the master, as expressive of his purpose to emancipate, maybe thrown out of view, since none will deny the right of the owner to relinquish his interest in any subject of' property, at any time or in any place. The inquiry here bears no relation to acts or declarations of the owner, as expressive of his intent or purpose to make such a relinquishment; it is simply a question whether, irrespective of such purpose, and in opposition thereto, that relinquishment can be enforced against the owner of property within his own country, in defiance' of every guaranty promised by its laws; and this through the instrumentality of a claim to power entirely foreign and . extraneous with reference' to himself, to the origin and foundation of his title, and to the independent authority of his. country. A conclusive negative answer to such an inquiry is at once supplied, by announcing a few familiar and settled principles and doctrines of public law.

Vattel, in his chapter on the general principles of the laws, of nations, section 15th, tells us, that “nations being free and independent of each other in the same' manner that men are naturally free and independent, the second general law of their society is, that each nation should be left in the péaceable enjoyment of that liberty which she inherits from nature.”

“The natural society of nations,” says this writer, “cannot subsist unless the natural rights of each be respected.” In *484section 16th he says, “ as a consequence of that, liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes for her — of what it is proper or improper for her to do; and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her'to act in such or such a particular manner, for any attempt at such compulsion would be an infringement on the liberty of nations.” Again, in section 18th, of the same chapter, “ nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal* and inherit from nature the same obligations and rights. Power or weakness does not produce any difference. A small republic is no less a sovereign state than the most powerful kingdom.”

So, in section 20: “A nation, then, is mistress of her own actions, so long as they do not affect the proper and perfect rights of any other nation — so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other .nations are bound to acquiesce in her conduct, since they have no right to dictate to her. Since nations are free, independent, and equal, and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue, in order to fulfil her duties, the effect of the whole is to produce, at least externally, in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs, and m the pursuit of their pretensions, without regard to the intrinsic justice of their , conduct, of which others have no right, to form a definitive judgment.”

Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following positions as sanctioned by these and other learned publicists, viz: that “nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners., This perfect equality and entire independence of all distinct States is a fundamental principle of public law. It is a neeessaiy consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government or religion, or a course of inter*485nal policy, to another.” This writer gives some instances of the violation of this great national immunity, and amongst them the constant interference by the ancient Romans, under the pretext of settling disputes between their neighbors, but with the real purpose of reducing those neighbors to bondage; the interference of Russia, Prussia, and Austria, for the dismemberment of Poland; the more recent invasion of Naples by Austria in 1821, and of Spain by the French Government in 1823, under the excuse of suppressing a dangerous spirit of ; internal revolution and reform.

With reference to this right of self-government in independent sovereign States, an opinion has been expressed, which, whilst it concedes this right as inseparable from and as a necessary attribute of sovereignty and independence, asserts nevertheless some implied and paramount authority of a supposed international law, to which this right of self-government must be regarded and exerted as subordinate; and.from which independent and sovereign States can be exempted only by a protest, or by some public and formal rejection of that authority. With all respect for those by 'whom this opinion has been professed, I am constrained to regard it as utterly untenable, as palpably inconsistent, and as presenting in argument a complete felo de se. -

Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. Again, could such claims, from extraneous sources be regarded as legitimate, the effort to resist or evade them, by protest or denial, would be as irregular and unmeaning as it would be futile. It could in no wise affect the question of superior right. For the position here combatted, no respectable authority has been, and none it is' thought can be adduced. It is certainly irreconcilable with the doctrines already cited from the writers upon public law.

Neither the case of Lewis Somersett, (Howell’s State Trials, vol. 20,) so often vaunted as the proud evidence of devotion to freedom under a Government which has done as much perhaps to extend the reign - of slavery as all the world besides; nor does any decision founded upon the authority of Somersett'B case, when correctly expounded, assail or impair the principle of national equality enunciated by each and all of the publicists already referred to. In the case of Somersett, although the applicant for the habeas corpus and the individual claiming properly in that applicant were both subjects and residents *486"within tie British empire, yet the decision cannot be correctly understood as ruling absolutely and under all circumstances .against the right of property in the claimant. That decision goes no farther than to determine, that within the realm of England there was no authority to justify the detention of an individual in private bondage. If the decision in Somersett’s case had gone beyond this point, it would have presented the anomaly of a repeal by laws enacted for and limited in their operation to the realm alone, of other laws and institutions established for places and subjects without the limits of the realm of England; laws and institutions at that very time, and long subsequently, sanctioned and maintained under the authority of the British Govérnment, and which the full and combined action of the King and Parliament was required to abrogate.

But could the decision in Somersett’s case be correctly interpreted as ruling the doctrine which it has been attempted to deduce from it, still that doctrine must be considered as having been overruled by the lucid and able opinion of Lord Stowell in the more recent ease of the slave Grace, reported in the second volume of Haggard, p. 94; in which opinion, whilst it is conceded by the learned judge that there existed no power to coerce the slave whilst in England, that yet, upon her return to the island of Antigua, her status as a slave was revived, or, rather, that the title of the owner to the slave as property had never been extinguished, but had always existed in that island. If the principle of this decision be applicable as between different portions of one and the same empire, with how much more force does it apply as between nations or Governments entirely separate, and absolutely independent of each other? For in this precise attitude the States of this Union stand with reference to this subject, and with reference to the tenure of every description of property vested under their laws and held within their territorial jurisdiction.

A strong illustration of the principle ruled by Lord Stowell, and of the effect of that principle even in a case of express contract, is seen in the case of Lewis v. Fullerton, decided by the Supreme Court of Virginia, and reported in the first volume of Randolph, p. 15. The .case was this: A female slave, the property of a citizen of Virginia, whilst with her master in the State of Ohio, was taken from his possession under a writ of habeas corpus, and set at liberty. Soon, or immediately after, by agreement between this slave and her master, a deed, was executed in Ohio by the latter, containing a stipulation that this slave should return to Virginia, and, after a service of'two years in that State, should there be tree. The law of Virginia *487regulating emancipation required that deeds of emancipation should, within a given time from their date, be recorded in the court of the county in which the grantor resided, and declared that deeds with regard to which this requisite was not complied with should be void. Lewis, an infant son of this female, under the rules prescribed in such cases, brought an action, in forma pauperis, in one of the courts of Virginia, for thé'recovery of his freedom, claimed in virtue of the transactions above mentioned. Upon an appeal to the Supreme Court' from a judgment against the plaintiff, Roane, Justice, in delivering the opinion of the court, after disposing of other questions discussed in that case, remarks:

“As to the deed-of emancipation contained in the record, that' deed, taken in connection with the evidence offered in support of it, shows that it had a reference to the State of Virginia; and the testimony shows that it formed a part of this contract, whereby the slave Milly was to be brought back (as she was brought back) into the State of Virginia. Her object was therefore to secure her freedom by the deed within the State of Virginia, after the time should have expired for which she had indented herself, and when she should be found abiding within the State of Virginia.

“ If, then, this contract had an eye to the State of Virginia for its operation and effect, the lex loci ceases to .operate. In that case it must, to have its effect, conform to the laws of Virginia. It is insufficient under those laws to effectuate an emancipation, for want of a due recording in the county court, as was decided in the case of Givens v. Mann, in this court. It is also ineffectual within the Commonwealth of Virginia for another reason. The lex loci is also to be taken subject to the exception, that it is not to be enforced in another country, when it violates some moral duty or the policy of that country, or is not consistent with a positive right secured to. a third person or party by the laws of that. country in which it is sought to be enforced. In such a case we are told, lmagis jus nostrum, qmm jus alimam servemus.’” (Huberus, tom. 2, lib. 1, tit. 3; 2 Fontblanque, p. 444.) “ That third party in this instance is the Commonwealth of Virginia, and her policy and interests are also to be attended to. These turn the scale against the lex loci in the present instance.”

The second or last-mentioned position assumed for the plaintiff under the pleas in bar, as it rests mainly if not' solely upon the provision of the act of Congress of March .6, 1820, prohibiting slavery in Upper Louisiana north of thirty-six degrees thirty minutes north latitude, popularly called the Missouri Compromise, that assumption renews the question, formerly so *488zealously debated, as to the validity of the provision in the act of Congress, and upon tbe constitutional competency- of Congress to establish it.

Before proceeding, however, to examine the validity of the prohibitory provision of the law, it may, so far as the rights involved in this cause are concerned, be remarked, that conceding to that provision the validity of a legitimate exercise of power, still this concession could by no rational interpretation imply the slightest authority for its operation' beyond the territorial limits comprised within its terms; much less could there be inferred from it a power to destroy or in any degree to control rights, either of person or property, entirely within the bounds of a distinct and independent sovereignty — rights invested and fortified by the guaranty of that sovereignty. These surely would remain in all their integrity, whatever effect might be ascribed to the prohibition within the limits defined by its language.

But, beyond and in defiance of this conclusion, inevitable and undeniable as it appears, upon every principle of justice or sound induction, it has heen attempted to convert this prohibitory provision of the act of 1820 not- only into a weapon with which to assail the inherent — the necessarily inherent— powers of independent sovereign Governments, but into a mean of forfeiting that equality of rights and immunities which are the birthright or the donative from the Constitution of every citizen of the .United States within the length and breadth of the nation. In this attempt, there is asserted a power in Congress, whether from incentives of interest, ignorance, faction, partiality, or prejudice, to bestow upon a portion of the citizens of this nation that which is the common property and privilege of all — the power, in fine, of confiscation, in retribution for no offence, or, if for an offence, for that of accidental locality only.

It may be that, with respect to future cases, like the one now before the court, there is felt an assurance of the impotence of such a pretension; still, the fullest conviction of that result can impart to it no claim to forbearance, nor dispense with the duty of antipathy and disgust at its sinister aspect, •whenever it may be seen to scowl upon the justice, the order, the tranquillity, and fraternal feeling, which are the surest, nay, the only means, - of promoting or preserving the happiness and prosperity of the nation, ana which were the great and efficient incentives to the formation of this Government.

The power of Congress to impose the prohibition in the eighth section of the act of 1820 has been advocated upon an attempted construction of the second clause of the third section *489of the fourth article of the Constitution, which declares that “Congress shall have power to dispose of and to make all needful rules and regulations respecting the territory and other property belonging to the United States.”

In the' discussions in both houses of Congress, at the time of adopting this eighth section of the act of 1820, great weight was given to the peculiar language of this clause, viz: territory and other property belonging to the United States, as going to show that the power of disposing of and regulating, thereby vested in Congress, was restricted to a proprietary interest in the territory or land comprised therein, and did not extend to the personal or’political rights of citizens or settlers, inasmuch as this phrase in the Constitution, “ territory or other property,” identified territory with property, and inasmuch as citizens or ■persons could not be property, and especially were not property . belonging to the United States. And upon every principle of reason or necessity, this power to dispose of and to regulate the territory of the nation could be designed to extend no farther than to its preservation and appropriation to the uses of those to whom it belonged, viz: the nation. Scarcely anything more illogical or extravagant can be imagined than the attempt to deduce from this provision in the Constitution a power to destroy or in any wise to impair the civil and political rights of the citizens of the United States, and much more so the power to establish inequalities amongst those citizens by creating privileges in one class of those citizens, and by the disfranchisement of other portions or classes, by degrading them from the position they previously occupied.

There can exist no rational or natural connection or affinity between a pretension like this and the power vested by the Constitution in Congress with regard to the Territories ; on the contrary, there is an absolute incongruity between them.

But whatever the power vested in Congress, and whatever the precise subject to which that power extended, it is clear that the power related to a subject appertaining to the United States, and one to be disposed of and regulated for the benefit and under the authority of the United States. Congress was made simply the agent or trustee for the United States, and could not, without a breach of trust and a fraud, appropriate the subject of the trust to any other beneficiary or cestui que trust than the United States, or to the people of the United States, upon equal grounds, legal or equitable. Congress could not appropriate that subject to any one class or portion of the people, to the exclusion of others, politically and. constitutionally equals; but every citizen would, if any one *490could claim it, have the like rights of purchase, settlement, occupation, or any other right, in the national territory.

Nothing can he more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them because they are the owners of slaves,' than the fact that the same instrument, which imparts to Congress its very existence and its every function, guaranties to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, farther, that the only private property which the Constitution has specifically recognised, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty.

Can there he imputed to the sages and patriots by whom the Constitution was framed, or can there he detected in the text of that Constitution, or in any rational construction or implication deducible therefrom, a contradiction so palpable as would exist between a pledge to the slaveholdér of an equality with his fellow-citizens, and of the formal and solemn assurance for the security and enjoyment of his property, and a warrant given, as it were uno flatu, to another, to rob him of that property, or to subject him to proscription and disfranchisement for possessing or for endeavoring to retain it? The injustice and extravagance necessarily implied in a supposition like this, cannot be rationally imputed to the patriotic or the honest, or to those who were merely sane.

A conclusion in favor of the prohibitory power in Congress, as asserted in the eighth section of the act of 1820, has been attempted, as deducible from°the precedent of the ordinance of the convention of 1787, concerning the cession by Virginia of the territory northwest of the Ohio; the provision in which ordinance, relative to slavery, it has been attempted to impose upon other and subsequently-acquired territory.

The first circumstance which, in the consideration of this provision, impressés itself upon my mind, is its utter futility and want of authority. This court has, in repeated instances, ruled, that whatever may have been the force accorded to this ordinance of 1787 at the period of its enactment, its authority and effect ceased, and yielded to the paramount authority of the Constitution, from the period of the adoption of the latter. Such is the principle ruled in the cases of Pollard’s Lessee v. Hagan, (3 How., 212,) Parmoli v. The First Municipality of *491New Orleans, (3 How., 589,) Strader v. Graham, (16 How., 82.) But apart from the superior control of the Constitution, ana anterior to the adoption of that instrument, it is obvious that the inhibition in question never had and never could have any legitimate and binding force. "We may seek in vain for any power in the convention, either to require or to accept a condition or restriction upon the cession like that insisted on; a condition inconsistent with, and destructive of, the object of the grant The cession was, as recommended by the old Congress in 1780, made originally and completed in terms to the United States, and for the benefit of the United States, i. e., for the people, all the people, of the United States. The condition subsequently sought to be annexed in 1787, (declared, too, to be perpetual and immutable,) being contradictory tó the terms and destructive of the purposes of the cession, and after the cession was consummated, and the powers of the ceding party terminated, and the rights of the grantees, the people of ike United States, vested, must necessarily, so far, have been ah initio void. "With respect to the power of the convention-to impose this inhibition, it seems to be pertinent in this place to recur to the opinion of one cotemporary with the establishment of the Government, and whose distinguished services in the formation and adoption of our national charter, point him out as the ariifex maximus of our Eederal system^ James Madison, in the year 1819, speaking with reference to the prohibitory power claimed by Congress, then threatening the very existence of the Union, remarks of the language of the second clause of the third section of article fourth of the Constitution, “that it cannot be well extended beyond a power over the territory as property, and the power to make provisions really needful or necessaiy for the government of settlers, until ripe for admission into the Union.”

Again he says, “with respect to what has taken place in the Northwest territory, it may be observed that the ordinance giving it its distinctive character on the' subject of slavehold-ing proceeded from the old Congress, acting with the best intentions, but under a charter which contains no shadow of the authority exercised; and it remains to be decided how far the States formed within that territory, and admitted into the Union, are on a different footing from its other members as to their legislative sovereignty. As to the power of admitting new States into the Eederal compact, the questions offering themselves are, whether Congress can attach conditions, or .the new States concur in conditions, which after admission would abridge or enlarge the constitutional rights of legislation common to other States; whether Congress can, by a compact *492with a new State, take power either to or from itself, or place the new member above or below the equal rank and rights possessed by the others; whether all such stipulations expressed or implied would not be nullities, and be so pronounced when brought to a practical test. It falls within the scope of your inquiry to state the fact, that there was a proposition in the convention to discriminate between the old and the new States by an article in the Constitution. The proposition, happily, was rejected.- The effect of such a discrimination is sufficiently evident.”*

In support of the ordinance of 1787, there may be adduced the semblance at least of obligation deducible from compact, the form of assent or agreement between the grantor and fran tee; but this form or similitude, as is justly remarked by Ir. Madison, is rendered null by the absence of power or authority in the contracting parties, and by the more intrinsic and essential defect of incompatibility with the rights and avowed purposes, of those parties, and with their relative duties and obligations to others. If, then, with the attendant formalities of assent or compact, the. restrictive power claimed was void as to the immediate subject of the ordinance, how much more unfounded must be the pretension to such a power as derived from that source, (viz: the ordinance.of 1787,) with respect to territory acquired by purchase or' conquest under the supreme authority of the Constitution — territory not the subject of mere donation, but obtained in the name of all, by the combined efforts and resources of all, and with no condition annexed or pretended. -

In conclusion, my opinion is, that the decision of the Circuit Court, upon the law arising upon the several pleas in bar, is correct, but that it is erroneous in having sustained the dé-murrer to the plea in abatement of the jurisdiction; that for this error the decision of the Circuit Court should be reversed, and the cause remanded to that court, with instructions to abate the action, for the reason set forth and pleaded in the plea in abatement.

In the aforegoing examination of this cause, the circumstance that the questions involved therein had been previously adjudged between these parties by the court of the State of Missouri, has not been adverted to; for although it has been ruled1 by this court, that in instances of concurrent jurisdiction, the court first obtaining possession or cognizance of the control versy should retain and decide it, yet, as in this case there had *493been no plea, either of a former judgment or of autre aetion pendent, it was thought that the fact of a prior decision, however conclusive it might have been if regularly pleaded, could not be incidentally taken into view.

Mr. Justice CAMPBELL.

I concur in the judgment pronounced by the Chief Justice, but the importance of the cause, the expectation and interest it has awakened, and the responsibility involved in its determination, induce me to file a separate opinion.

The case shows that the plaintiff, in the year 1834, was a negro slave in Missouri, the property of Dr. Emerson, a surgeon in the army of the United States. In 1834, his master took him to the military station at Rock Island, on the border of Illinois, and in 1836 to Fort Snelling; in the present Minnesota,- then Wisconsin, Territory. While at Fort Snelling, ■the plaintiff married a slave who was there with her master, and two children have been born of this connection; one during the journey of the family in returning to Missouri, and the other after their return to that Stated

Since 1838, the plaintiff and the members of his family have been in Missouri in the condition of slaves. The object of this suit is to establish their freedom. The defendant, who claims the plaintiff and his family, under the title of Dr. Emerson, denied the jurisdiction of the Circuit Court, by the plea that the plaintiff was a negro of African blood, the descendant of Africans who had been imported and sold in this country as slaves, and thus he had no capacity as a citizen of Missouri to maintain a suit in the Circuit Court. The court sustained a demurrer to this plea, a trial was then had upon the general issue, and special pleas to the effect that the plaintiff' and his family were slaves belonging to the defendant.

My opinion in this case is not affected by the plea to the jurisdiction, and I shall not discuss the questions it suggests. The claim of the plaintiff to freedom depends upon the effect to be given to his absence from Missouri, in company with his master, in Illinois and Minnesota, and this effect is to be ascertained by a reference to the laws of Missouri. For the trespass complained of was committed upon one claiming to be a freeman and a citizen, in that State, and who had been living for years under the dominion of its laws. And the rule is; that whatever is a justification where the thing is done, must be a justification in the forum where the case is tried. (20 How. St. Tri., 234; Cowp. S. C., 161.)

The Constitution of Missouri recognises slavery as a legal condition, extends guaranties to the masters of slaves, and in*494vites immigrants to introduce them, as property, by a promise of protection. The laws of the State charge the master with the custody of the slave, and provide for the maintenance and security of their relation.

The Federal Constitution and the acts of Congress provide for the return of escaping slaves within the limits of the Union. No removal of the slave beyond the limits of the State, against the consent of the master, nor residence there in another condition, would be regarded as an effective manumission by the courts of Missouri,.upon his return to the State. “ Sicut liberis captis status restituitur sic servus domino.” Nor can the master emancipate the slave within the State, except through the agency of a public authority. The inquiry arises, whether the manumission of the slave is effected by his removal, with the consent of the master, to a community where the law of slavery does not exist, in a case where neither the master nor slave discloses a purpose to remain permanently, and where both parties have continued to maintain their existing relations. What is the law of Missouri in such a case? Similar inquiries have arisen in a great' number of suits, and the discussions in the State courts have relieved the subject of much of its difficulty. (12 B. M. Ky. R., 545; Foster v. Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R., 295; Scott v. Emerson, 15 Misso., 576; 4 Rich. S. C. R., 186; 17 Misso., 434; 15 Misso., 596; 5 B. M., 173; 8 B. M., 540, 633; 9 B. M., 565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.)

The result of these discussions is, that in general, the status, or civil and political capacity of a person, is determined,, in the first instance, by the law of the domicil where he is born; that the legal effect on persons, arising from the operation of the law of that domicil, is not indelible, but that a new capacity or status may be acquired by a change of domicil. That questions of status are closely connected with considerations arising out of the social and political organization of the State where they originate, and each sovereign power must determine them within its own territories.

A large class of cases has been decided upon the second of the propositions above stated, in the Southern and Western courts — cases in which the law of the actual domicil was adjudged to have altered the native condition and status of the slave, although he had never actually possessed the status of freedom in that domicil. (Rankin v. Lydia, 2 A. K. M.; Herny v. Decker, Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter v. Fulcher, 1 Leigh.)

I do not impugn the authority of these cases. No evidence is found in the record to establish the existence of a domicil *495acquired by tbe master and slave, either in Illinois or Minnesota. The master is described as an officer of the army, who was transferred. from one station to another, along the Western frontier, in- the line of his duty, and who, after performing the usual tburs of service, returned to Missouri; these slaves returned to Missouri with him, and had been there for near fifteen years, in that condition, when this suit was instituted. But absence, in the performance of military duty, without more, is a fact of no importance in determining a question of a change of domicil. Questions of that kind depend upon acts and intentions, and are ascertained from motives, pursuits, the condition of the family, and fortune of the party, and no change will be inferred, unless evidence shows that one domicil was abandoned, and there was an intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M. and W., 511; 2 Curt. Ecc. R., 368.)

) The cases first Cited deny the authority of a foreign law' to dissolve, relations which have been legally contracted in the State Where the parties are, and have their actual domicil — relations which were-never questioned during their absence from that State — relations which are consistent with the native capacity and' condition of the respective parties,' and with the policy of the State-where they reside; but'which relations were inconsistent with the policy or laws, of the State or. Territory within which they had been for a time, and from which they had. returned, with these relations, undisturbed. .It is upon the assumption, that the law of Illinois or Minnesota was indelibly'impressed upon the slave, and its consequences carried -into Missouri, that the claim of the .plaintiff depends. . The importance of the case entitles the doctrine on which it rests to a careful examination.

It will be conceded, that in countries where no. law or regulation prevails, opposed to the existence and consequences of slavery, persons who are born in that condition in a foréign State would not be liberated by the accident of their intro-gression. The relation of domestic slavery is recognised in the law of nations, and the interference of the authorities of one State with the rights of a master belonging to another, without a valid cause, is a violation of that lay. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp., 378; Reports of the Com. U. S. and G. B., 187, 238, 241.)

The public law of Europe formerly permittéd a master to reclaim his bondsman, yithin a limited period, wherever he could find him, and one of the capitularies of Charlemagne abolishes the rule of prescription. 'He directs, “that,wheresoever, within the bound's of Italy, either the runaway .slave of the king, or of *496the church, or of any other man, shall he found by his master, he shall he restored without any bar or prescription of years; yet upon the provision that the master he a Frank or German, or of any other nation (foreign ;) but if he be. a Lombard’or a Roman, he shall acquire or receive his slaves by that law which has been established from ancient times among them.” "Without referring for precedents abroad, or to the colonial history, for similar instances, the history of the Confederation and Union affords evidence to attest the existence of this ancient law. In 1783, Congress directed General Washington to continue his remonstrances to the commander of the British forces respecting the permitting negroes belonging to the citizens of these States to leave New York, and to insist upon the discontinuance of' that measure. In 1788, the resident minister of the United States at Madrid was instructed to obtain from the Spanish Crown orders to its Governors in Louisiana and Florida, “to permit and facilitate the apprehension of fugitive slaves- from the States, promising that the States would observe’ the like conduct respecting fugitives from Spanish subjects.” The committee that made the report of this resolution consisted-of Hamilton, Madison, and Sedgwick, (2 Hamilton’s Works, 473;) and the clause in the Federal Constitution providing for the restoration of fugitive slaves is a recognition of this ancient right, and of the principle that a change of place does not effect a change of condition. The diminution of the power of a master to reclaim his escapiúg bondsman in Europe commenced in the enactment of laws of prescription in favor of privileged communes. . Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; Carcassonne, Beziers, Toulouse, and Paris, in France, acquired privileges on this-subject at an early period. The ordinance of William the Conqueror, that a residence of any of the servile population of England, for a year and a day, without being claimed, in any city, burgh, walled town, or castle of the King; should entitle them to perpetual liberty, is a specimen of these laws.

The earliest publicist who has discussed this subject is Bodin, a jurist of the sixteenth century, whose work was quoted in the early discussions of the courts in France and England on this subject. He says: “In France, although there be some remembrance of old servitude, yet it is not lawful here to make a slave or to buy any one of others, insomuch as the slaves of. strangers, so soon as they set their foot within France, become, frank and free, as was determined by an old decree of the court of Paris against, an ambassador of Spain, who had brought a slave with him into France.” He states another case, whieh' arose in the city of Toulouse, of a Genoese merchant, who had *497carried a slave into that city on his voyage from Spain; and when the matter was brought before the magistrates,, the “procureur of the city, out of the records, showed certain ancient privileges given unto them of Tholouse, wherein it'was granted that slaves, so soon as they should come into Tholouse, should he free.” These cases were cited with much approba-. tion in the discussion of the claims of the West India slaves of Yerdelin for freedom, in 1738, before the judges in admiralty, (15 Causes Celébrés, p. 1; 2 Masse Droit Com., sec. 58,) and were reproduced before Lord Mansfield, in the cause of Somersett, in 1772. Of the cases cited by Bodin, it is to be observed that Charles Y of France exempted all the inhabitants of Paris from serfdom, or other feudal incapacities, in 1371, and this was confirmed by several of his successors, (3 Dulaire His., de Par., 546; Broud. Cout. de Par., 21,) and the ordinance of Toulouse is preserved as follows: “ Civitas Tholo-sana fuit et erit sine fine libera, adeo ut servi et ancillce,' sclavi et '■sclavce, dominos sive dominas habentes, cum,rebus vel sine rebus,suis, ad Tholosam vel infra términos extra urbem terminatos accedentes acguirant libertaiem.” (Hist. de Langue, tome 3, p. 69; Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.)

The decisions were made upon special ordinances, or charters, which contained positive prohibitions, of slavery,, and where liberty had been granted as a privilege; and the history of Paris furnishes but little support for the boast that she was a “sacro sancta civitas,” where liberty always had an asylum, or for the “self-complacent rhapsodies” of the French advocates in the case of Yerdelin, which amused the grave lawyers who argued'the case of • Somersett. ■ The cáse of Yerdelin was decided upon a special ordinance, which prescribed the conditions on which.West India slaves' might be introduced into France, and which', had been disregarded by the master.

The cash of Somersett was' that of a Virginia slave carried to England by-his master, in 177.0, and who remained there two years. For some cause, he was confined on a vessel destined to Jamaica, where he was to be Sold. Lord Mansfield, upon a-return to a habeas corpus, states the question involved* “Here, the person of the slave himself,” he says, “is the immediate subject of inquiry, Can any dominion, authority, or coercion, ,be exercised in this country,1 according to the American laws?” He answers: “The difficulty of adopting the relation* without adopting it in all its-consequences, is indeed extreme, and yet many of those consequences are absolutely contrary to the municipal law of England.” Again, he says: “The return states that the slave departed, and refused to he be sold “ So high *498an act of . dominion must be recognised by the law of tbe country where it is used. The power of the master over his slave has been extremely different in different countries.” “ The state óf slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, are, erased, from the memory. It is so odious, that nothing can be suffered to support it but positive law.” That there is a difference in the systems of States, which recognise and which do not recognise the institution of slavery, cannot be disguised. Constitutional law, punitive law, police, domestic economy, industrial-pursuits, and amusements, the modes of thinking and of belief of the population of the respective communities, all show-the profound influence exerted upon society by this single arrangement. This influence was discovered in the Federal, Convention, in the deliberations on the plan of the Constitution. Mr. Madison observed, “that the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which, aesulted partly from climate, but principally from the effects ■of their having or not having slaves. These two causes concur in forming the great division of interests in the United States.”

• The question to be raised with the opinion of Lord Mansfield, therefore, is not in respect to the incongruity of the two' systems, but whether slavery was absolutely contrary to the law of England; for if it was so, clearly, the American laws ■could not operate there. Historical research ascertains that at the date of the Conquest the rural population of England were generally in a servile condition, and under various names, denoting slight variances in condition, they were sold with the land like -eattle, and were a part of its living money. Traces -of the existence of African slaves are to be found in the early Chronicles. Parliament in the time of Richard IT, and also -of Henry YIH, refused to adopt a general .law of emancipation. Acts of emancipation by the last-named monarch- and by Elizabeth are preserved.

The African slave .trade had been carried on, under the unbounded protection of the Crown, for near two centuries, when the case of iSomersett was heard, and no motion for its suppression had ever been submitted to Parliament; while it was forced upon and maintained in unwilling colonies by the Par-, liament and Crown of England at that monfent. Fifteen thousand-negro-slaves were then'living in that island, where they had been introduced under the counsel of the most illustrious jurists of the '¡realm, and such' slaves had been publicly *499sold for near a. century in tibe markets of London. In the ’ northern part of the kingdom of Great Britain there, existed a class of from 30,000 to 40,000 persons, of whom the Parliament said, in 1775, (15 George III, chap. 28,) “many colliers, coal-heavers, and salters, are in a state of slavery or bondage, bound to the collieries and salt works, where they work for life, transferable with the collieries and salt works when their original masters have no use for them; and whereas the emancipating or setting free the colliers, coal-heavers, and salters, in Scotland, who are now in a state of servitude, gradually and upon reasonable conditions, would be the means of increasing the number of colliers, coal-heavers, and salters, to the great benefit of the public, without doing any injury to the present masters, and would remove the reproach of allowing such a state of servitude to exist in a free country,” &c.; and again, in 1799, “they declare that many colliers and coal-heavers still continue in a state of bondage.” Ho statute, from the Conquest till the 15 George HI,, had been passed upon the subject of personal slavery. These facts have led the most eminent civilian of England to question the' accuracy of this judgment, and to insinuate that in this judgment.the offence of ampliare jurisdictionem by private authority was committed by the eminent magistrate who pronounced it/

This sentence is distinguishable from thosé cited from the French courts in this: that there positive prohibitions existed against slavery, and the right to. freedom was conferred on the immigrant slave by positive law; whereas here the consequences of slavery merely — that is, the public policy — were fóund to be contrary to the law of slavery. The case of the slave Grace, (2 Hagg.,) with' four others, came before Lord Stowell in 1827, by appeals from the West India Vice admiralty-courts. ■ They were cases of slaves who had returned to those islands, after a residence in Great Britain, and where the claim to freedom was first presented .in the colonial forum. The learned judge in that case said: “This suit fails in its foundation: She.(Grace) was not a free person; no injury is done her by her-continuance in slavery, and she has no pretensions to any other station than that which was enjoyed by every slave of a family. If she depends upon such freedom conveyed by a mere residence in England, she complains of a violation of right which she possessed no.longer than whilst she resided in England, but which totally expired when that residence ceased, and she was imported into Antigua.”

. The decision of Lord Mansfield was, “that so high an act of dominion ” as .the master exercise^ .over his slave, in sending him abroad for sale, could not be exercised in England *500under the American laws, and contrary to the spirit of their own.

The decision of Lord Stowell is, that the authority of the English laws terminated when the slave departed from England. That the laws of England were not imported into Antigua, with the slave, upon her return, and that the colonial forum had no warrant for applying a foreign eode to dissolve relations which .had existed between persons belonging to that island, and which were legal according to its own system. There is no distinguishable difference between the case before us and that detercnined in the admiralty of Great Britain.

The complaint here, in my opinion, amounts to this : that the- judicial tribunals of Missouri have not denounced as odious the Constitution and laws under which they are organized, and have not superseded them on their own private authority, for the purpose of applying the laws of Illinois, or those passed by Congress for Minnesota, in their stead. • The eighth section of the act of Congress of the 6th of March, 1820, (3 Statutes at Large, 545,) entitled; “An act to authorize the people of Missouri to form a State Government,” &e., &e., is referred to, as affording the authority to this court to pronounce the sentence which the Supreme Court of Missouri felt themselves constrained to refuse. That section of the act prohibits slavery in the district of country west of the Mississippi, north of thirty-six degrees thirty minutes north latitude, vjhieh belonged to the ancient province of Louisiana, hot included in Missouri.

It is a settled doctrine of this court, that the Eederal Government can exercise no power over the subject of slavery within the States, nor control the intermigration of slaves, "other than fugitives, among the States. . Kbr can that Government affect the duration of slavery within the States^ other than by a legislation over the foreign slave trade. The power of Congre* to adopt the section of the act above cited must therefore depend upon some condition of the Territories which distinguishes them from States, and subjects them to a control more extended. • The third section of the fourth article of the Constitution is referred to as the only and all-sufficient grant to support this claim. It is, that “ new States may be admitted by the Congress to this Union; but no hew State shall be formed or erected within the jurisdiction of any other. State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislar tures of the States concerned, as. well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the' territory of other propr *501erty belonging to the United States; and nothing in this Con- ' stitution snail be so construed as to prejudice any claims of the United States, or of any particular State.”

It is conceded, in the decisions of this court, that Congress may secure the rights of the United States in the public domain, provide for the sale or lease of any part of it, and establish the validity of the titlés of the purchasers, and may organize Territorial Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1 Pet., 511; 13 P., 436; 16 H., 164.)

But the recognition of a plenary power in Congress to dispose of the public domain, or jfco organize a Government over it, does not imply a corresponding authority to determine the internal polity, or to adjust the domestic relations, or the persons who may lawfully inhabit the territory in which it is situated. A supremé power to make needful rules respecting the ■public domain,, and a! similar power of framing laws to operate upon persons and things within the territorial limits where it lies, are distinguished by broad lines of demarcation in American history. This court has assisted us to define them. In Johnson v. McIntosh, (8 Wheat., 595—543,) they say: “According to the theory of the British Constitution, all vacant lands are vested in the Crown; and the exclusive power to grant them is admitted to reside in the Crown, as a branch of the royal prerogative.

“All the lands we hold were' originally granted by the Crown, and the Establishment of a royal Government has never been considered as impairing its right to grant lands within the chartered limits of such colony.”

• 'And the British Parliament did claim a supremacy of legislation coextensive with the absoluteness of the dominion of the sovereign over the Crown lands. The American doctrine, to the contrary, is embodied in two brief resolutions of the people of Pennsylvania, in 1774: 1st. “ That the inhabitants of these colonies are entitled to the same rights and liberties, within the colonies, that the subjects born in England are entitled within the realm.” 2d. “ That the power assumed by-Parliament to bind the people, of these colonies by statutes, in all cases whatever, is unconstitutional, and therefore the source of these unhappy difficulties.” The Congress of 1774, in their statement of rights and grievances, affirm “ a free and' exclusive power of legislation” in their several Provincial Legislatures, “in all eases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed.” (1 Jour. Cong., 32.)

. The unanimous consent of the people of the colonies, then, *502to the power of their sovereign, “to dispose of and make all heedful rules and regulations respecting the territory ” of the Crown, in 1774, was deemed by them as entirely consistent with opposition, remonstrance, the renunciation of allegiance, and proclamation óf civil war, in preference to submission-to his claim of supreme power in the territories. .

I pass now to the evidence afforded during the Revolution and Confederation. The American Revolution was not a social revolution. It did not alter the domestic condition or capacity of persons within the colonies, nor was it designed to disturb the domestic relations existing among them, ft was a political revolution, by which thirteen dependent colonies became thirteen independent States. “ The Declaration of Independence, was notj” says Justice Chase, “a declaration that the United Colonies jointly, in a collective capacity, were independent'States, &c., &c., &c., but .-that each of them was a-sovereign and independent State; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power on earth.” (3 Dall., 199; 4 Cr., 212.)

These sovereign and independent States, being united as a Confederation, by various public acts of cession, became jointly interested in territory, and concerned to dispose of and make all needful rules and regulations respecting it. It is a conclusion not open to discussion in this court, “that there was no territory within the (original) United States, that was claimed by them in any other right than that of some-of the confederate‘States.” (Harcourt v. Gaillord, 12 Wh., 523.) . “The question whether the vacant lands within the.United States,” says Chief Justice‘Marshall, “ became joint property, or belonged to the ' separate States, was 'a momentous question, whieh threatened to shake the American Confederacy to its foundations. This important and dangerous question has been compromised, and the compromise is .not now to be contestéd.” (6 C. R., 87.)

The cessions of the States to the Confederation Were made on the condition that the territory ceded should be laid out and formed into distinct republican States, which should be admitted as members to the Federal Union, having the same rights of sovereignty, freedom, and independence, as the- other States. The first effort to fulfil this trust was made in 1785, < by the offer óf a charter or compact to the inhabitants who. might come to occupy the land.,

• Those' inhabitants were to .form for themselves temporary State Governments, founded on the Constitutions of any of the States, biit to be alterable at the will óf their Legislature; and *503•permanent Governments were to succeed these, whenever the population became sufficiently numerous to authorize the State to enter the Confederacy; and Congress assumed to obtain powers from the States to facilitate this object. Neither in the deeds of cession of the States, nor in this compact, was a sovereign power for Congress to govern the Territories assérted. Congress retained power, by this act, “to dispose of and to make rules and regulations respecting the public . domain,” hut submitted to the people to organize a Government harmonious with those of the; confederate States.

The next sta^e in the progress of 'colonial government was the adoption oí the ordinance of 1787, by eight 'States,-, in which the plan of a Territorial Government, established by act of Congress, is'first seen.- This was adopted while the Federal Convention to- form the Constitution was sitting. The plan placed the Government in the hands of a .Governor* Secretary, and Judges, appointed by Congress, and conferred power on them to select suitable laws from the codes of the States,-until the population should equal 5,000. A Legislative. Council,- elected by the people, was then to be admitted to a share of the legislative authority* under the supervision- of Congress; and States were to be formed whenever the'number of the. population should authorize the measure.

This ordinance was addressed to the inhabitants as a fundamental compact,' and six of- its articles define the conditions to be observed in their Constitution and laws. These conditions were designed to fulfil the trust in the agreements of cession, that-the States'to he formed of the ceded Territories should be .“ distinct Republican States.” This ordinance was submitted to Virginia in 1788, and the 5th article, embodying as it does a summary of the entire act, was specifically ratified and confirmed 'by that State. This was an incorporation of the ordinance into1 her act of cession. It was conceded, in the argument, -that the authority of Congress was not adequate to the enactment of the ordinance, and that it cannot bé sup-portéd upon the Articles of Confederation. To a part of. the engagements, the assent of nine States was. required, and for another portion no provision had been made in those articles.. Mr. Madison said, in a writing nearly contemporary, but before the confirmatory act of Virginia, “Congress have proceeded to form new States, to erect temporary Governments, to appoint officers for’them, and to prescribe the conditions on which such States shall be admitted into the Confederacy; .all this has been done, and done without the least color of constitutional authority.” (Federalist, No. 38.) Richard Henry Lee, one of the committee who reported the ordinance to Con*504gress, transmitted it to General "Washington, (15th July, 1787,) saying, “It seemed necessary, for the security of property among uninformed and perhaps licentious people, as the greater part of those who go there are, that a strong-toned Government should exist, and the rights of property he clearly defined.” The'consent of all the States represented in Congress, the consent' of the Legislature of Virginia, the consent of the inhabitants of the Territory, all concur to support the authority of this enactment. It is apparent, in the frame of the Constitution, that the Convention recognised jts validity, and adjusted parts of their work with reference to it. The authority to admit new States into the Union, the omission to provide distinctly for Territorial Governments, and the clause limiting the foreign slave trade to States then existing, which might not prohibit it, show that they regarded this Territory as provided, with a Government, and organized permanently with a restriction on the subject of slavery. Justice Chase, in the opinion already cited,' says of the Government before, and it is in some measure true during the Confederation, that “the powers of Congress originated from necessity, and arose' out of and were only limited by events, or, iñ other words, they were revolutionary in their very nature. Their extent depended upon the exigencies and necessities of public affairs; ” and there.is only one rule of construction, in regard to the acts done, Vhich will fully support them, viz: that the powers actually exercised were rightfully exercised, wherever they were supported by the implied sanction of the State Legislatures, and by the ratifications of the people.

The clauses in the 3d .section, of the -4th article of the Constitution, relative to the admission of new States, and the disposal and regulation of the territory of-the United States, were adopted without debate pi the Convention; ■

There was a warm discussion on the clauses that relate to the subdivision of the States, and the reservation^ of the claims of the United States and each of the Statesi from any. prejudice. The Maryland members revived the controversy in regard to the Crown lands of thé Southwest.. There was nothing to indicate any reference to a government ■ of .Territories not included within the limits of the Union; and the whole discussion 'demonstrates that the Convention was consciously dealing with a Territory whose condition, as to government, had beeii arranged" by a fundamental and unalterable compact.

An examination of this clause of the Constitution, by the light of the circumstances in which the Convention was placed, will aid us to determine its significance. The first clause is, “that new States may be admitted by the Congress to this *505Union.” The condition of Kentucky, "Vermont, Rhode Island, and the' new States to be formed in the Northwest, suggested this, as a necessary addition to the powers of Congress. The next clause, providing for the subdivision of States, and the parties to consent to such an alteration, was required, by the plans on foot, for changes in Massachusetts, New York, Pennsylvania, North Carolina, and Georgia. The clause which enables Congress to dispose of and make regulations respecting the public domain, was demanded by the exigencies of an ex-haustéd treasury and a disordered finance, for relief by sales, and the preparation* for sales, Of the public lands; and the last clause, that nothing in the Constitution should prejudice the claims of the United States or a particular State, was to quiet the jealousy and irritation of those who had claimed for the United States all the unappropriated lands. I look in vain, among the discussions of the time, for the assertion of a supreme sovereignty for Congress over the territory then belonging to the United States, or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress. This disturbing element of thé Union entirely escaped the apprehensive previsions, of - Samuel Adams, George Clinton, Luther Martin, and "Patrick Henry; and, in respect to dangers from power vested .in acentral Government over distant settlements, colonies, or provinces, their instincts were always alive. Not a word escaped them, to warn their countrymen, that here was a power to threaten the landmarks of this federative Union, and with them ‘the safeguards of popular and constitutional liberty; or that under this article there might be introduced, on our soil, a single Government over avast extent of country— a Government foreign to the persons over whom it might be exercised; and capable of binding,those not represented, by statutes, in all cases whatever. I find nothing to ■ authorize these enormous pretensions, nothing in the expositions of the friends of the Constitution, nothing in the expressions of alarm by its opponents — expressions which have since been developed as prophecies. Every portion of the United States was then provided with a municipal Government, which this Constitution was not designed to supersede, but merely to modify as to its conditions.

.The compacts of cession by North Carolina and Georgia are subsequent to the Constitution. They adopt the ordinance of 1787, except the clause respecting slavery. But the precautionary repudiation of that article forms an argument quite as satisfactory to the advocates for Eederal power, as its intro*506duction would Rave done. The refusal of a power to Congress to legislate in one place, seems to justify the seizure of the samé power when another place for its exercise is found.

This proceeds from a radical error, which lies at the foundation of much of this discussion. It is, that the Federal Government may lawfully do whatever is not directly-prohibited by the Constitution. This- would have been a fundamental error, if no amendments to the Constitution had been made. But the final expression of the will of the people of the States, in the 10th amendment, is, that the powers of the Federal Government are limited to the grants of the Constitution.

Before the cession of Georgia was made, Congress asserted rights, in respect to a part of her territory, which, require a passing notice. In 1798 and 1800, acts for the settlement of limits with Georgia, and to establish a Government in the Mississippi Territory, wejre adopted. A Territorial Government was organized, between the Chattahoochee and Mississippi 'rivers. Tliis was within the limits of Georgia. These acts-dismemhered Georgia. They established a separate Government upon her soil, while they rather derisively professed, “that the establishment of that Government shall in no respects impair the rights of the State of Georgia, either ,to the jurisdiction or soil of the Territory.” The Constitution provided that the importation of such persons as any-of the existing States shall think proper to admit, shall-not be prohibited by Congress before 1808. By these enactments, a prohibition was placed, upon the importation of slaves into Georgia, although hfer Legislature had made nofie.

This court have repeatedly affirmed the paramount, claim of Georgia to this Territory. They have denied the existence- of any title in the United States. (6 C. R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.) Yet these acts were cited in the argument as precedents to show the power of Congress in the Territories. These statutes were the occasion of earnest expostulation and bitter remonstrance on .the part of the authorities of the State, and the memory of their injustice and wrong remained long after the legal settlement of the controversy by the compact of 1802. A reference td these acts terminates what I have to say upon the Constitutions of the Territory within the original limits of the United States. These Constitutions were framed by the- concurrence of the Spates making the cessions, - and Congress, and were tendered -to immigrants who might be attracted to the vacant territory. The -legislative, powers of the officers of this Government were limited to the selection of laws from the States; .and provision was made for the introduction of popular institutions, and their emanci*507pation from Federal control, whenever a suitable opportunity occurred. The limited reservation of legislative power to the officers of the Federal Government was excused, on the plea of 'necessity; and the probability is, that the clauses respecting slavery embody some compromise among the statesmen of that time; beyond these, the distinguishing features of the system which the patriots of the Revolution had claimed as their birthright, from Great Britain, predominated in them.

They acquisition of Louisiana, in 1808, introduced another system into the -United States. This vast'province was ceded by Napoleon, and its population had always been accustomed to a vieeroyal Government, appointed by the Crowns of France or Spain. To establish a- Government constituted on similar principles, and with like conditions, was not an unnatural proceeding. -

But there was great difficulty in finding constitutional authority for the measure. The third section' of the fourth article of the Constitution was introduced into the Constitution, on the motion of Mr. Gouverneur Morris. In 1803, he was appealed to for information in regard to its meaning. He answers : “I am very certain I had it not in contemplation to insert a decree de eoercmdo imperio in the Constitution of America. * * * I knew then, as well as I do now, that all North America must at length be annexed to us. Happy indeed, if the lust of dominion‘stop here. It would therefore have been perfectly utopian to oppose a paper restriction to the violence of popular sentiment, in a popular Government.” (3 Mor. Writ., 185.) A few days later, he makes another reply to his correspondent. “I perceive,” he says, “I mistook the drift of your inquiry, which substantially is, whether Congress can admit, as a new State,- territory which did not belong to the United States when the Constitution was made. In my opinion, they cannot. I always thought, when we should acquire Canada , and Louisiana,, it would be proper to govern THEM AS PROVINCES, AND ALLOW THEM NO VOICE m OUT COUndls. In fording the third section oe the fourth article, I went as far as circumstances would permit, to establish the exclusion. CandoR OBLIGES ME TO ADD MY BELIEF, THAT HAD IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE.” (3 Mor. Writ., 192.) The first Territorial Government of Louisiana was an Imperial one, founded upon a French or Spanish model. • For a time, the Governor, Judges, Legislative Council, Marshal, Secretary, and officers of the militia,.were appointed by the President.*

*508Besides thes¿' anomalous arrangements, the acquisition gaye rise to jealous inquiries, as.to the influence it would exert in determining the men and States that were to he' “the arbiters áíxd- rulers ” of the destinies of the Union; and unconstitutional opinions,-having for'their aim to promote sectional divisions, were announced and developed. “Something,” said an eminent statesman,'?4 something has suggested to the members of Congress the policy of acquiring geographical majorities. This is ;a very direct step towards disunion, for it must foster the geographical enmities by which alone it can be effected. .This something must bh a contemplation of particular advantages to be derived from such majorities; and is it not notorious that they consist "of nothing else but usurpations over persons and property, by which, they can regulate the internal wealth and prosperity of States and individuals?"

. The most dangerous of the efforts to employ ¿geographical political power, tó perpetúate- a geographical preponderance in the. Union, is to be found in the.deliberations upon the act of the 6th of March, 1820, before cited.' The attempt consisted of'a proposal to exclude' Missouri from a place in the Uriion, Unless her people would adopt a Constitution containing a prohibition won the subject of slavery, according to a prescription of Congress, The sentiment is now general, if not Universal,-that Congress had no constitutional power to impose the restriction. This was frankly admitted at the bar,' in the course of this argument. The principles which this court have .pronounced conderún the pretension then made on behalf of the legislative department. In Groves v. Slaughter, (15 Pet.,) the Chief Justice said: “The power over this subject ip exclusively with' the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to-be brought within its limits.” 'Justice McLean said: .“The Constitution of the United States operates alike in all the States,- and one State has the same powe^ over the subject of slavery as every other State.” In Pollard’s Lessee v. Hagan, (3 How., 212,) the court say: “The United States have no constitutional capacity to exercise municipal *509jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by'treaty or compact.”

This is a necessary consequence, resulting from the nature of the Federal Constitution, which is a federal compact among the' States, establishing a limited Government, with powers delegated by the people of distinct and independent communities, who reserved to their State Governments, and to themselves, the powers they did not grant. This claim to impose a restriction upon the people of Missouri involved a denial of the constitutional relation^ between the people of the States and Congress, and affirmed a concurrent right for the latter, with their people, to constitute the social and political system of the new States. A successful maintenance of this claim would have altered the basis of the Constitution. The new States would have become members of a Union defined in part by the Constitution and in part by Congress. They would not have been admitted to “this Union,-” Their sovereignly would have been restricted by Congress as well as the Constitution. The demand was unconstitutional and subversive, but was prosecuted with an energy, and aroused such animosities among the people, that patriots, whose confidence had not failed during the Revolution, begain to despair for the Constitution.* Amid the utmost violence of this extraordinary contest, the expedient contained in the eighth section of this act was proposed, to moderate it, and to avert the catastrophe at menaced. It was not seriously debated, nor were its constitutional aspects severely scrutinized by Congress. For the first time, in the history of the country, has its operation been embodied in a case at law, and been presented to this court for their judgment. The inquiry is, whether there are conditions in the Constitutions of the Territories which subject the capacity and status of persons within their limits to the direct action of Congress. Can Congress determine the. condition and status of persons who inhabit the Territories ?

The Constitution permits Congress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States. This power applies as well to territory belonging to the United States within the States, as, beyond them. It comprehends all the ■ public domain, wherever it may be. The argument is, that *510the power to make “all needful rules and regulations” “is a' power of legislation,”--“a' full legislative power;” “that ifl* includes all subjects of legislation in the .territory,” and is without any limitations, except the positive prohibitions which afféct all the powers of Congress. Congress may then regulate or prohibit slavery upon the public domain within the new States, and such a prohibition would permanently affect the capacity of a slave, whpse master might cany him to it. And why not? Because no power has been conferred on Congress. This is a conclusion universally admitted. But the power to “make rules and regulations respecting the territory” is not restrained by- State lines, nor are' there any constitutional prohibitions' upon its exercise in the domain of the United States within the States; and whatever rules and regulations respecting territory Congress may constitutionally make are supreme, and are not dependent on the situs of “the territory."

.-The author of the Parmer’s tetters, so famous in the ante-revolutionary history, thus states the argument made by the-American loyalistssin favor of the claim of the British Parliament to legislate in all cases whatever over the colonies:' “It has been urged with great vehemence against us,” he says, “ and it seems to be thought their eoet by our adversaries, that a power of regulation is a power of legislation; and a power of legislation, if constitutional, must be universal and supreme, in the utmost sense of the word. It is therefore concluded that the, colonies, by acknowledging the power of regulation, acknowledged every other power.” '

This sophism imposed upon a portion of the patriots of that day. Qhief Justice Marshall, in his life of Washington, says “ that many of the best-informed men in Massachusetts had perhaps adopted the opinion of the' ’ parliamentary right of internal government over the colonies;” “that the English statute book furnishes many .instances of its. exercise; ” “that in no. case recollected, was their authority, openly controverted;” and “that the General Court of.Massachusetts, on a late occasion, openly recognised the principle.”’ (Marsh. Wash., v. 2, p. 75, 76.)

) But the more eminent men of Massachusetts rejected it; and -another patriot of the time employs the instance to warn us of. “the'stealth with which .oppression approaches,” and.“the enormities towards which precedents travel.” And the people of the United States, as we have seen, appealed to the last ár-fument, rather than acquiesce in their authority. . Could it' ave been the purpose of . Washington and his illustrious associates, by the nse of ambiguous, equivocal,, and expansite *511■words, such, as “rules,” “regulations,” “territory,” to re-establish. in the Constitution of their country that fort which had been prostrated amid the toils and with the sufferings and sacrifices of seven years, of war? Are these words-to be understood as the ITorths, the Grenvilles, Hillsboroughs, Huteh-insons, and Dunmores — in a word, as George. HE would have understood them — or are we to look for their interpretation to Ratrick Henry or Samuel Adams, to, Jefferson, and Jay, and Dickinson; to the sage Franklin, or to Hamilton, who- from his early manhood was engaged in combating British constructions of such words? we know that the resolution of Congress of 1780 contemplated that the new States to be formed under their recommendation were to have the same rights of sovereignty, freedom, and independence, as the old. That every resolution, cession, compact, and ordinance,' -of the States, observed the same liberal principle. That the Union of the Constitution is a union formed of equal States; and that new States, when admitted, were to enter “this Union,” Had another union been proposed in “any pointed manner,” it would have encountered not only “strong” but-successful opposition. The disunion between Great Britain and her colonies originated in the antipathy of the latter to “rules and regulations” made by a remote power respecting their internal policy. In forming the Constitution, this fact was ever pres-, .ent in the minds of its authors. The people were assured bv their most trusted statesmen “that the jurisdiction of the Federal Government is limited :to certain enumerated objects, which concern all members of the republic,”, and “that- the local or municipal authorities form distinct portions of su-premácy, no more subject within their respective spheres to the general authority, than the general authority-is subject to them within its own sphere.” Still, this did not content them. Upder the lead pf Hancock and Samuel Adams, of Patrick Henry and George Mason, they demanded an "explicit declaration that' no more power was to be exercised than they had delegated. And the ninth and tenth amendments to the Constitution- were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observance: Is it probable, therefore, that the supreme and irresponsible power, which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States, to its subversion, was ever within the contemplation of the statesmen who, conducted the counsels of the people in the formation of this Constitution! ? When *512the questions that came to the surface upon the acquisition of Louisiana were presented to the mind of Jefferson, he wroté: “I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has hounds, they can he no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the Federal Government, and gives the powers necessary to carry them into execution.” The publication of the journals of the Federal Convention in 1819, of the debates reported by Mr. Madison in 1840, and the mass pf private correspondence of the early statesmen before and since, enable.us to approach the discussion Of the aims of those who made “the Constitution, with some insight and confidence.

I have endeavored, with the assistancé of these, to find a solution for the grave and difficult question involved in -this inquiry. My opinion is, that the claim for Congress of supreme power in the Territories, under., the grant to “dispose of. and make all needful rules and regulations respecting territory,” is. not supported by the historical evidence drawn from the Revolution, the Confederation, or the deliberations which preceded the ratification of the Federal Constitution. The ordinance of 1787 depended upon the action of the Congress of the Confederation, the,assent of the State ■'of Virginia, and the acquiescence of the people who recognised-the validity of that plea of necessity which supported so many of the acts of the Governments of that time; and the Federal Government accepted the ordinance as a recognised and valid engagement of the Confederation.

In referring to the precedents of ,1798 and 1800, 1 find the Constitution was plainly violated by the invasion of the rights of a sovereign State, both of soil and jurisdiction; and in reference to that of 1804, the wisest statesmen protested against it,' and' the President more than doubted its policy and the power of the Government.

Mr. John Quincy Adams, at a later period, says of the last act; “that the President found Congress mounted to the pitch of pássing those acts, without inquiring where they acquired the authority, and he conquered his own scruples as they, had done theirs.” But this court cannot undertake for themselvés the same conquest. They acknowledge that our peculiar se*513curity is in the possession of a written Constitution, andthpy cannot make it blank paper by construction.

They look to its delineation of the operations of the Federal Government, and they must not exceed the limits it marks out, in their administration. ' The court have said “that Com gress cannot exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, .beyond what has been delegated.” "We are then to find the authority for supreme power in the Territories in the Constitution. "What are the limits upon the operations of á Government invested with legislative, executive, and judiciaiy powers, and charged with the power to dispose of and to make all needful rules and regulations .respecting a vast public dómain? The feudal system-would have recognised the claim made on behalf of the Federal Government for supreme. power over persons and things in the Territories, as an incident to this' title — that is; the title to dispose of and make rules' and regulations respecting it. .

The Norman lawyers of "William the Conqueror would have yielded an implicit assent to the doctrine, that a supreme sovereignty is an inseparable incident to a grant to dispose of and to make all needful rules and regulations respecting the public domain. But an American patriot, in contrasting the European and American systems, may affirm, “that European sovereigns, give lands to their colonists, but reserve to themselves a power to 'control their property, liberty, -and privileges; but 'the American Government sells the lands belonging to the>people of the' several States (i. e., United States) to their citizens, who are already in the possession of 'personal and political rights; which the Government did not give, and cannot take away.” And the advocates for Government sovereignty in the Territories have been compelled to abate a portion of the pretensions originally, made'in its behalf,, and to admit that the constata-tional prohibitions upon Congress operate in the Territories. But a constitutional prohibition -is not requisite to ascertain a limitation upon the authority of the several, departments' of the Federal Government. Nor are the States or p sople restrained by any enumeration or definition of their rights or liberties.

To impair ór diminish either, the department must produce an authority from the people themselves, in their Constitution; and, as we have seen,: a power to make rules and regulations respecting the public domain does not confer a municipal sov-ereignly' over persons and things upon it. But as this is “thought their fort ” by our adversaries, I propose a more definite.examination of it.- We-have seen, Congress does not *514dispose of or make rules and regulations respecting domain belonging to themselves, but belonging to the United States.

These conferred on their mandatory, Congress, authority to dispose of the territory which belonged to' them in common; and to accomplish that object beneficially and effectually, they gave an authority to make suitable rules and regulations respecting it. "When the power of disposition is fulfilled, the authority to make rules and regulations terminates, for it attaches only upon territory “belonging to the United States.”

Consequently, the power to make rules and regulations, from the nature of the subject, is restricted to such administrative and conservatory acts as are needful for the preservation of the public domain, and its preparation for sale or disposition. The system of land surveys; the reservations for schools, internal improvements, military sites, and public buildings; the preemption claims of settlers; the establishment of land offices, and boards of inquiry, to determine the validity of land titles; the modes of entry, and sale, and of conferring titles;, the protection of the lands from trespass and waste; the partition of the public domain into municipal subdivisions, having reference" to the erection of Territorial Governments and States;- and perhaps the selection, under their authority, of suitable'laws for the protection of the settlers, until there may be a sufficient ¡number of them to form a self-sustaining municipal Government — these important rules, and regulations will sufficiently illustrate the scope and operation of the 3d section of the 4th article of the Constitution. - But this clause' in the Constitution ■does not exhaust the powers of Congress within the territorial .subdivisions,, or over the persons who inhabit them. Congress may exercise there all the powers of Government which belong to them as the Legislature of the United States, of which these 'Territories make a part. (Loughborough v. Blake, 5 "Wheat., 3817.) Thus the lays of taxation, for the regulation of foreign, Eederal, and Indian commerce, and so for the abolition of the slave trade, for the protection of copyrights and inventions, for the establishment of postal communication and courts of justice, and for the punishment of" crimes; are as operative there as within the States. I admit that to mark the bounds for ;thó jurisdiction of the Government of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and, in a great measure, is beyond the-cognizance of the judiciary.department of that Gov-' eminent. How much, municipal power may be exercised by the people of the Territory, before their admission to the Union, the courts ’©f justice cannot decide. This must depend, for *515the most part, on political considerations, which cannot enter into the determination of a case of law or equity. I do not feel called upon to define the jurisdiction of Congress. It is sufii-cient for the decision of this case to ascertain whether the residuary sovereignty of the States or people has been invaded hy the 8th section of the act of 6th March, 1820,1 have1 cited, in so far as it concerns the capacity and status'oí persons in the condition and circumstances of the plaintiff and his family.

These ’ States, at the adoption of the Federal Constitution, were organized communities, having distinct systems of municipal law, which, though derived from a common source, and recognising in the main similar principles, yet in some respects had become unlike, and on a particular subject promised to be antagonistic.

. Their systems provided protection for life, liberty, and property, among their citizens, and for the determination of the condition and capacity of the persons domiciled within their limits. These institutions,, for the most part, were placed beyond the control of the Federal Government. The Constitution allows Congress to coin money, and1 regulate its value; to regulate foreign and Federal commerce; to secure, for a limited period, to authors and inventors, a property'in their writings and discoveries; and to make rules concerning captures in war; and, within the limits of these powers, it has. ■exercised, rightly, to a greater or less extent,.the power to determine what shall and what shall not be property.

"But the great powers of war and Negotiation, finance, postal communication, and commerce, in general, when employed in respect to the property of a citizen, refer to, and depend upon, the municipal laws of the States,' t© ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held.

. "Whatever these Constitutions' and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognise to be property.

■ And this principle follows from the structure of the respective Governments, State and Federal, and their reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their respective jurisdictions, are mutually .obligatory. They are respectively the depositories of such powers of legislation as .the people were willing to surrender, and their duty is to cooperate within their several jurisdictions to maintain the rights of the same citizens under, both Governments imim-*516Íjaired. A proscription, therefore, of the Constitution and aws of one or more States, determining property, on the part of the Federal ’Government, by which the stability of its social system may be endangered, is plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government was designed, to accomplish. Each of the States surrendered its powers of war and negotiation, to raise armies and to support a navy, and all of these powers are sometimes required to preserve a State from disaster and ruin. The Federal Government was constituted to exercise these powers for the preservation of the States, respectively, and to ■secure to all their citizens the enjoyment of the rights which were not. surrendered to the Federal Government. The provident care of the statesmen who projected the Constitution was signalized by such a distribution of the powers of Government as to exclude many of the motives and opportunities for promoting provocations and spreading discord among the States, and for guarding against those partial combinations, so destructive of the community of interest, sentiment, and feeling, which are so essential to the support of the Union. The distinguishing features of their system consist in the exclusion of the Federal Government from the local and internal concerns of, and in the establishment of an independent internal Government within, the States. And it is a significant fact in the history of the United States, that those controversies which have been productive of the greatest animosity, and have occasioned most peril to the peace of the Union, have had their origin in the. well-sustained opinion of a minority among the people, that the Federal Government had overstepped its constitutional limits to grant some exclusive privilege, or to disturb the-legitimate distribution of property or power among the States or individuals. Kor can a more signal instance of this be found than is furnished by the act before us. Eo candid ■ or rational man can hesitate to believe, that if the subject of the eighth section of the act of March, 1820, had never been introduced into Congress and made the basis of legislation, no interest common to the Union would have been seriously affected... And, certainly, the creation, within this Union, of large confederacies of unfriendly and frowning States, which has been the tendency, and, to an alarming extent, the result, produced by the agitation arising from it, does not commend it to the patriot or statesman. This court have determined that the' intermigration of slaves was ,not committed to the jurisdiction or control of Congress. "Wherever a master is entitled to go within the United States, his slave may’accompany him; without any impediment from, or fear of, Congres*517sional legislation or interference. The question then arisés, whether Congress, which can exercise no jurisdiction, over the relations of master and slave within the limits of the Union, and is bound to recognise and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit thé continuance-of .those relations, within the Territories.

And the citation of State statutes prohibiting the immigrar tion of slaves, and of the decisions of State courts enforcing the-forfeiture of the master’s title in accordance with their rule, only darkens the discussion. Eor the question is, have Con-fress the municipal sovereignty in the Territories which the tate Legislatures have derived from the authority of the people, and exercise in the States?

And this depends upon the construction of the article in the Constitution before referred to.

And, in my opinion, that clause confers no power upon Congress to dissolve the relations pf the master and slave on the domain of the United States, either within or without any of the States.

The eighth section of the act of Congress of the 6th of March, 1820, did not, in my opinion, operate to determine the domestic condition and status of the plaintiff and his family during their sojourn in Minnesota Territory, or after their return to Missouri.

The question occurs as to the judgment to be given in'this case. It appeared upon the trial that the. plaintiff, in 1834, was in a state of slavery in Missouri, and he had been in Missouri for near fifteen years in that condition when this suit was brought. Nor does it appear that he at apy time possessed another state or condition,, de facto. -His claim to freedom depends upon his temporary elocation, from the domifeil of his origin, in company with his master, to communities where the law of slavery did not prevail. My examination is confined to the ease, as- it was submitted upon uncontested evidence, upon appropriate issues to the jury, and upon the instructions given and refused by the court upon that evidence. My opinion is, that the opinion of the Circuit Court was correct upon all the claims involved in those issues, and that the verdict of the jury was justified by the evidence and instructions.

The jury have returned that the plaintiff and his family are slaves.

Upon this record, it is apparent that this is not a controversy between citizens of different States; and that the plaintiff, dt no period of the life which has been submitted to the view of the court, has had a capacity to maintain a'suit in the courts *518of the United States. And in so far as the argument of the Chief Justice upon the plea in abatement has a reference to the plaintiff or his family, in any of 'the conditions or circumstances of their lives, as presented in the evidence, I concur in that portion of his opinion. I concur in the judgment which ¿xpresses the conclusion that the Circuit Court should not have rendered a general judgment.

The capacity .of the plaintiff to sue is involved in the pleas in bar, and the verdict of the jury discloses an incapacity under the Constitution. Under the Constitution of the United States, his is an incapacity to sue in their courts, while, by the laws of Missouri, the operation of the verdict would be more extensive. I think it a safe conclusion to enforce the lesser disability imposed by the Constitution of the United States, and leave to the plaintiff all his rights in Missouri. I think the judgment should be affirmed, on the ground that the Circuit Court had no jurisdiction, or that the case should be reversed and. remanded, that the suit may be dismissed.

Mr. Justice C ATROhT.

The' defendant pleaded to the jurisdiction of the . Circuit Court, that the plaintiff was a negro of African blood; the descendant of Africans, who had been imported and sold in this country-as slaves-, and thus had no capacity as a-citizen of Missouri to maintain a suit in the Circuit Court. The court sustained a demurrer to this plea, and a trial was had upon the pleas, of the general issue, and also that the plaintiff ‘and his family were slaves, belonging to the defendant. In this ■trial,- a verdict was given for the defendant.

The judgment of the Circuit Court upon the plea in abáte-, mént is not open, in my opinion, to examination in this court upon the'plaintiff’s writ.

The judgment was given for him conformably to the prayer oí his demurrer. He cannot assign an error in such a judgment. (Tidd’s Pr., 1163; 2 Williams’s Saund., 46 a; 2 Iredell N. C., 87; 2 W. and S., 391.) ISTor does the fact that the judgment was given on a plea to the jurisdiction, avoid the application of this rule. (Capron v. Van Noorden, 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 Pike, 1005.)

The declaration discloses a case within the jurisdiction of the court — a controversy between citizens of different States. The plea in abatement,- impugning these jurisdictional aver-ments, was waived when the defendant answered to the. declaration by pleas to the merits. The proceedings on that plea remain a part of the technical record, to show the history of the case, but are not open to the review of this court by a writ *519of error. The authorities are very conclusive on this point. Shepherd v. Graves, 14 How., 505; Bailey v. Dozier, 6 How., 23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2 Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,) 78.. Nor can the court assume, as admitted facts, the aver-ments of the plea from the confession of the demurrer. That confession was for a single object, and cannot be used for any other purpose than to test the validity of the plea. Tompkins v. Ashley, 1 Moody and Mackin, 32; 33 Maine, 96, 100.

There being nothing in controversy here but the .merits, I will proceed to discuss them.

The plaintiff claims to have acquired property in himself, and became free, by being kept in Illinois during two years.

The Constitution, laws, and policy, of Illinois, are. somewhat peculiar respecting slavery. Hnless the master becomes an inhabitant of that State, the slaves he takes there do not acquire their freedom; and if they return with their master to the slave State of his domicil, they cannot assert their freedom after their return. For the reasons and authorities on this point, I refer to the opinion of my .brother Kelson, with which I not only concur, but think his opinion is the most conclusive argument on the subject within my' knowledge.

It is next insisted for. the plaintiff, that his, freedom (and that of his wife and eldest child) was obtained by force of the act of Congress of .1820, usually known as the Missouri compromise act, which declares: “That in ,all that territory ceded by Franée to the United States, which lies north of thirty-six degrees thirty minutes north latitude, slavery and involuntaiy servitude shall be, and are hereby, forever prohibited.”

From this prohibition, the territory now constituting the State of Missouri was excepted; which exception to the stipulation gave it the designation of a compromise.

The first question presented on this act is, whether Congress had power to make such compromise. For, if power was wanting, then no freedom could be acquired by the defendant under the act.

That Congress has no authority to pass laws and bind men’s rights beyond the powers conferred by the Constitution, is not open to controversy. But it is insisted that, by the Constitution, Congress has power to legislate for and govern the Territories of the United States, and that by force of the power to govern, laws could be enacted, prohibiting slavery in any portion of the Louisiana Territory; and, of. course, to abolish slavery in all parts of it, whilst it was; or is, governed as a Territory.

My opinion is, that Congress is vested with power to govern *520the Territories of the United States by force of the third see-, tion of the fourth article of the Constitution. And I will state my reasons for this opinion. . '

' Almost every provision in that instrument has a history that must be understood,'before the brief and sententious language employed can be comprehended in the relations its authors intended. We must bring before us the state of things presented to the Convention, and in regard to which it acted, when the compound provision was made, declaring: 1st. That “new States may be' admitted by the Congress into this Union.” 2d. “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. And nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or any particular State.”

Having ascertained. the historical facts giving rise to these provisions, the difficulty of arriving at the true meaning of the language employed will be greatly lessened.

The history of these facts is substantially as follows:

The King of Great Britain, by his proclamation of 1763, virtually claimed that the country west of the mountains had been conquered from 'France, and ceded to the Crown of Great Britain by the treaty of Paris of that year, and he says: “"We reserve it under ou'r sovereignty, protection, and dominion, for the use of the Indians.”

This country was conquered from the Crown of Great Britain, and surrendered to the United States by the treaty of peace of 1783. The colonial charters of Virginia, North Caro-, lina, and Georgia, included it. Other States set up pretensions of claim to some portions of the territory north of the Ohio, but they were of no value, as I suppose. (5 Wheat., 375.)

.As this vacant country had been won by the blood and treasure of all. the States, those whose charters did not reach it, insisted that the country belonged to the States united,' and that the lands should be disposed of for the benefit of 'the whole; and to which end, the western territory should be ceded to the States united. The contest was stringent and angry, long before the Convention convened, and deeply agitated that body. As a matter1 of justice, and to quiet the controversy, Virginia consented to cede the country north .of the .Ohio as early as 1783; and in 1784 the deed of cession was executed," by her delegates in the Congress of the Confederation, conveying to the United States in Congress assembled, for the benefit of said States, “all right, title, and claim, as well of soil as of jurisdiction, which this Commonwealth hath to the territory or tract of country within the limits of the Vir*521ginia charter, situate, lying, and being to the northwest of the river Ohio.” In 1787, (July 13,) the ordinance was passed by the old Congress to govern the Territory.

Massachusetts had ceded her pretension of claim .to western territory'in 1785, Connecticut hers in 1786, and blew York had ceded hers. In August, 1787, South Carolina ceded to the Confederation her pretension of claim to territory west of that Stated And bTorth Carolina was expected to cede hers, which she did do, in April, 1790. And so Georgia was confidently expected to cede her large domain, now constituting the territory of the States of Alabama and Mississippi.

At the time the Constitution was under consideration, there had been ceded to the United States, or was shortly expected to be ceded, all the western country, from the British Canada line to Florida, and from the head of the Mississippi almost to its mouth, except that portion which now constitutes the State of Kentucky.

Although Virginia had conferred on -the Congress of the Confederation power to govern the Territory north of the Ohio, still, it cannot be denied, as I think, that power was wanting to admit a new State under the Articles of Confederartion.

“With these facts prominently before the Convention, they proposed to accomplish these ends:

1st. To give power to admit new States.

2d. To dispose of the public lands in the Territories, and such as might remain undisposed of in the new States after they were admitted.

And, thirdly, to give .power to govern the different Territories as incipient States, not of the Union, and fit them for admission. Ko one in the Convention seems to have doubted that these powers were necessary. As early as the third day of its session, (May 29th,) Edmund Randolph brought forward a set of resolutions containing nearly all the germs of the Constitution, the tenth of which is as follows:

“ jResolved, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the Rational Legislature less than the whole.”

August 18th, Mr. Madison submitted, in order to be referred to the committee of detail, the following powers as proper to be added to those of the General Legislature:

“To dispose of the unappropriated lands of the.United. States.” “ To institute temporary Governments for new States arising therein.” (3 Madison Papers, 1353.)

*522These, with the resolution, that a district for the location of the seat of Government should he provided, and some others, were referred, without a dissent, to the committee of detail, to arrange and put them into satisfactory language.

Gouverneur Morris constructed the clauses, and combined the views of a majority on the two provisions, to admit new States; and secondly, to dispose of the public lands, and to govern the Territories, in the mean time, between the cessions of the States and the admission into the Union of new States arising in the ceded territory. (3 Madison Papers, 1456 to 1466.)

It was hardly possible to separate the power “to make all needful rules and regulations ” respecting the government of the territory and the disposition of the public lands.

ISTorth of the Ohio, Virginia conveyed the lands, and vested the.jurisdiction in the thirteen original States, before the Constitution was formed. She had the sole title and sole sovereignty, and the same power to cede, on any terms she saw proper, that the 'King of England had to grant the Virginia colonial charter of 1609, or to grant the charter of Pennsylvania to William Penn. The thirteen States, through their representatives and deputed ministers in the old Congress, had the same right to govern that Virginia had before the cession. (Baldwin’s Constitutional Views, 90.) And the sixth article of the Constitution adopted all engagements entered into <by the Congress of the Confederation, as valid against the United States; and that the laws, made in pursuance of the new Constitution, to carry out this engagement, should be the supreme law of the land, and the judges bound thereby. To give the compact, and the ordinance, which was part of it, full effect under the new Government, the act of August 7th, 1789, was passed, which declares, “Whereas, in order that the ordinance of the United States in Congress assembled, for the government of the Territory northwest of the river Ohio, may have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the Uni-, ted States.” It is then provided that the Governor and other officers should be appointed by the President, with the consent of the Senate; and be subject to removal, &c., in like manner that they were by the old Congress, whose functions had ceased.

By the powers to govern, given by the Constitution, those amendments to the ordinance could be made, but Congress guardedly abstained from touching the compact of Virginia, further than to adapt it to the new Constitution. '' ■

It is due to myself to say, that it 4s asking much of a judge, *523who has for nearly twenty years heen exercising jurisdiction, from the western Missouri line to the Rocky Mountains, and, oh this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had heen all the while acting in mistake, and as an usurper.

More than sixty years have passed away since Congress has exercised power to govern the Territories, hy its legislation directly, or hy Territorial charters, subject to repeal at all times, and it .is now too late to call that power into question, if this court could disregard its own decisions; which it cannot do, as I think. It was held in the case of Cross v. Harrison, (16 How., 193-’4,) that the sovereignty Of California was- in the Hnited. States, in virtue of the Constitution, hy which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power 'to admit new States into the Union. That decision followed preceding ones, there cited. The question was then presented, how it was possible for the judicial mind to conceive that-the United States Government, created solely by the' Constitution, could, by a lawful treaty, acquire territoiy over which the acquiring power had no jurisdiction to hold and govern it, by force of the instrument under whose authority the country was acquired; and the foregoing was the conclusion of this court on the proposition, what was there announced, was most deliberately done, and with a purpose. The only question here is, as I think, how far the power of Congress is limited.

As to the Horthwest Territory, Virginia had the right to abolish slavery there; and she did so agree in 1787, with the other States in the Congress of the Confederation, by assenting to and adopting the ordinance of 1787, for the government of the Horthwest Territory. She did this also by an act of her Legislature, passed afterwards, which was a treaty in fact.

Before the new Constitution was adopted, she had as much right to treat and agree as any European Government had. And, having excluded slavery, the new Government was' bound by that engagement by article six of the new Constitution. This only meant that slavery should not exist whilst the United States-exercised the power of government, in the Territorial form; for, when a new State came in, it might do so, with or without slavery.

My opinion is, that Congress had no power, in' face of the -compact between Virginia and the twelve other States, to force slavery into the Northwest Territory, because there, it was bound to that “ engagement,” and could not break it.

*524In 1790, North Carolina ceded her western territory, now the State of Tennessee, and stipulated that the inhabitants thereof should enioy all the privileges and advantages of the ordinance for governing the territory north of the Ohio river, and that Congress should assume the government, and accept the cession, under the express conditions contained in the ordinance': Provided, “ That no regulation made,, or to he made, by Congress, shall tend to emancipate slaves.”

In 1802, Georgia ceded her western territory to the United States, with the provision that the ordinance of 1787 should in all its parts extend to the territory ceded, “that article only excepted which forbids slavery.” Congress had no more power to legislate, slaveiy out from the North Carolina and Georgia cessions, than it had power to legislate slavery in, north of the Ohio. No power existed in Congress to legislate at all, affecting slavery, in either case. The inhabitants, as respected this description of property, stood protected whilst'they were governed by Congress, in like manner that they were protected before the cession was made, and when they were, respectively, parts of North Carolina and Georgia.

And how does the powér of Congress stand west of the Mississippi river? The country there was acquired from France, by treaty, in 1808.. It declares, that the First Consul, in the name of the French Republic, doth hereby cede to the United States, in full sovereignty, the colony or province of Louisiana, with all the rights and appurtenances of the said territory. And, by article third, that “the inhabitants of the ceded territory shall be incorporated in the Union, of the United States, and admitted' as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religión which they profess.”

Louisiana was a province where slavéry was not only lawful, but where property in slaves was the most valuable of all per-, sonal property. The province was ceded as a unit, with an equal right pertaining to all its inhabitants, in every part thereof, to own slaves. It was, to a great extent, a vacant country, having in. it few civilized inhabitants. No one portion of the colony, of a proper size for a State of the Union had a sufficient number of inhabitants to claim admission into the Union. To enable the United States to fulfil the treaty, additional population was indispensable, and obviously desired with anxiety by both sides, so that' the whole country should, as soon as possible, become States of the Union. And for this *525contemplated future population, tlie treaty as expressly provided as it did for the inhabitants residing in the province when .the treaty was made. All these were to he protected “in ike mean time; ” that is to say, at all times, between the date of the treaty and the time when the portion of the Territory where the inhabitants resided was admitted into -the Union as a State.

At the date of the treaty, each inhabitant had the right to the free enjoyment of his property, alike with his liberty and his religion, in every part of Louisiana; the province then being one country, he might go everywhere in it, and carry his liberty, property, and religiqn, with him, and in which he was to be maintained and protected, until he became a citizen of a State of the Union of the United States. This cannot be denied to the original inhabitants and their descendants. And, if it be true that immigrants were equally protected, it must follów that they can also stand on the treaty.

The'settled doctrine in the State courts of Louisiana is, that a French subject coming to the Orleans Territory,- after the treaty of 1808 was made, and before' Louisiana was admitted into the Union, and being an inhabitant at the time of the admission, became a citizen of the United States by that act; that he was one of the inhabitants contemplated by the third article of the treaty, which referred to all the inhabitants embraced within the new State on its admission.

That this is the true construction, I have no doubt.

If power existed to draw a line at thirty-six degrees thirty minutes north, so Congress had equal power to draw the line on the thirtieth degree — that is, due west from the city of blew Orleans — and to declare that north of that line slavery should never exist. Suppose this had been done before 1812, when Louisiana came into the Union, and the question of infraction of the treaty had then been presented on the present assumption of power to prohibit slavery, who doubts what the decision of this court would have been on such an act of Congress; yet, the difference between the supposed line, and that on thirty-six degrees thirty minutes north, is only in the degree of grossness presented by the lower line.

- The Missouri compomise line of 1820 was very-aggressive; it declared that slavery was abolished forever, throughout a country reaching from the Mississippi river to the Pacific ocean, stretching over thirty-two degrees of longitude, and twelve and a half degrees of latitude on its eastern side, sweeping over four-fifths, to say no more, of the original province ofLouisiana.

That the United States Government stipulated in favor of *526the inhabitants to the extent heie contended for, has not been seriously denied, as far as I know; but the argument is, that Congress had-authority to repeal the third article of the treaty of 1803, in so far as it secured the right to hold slave property, in a portion of the ceded territory, leaving the right-to exist m other parts. In other words, that Congress could repeal the third article entirely, at its pleasure. This I deny.

The coúipacts withRorth Carolina and Georgia were treaties also, and stood on the saíne footing of the Louisiana treaty; on the assumption of power to repeal the one, it must have extended to all, and Congress could have excluded the slaveholder of Rorth Carolina from the enjoyment of his lands in the Territory now the State of Tennessee, where the citizens of the mother State were the principal proprietors.

And so in the case of Georgia. Her citizens could have been refused the right to emigrate to the - Mississippi or Alabama Territory, unless they left their most valuable and ’ cherished property behind them.

The Constitution was framed in reference to facts then existing or likely to arise: the instrument looked to no theories of Government. In the vigorous debates in the Convention, as reported by Mr. Madison and others, surrounding facts, and the condition and necessities of the country,' gave rise to almost every provision; and among those facts, it was prominently true, that Congress dare not be intrusted with power to provide that,' if Rorth Carolina or Georgia ceded her western territory, the citizens of the State (in either case) Gould be •prohibited, at the pleasure of Congress, from removing to their lands, then granted to a large extent, in the country likely to be ceded, unless they left their slaves behind. That such an attempt, in the face of a population fresh from the war of the Revolution, and then engaged in war with the great confederacy of Indians, extending from the mouth of the Ohio to the-Gulf of Mexico, would end in open revolt, all intelligent men knew.

In view of these facts, let us inquire how the question stands. by the terms of the Constitution, aside from the treaty ? How it stood in public opinion when the Georgia cession was made, in 1802, is apparent from the fact that no guaranty was required by Georgia of the United States, for the protection off slave property. The Federal Constitution was. reliéd on, to secure the rights .of Georgia and her citizens during the Territorial’ condition of the country. She relied on the indisputable truths, that the States were by the Constitution made equals, in political rights, and equals in the right to participate in the common property of all the States united, and held in trust for *527them. The Constitution having provided that “ The citizens of each State shall he entitled to all privileges and immunities of citizens of the.several States,” the right to enjoy the territory as equals was reserved to the States, and to the citizens of the States, respectively. The cited clause is not that citizens of the United States shall have equal privileges in the Territories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures his equality through the equality of his State, by virtue of that freat fundamental condition of the Union — the equality of the tates.

Qongress cannot do indirectly what the Constitution prohibits directly. H the slaveholder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact, it will follow that men, owning lawful property in their own States, carrying with them the equality of their State to enjoy the common^- property, may be told, you cannot come here with your slaves, and he will be held out at the border. By this subterfuge, owners of slave property, to the ámount of thousand of millions, might be almost as effectually excluded • from removing into the Territory of Louisiana north of thirty-six degrees thirty minutes, as if the law declared that owners of slaves, as a class, should be' excluded, even if their slaves' were left behind.

Just as well might Congress have said to those of the North, you shall not introduce into the territory south, of said line your cattle or horses, as the country is already overstocked; nor can you introduce your tools of trade, or machines, as the policy of Congress is to encourage the culture of sugar and cotton south of the dine, and so to provide that the Northern people .shall manufacture for those of the South, and barter • for the staple articles slave labor produces. And thus the Northern farmer and mechanic would be held out, as the slaveholder was for thirty years, by the Missouri restriction.

If Congress could prohibit one spécies of property, lawful throughout Louisiana when it was acquired, and lawful in the State from whence it was brought, so Congrsss might exclude any of all propei’ty.

The ease before us will illustrate the construction contended for. Dr. Emerson was a citizen of Missouri ; he had an equal right to go to the Territory with every citizen of other .States,' This is undeniable, as' I suppose. Scott was Dr. Emerson’s lawful property in Missouri; he carried-his Missouri title with him; and the 'precise question here is, whether Congress had the power to annul that' title. It is idle to say, that if Congress could not defeat the tifie directly, that it might be’-'done *528.indirectly, by drawing a narrow circle around the slave population of Upper Louisiana, and declaring that if the slave went beyond it, he should be free. Such assumption is mere evasion, and entitled to no consideration. And it is equally idle to contend, that because Congress has express power to regulate commerce among the Indian tribes,- and to prohibit intercourse with the Indians, that therefore Dr. Emerson’s title might be defeated within the country ceded by the Indians to the United States as early as 1805, and which embraces Fort Snelling. (Am. State Papers, vol. 1, p. 734.) We must meet the question, whether Congress had the power to declare that a citizen of a State, carrying with him his equal rights, secured to him through his State, could be-stripped of his goods and slaves, and be deprived of any participation in the common property? If this be the true meaning of the Constitution, equality of rights to énjoy a common country (equal to a thousand miles square) may be cut off by a geographical line,- and a great portion of our citizens excluded from it.

Ingenious, indirect evasions of the Constitution have been attempted and defeated heretofore. In the passenger cases, (7 How. R.,) the. attempt was made to impose a tax on the masters, crews,- and passengers of vessels, the Constitution having prohibited a tax on the vessel itself; but this court held the attempt to be a mere evasion, and pronounced the tax illegal.

I admit that Virginia 'could, and lawfully did, prohibit slavery northwest of the Ohio, by her charter of cession, añd that' ..the-territory was taken by the United 'States with this condition imposed. I álso admit that France could, by the treaty of 1803, have prohibited slavery in any part of the ceded territory,- and imposed it on the United States as,a fundamental condition of the cession, in the mean time, till new States were admitted,in the Union., _

_ I concur -with Judge Baldwin, that Federal power is exercised over all the territory within the United States, pursuant, to the Constitution; and, the conditions of the cession, whether it was a part of the original territory of a State of the Union, or of á foreign State, ceded by deed or treaty; the right of the United States in or over it depends on the contract of- cession, which operates to incorporate as well the Territory as its inhabitants into the Union. (Baldwin’s Constitutional Views, 84.)

My opinion is, that the third article of the treaty of 1803, ceding Louisiana to the United States,' stands protected by the Constitution, and cannot be repealed by Congress.

And, secondly, that the act of 1820, known as the Missouri *529compromise, violates tlie most leading feature of the Constitution — a feature on which the Union depends, .and which secures to the respective States and their citizens an entire equality of rights, privileges, and immunities.

On these grounds, I hold the compromise act to have been void; and, consequently, that the plaintiff, Scott, can claim no benefit under it.

For the reasons above stated, I concur with my brother judges that the plaintiff, Scott, is a slave, and was so when this suit was brought.

Mr. Justice McLEAH and Mr', Justice CURTIS, dissented.

Mr. Justice McLEAU

dissenting.

This case is before us on a writ of! error from the Circuit Court for the district of Missouri.

An action of trespass was brought, which charges the defendant with an assault and- imprisonment of the plaintiff, and also of Harriet Scott, his wife, Eliza and Lizzie, his two children, on the ground that they were his slaves, which was without right on his part, and against law.

The defendant filed a plea in abatement, “that said causes of action, and each and every of them, if any such accrued to the said Dred Scott, accrued out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that to wit, said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves; and this the said Sandford is ready to'verify; wherefore, he prays judgment whether the court can or will take further cognizance of the action aforesaid.” '

To this a demurrer was filed, which, on argument, was sustained by the court, the plea , in abatement being held insufficient; the defendant was ruled to plead over. Under this rule he pleaded: 1. Hot guilty; 2. That Dred Scott was a negro-slave, the property ofthe defendant; and 3. That Harriet, the wife, and Eliza and Lizzie, the .daughters of the plaintiff, were the lawful slaves of the defendant.

Issue was joined on the first plea, and replications of dé inju-: m-were filed to the other pleas. _

The partiés agreed to the following facts: In the year-1834; the plaintiff was 'a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In'that year; Dr. Emerson took the plaintiff from the State of Missouri to *530the post of 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, Ur. Emerson removed the plaintiff from Rock Island to the military post at Port Snelling, situate on the west bank' of the' Mississippi river,' in the territory knowir as Upper Louisiana, acquired by the United States of France, and situate north "of latitude thirty-six degrees thirty minutes north, and north of the State of Missouri. Dr. Emerson held the plaintiff in slavery, at Fort Snelling, from the last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff’s declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, Major Taliaferro took Harriet to Fort. Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at Fort Snelling, unto Dr. Emerson, who held her in slavery, at that place,'until the year 1838.

In the year 1836, the plaintiff and Harriet were married at Fort Snelling, with the consent of Dr. Eriierson, who claimed to be their master and owner. Eliza aud Lizzie, named in the third count of the plaintiff’s declaration, are the-fruit of that marriage. Eliza is about fourteen years old, and was born on ■board the steamboat G-ipsey, north of the north line of the 'State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, -.at the military post called Jefferson Barracks.

In the year 1838, Dr. Emerson removed the plaintiff and •said .Harriet and their daughter1 Eliza from Fort Snelling to the State of Missouri, where they have ever since resided.

Before the commencement of the suit, Dr. Emerson sold and. conveyed the plaintiff’ Harriet, Eliza, and Lizzie, to the defendant, as slaves,- and he has ever since claimed to hold-them as slaves.

At the times mentioned in the plaintiff’s declaration, the defendant, claiming to be the'owner, laid his hands upon said plaintiff’. Harriet, Eliza, and Lizzie, and imprisoned them;doing in this respect, however, no more than he might lawfully ■do, if they 'were of right his slaves at such times.

In the first place, the plea to the jurisdiction is not .before us,' on this writ of error. A demurrer to the plea was sustained, which ruled' the plea bad, and the defendant, on leave, pleaded over.

The decision on the demurrer was in favor of. the plaintiff; and as the plaintiff prosecutes'this writ of error, he does .not complain of the decision on the demurrer. The defendant *531might have complained of this decision, as- against him, and have prosecuted a writ of error, to reverse it. • But as the case, under the instruction of the court to the jury, was decided in his-favor, of course he had no ground of complaint.

But it is said, if the court, on looking at the record, shall cléarly perceive that the Circuit Court had no jurisdiction, it is a ground for the dismissal of the case. This may he characterized as rather a sharp practice, and one which seldom, if ever, occurs. Ko case was cited in the-argument as authoriiy, and not a single case precisely in point is recollected in. our reports* The pleadings' do not show a want of jurisdiction... This want of jurisdiction can only he ascertained by a judgment on the demurrer to the special plea. No such case, it is believed, can he cited. But if this rule of , practice is to he applied in this case, and' the plaintiff in error is required to answer and maintain as well the points ruled in his favor, as toj.sh.QW th_e error, of those ruled against him, he has’ more than an.ordip.ary duly to perform. Under such circumstances, the w%nt of jurisdiction in the Circuit Court must be so clear as not to admit of doubt. Now, the. plea which raises the question,.pf jurisdiction, in my judgment, is radically defective. The gravamen pf the plea is this: “Thai the plaintiff is a negro of African deseént, his ancestors being of pure African blood, and were brought into this country, and sold as negro slaves.”.

There is no averment m this plea which shows, or conduces to show an inability in the plaintiff to sue in the Circuit Court. It does not allege that the plaintiff had his domicil in any other State, nor that he is nbt a free man in Missouri. í£é [g averred to have had a negro ancestry, but this does npt ^hpw.that he is not a citizen of Missouri, within the meaning of'.the act of Congress authorizing him to sue in the Circuit Court. It has never been held necessary, to constitute a .citizen within the act, that he should have the qualifications of an éléctor. 'Females and minors may sue in the Federal, courts, and sb may any individual who has a permanent .domicil in the State under whose laws his rights are protected,, and to which he owes, allegiance.

Being born under our Constitution and .laws, no. naturalizar tion is required, as one of foreign birth,, to make him a citizen. The most general and appropriate definition of the term, citizen is “ a freeman.” Being a freeman, anp, having his domicil in á State different from that of the defendant, he is a. citizen within the act of. Congress, and the courts of the Union' are open to him.

It has often been held,- that the. jurisdiction, as regards parties, can only be exercised between citizens of different States, *532and that a mere residence is not sufficient; hut this has been said to distinguish a temporary from a permanent residence.

To constitute a good plea to the jurisdiction, it must negative those qualities and rights which enable an individual to sue in the Eederal courts. This has not been done; and on this ground the plea was defective, and the demurrer was properly sustained. Eo implication can aid a plea in abatement or in bar; it must be complete in itself; the facts stated, if true, must abate or bar the right of the plaintiff to sue. -This is not the character of the above plea.' The facts stated, if admitted, are not inconsistent with other facts, which may be presumed, and which bring the plaintiff within the act of Congress.

The pleader has not the boldness to allege that the plaintiff is a slave, as that would assume against him the matter in controversy, and embrace the entire merits of the case in a plea to the jurisdiction. But beyond the facts set out in the plea, the court, to sustain it, must assume the .plaintiff to be a slave, which is decisive on the merits. This is a short and an effectual mode of deciding the cause; but I am yet to learn that:it is sanctioned by any. known rule of pleading.

The defendant’s counsel complain, that if the court take jurisdiction on the ground that the plaintiff is free, the assumption is against the right of the master. This argument is easily answered. In the first place, the plea does not show him to be a slave-; it' does not follow that a man is not free whose ancestors were slaves. The reports of the Supreme Court of Missouri show that this assumption has many exceptions ; and there is no averment in the plea that the plaintiff is not within them.

By all the rules of pleading, this is a fatal defect in the plea. If there be doubt, what‘rule of construction has been established in the slave States? In Jacob v. Sharp, (Meigs’s Rep., Tennessee, 114,) the court held, when there was doubt as to the construction of a will Which emancipated a slave, “it‘must be construed to be subordinate to the higher and more important right of freedom.”

Eo injustice can .result to the master, from an exercise of jurisdiction in this cause. . Such a decision does not in any degree affect the merits of the case; it only enables.the plaintiff to ■ assert his claims tó freedom befóré this tribunal. If the jurisdiction be ruled against him, on the ground that he is a slave,' if is decisive of his fate.

It has been argued that, if a.coloréd person be made a citizen gt aStaterhe cannot sue in the Eederal court. - The Constitution'declares' that Eederal jurisdiction “may be exercised between citizens of different States,” and the same is providéd *533in the act of 1789. ■ The above argument is properly met by saying that the Constitution was intended to he a practical instrument; and where its language is too plain to he misunderstood, the argument ends.”

In Chiræ v. Chiræ, (2 Wheat., 261; 4 Curtis, 99,) this court says: “ That the power of naturalization is exclusively in Congress does not seem to he, and certainly ought not to he, controverted.” Ho person can legally he made a citizen of a State, andconsequently a citizen of the United States, of foreign birth; unless he he naturalized under the acts of Congress.' Congress has power “to establish a uniform rule of naturalization.”

' It is a power which belongs exclusively to Congress, as intimately connected with our Federal relations. A State may authorize' foreigners to hold' real estate within its jurisdiction, hut it has no power to naturalize foreigners, and give them the rights of citizens. Such a right is opposed to the acts of Congress on the subject of naturalization, and subversive of the Federal powers. I regret that any countenance should he given from this bench to á práctice like this in some of the tates, which has no warrant, in the Constitution.

In the argument, it was said that a colored citizén would not he 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 recog-nised 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 samé was done in the admission of Louisiana and Florida. Ho 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. -

There are several important principles involved in this case, which have been argued,'and which máy be considered under the following heads:

1.The locality of slavery, as settled by .this court and the courts of the States. , - .

2.The relation which the Federal Government béars to slavery in the StateB.

3.The power of Congress to establish Territorial Governments, and to prohibit the introduction Of slavery therein.

4.The effect of taking slaves into a new State-or Territory, and so holding them, where slavery is prohibited. ‘

5.“Whether the return of a slave-under the control of his *534master, after being entitled to Ms freedom, reduces Mm to Ms former1 conditioni

6. Are the decisions of the Supreme Court of Missouri, on the questions before us, binding on this court, -within the rule adopted.

In the course of my judicial duties, I have had occasion to consider and decide several of the above points.

.1. As to thé locality of slavery. The civil law throughout the Continent of Europe, it is believed, without an- exception, is, that slavery can exist only within the territory where it is established; and that, if a slave escapes, or is carried beyond such territory, his master cannot .reclaim him, .unless by virtue of some express stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10, chap. 10, 2, 1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of the Creole in the House of Lords, 18421 Phillimore on International Law, 316, 335.)

There is no nation in'Eusrope which considers itself bound to return to. his master a fugitive slave, under the civil law or the law of nations., On/the contrary,- the slave is held to be free where there is. no treaty obligation, or compact in some other form, to return him to. his master. The Roman law did not allow freedom to be sold. An ambassador or any other public functionary could not take a slave to France, Spain, or any other country of Europe,- without emancipating him. .. A number of slaves escaped from a Florida plantation, and were' received on board of ship by Admiral Cochrane; by the King’s Bench, they were held to.be free. (2 Barn. and Cres., 440.)

..In the great.and leading case of Prigg v. The State of Pennsylvania, (16 Peters, 594; 14 Curtis, 421,) this court say that, by the general law of nations, no nation is bound to recognise the state.of slavery, as found.within its territorial dominions, where it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is organized. If it does it, it is as a matter of comity, and not ash matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognised .in- Sdmersett’s case, (Lafft’s Rep., 1; 20 Howell’s State Trials, 79,) which was decided before the American Revolution.

There was some contrariety of opinion among the judges,, on certain points ruled in Prigg’s case, but there, was none in regard to ,the greát principle, that .slavery , is limited to the range of the laws under which.it is sanctioned. ..

No case in England, appears tp have been more thoroughly examined than that of Somersett. The judgment pronounced *535by Lord Mansfield was the judgment of the Court of King's Bench. The cause was argued at great length, and with great ability, by Hargrave and others, who stood among the most eminent counsel in England. It was held under advisement from term to term, and a due sense of its importance was felt and expressed by the Bench.

In giving the opinion of the court, Lord Mansfield said:

“ The state of slavery is of such 'a nature that it is incapable of being introduced on any reasons, moral or political, but only, by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, is erased from the memory; it is of a nature that nothing can be suffered to support it but positive law.”

He referred to the contrary opinion of Lord Hardwicke, in October, 1749, as Chancellor': “That he ánd Lord Talbot, when Attorney and Solicitor General, were of opinion that no such claim, ás here presented, for freedom, was valid.”

The weight of' this decision is sought to be impaired, from the terms in which it was described by the exuberant imagination of Curran. The words of Lord Mansfield, in giving the opinion of the court, were such as were fit to be used by a great judge, in a most important case. It is a sufficient answer to. all objections to that judgment, that it was pronounced before the Revolution, and that it was considered by this court as the highest authority. For near a century, the decision in Somersett’s case has remained the law of England. The case of the slave Grace, decided by Lord Stowell in 1827, does not, as has been supposed, overrule the judgment of Lord Mansfield. Lord Stowell held that, during the residence of the slave in England,-“Ho dominion, authority, or coercion, can be exercised over him.” Under another head, I shall have occasion to examine the opinion in the ease of Grace.

To the position, that slavery can only exist except under the authority of law, it is objected, that in few if in any instances has it been established by statutory enactment. This is no answer to the doctrine laid» down by the court. Almost all the principles of the common law had their foundation in usage. Slavery- was introduced into the colonies of this country by Great Britain at an early period of their history, and it was protected and cherished, until it became incorporated into'the colonial policy. It is immaterial whether a system of. slavery was introduced by express law, or otherwise, if it have the authority of law. There is no slave State where the institution is not recognised and protected by statutory enactments and judicial decisions. Slaves are made property by the laws of the slave States, and as such are liable to the claims of cred*536itors; they descend to heirs, are taxed, and in the South they are a subject of commerce.

In .the case of Rankin v. Lydia, (2 A. K. Marshall’s Rep.,) Judg'e Mills, speaking for the Court of Appeals of Kentucky, says: “In deciding the question, (of slavery,) we disclaim the influence of the general principles qf liberty, which we all admire, and conceive it ought to be decided by the law-as it is, and not as it ought 'to be. ■ Slavery is sanctioned by the laws óf this.State, ana the right to-hold slaves under our municipal regulations is unquestionable. But we view this as a right, masting by positive law of a municipal character, without foundation in the law of nature, or the unwritten and common law.”. , .

I will now consider the relation which the Eederal Government bears to slavery in the States: ■

Slavery is emphatically a State institution. In the ninth section of the first article of the Constitution, it is provided “that the migration or importation of such persons as any of the States now existing shall' think proper to admit, shall not be prohibited by the' Congress prior to the y'ear 1808, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”

Iii the Convention, it was proposed by a committee of eleven to limit the importation of slaves to the year 1800, when Mr. Pinckney moved to extend the time, to the year 1808. This motion wás carried — New Hampshire, Massachusetts, Connecticut Maryland? North Carolina, South Carolina, and Georgia, voting in the affinnative; and New Jersey, Pennsylvania, and Virginia, in the' negative. In -opposition. to the motion, Mr. Madison said: “Twenty years will produce all the mischief that qan.be apprehended from the liberty to import slaves; so long a term will be more dishonorable to the American character than to say nothing about it in the Constitution.” (Madison Papers.)

The provision in regard to the slave trade sho\ys clearly that Congress - considered slavery a State institution, to be continued and regulated by its individual sovereignty; and to conciliate that interest, the slave trade was continued twenty years, not as a general measure, but for the “benefit of such States as shall.mink proper to encourage it.”

.. In tije ease of Groves v. Slaughter, (15 Peters, 449; 14 Curtis, 137,) Messrs. Clay and Webster contended that, under the commercial power, Congress had a right to regulate the slave trade'among the several States;, but the court,held that Con-fress hacj no1 power to interfere with slavery as it exists in the tates, or to regulate1 what is called the- slave- trade among *537them. If this trade were subject to the commercial power, it would follow that Congress could abolish or establish slavery • in every State of the Union.

The only connection which the Federal Government holds with slaves in a State, arises from that provision of the Constitution which declares that “No person held to service or, labor- in one State, under' the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim oí; .the party to whom such service or labor may be due.” ,

This being a fundamental law of the Federal Government, it rests mainly for its execution, as has been held,' on the judicial- power of the Union; and so far as the rendition of fugitives from labor has become a subject of judicial action, the Federal obligation has been faithfully discharged.

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 hot 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.

T. prefer the lights of Madison, Hamilton, and Jay, aá 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 só dark a. ground. Our independence was a great eppch 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, arid it was not doubted by any intelligent person that its tefidencies would greatly ameliorate their condition.

. Many of the States, on the adoption of the Constitution, or *538shortly-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 wé are to turn, our attention to the dark ages óf thé 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.

The power of Congress to establish'Territorial Governments, and to prohibit the introduction oh slavery therein, , is the next point to be considered.

After the-cession of western, territory by Virginia and other States, to the United, States, the public attention was directed to the best mode.of disposing of it for the general benefit. ■ While in áttendence on the Federal Convention, Mr. Madison,' in a letter to Edmund Randolph, dated the 22d April, 1-787, .says: “ Congress are deliberating on the plan most eligible for disposing, of the western/ territory not yet surveyed. Some alteration, will.probably be made in the ordinance on that subjecti” And.in the same letter he says: “The inhabitants of the. Illinois complain of the land jobbers, &c., who are pur-¿basing titles among them. Those of, St. Vincent’s complain iff the defe' l ive criminal and civil justice among them, as well as of military protection.”. .And on the next day he writes to Mr. Jefferson:, “The government of the settlements on the Illinois and Wabash is a subject'very perplexing in itself, and rendered .more so by otir ignorance of the many circumstances on which a, right judgment depends. The inhabitants at those .places claim protection against the savages, and some provision for both civil and criminal justice.”

• In Mayj 1787, Mr: Edmund Randolph submitted to the Fed eral Convention certain propositions, as the basis of a Federal Government, among which was the following:

“ Hesolved, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary'junction of government and territory or otherwise, with the consent of a number of voices in the Rational Legislature less than the whole.”'

Afterward,' Mr. Madison submitted to the Convention, in order to be referred to the committee of detail, the following-powers, as proper to be added to those of general legislation:

*539“ To dispose of the unappropriated lands of the United States. To institute temporary Governments for new States arising therein. To regulate affairs with the Indians, as well within as without the limits of the United States.”

Other propositions were made in reference to the same subjects, which it would he tedious to enumerate. Mr. Gouvér-neur Morris proposed the following:

“The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution contained shall be so construed as to prejudice any claims either of the United States or of any particular State.” •

This was adopted as a part of the Constitution, with two verbal alterations — Congress was substituted for Legislature, and the word either was stricken out.

In' the organization of the new Government, hut little revenue for a series of years was expected from commerce. The public lands were considered as the principal resource of the country for the payment of the Revolutionary debt. Direct taxation was the means relied on to pay the current expenses of the, Government. The short period that occurred between the cession of western lands to the Federal Government by Virginia and other States, and the adoption of the Constitution, was sufficient to show the necessity of a proper land system and a'temporary Government. This was clearly seen by propositions and remarks in the Federal Convention, some of which are above cited, by the passage of the Ordinance of 1787, and the adoption of that instrument by Congress, under the Constitution, which gave to it validity.

It will he recollected that the deed of cession of western territory was made to the United States by Virginia in 1784, and that it - required the territory ceded to he laid out into. States, that the land should be disposed of for the common benefit of the States, and that all right, title, and claim, as well of soil as of jurisdiction, were ceded; and this was the form of cession from other States.

On the 13th of July, the Ordinance of 1787 was passed, “for the government of the United -States territory northwest of the river Ohio,” with but one dissenting vote. This instru-. mént provided there should be organized in the territory not less than three nor more than five States, designating their boundaries. It was passed while the Federal Convention was in session, about two months before the Constitution was adopted-by the Convention. The members of the Convention must therefore have been well acquainted with the provisions of the *540Ordinance. It provided for a temporary Government, as initiatory to the formation of State Governments. Slavery was prohibited in the territory. •

Can any one suppose that the eminent men of the Federal Convention could have overlooked or neglected a matter so vitally important to the country, in the organization of temporary Governments for the vast territory northwest of the river Ohio Í In the 3d section of the 4th article of the Constitution, they did make provision for the admission of new States, the sale of the public lands, and the temporary Government of the territory. “Without a temporary Government, new States could not have been formed, nor could the public lands have been sold. •'

' If the third section were before us now for consideration for the first time," under the facts stated, I could not hesitate to say there was adequate legislative power given in' it. The Ítower to make all needful rules and regulations is a power to egislate. This'no one will controvert, as Congress cannot make “rules and regulations;” except by legislation. But it ■is argued tliat the word territory is used as synonymous with the word land; and that the rules and regulations of Congress are limited to the disposition of lands and other property belonging to the United States. That this is not the true construction of the section appears. from the fact that in the-first line of the' section “the power to dispose of the public lands” is given expressly, and, in addition, to make all needful rules and regulations. The power to dispose of is complete in itself, .and requires nothing more. It authorizes Congress to use the proper means within its discretion, and any further provision for this purpose would be a useless verbiage. As a composition, the Constitution is remarkably free from such a charge.

In the discussion of the power of Congress to govern a Territory, in the case of the Atlantic Insurance Company v. Canter, (1 Peters, 511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court, said, in regard to the people of Florida, “they do not, however, participate in political power; they do not share in the Government till Florida shall become a State; in the mean time, Florida continues to be a Territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress ‘to make alb needful rules and regulations respecting the territory or other property belonging to the United States.’ ”

And he adds; “perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result *541necessarily from tlie fact , that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may he the inevitable consequence of the right to acquire territory; whichever may he the source whence the power is derived, the possession of it is unquestioned.” And in the close of the opinion, the court say, “ in legislating for them [the Territories,] Congress exercises the combined powefs of the General and State Governments.”

Some consider the opinion to he loose and inconclusive; others, that it is obiter dicta; and the last sentence is objected to as recognising absolute power in Congress over Territories. The learned and eloquent Wirt, who, in the argument of a cause before the court, had occasion to cite a few sentences from an opinion of the Chief Justice, observed, “no one can mistake the style, the words so completely match the thought.”

I can see no want of precision in the language of the Chief Justice; his meaning cannot be mistaken. He states, .first, the third section as giving power to- Congress to govern the Territories, and two other grounds from which the power may also be implied. The objection seems to be, that the Chief Justice did not say which of the grounds stated he considered the- source of the power. He did not specifically state this, but he did say, “whichever may be the source whence the powef is derived, the possession of it is unquestioned.”, Ho opinion of the court could have been expressed with a stronger emphasis; the power in Congress is unquestioned. But those who have undertaken to criticise the opinion, consider it without authority, because the Chief Justice did not designate specially the power. This is a singular objection. If the power be unquestioned, it can be a matter of no importance on which ground it is exercised.

The opiilion clearly was not obiter dicta. The turning point in the case was, whether Congress had power to authorize the Territorial Legislature of Florida to pass the law under" which the Territorial court was established, whose decree was brought before this court for revision. The power of Congress, therefore, was the point in issue.

The word “territory,” according to "Worcester, “means land, country, a district of country under a temporary Government.” •The words “territory or other property,” as used, do imply, from the use of the pronoun other, that territory was used as descriptive of land; but does It follow that itwas notusedalso as descriptive' of a district of country ? In both of these senses it.belonged to the United States — as land, for the purpose of sale; as territory, for the purpose of government.

*542But, if it be admitted that the word territory as used means land, and nothing hut'land, the power of Congress to organize a temporary Government is clear. It has power to make all needful regulations respecting the public lands, and the extent of. those “needful regulations” depends upon the direction of .Congress, where the means are appropriate to the end, and do not conflict with any of the prohibitions of the Constitution. If. a temporary Government be deemed needful, necessary, requisite, or is wanted, Congress has power to' establish it. Tins court says, in McCulloch v. The State of Maryland, (4 Wheat., 316,) “If a certain means to carry into effect any of the powers expressly given by the Constitution to the Govern-. inent of the-Union be an appropriate ineasuie, not prohibited by the Constitution, the degree of its n'eeessity is a question of legislative discretion, not of judicial cognizance.”

The power to establish post offices and post roads gives power to Congress to make contracts for the transportation of the mail, and to punish all who commit depredations upon it in its transit, or. at its places of distribution. Congress has power to regulate commerce, and, in the exercise, of its discretion, to lay an embargo, which suspends commerce; so, under the same power, harbors, lighthouses, breakwaters, &c., are constructed!

Did Chief Justice Marshall, in saying that Congress governed a Territory, by exercising the combined powers of the Federal, and State Governments, refer to unlimited discretion ? ' A Government which can make white men slayes ? Surely, such a remark in the argument must have been inadvertently uttered. On the contrary, there is no power in the Constitution by which ’ Congress can make either white or black men slaves. In organizing the Government of a Territory, Congress is limited to meams appropriate to the attainment of the, constitutional object. bTo powers can'be exercised which are prohibited by the Constitution, or which aré contrary to its spirit; so that, whether the" object may be the protection of the persons and property of purchasers of the public lands, or of communities who have been annexed to the Union by conquest of purchase, they are initiatory to the establishment 6f State Governments, and no more power can be claimed or exercised than is necessary to the attainment of the end. This is the • limitation of all the Federal powers.

But Congress has no power to regulate the internal concerns of a State, as of a Territory; consequently, in providing for the Government of a Territory, to some extent, the combined powers of the Federal and State Governments are necéssarily exercised.

*543If Congress should deem slaves or free colored persons injurious to the population of a free Territory, as conducing to lessen the vaíué of the public lands, or on any other ground connected with the public interest, they have the power to prohibit them from becoming settlers in it. This can be sustained on the ground of a sound national policy, which is só clearly shown m our history by practical results, thafe it would seem no considerate individual can question it. And, as rep gards any unfairness of such a policy to our Southern brethren, as urged in the argument, it is only necessary to say that!, with one-fourth of the Federal population of the Union, they have in the slave States a larger extent of fertile' territory than is included in the free States; and it is submitted, if masters of slaves be restricted from bringing them into free territory, that the restriction on the free citizens of non-slaveholding States, by bringing slaves into free territory, is four times greater than that complained of by the South. But, not only so; some three or four hundred thousand holders of slaves, by bringing them into free territory, impose a restriction on twenty millions of the ,free States! The . repugnancy to slavery would probably prevent fifty or a hundred freemen from settling in a slave Territoiy, where one slaveholder would be prevented from settling in a free Territory.

This remark is made in answer to the.argument urged, that a prohibition of slavery in the free Territories is inconsistent with the continuance of the Union. Where a Territorial Government is established in a slave Territory, it has uniformly, remained in- that condition until the people form a State Constitution; the same course where the Territory is free, both parties acting in good faith, would be attended with satisfactory results.

The sovereignty of the Federal Government extends to the entire limits of our territory. Should any foreign power invade our jurisdiction, it would be repelled. There is a law of Congress to punish our citizens for crimes committed in districts of country where there is no organized Government. Criminals are brought to certain Territories or States, designated in the lawj for1 punishment. Death has been inflicted in Arkansas and in Missouri, on individuals, for murders committed beyond the limit of any organized Territory or State; and no one doubts that such a jurisdiction was rightfully exercised. If'there be a right to acquire territory, there necessarily must be an implied power to govern it. When the military force of the Union shall conquer a country, may not Congress provide for the government of such country ? This would be an implied power essential to the acquisition of new territory. *544This power has been exercised, without doubt of its constitutionality, over territory acquired by conquest and purchase.

And wíién there is a large district of country within the United States, and not within any State Government, if it be necessary to establish a temporary Government to carry out a power expressly vested in Congress — as the disposition of the public lands — may not such Government be instituted by Congress? How do we read' the Constitution? Is it not a practical instrument?

In such cases, no implication of a power can arise which is inhibited by the Constitution, or which may be against the theory of its construction. As my opinion -rests on the third section, these remarks are made as an intimation that the power to establish a temporary Government may arise, also, on the other two grounds stated in the opinion of the court in the insurance case, without weakening the third section.

I would here simply remark, that the Constitution was formed for our whole country. An expansion or contraction of our territory required no change in the fundamental law. When we consider the men who laid the foundation of our Government and carried it into operation, the men who occupied the bench, who filled the halls of legislation and the Chief Magistracy, it would seem, if any question could be settled clear of all doubt, it was the power of Congress to establish Territorial Governments. Slavery was prohibited in the entire Northwestern Territory, with the approbation of leading men, South and Horth; but this prohibition was not retained when this ordinance was adopted for the government of Southern Territories, where slavery existed. In a late republication of a letter of Mr. Madison, dated November 27, 1819, speaking of this power of Congress to prohibit slavery, in’a Tez-ritory, he infers there is no such power, from the fact that it has not been exercised. This is not a very satisfactory argument against any power, as there are but few, if any, subjects on which the constitutional powers of Congress are 'exhausted. It is true, as Mr. Madison states, that Congress, in the. act to establish a Government in the Mississippi Territory, prohibited the importation of slaves into it from foreign parts; but it is equally true, that in the act erecting Louisiana into two Terri-, tories, Congress declared, “ it shall not be lawful for any person to bring into Orleans Territory, from any port or place within the limits of the United States, any slave which shall have been imported since 1798, or.which may hereafter be imported, except by a citizen* of the United States who settles in the Territory, under the penalty of the freedoxh of -such- slave.” The inference of Mr. Madison, therefore, against the power of. *545Congress, is of no force, as it was founded on a fact supposed, which, did not exist.

It is refreshing to turn to the early incidents of our history, ■ and learn wisdom from the acts of the. great men who have gone to their account. I refer' to a report, in the House of Representatives, by Johu Randolph, of Roanoke,, as chairman . of a committee, in March, 1808 — fifty-four years ago. Erom the Convention held at Vincennes, in Indiana, by their President, and from the people of the Territory, a petition was presented to Congress, praying the suspension of the provision which.prohibited slavery in that Territory. The report stated “that the rapid population of the State of Ohio sufficiently evinces, in the opinion of your committee, that the labor of slaves is not necessary to promote the growth and settlement of colonies in that region. That this labor,- demonstrably the dearest of any, can only be employed to advantage in the cultivation of products more valuable than any known to that quarter of the United States; that the committee deem .it highly dangerous and inexpedient to impair a provision wisely' calculated' to promote ■ the happiness and prosperity of the Northwestern country, and to give strength and security to-that extensive frontier. In the salutary operation of this sagacious and benevolent restraint, it is believed that the inhabitants will, at no very distant day, find ample remuneration for ’ atemporary privation of labor and of emigration.” (1 vol. State Papers, Public Lands, 160.)

The judicial mind of this country, State and Federal, has agreed on no subject, within its legitimate action, with equal unanimity, as on the power of Congress to establish Territorial' Governments, Ho court* State or Federal, no judge or statesman, is known to have had. any doubts on this question for nearly sixty years after the power was exercised. Such Governments have been established from the sources of the Ohio to the Gulf of Mexico, extending to the Lakes on the north and the Pacific Ocean on the west, and from the lines of Georgia to Texas.

Great interests h'ave grown up -under the Territorial laws-over a country more than five times greater in extent than thé original thirteen States; and these interests, corporate of' otherwise, have been cherished and consolidated by a benign policy, without any one supposing the law-making power had' united with the Judiciary, under, the universal sanction of the whole country, to usurp a jurisdiction which did not belong to them. ' Such a discovery at this late date is more extraordinary than anything which has occurred in the judicial history of this or any other country. Texas, under a previous organiza* *546tion, was admitted as a State; but no. State can be admitted into the Union which has not been organized under some form of government. Without temporary Governments, our public lands could not have been sold, nor our wildernesses' reduced to cultivation, and the population protected; nor could our flourishing States, West and South, have been formed.

What do the lessons of wisdom and experience teach, under such circumstances, if the new light, which has so suddenly and unexpectedly burst upon us, be true? Acquiescence; acquiescence under a settled construction of the Constitution for sixty years, though it may be erroneous; which has secured to the country an advancement'and'prosperity beyond the power of computation.

An act of James Madison, when President, forcibly illustrates this policy. He had made up his opinion that Congress had no power under the Constitution to establish a Rational Bank. In 1815, Congress passed a bill to establish a bank. He vetoed the bill, on objections other than constitutional. In his message, he speaks as a wise statesman and Chief Magistrate, as follows:

“Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank, as being precluded, in my judgment, by the repeated recognitions under varied circumstances of the validity of such an institution, in nets of the Legislative, Executive, and Judicial branches of the Government, accompanied by indications, in different modes, •of a concurrence of the general will of the nation.”

Has this impressive lesson of practical wisdom become lost to the present generation ?

If the great and. fundamental principles of our- Government .are never to be settléd, there can be no lasting prosperity. The Constitution will become a floating waif on the billows of popular excitement.

The prohibition of slavery north of thirty-six. degrees thirty minutes, and of the State of Missouri, contained in the act admitting that State into the Union, was passed by a vote of 134, ,in .the House of Representatives, to 42. Before Mr. Monroe signed the act, it was submitted by him to his Cabinet, and they held the restriction of slavery in a Territory to be within "the constitutional powers of Congress. It would be singular, if in 1804 Congress had power to prohibit the introduction of slaves in Orleans Territory from any other part'of the Union, under the penalty of freedom to the slave, if the same power, embodied in the Missouri compromise, could not be exercised in 1820.

But this law of Congress, which prohibits slavery north of *547Missouri and of thirty-six degrees' thirty minutes, is declared to have been null and void by my brethren. And this opinion is founded mainly, as I understand, on the distinction drawn between the ordinance of 1787 and the Missouri compromise line. In what does the distinction consist? The ordinance, it is said, was a compact entered into by the confederated States before the adoption of the "Constitution; and that in the cession, of territory authority was given to establish a Territorial Government.

It is clear that the ordinance did not go into operation by virtue of the authority of the Confederation, but by reason of its modification and adoption by Congress under the Constitution. It seems to be supposed, in the opinion of the court, that the articles of cession placed it on a different footing from territories subsequently acquired. I am unable to perceive the force of this distinction. That the ordinance was intended for the government of the Northwestern Territory, and was limited to such Territory, is admitted. If was extended to Southern Territories, with modifications, by acts of Congress, -and to-some Northern Territorios.. But the ordinance was made valid by the act. of Congress, and without such act coiild havé been of no force. It rested for its validity on the act of Congress, the same, in my opinion, as the Missouri compromise line.

If Congress may establish a Territorial Government in the exercise of its discretion, it L a clear principle that a court - cannot control that discretion. This being the case, I do-not see on what ground the act is held to be void. „ It did not purport to forfeit property, or take it for public purposes. It only prohibited slavery; in doing which, it followed the .ordinance of 1787. .

I will now consider the fourth head, which is: “ The effect of taking slavés into a State or Territory, ánd so holding them, where slavery is prohibited.”

Tf the principle laid down in the c¿se of Prigg v. The State of Pennsylvania is to be maintained, and. it is certainly to ‘ be maintained until overruled, as the law of this court, there can be no difficulty on this point. In that case, the court says: “ The state of slavery is deemed to bé a mere municipal regulation, founded upon and limited to the range of the territorial laws.” If this be so, slavery can exist nowhere except under the authority of law* founded on usage having the force of law, or by statutory recognition. And the court farther sáys: “It is manifest, from tins consideration, that if the Constitution had not contained the clause requiring the rendition of fugitives from labor, every non-slaveholding State in the Union would, have been at liberty to have declared free all runaway slaves *548coming within its limits, and to have given them entire immunity and protection against the claims of their masters.”

Row, if a slave abscond, he may be reclaimed; but if he accompany his master into a State or Territory where slavery is prohibited, such slave cannot be said to have left the service of his master where his services were legalized. And if slavery be' limited to the range of the territorial laws, how can the slave be coerced ■ to. serve in a State or Territory, not only without the.authority of law, but against its express provisions ? What gives the master the right to control the will of his slave ? The local law, which exists in some form. But where there is no such law, can the master control the will of the slave-by force ? Where- no slavery exists, the presumption, without .regard to color, is in favor of freedom. Under such a jurisdiction, may the colored- man be levied on.as the property of his master by a creditor? On the decease of the master, does the slave descend to his heirs - as property ? Can the master sell him ? Any one or all of these acts may be done to the slave, where he is legally held to service. But where the law does not confer this power, it cannot be exercised.

Lord Mansfield’held, that a slave brought into England was free. Lord Stowell agreed with Lord Mansfield in this respect, and that the slave could not be coerced in England; but on, her voluntary return to Antigua, the place of her slave domicil, her former status attached. The law of England did not prohibit .slavery, but did not authorize it. The jurisdiction which prohibits slavery is much stronger in behalf of the slave within it,’ .than where it only doe_s ñbt authorize it.

By virtue of what law is it, that a master may take his slave into free territqry, and exact from him the duties of a slave?. The law .of the Territory does not sanction, it. Ro authority can be claimed under the Constitution -of the United States, or any law of Congress. Will it be said that the slave is taken as property, the same as other property which the master may own ? To this I answer,. that colored persons are made property by the law of the State, and no such power has been given to Congress. Does the master carry with him the law of the State from which; he removes into the Territory? and does that enable him to .coerce his slave in the Territory? Let us test this.,theory.- If this may be done by a-master from one slave State, it may be 'done by a master from every other slave State. This right is supposed to be connected with the person of the. master, by virtue of the local law. Is it transfer-: able ? May it be negotiated, as a promissory note or bill of exchange? If it be assigned tó á man from a free State, may be coerce the slave by virtue of it? What shall'this thing be *549denominated? Is it personal ór real property? Or is'it an indefinable fragment of sovereignty, which every person carries with him from his late domicil ? One thing is certain, that its origin has been very recent, and it is unknown to thé laws of any civilized country.

A slave’is brought to England from one of its islands, where slavery was introduced and maintained by the mother country. Although there is no law prohibiting slavery in England, yet there is no law authorizing it; and, for near a century, its courts have declared that the slave there is free from the coercion of the master. Lords Mansfield and Stowell agree upon this point, and there is no dissenting authority.

There is no other description of property, which was not protected in England, brought from one of its slave islands. Does not this show that property in a human being does not arise from nature or from the common law, but, in the language of this court, “ it is a mere municipal regulation, founded upon and limited to' the range of the territorial laws ? ’ ’ This decision is not a mere argument, but it is the end of the law, in regard' to the extent of slavery. Until it shall be overturned, it is not a point for argument; it is obligatory on myself and my brethren, and on all judicial tribunals over which this court exercises an appellate power.

It is said the Territories are common property of the' States-, and that every man has a right to go there with his property. This is not controverted. But the court say a slave is not' property beyond the operation of the local law which makes him such. Heverwas a truth more authoritatively and justly uttered by man. Suppose a master of a slave in a British island owned a million of property in England; would that authorize him to take his slaves with him to England? The Constitution, iu express terms, recognises the status of slavery as founded on the municipal law: “Ho person held to. service or labor in one State, under the laxos thereof, escaping into another, shall,” &c. How, unless the fugitive escape from a place where, by the municipal law, he is held to labor, this provision affords no remedy to the master. "What can be more conclusive than this ? Suppose a slave escape from a Territory where slavery is not authorized by law, can he be reclaimed?

■In this ease, a majority of the court have said that a slave may be taken by his master into a Territory of the United States, the same as a horse, or any other kind of property. It is true, this was said by the court, as also many other things, which are' of no authority. Hothing that has been said by them, which has not a direct bearing on the jurisdiction of the court, against which they decided, can be considered as *550authority. I shall certainly not regard it as such. The question of jurisdiction, being before the court, was decided by them authoritatively, but nothing beyond that question. A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to. the laws of G-od and man; and he is destined to an endless existence.

Under this head I shall chiefly rely on the decisions of the Supreme Courts of the Southern States, and especially of the State of Missouri.

In the first and second sections of the sixth article of the Constitution of Illinois, it is declared that' neither slavery nor involuntary servitude shall hereafter be introduced into this State, otherwise than for the' punishment of crimes whereof the party shall have been duly convicted; and in the second section it is declared that any violation of this article shall effect the emancipation of such person from his obligation to service. In Illinois, a right of transit through the State is given the master with his slaves. This is a matter which, as I suppose, belongs exclusively to the State.

The Supreme Court of Illinois, in the case of Jarrot v. Jarrot, (2 Gilmer, 7,) said:

“After the conquest of this Territory by Virginia, she ceded it to the United States, and stipulated that the titles and possessions, rights and liberties, of the French settlers, should be guarantied to them. This, it has been contended, secured them in the possession of those negroes as slaves which they held before that time, and that neither Congress nor the Convention had power to deprive them of it; or, in other words, that the ordinance and Constitution should not be so interpreted and understood as applying to such slaves, when it is therein declared that there shall be neither slavery nor involuntary servitude in the Northwest Territory, nor in the State of Illinois, otherwise than in the punishment of crimes. But it was held that those rights could not be thus protected, but must yield to the ordinance and Constitution.”

The first slave case • decided by the Supreme Court of Missouri, contained in the reports, was Winny v. Whitesides, (1 Missouri Rep., 473,) at October term, 1824. It appeared that, more ■ than twenty-five years before, the defendant, with her husband, had removed from Carolina to Illinois, and brought with them the plaintiff; that they continued to reside in Illinois three or four years, retaining the plaintiff as a slave; after which, they removed to Missouri, taking her with them.

The court held, that if a slave be detained in Illinois until he be entitled to freedom, the right of the owner does not re-' vive when he finds the negro in a slave State.

*551■ That when a slave is taken to Illinois by his owner, who takes np his residence there, the slave is entitled to freedom.

In the case of Lagrange v. Chouteau, (2 Missouri Rep., 20, at May term, 1828,) it was decided that the ordinance of 1787 was intended as a fundamental law for those who may choose to live under it, rather than as a penal statute.

That any sort of residence contrived or permitted by the legal owner of the slave, upon the faith of secret trusts or contracts, in order to defeat or evade the ordinance, and thereby introduce slavery defacto, would entitle such slave to freedom.

In Julia v. McKinney, (8 Missouri Rep., 279,) it was held, where a slave was settled in the State of Illinois, but with an intention on the part of the Owner to be removed at some future day, that hiring said slave' to a person to labor for one or two days, and receiving the pay for the hire,.the slave is entitled to her freedom, under, the second section'of the sixth article of the Constitution of Illinois.

Rachel v. Walker (4 Missouri Rep., 350, June term, 1836) is a ease involving, in'every particular, the principles of the' ease before us. Rachel sued for her freedom ;• and it appeared that she had been bought as a slave in Missouri, by Stockton, an officer of the army, taken to Fort.Suelling, where he was. stationed, and she was retained there as-a slave a year;- and then Stockton removed' to Prairie du Chjen, .taking Rachel with him as a slave, where he continued to hold her - three • years, and then he took her to the State of Missouri, and sold her as a slave.

“Fort Snelling was admitted to be on the west side of the Mississippi river, and north of the State of Missouri, in-the territory of the United States. That Prairie du Chien was'in the Michigan Territory, on the east side of the Mississippi river. Walker, the defendant, held Rachel under Stockton.”

The court said, in this cáse:

“The officer lived in Missouri Territory, at the time he bought the slave; he sent to a slaveholding country and procured her; this was his voluntary act, done without any other reason than that of his convenience; and he and those- claiming under him must be holden to abide the consequences of introducing slavery both in Missouri Territory and Michigan, contrary to law; and, on that ground Rachel was declared to be entitled to freedom.”

In answer to the argument that, as an officer of the army, the master had a right to ta*re his slave into free territory, the court said no authority of law or the Government compelled him to keep the plaintiff there as a slave.

“Shall it be said, that because an officer of the army owns *552slaves in' Virginia, that ivhen, as officer and soldier, lie is required to take the command of a fort in the nón-slaveholding States or Territories, he thereby has a right to take with him as many slaves as will suit his interests .or convenience ? It surely cannot be law. If this be true, the court say, then it is also true that the convenience or supposed convenience of the officer repeals; as to him and ■ others who have the same character, the ordinance and the act of 1821, admitting Missouri into the Union, and also the prohibition of the several'laws and Constitutions of the non-slaveholding States.” ■

In Wilson v. Melvin, (4 Missouri R., 592,) it appeared the defendant left Tennessee with an intention of residing in Illinois, taking his negroes with him'. After a month’s stay in Illinois, he took his negroes to St.'Louis, and hired them, then returned to Illinois. On these facts, the inferior court instructed the jury that the defendant was- a sojourner in Illinois. This the Supreme Court held was error, and the judgment was reversed.

The case of Dred Scott v. Emerson (15 Missouri R., 682, March term, 1852) will now be stated. This case involved the identical question before us, Emerson having, since the hear-, ing, sold the plaintiff to Sandford, the defendant.

Two of the judges ruled the case, the Chief Justice dissenting. It cannot be improper tq state the grounds of the opinion of the court, and of the dissent.

The court say: “Cases of this kind are not strangers in our court. Persons have been frequently here adjudged to be entitled to their freedom, on the ground that their masters held them in slavery in Territories or States in which that institution is prohibited. Prom the first case decided in our court, it might be inferred that this result was brought , about by a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of. master and slave did not exist. But subsequent cases base the right to ‘exact the forfeiture .of emancipation,’ as they term it, on the ground, it would seem, that it was the duty of the courts of this State to carry into effect the Constitution and laws of other States and Territories, regardless of /the rights, the policy, or the institutions, of the people of this State.”

And the court say that the States of the Union, in their' municipal concern's, are regarded as foreign to. each other; that the courts of one State do not take notice of the' laws of other States, unless proved as facts, and that every State-has the right to determine, how far its comity to other States shall extend; and it is laid down, that when there is no act of manumission decreed to the free State, the courts of the slave States *553cannot be called to ' give effect to the law of the free State. Comity, it alleges, between States, depends npon the discretion of both, which may be varied by circumstances. And it is declared by the court, “that times are. not.as they were when the former decisions on this subject were mad¿.” Since then, not only individuals but States have been possessed with. a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures whose inevitable consequence must be the overthrow and destruction of our Government. Under such- circumstances, it does not' behoove the State of Missouri to show the least countenance to any measure which might gratify 'this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others.

Chief Justice Gamble dissented from the other two judges. He says:

. “In every slaveholding State in the Union, the subject of emancipation is regulated by statute; and the forms are prescribed in which it shall be effected. Whenever the forms required by the laws of the State in which the master and slave are resident are complied with, the emancipation is complete, and the slave is free. If the right of the person thus emancipated is subsequently drawn in question in another State, it will be ascertained and determined by the law of the State in which the slave and his former master resided; and when it appears that such law has been complied with, the right to freedom will be fully sustained in the courts of all the slave-holding States, although. the act of emancipation may not be in the form required by law in which the court sits.’

“In all such cases, courts continually administer the law of the country where the right was acquired; and when that law becomes known to the court, it is just as much a matter of course to decide the rights of the parties according to its re-, quirements, as it is to settle the title of real estate situated in . our State by its ■ own laws.”

This appears to me a most satisfactory answer to the argument of tibie court/. Chief Justice continues:

. “ The perfect equality of the different States lies at the foundation of the Union. As the institution, of slavery in the States is one over which the Constitution of the United States gives no power to the- General Government, it is left to be adopted or rejected by the several States, as they think best; nor can any one State, or number of States, claim the right to intejv fere with any other State upon the question of admitting or excluding this institution.

“A citizen óf Missouri, who removes with his slave.to Uli» *554nois, has no right to complain that the fundamental law of that State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave. It is as much his own voluntary act, as if he had executed a deed of emancipation. Ho one can pretend ignorance of this constitutional provision, and,” he says, “ the decisions which have heretofore been made in this State, and in many other slaveholding States, give effect to this and other similar provisions, on the ground that the master, by making the free State the residence of his slave, has submitted his right to the operation of the law of such State; and this,” he says, “is the same in law as a regular deed of emancipation.”

He adds:

“I regard the question as conclusively settled by repeated adjudications of this court, and, if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them, than I would any other series of decisions by which the law of any other question was settled. There is with me,” he says, “nothing in the law relating to slavery which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary public excitements which are gathered around it.”

“In this State,” he says, “ it has been recognised from the beginning of the Government as a correct position in law, that a master who takes his slave to reside in a State or Territory where slavery' is prohibited, thereby emancipates his slave.” These decisions, which come down to the year 1837, seemed to have so fully settled the question, that since that time there has been no case bringing it before the court for any reconsideration, until the present. In the case of Winny v. Whitesides, the question was made in the argument, “whether one nation would execute the penal laws of another,” and the court replied in this language, (Huberus, quoted in 4 Dallas,) which says, “personal rights or disabilities obtained or communicated by the laws of any particular place are of a nature which accompany the person wherever he goes;” and the Chief Justice observed, in the case of Rachel v. Walker, the act of Congress called the Missouri compromise wras held as operative as the ordinance of 1787.

When Dred Scott, his wife and children, were removed from Eort Snelling to Missouri, in 1838, they were free, as the law was then settled, and continued for fourteen years afterwards, up to 1852, when the above decision was made. Prior to this, for nearly thirty years, as Chief Justice Gamble declares, tlj.e residence of a master with his slave -in the State of Illinois, or in the Territory north of Missouri,, where slavery was prohibited *555by the act called the Missouri compromise, would manumit the slave as effectually as if be had executed a deed of emancipation; and -that an officer of the army who takes his slave into that State or Territory, and holds him there as a slave, liberates him the same as any other citizen — and down to the above time it was settled by numerous and uniform decisions; and that on the return of the slave to Missouri, his former condition of slavery did not attach. Such was the settled law of Missouri until the decision of Scott and Emerson.

In the case of Sylvia v. Kirby, (17 Misso. Rep., 434,) the court followed the above decision, observing it was similar in all respects to the case of Scott and Emerson.

This court follows the established construction of the statutes of a State by its Supreme Court. Such a construction is considered as a part of the statute, and we follow it to avoid two rules of property in the same State. But we do not follow the decisions of the Supreme Court off a State beyond a statutory construction as a rule- of decision for this court. State decisions are always viewed with respect and treated as authority; but we follow the settled construction of the statutes, not because it is of binding authority, but iu pursuance of a rule of judicial policy.

But there is no pretence that the case of Dred Scott v. Emerson turned upon the construction of a Missouri statute; nor was there any established rule of property which coRld have rightfully influenced the decision. On the contrary, the decision overruled the settled law for near thirty years. .

This is said by my brethren to be- a Missouri question; but there is nothing which gives it this character, except that it involves the right to persons claimed as slaves who reside in Missouri, and the decision was made by the Supreme Court of that State. .It involves a right claimed under an act of Congress and the Constitution of Illinois, and whieh cannot be decided without the consideration and construction of those laws. But the Supreme Court of Missouri held, in this case, that it will not regard either of those laws, without which there was no case before it; and Dred Scott, having been a slave, remains a slave. In this respect it is admitted this is a Missouri question — a case whieh has but one side, if the act of Congress and the Constitution of Illinois are not recognised.

And does such a ease constitute a rule of decision for this court — a case to be followed by this court? The course of decision so long and so uniformly maintained established a comity or law.between'Missouri and the free States and Territories where slavery was prohibited, which must be somewhat regarded in this case. Rights sanctioned for twenty-eight years *556ought not and cannot be repudiated, with any semblance of justice, by one or two decisions, influenced, as declared, by a. determination to counteract tbe excitement against slavery in tbe free States.

•Tbe courts of Louisiana having held, for a series of years, that where a master took bis slave to France, or any free State, be was'entitled to freedom, and that on bringing him back tbe status of slavery did not attach, tbe Legislature of Louisiana declared by an act that the slave should not be made free under such circumstances. This regulated tbe rights of tbe master from tbe time tbe act took effect. But tbe decision of tbe Missouri court, reversing a former decision, affects all previous decisions, technically, made on tbe same principles, unless such decisions are protected by tbe lapse of time or the statute of limitations. Dred Scott and bis family, beyond all controversy, were free under tbe decisions made for twenty-eight years, before-tbe case of Scott v. Emerson. This was tbe undoubted law of Missouri for fourteen years after Scott and bis family were brought back to that State. And the grave question arises, whether this law may be so disregarded as to enslave free persons. I am strongly inclined to think that a rule of decision so well settled as not to be questioned, cannot be annulled by a single decision of tbe court. Such rights may be inoperative under tbe decision in future; but I cannot well perceive bow it can have the same effect in prior cases.

It is admitted, that when a former' decision is reversed, tbe technical effect of the judgment is to make all previous adjudications on tbe same question erroneous. But tbe case before us was not that tbe law bad been erroneously construed, but that, under tbe circumstances which then existed, that law would not be recognised; and tbe reason for this is declared to be tbe excitement against tbe institution of slavery in tbe free States. . While I lament this excitement as much as any one, I cannot assent that it shall be made a basis of judicial action.

In 1816, tbe common law, by statute, was made a part of. tbe law of Missouri; and that includes the gi’eat principles of international law. These principles cannot be abrogated by judicial decisions. ' It will require tbe same exercise *oi power' to abolish tbe common law, as to introduce it. International law is founded in the opinions generally received and acted on by civilized nations, and enforced by moral sanctions. It becomes a more authoritative system when it results from special compacts,-founded on modified rules, adapted to the exigencies of human society; it is in fact an international morality, adapted to the best interests of nations. And in regard to the States *557of this Union, on the subject of slavery, it is eminently fitted for a rule of action, subject to tbe Federal-Constitution. “The laws of nations are but the natural rights of man applied to nations.” (Yattel.) '

If the common law have the force of a statutory enactment in Missouri, it is clear, as it seems to me, that a slave who, by a residence in Illinois in the service, of his master, becomes entitled to his freedom, cannot again be reduced to slavery by returning to his former domicil in a slave State. It is unnecessary to say what legislative power might do ,by a general act in such a ease, but it would be singular if a freeman could be made a slave by the exercise of a judicial discretion. And it would be still more extraordinary if this could be done, not only in the absence of special legislation, but in a State where the common law is in force.

• It is, supposed by some, that the third article in the treaty of cession of Louisiana to this country, by Franco, in 1808, may have some bearing on this question. The article referred to provides, “that the inhabitants of the ceded territory shall be incorporated into the .Union, and enjoy all the advantages of citizens of the,United States, and in the mean1 time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess.”

As slavery existed in Louisiana at the time of the cession, it is supposed this is a guaranty that there should be no change in its condition.

The answer .to this is, in the first place, that such a subject does not belong to the treaty-making power; and any such arrangement would have been nugatory. And, in the second place, by no admissible construction can the' ‘ guaranty be carried further than the protection of property in slaves at that time in the ceded territory. And this Las been complied with. The organization of the slave States of Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana at the time of the cession. This removes every ground of objection under the treaty. There is therefore no pretence, growing out of the treaty, that any, part of the territory of Louisiana, as ceded, beyond the organized States, is slave territory.

Under the fifth head, we.were to consider whether the status of slavery attached to the plaintiff and wife, on their return to Missouri.

This doctrine is not asserted in the late opinion of the Supreme Court of Missouri, and up to 1852 the contrary doctrine was' uniformly maintained by that court.

In its late decision, the court say that it will not give effect in Missouri to the laws of Illinois, or the law of Congress *558called the Missouri compromise. This was the effect of the decision, though its terms were, that the court would not take notice, judicially, of those laws.

In 1851, the Court of Appeals of South Carolina recognised the principle, that a slave, being taken to a free State, became free. (Commonwealth v. Pleasants, 10 Leigh Rep., 697.) In Betty v. Horton, the Court of Appeals held that the freedom of the slave was acquired by the action of the laws of Massachusetts, by the said slave being taken there. (5 Leigh Rep., 615.)

The slave States have generally adopted the rule, that where the master, by a residence with his slave in a State or Territory where slavery is prohibited, the slave was entitled to his freedom everywhere. This 'was the settled doctrine of the Supreme Court of Missouri. It has been so held in Mississippi, in Virginia, in Louisiana, formerly in Kentucky, Maryland, and in other States.

The law, where a contract is made and is to be executed, governs it. This does not depend upon comity, but upon the law of the contract. And if, in the language of the Supreme Court of Missouri, the master, by taking his’slave to .Illinois, and employing him there as a slave, emancipates him as effectually as by a deed of emancipation, is it possible that such an act is not matter for adjudication in any slave State where the master may take him ? Does not the master assent to the law, when he places himself under it in a free State ?

' The States of Missouri and Illinois are bounded by a common line. The ope prohibits slavery, the other admits it. This has been done by the exercise of that sovereign power which appertains to each. We are bound to respect the institutions of each, as emanating from the voluntary action of the people. Have the people of either any right to disturb the relations of the other ? Each State rests upon the basis of its own sovereignty, protected by the Constitution. Our Union has been the foundation of our prosperity and national glory. Shall we not cherish and maintain it ? This -can only be doné by respecting the legal rights of each State.

If a citizen of a free State shall entice or. enable a slave to escape' from the service of his master, the law holds him responsible, not only for the loss of the' slave, but he is liable to be indicted and fiped for the misdemeanor. And I am bound here to say, that I have never found a jury in the four States which constitute my circuit, which have not sustained this law, where the evidence required them to sustain it. And it is proper that I should also say, that more cases have arisen in my circuit, by reason, of its extent and locality, than in all *559other parts of the Union. This has been done to vindicate the sovereign rights of the Southern States, and protect the legal interests of our brethren of the South.

Let these facts be contrasted with the case now before the court. Illinois has declared in the most solemn and impressive form that there shall be neither slavery nor involuntary servitude in that State, and that any slave brought into it, with a view of becoming a resident, shall be emancipated. And effect has been given to this provision of the Constitution by the decision of the Supreme Court of that State. "With a full knowledge of these facts, a slave is brought from Missouri to Rock Island, in the State of Illinois, and is retained there as a slave for two years, and then taken to Fort Snelling, where slavery is prohibited by the Missouri compromise act, and there he is detained two years longer in a state of slavery. Harriet, his wife, was also kept at the same place four years as a slave, having been purchased in Missouri. They were then removed to the State of- Missouri, and sold as slaves, and in the action before us they are not only claimed as slaves, but a majority of my brethren have held that on their being returned to Missouri the status of slavery attached to them.

I am not able to reconcile this result with the respect due to the State of Illinois. Having the same rights of sovereignty Us the State of Missouri in adopting a Constitution, I can perceive no reason why the institutions of Illinois should not receive the same consideration as those of Missouri. Allowing to my brethren the same right of judgment that I exercise myself I must be permitted to say that it seems to me the principle laid down will enable the people of a slave State to introduce slavery into a free State, for a longer or shorter time, as may suit their convenience; and by returning the slave to the State whence he was brought, by force or otherwise, the status • of slavery attaches, and protects the rights of the-master, and defies the sovereignty of the free State. There is no evidence before us that Dred Scott and his family returned to Missouri voluntarily. The contrary is inferable from the agreed, case: “In the year 1838, Dr. Emerson removed- the plaintiff and said Harriet, and their daughter Eliza, from Fort Snelling to the State of Missouri, where they have ever since resided.” This is the agreed case; and can it be inferred from this that Scott and family returned to Missouri voluntarily? He was removed; which shows that he was passive, as a slave, having exercised i. o volition on the subject. He did not resist the master by absconding or force. But that was not sufficient .to bring him within Lord Stowell’s decision; he must have, acted voluntarily. It would be a *560mockery of law and an outrage on his rights to coerce his return, and then claim' that it was voluntary, and on that ground that his former status of slavery attached.

If the decision he placed on this ground, it is a.fact for a jury to decide, whether the return was voluntary, or,else the fact should be distinctly admitted. A presumption against the plaintiff in- this respect, I say. with confidence, is not authorized from the facts admitted.

In coming to the conclusion that a voluntary return by Grace to her former domicil, slavery attached, Lord Stowell took great pains to show that England forced slavery upon her colonies, and that it was maintained by numerous acts of Parliament and public policy, and, in short, that the system of slavery was not only established by Great Britain in her West Indian colonies, but that it was popular and profitable to many of the wealthy and influential people of England, who were engaged in trade, or owned and cultivated plantations in the colonies. Ho one can read his elaborate views, and not be struck with the great difference between England .and her colonies, and the free and slave States of this Union. While slavery in the colonies of England is. subject to the ■power of the mother country, our States, especially in regard to slavery, are independent, resting upon their own sovereign-ties, and subject only to international laws, which apply to independent States.

In the case of Williams, who was a slave In Granada, having run away, came to England, Lord’Stowell said: “The four judges all concur in-this — that hé was. a, slave in Granada, though a free man in England, and he would have continued a free man in all other parts of the world except Granada.”

Strader v. Graham (10 Howard, 82, and 18 Curtis, 305) has been cited. as having a direct bearing in the case before us. In that Case the. court say : “It was exclusively in the power of Kentucky, to determine, for itself, whether the employment of slaves in another State should or should, not make them free on their return.” Ho question was before the court in that case, except that of jurisdiction. And any opinion given on any other point is obiter dictum, and qf no authority. ' In.the conclusion of his opinion, the Chief Justice said: “In every view of the subject, therefore, this, court has no jurisdiction of the case, and the writ of error, must on that ground be dismissed.” • ■. -

' In the case of Spencer v. Negro Dennis, (8 Gill’s Rep., 321,) the court say ': “ Once free, and always free, is the maxim of Maryland law upon the subject. Freedom having'once vested, by no compact between the master and the the liberated slave, *561nor by any condition subsequent, attached by tbe master to. the gift of freedom, can a state of slavery ,be reproduced.” .

In Hunter v. Bulcher, (1 Leigh, 172:)

“By a statute of Maryland of 1796, all slaves brought into that State to reside are declared free; a Yirginian-born slave is carried by Lis master to Maryland; the master settled there, and keeps the slave there in bondage for twelve years, the statute in force all the time; then he brings him as a slave to Virginia, and sells him there. Adjudged, in an.action brought by the man against the purchaser,' that he is free.”

Judge Kerr, in the case, says:

“Agreeing, as I do, with the general view taken in this case by my brother Green, I would not add a word, but to mark, the exact extent to which I mean to go. The- law of Maryland having enacted that slaves carried into that State for sale or to reside shall be free, and the owner of the ¿slave here having, carried him-to Maryland, and voluntarily submitting himself and the slave-to that law, it governs the case.”

Tn every decision of a slave case prior to that of Dred Scott v. Emerson, the Supreme Court of Missouri considered it as turning upon the Constitution of Illinois, the ordinance of 1787, or tlie Missouri compromise act.of 1820. The court treated these acts as in force, and held itself bound to execute them, by declaring the slave to be free who had acquired a domicil under them with the consent of his master.

The late decision reversed this whole line of adjudication, and held that neither the. Constitution and laws of the States, nor acts of Congress in relation to Territories, could be judicially . noticed by the Supreme Court of Missouri. This is believed to be in conflict with the decisions of all the courts in the Southern States, with some exceptions of recent cases.

In Marie Louise v. Morat et al., (9 Louisiana Rep., 475,) it was held, where a slave having been taken to the kingdom of France - or. other country by the owner, where slavery is not tolerated, operates on the condition of the slave; -and produces immediate emancipation; and that, where a slave thus becomes free,-the master cannot reduce'him again to slavery.-,

Josephine v. Poultney, (Louisiana Annual Rep., 329,) “where' the owner removes with a slave into a State in whieh slavery is prohibited, with the intention of residing there? the slave will be thereby emancipated, and their subsequent return to the State of Louisiana cannot restore the'relation of master and slave.;” To the same import are the cases of Smith v. Smith, (13 Louisiana Rep., 441; Thomas v. Generis, Louisiana Rep., 483; Harry et al. v. Decker and Hopkins, Walker’s Mississippi Rep., 36.) It was held that-,- “ slaves within the ju-*562risdiction of the Northwestern Territory became freemen by virtue of the ordinance of 1787, and can. assert their claim to freedom in the courts, of Mississippi.” (Griffith v. Fanny, 1 Virginia Rep., 143.) It was decided that,a negro held in servitude in Ohio, under a deed executed in Virginia, is entitled to freedom by the Constitution of Ohio.

The case of Rhodes v. Bell (2 Howard, 307; 15 Curtis, 152) involved, the main principle in the case before us. A person residing pi Washington city purchased n slave in Alexandria, and brought him to Washington. Washington continued under the law of Maryland, Alexandria under the law of Yif-Í" inia. The act of Maryland of November, 1796, (2 Maxcy’s Laws, 351,) declared any one who shall bring any negro, mulatto, of other slave, into Maryland, such slavé should be free-. The above slave, by reason of his being brought into Washington ci,ty, was declared by this court to be free. This, , it appears to me, is a much stronger case against the slave than the facts in the case, of Scott..

In Bush v. White, (3 Monroe, 104,) the court say:

“ That the ordinance was paramount to the Territorial laws, and restrained the legislative power there as effectually as a Constitution in an organized State. It was 'a public act of the Legislature of the Union, and a part of the supreme law of the land; and, as such, this court is as much bound to take notice of it as it can be of any other law.”

lit the case of Rankin v. Lydia, before cited, Judge Mills, speaking for the Court of Appeals of Kentucky, says:

. “If, by the positive provision in our code, we can and must hold our slaves in the one case, and statutory provisions equally .positive'decide against that right in the other, and liberate the slave, he must,~ by an authority equally imperious, be declared free. ■ Every argument which supports the right of the master on -one side, "based upon the force of written law, must be equally conclusive in favor of the slave, when he can point out in the -statute -the clause which secures his freedom.”

And he. further said:

“Eree people of color in all the States are, it is believed,' quasi citizens, dr, at least, denizens. Although none of. the States may allow them the privilege of office and suffrage, yet all other civil and conventional rights .are secured to them; at least, such rights were evidently secured to them by the ordinance in question for the government of Indiana. If these rights are vested in that or any other portion of the United States, can it be compatible with the spirit of our ,^'onfederated ■Government to deny their existence in any other part? Is there less .comity existing between State and State; or State *563and Territory, than exists between the despotic Governments of Europe?”

These are the words of a learned and great judge, horn and educated in a slave State.

I now come to inquire, under the sixth and last head, “whether the decisions of the Supreme Court of Missouri, on the question before us, are binding on this court.”

"While we respect the learning and high intelligence of the State courts, and consider their decisions, with others, as authority, we follow them only where they give a construction to the. State statutes. On this head, I consider myself fortunate in being able to turn to the decision of this court, given by Mr. Justice. Grier, in Pease v. Peck, a case from the State of Michigan, (18 Howard, 589,) decided in December term, 1855. Speaking for the court, Judge Grier said:

“We entertain the'highest respect for that learned court, {the Supreme Court of Michigan,) and in any question affecting the construction of their own laws, where we entertain any doubt, would be glad to be relieved from doubt and responsibility by reposing on their decision., There are,, it is true, many dicta to be found in our decisions, averring that the courts of the United States are bound to follow the decisions of the State courts on the construction of their own laws. But. although this may be correct, yet a rather strong expression vof a general rule, it cannot be .received as the annunciation of á maxim of universal application; Accordingly, our reports furnish many cases of exceptions to it. In all cases where there is a settled construction of the laws of a State,'by its highest judicature established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it, without criticism or further inquiry. When the decisions of the State court are not consistent, we do not feel bound to follow the last, if it is contrary to our own convictions; and much more is this the case where, after a long course'of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent.”

These words, it appears to me, have a stronger application to the case before us than they had to the cause in which they were spoken as the opinion of this court;'and I regret that they do not seem to be as fresh in the recollection Of some of my brethren as in my own. For twenty-eight years, the decisions of; the Supreme Court of Missouri were consistent on all the points made in this case. But this consistent course was suddenly terminated, whether by some new light suddenly springing up, or an excited public opinion, or both, it is not *564necessary fo say. In the ease of Scott v. Emerson, in 1852, they were overturned and repudiated.

This, then,.is the very case in which seven-of my brethren declared they would not follow the last decision. On this authority I may well repose. I can desire no other or better basis.

But there is another ground which I deem conclusive, and which I will re-state. - .

The Supreme Court of Missouri refused to notice- the act of Congress or the Constitution of Illinois, under which Dred. Scott, his wife and children, claimed that they are entitled to freedom. ■ ' . .

This being rejected by the Missouri court, there was no case before it, or least it was a case with only one side. And this is the case which, in the opinion of this court, we are bound to follow. ‘The Missouri court disregards, the express provisions of an act of. Congress and the Constitution of a sovereign State, both of which laws for twenty-eight years it had not only regarded, but carried into effect.

If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford ? So far from this being a Missouri question, it is a.question, as it would seem, within the twenty-fifth section of the judiciary act, where a right to freedom being set up undér the act of Congress, and the decision being against such right, it may be brought for revision before this court,, from the Supreme Court of Missouri.

I think the judgment of the court below should be reyersed.

Mr. Justice CURTIS

dissenting.

I dissent from the opinion pronounced by the Chief Justice,” afid from the judgment which the majority of. the court'think it proper to render in this ■ case. The plaintiff alleged, in his declaration, that he was a citizen of the State of Missouri, and that the' defendant was a citizen of the State-of New York. ■ It "is not doubted that it was necessary to make each of these' allegations, to sustain the jurisdiction of the Circuit Court. The ■defendant denied, by a plea to the jurisdiction, either sufficient or;insufficient, that the- plaintiff was a citizen of the State of Missouri. The plaintiff' demurred to that plea.1 The Circuit' Court adjudged the plea insufficient, and the first questión for» our consideration is, whether the sufficiency of that plea is her - = fore this eourt-for judgment, upon this writ of error. The-part of the judicial power of the United States, conferred by • Congress. on the Circuit Courts, béing limited to certain de-. scribed cases and- controversies, the question whether a partic- • *565ular case is within the cognizance of a Circuit Court, may be raised by a plea, to the jurisdiction of such court. "When that question has been raised, the Circuit. Court must, in the first instance, pass upon and determine.it. Whether its determination be final, or subject to review by this appellate court, must depend upon the will of Congress; upon which body the Constitution has conferred the power, with certain restrictions, to establish inferior courts, to determine their jurisdiction, and to regulate the appellate power of this court.. The twenty- ■ second section of the judiciary act of 1789, which allows a -writ of error from final judgments of Circuit Courts, provides that .there shall be no reversal in this court, on such writ of error, for error in ruling any plea in abatement, other than a. plea to the jurisdiction of the court. Accordingly it has'been ■ held, from the origin of the court to the present day, that Circuit Courts have not been made by Congress the final judges of their own jurisdiction in civil cases. And that when a record comes here upon a writ of error or appeal, and, on its inspection, it appears to this court that the Circuit Court had not jurisdiction, its judgment must be reversed, and the cause remanded, to be dismissed for want of jurisdiction.

It is alleged by the defendant in error, in this case, that the plea to the jurisdiction was a sufficient plea; that it shows, on' inspection of its allegations, confessed by the. demurrer, that the plaintiff was not a citizen of the State of Missouri; that upon this record, it must appear to this court that the case was not within the judicial power of the United States, as" defined and granted by the Constitution, because it was not a . suit by a citizen of one State' against a citizen of another State.

To this it is answered, first, that the defendant, by pleading .over,' after the plea to the jurisdiction1 was adjudged insufficient, finally waivéd all benefit of that plea.

When that plea was adjudged insufficient, the defendant, was obliged to answer over. He held no alternative. He could not stop the further progress of the’ case in.'the Circuit Court by a writ of error, on which the 'sufficiency of his plea to the jurisdiction could be tried in this court, because the judgment on that plea was not final, and no writ of error would. lie. He was forced to plead to the merits. It cannot be true, then, that he waived the benefit of his plea to the jurisdiction by answering over. Waiver includes consent. Here, there was no consent. And if the benefit of the plea was finally lost, it must be, not by any waiver, but' because the laws ol the United States have not provided any mode of reviewing the decision of the Circuit Court on such a plea, when that decision is against the defendant. This is not the *566law. Whether the decision of the Circuit Court on a, plea to the jurisdiction be against the plaintiff, or against the defendant, the losing party may have any alleged error in law, in ■ ruling such a plea, examined in this court on a writ of error, when the matter in controversy exceeds the sum or value of two thousand dollars. If the decision be against the plaintiff, and his suit dismissed for want of jurisdiction, the judgment is technically final, and' he may at once sue out his writ of error. (Mollan v. Torrance, 9 Wheat., 537.) If the decision .be against the defendant, though he must answer over, and wait for a final judgment in the- cause, he may then have his writ of error, and upon it obtain the judgment of this court on any question of law apparent on the record, touching the jurisdiction. The fact that he pleaded over to the merits, under compulsion, can have no effect on his right to object to the jurisdiction. If this were not so, the condition of the two parties would be grossly unequal. Eor if a plea to the jurisdiction were ruled against the plaintiff, he could at once take his writ of error, and have the ruling reviewed here; while, if the same plea were ruled against the defendant, he must not only wait for a final judgment, but could in no event have the ruling of the Circuit Court upon the plea reviewed by this court. I know of no ground for saying that the laws of the United States have thus discriminated between'the parties to a suit in its courts.

It is further objected, that as the judgment of the Circuit Court was in favor of the defendant, and the writ of error in this cause was sued out by the plaintiff, the defendant is not in a condition to assign any error in the record, and therefore this court is precluded from considering the question whether the Circuit Court had jurisdiction.

• The practice.of this court does -not require a technical assignment of errors. (See the rule.) Upon a writ of error, the whole record is open for inspection; and if any error be found in it, the judgment is reversed. (Bank of U. S. v. Smith, 11 Wheat., 171.)

It is true, as a general rule, that the court will not allow a party to rely on anything as cause for reversing a judgment, which was for his advantage. In this, we follow an ancient rule of the common law. But so careful was that law of the preservation of the course of its courts, that it made an exception out of that general rule, and allowed a party to assign. for error that which was for his advantage, if it were a departure by the court itself from its settled course of procedure. The cases on this subject are collected in Bac. Ab., Error H. 4. And this court followed this practice in Capron v. Van Noor-*567den, (2 Cranch, 126,) where the plaintiff below procured the reversal :of a judgment for the' defendant, on the ground that the plaintiff’s allegations of citizenship had not shown jurisdiction.

But it .is not necessary to determine whether the defendant can be allowed to assign want of jurisdiction as an error in a judgment in his own favor. The true question is, not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the Circuit Court on the merits, when it appears on the record, by a plea to the jurisdiction, that it is a case to which the judicial pówer of the United Statés does not extend. The course of the court is, where no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even where it does not appear, affirmatively, that it does exist. (Pequignot v. The Pennsylvania R. R. Co., 16 How., 104.) It acts upon the principle that the judicial power of the United States must not be exerted in a ease to which it does not extend, even if both parties desire to have it ’exerted. (Cutler v. Rae, 7 How., 729.) I consider, therefore, that when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ ■'of error, the first duty of this court is, sua sponte, if not moved to it by either party, to examine the sufficiency of that plea; and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a ease to which the Constitution and laws of the United States have not extended that power.

I proceed, therefore, to examine the plea to the jurisdiction.

I do not perceive any sound reason why it is not to be judged by the rules of the common law applicable to such pleas. It is true, where the jurisdiction of the Circuit-Court depends on the citizenship of -the. parties, it is incumbent on the plaintiff to allege on the record the necessary citizenship; but .when he has aohe so, the defendant must interpose’a plea in abatement, the allegations whereof show that the court has not jurisdiction; and it is incumbent on him to prove the truth of his plea.

In Sheppard v. Graves, (14 How., 27,) the- rules on this subject are thus stated in the opinion of the court: “That although, jn the courts’ of the United States, it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, ■it must be taken, prima-fade, as existing; and it is incumbent *568ón bim wbo woi]ld impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes.; that the necessity for the allegation, and the burden of sustaining it by proof, both rest upon the party talcing the1 exception.” . These positions are sustained by the.'authorities there cited, as well as by Wickliffe v. Owings, (17 How., 47.)

■■ When, therefore, as in this case, the necessary averments as to ‘ citizenship are made on the'record, and jurisdiction-is assumed to exist, and the' defendant comes by a plea to' the jurisdiction .to displace that presumption, he occupies, in my judgment, precisely the position described in Bacon Ab., Abatement: “Abatement, in the general acceptation of the word, signifies a plea, put in .by the'defendant, in which he. shows cause.to the court why he should not be impleaded; or, if at all, not in the manner and form he/now is.”

This being, then, a plea in abatement, to the jurisdiction of the court, I must judge of its sufficiency by those rules of the common .law applicable to such pleas.

. The plea wás as follows: “And the -said John E. A. Sand.-'. ford,, in-his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action,- and each and every of them, (if any-suck have accrued to the said Dred Scotty) .accrued to the said Dred. Scott oUt of the jurisdiction of this coart, and exclusively within "the jurisdiction ©f the courts of the State of Missouri; for that, to wit, the said plaintiff, Dred Scott, is not a citizen'.of the.. State of Missouri, ás Alleged, -in his declaration, because he' is a negro of African descent; his ancestors were of pure African1 blood, and were brought-into this country and sold as negro slaves, and thie the said Sandford is ready to verify. -Wherefore, he . prays judgment whether this court can or.will take further cognizance of the action aforesaid.” -,

■ .The plaintiff demurred, and the judgment of the Circuit Court was, that, the plea was insufficient.

I cannot treat-this plea as a general traverse of the,citizenship 'alleged 'by the plaintiff. Indeed, if it were so treated, the plea was clearly bad, for it concludes with a verification* and not to. the .country, as a general traverse should. And though this defect in a plea in bar must be pointed out by a special demur-, rer, it is never necessary to demur specially ‘to a plea in ijbate* . ment; all matters, though of form only,'may be takenadvantagé of upon a general demurrer to such- a plea. (Chitty on Pl., 465.)

.. The truth is, that though not drawn-with the utmost tech** Bical accuracy, it is a special traverse of the pláintiff’s allegation. *569of "citizenship, and was a suitable and proper mode of traverse under, the' circumstances. By reference to Mr. Stephen’s description of the uses of such a traverse, contained in his excellent analysis of pleadings, (Steph. on Pl., 176,) it will be seen how precisely this plea meets one of his descriptions. No doubt the defendant might have traversed, by a common or general traverse, the plaintiff’s allegation that he was a citizen of the" State of Missouri, concluding to the country. The issue thus presented' beingjoined, would have involved matter of law, on which the jury must have passed, under the direction of the court. But by traversing the plaintiffs citizenship specially— that' is, averring those facts on which the defendant relied to show that in point of law the plaintiff was not a citizen, and basing the traverse on those facts as a deduction therefrom— opportunity was given to do, what was done; that is,'to present directly to the court, by a demurrer, the sufficiency of those facts to negative, in point of law, the plaintiff’s allegation of citizenship. This, then, being a special, and not a general" or common traverse, the rule is settled, that the facts thus set out in the plea, as the reason or ground of the traverse, must of themselves constitute, in point of law, a negative of the allegation thüs traversed. (Stephen on Pl., 183; Ch. on Pl., 620.) And upon a demurrer -to this plea, the question which arises is, whether the facts, that the plaintiff is a negro, of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves, may all be true, and yet the plaintiff be a citizen of the State of Missouri, within the meaning of the Constitution and laws of the United States, which confer on citizens of one State the right to sue citizens of another State in the Circuit Courts. Undoubtedly, if these facts, taken together, amount to an allegation that, at the time of action brought, the plaintiff was himself a slave, the plea is sufficient. It has been suggested that the plea, in legal effect, does so aver, because, if his .ancestors were sold as slaves, the presumption is they continued slaves; and if so, the presumption is, the plaintiff was born a slave; and if so, the presumption is, he continued to be a slave to the time of action brought.

.1 cannot think such presumptions can be resorted to, to help but defective averments in pleading; especially, in pleading in abatement, where the utmost certainty and precision are required. (Chitty on Pl., 457.) That the plaintiff himself was a,slaye at the time of action brought, is a substantive fact, having no; necessary connection with the fact that his parents were , sold as slaves. Éor they' might have been sold after he was born; or the plaintiff himself, if once a slave, might have *570became a freeman before action brought. To aver that bis ancestors were sold as slaves, is not equivalent, in point of law, to, an averment that be was a slave.- If it were,'be could not even confess and avoid tbe averment of tbe slavery of bis an- ' cestors, wbicb -would be monstrous; and if it be not equivalent in point of law, it cannot be treated as amounting thereto when demurred to; for a 'demurrer confesses only those substantive fa'ets wbicb are well pleaded, and not other distinct substantive facts wbicb might be inferred therefrom by a jury. To.treat an,averménttbat tbe plaintiff’sancestórs were Africans, brought to this country and sold as slaves, as amounting to an ave,r-•meht on the record that ‘.be was a slave, because it may lay some foundation for. presuming so,-is to bold that tbe facts actually alleged may be treated as intended as: evidence of another distinct fact not alleged:- But it is a cardinal rule of pleading, laid down in Dowman’s case, (9 Rep., 9 b,) and in even earlier authorities therein referred to, “that evidence shall never be pleaded, for it only tends to prove matter of fact; ánd therefore tbe matter of "fact shall be pleaded.” Or, as tbe rule is> sometimes stated, pleadings must not be argumentative. (Stephen on Pleading, 384, and authorities cited ,by .bjm.) In Com. Dig., Pleader E. 3, and Bac. Abridgement, Pleas I, 5, and Stephen on PL, many decisions under this rule are collected. . In trover, for . an indenture whereby A granted a. manor, it is no plea that A did not grant the manor, for it-does not. answer the declaration except by argument. (Yelv., 223.)

■So in trespass for taking-and carrying .away the plaintiff’s goods, the defendant pleaded that the plaintiff never had any goods.'. -The court said, “this is an infallible argument'that the defendant is not guilty, but it is.no plea.” (Dyer, a 43.)

- In. ejectment, the defendant pleaded a surrender-of a copy-hold by the hand of Posset, the steward. The plaintiff replied, -that Posset was not steward. The court held this no issue, for it traversed the surrender only argumentatively. (Cro. Elis., 260.)

In these cases, and many- others reported in the books, the inferences from the facts stated were irresistible. But the court held they did not, when, demurred to, amount to such inferable facts. " In the casó at bar, the inference that the de- . fendánt was a slave at the time of action brought, even if it. can -be made at-all, from the fact that his-parents were slaves, is certainly not a necessary inference. This case, therefore, is like that of Digby v. Alexander, (8 Bing., 116.) In that case, the defendant pleaded many facts strongly tending tó show that he ...was oñceCEarl of Stirling; hut as there'was no. positive alie-*571gation that be was so at tbe time of action brought, and as every fact averred might be true, and yet the defendant not have been Earl of Stirling at the time of action brought* the plea was held to be insufficient.

A lawful seizin of land is presumed to continue. But if, in an action of trespass quare clausum, the defendant were to plead that he was lawfully seized of the locus in quo, one month before the time of the alleged trespass, I should have no doubt it would be .a bad plea. (See Mollan v. Torrance, 9 Wheat., 537.) So if á plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same State as the defendant, were to allege that the plaintiff’s ancestors were citizens of that State, I think the plea could not be supported. My judgment would be, as it is in this case, that if the defendant meant to aver a particular substantive fact, as existing at the time' of action brought, he must do it directly and explicitly, and not by way of inference from certain other averments, which are quite consistent with the contrary hypothesis. I cannot, therefore, treat this plea as containing an averment that the plaintiff himself was a slave at-the time of action brought; and the inquiry recurs, whether the facts, that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizenship in the State of Missouri, within the meaning of the Constitution and laws of the United States.

, In Gassies v. Ballon, (6 Pet., 761,) the defendant was described on the record as a naturalized citizen of the United States, ■residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did theffireside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive th'e plaintiff of his right to sue citizens of States other than Missouri, in the-courts of the United States.

' So that, under the allegations contained in this plea, and admitted by the demurrer, the question is, whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be & citizen, this plaintiff has the right to the judgment of the court that he is so; for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors.

The first section of the second article of the Constitution *572uses the language,, “.a citizen of the United Státes at the time of the adoption, of the .Constitution.” ' One mode of approaching this question is, to inquire who were citizens of the United States at the time of the adoption of the Constitution,

• Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was, “ The United States of America,” This Government was. in existence-when the Constitution was framed ,and proposed for adoption, and was to be superseded by the new Government of the United States of America, organized under the Constitution; When, therefore, the Constitution speaks. of citizenship of the United States, existing at the time of the -adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the time of such adoption.

■ Without going into any question concerning the powers of the Confederation to govern the territory,of the United.States out of the limits of the States, and consequently to sustain the relation.of Government'and citizen.in respeet to the inhabitants of such territory, it may safely he said that the citizens of the several States were citizens of the United States under the Confederation.

■ That Government, was simply a confederacy, of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the Government of the Confederation, to act on any question, of citizenship, or to make any rules in respect thereto.- The whole matter wás left to stand upon the action of the several States, and to the natural conseqhence of such action, that the citizens of each State should he citizens of that Confederacy into which that State had entered, the style whereof, was* “The United States of America.”

To determine whether any free persons, descended from Africans held in slavery, were Citizens of-the United States under the Confederation, and consequently at the time of the adoption of the- Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution. .

Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire,- Massachusetts, New *573York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, hut such of them as had the other necessary qualifications pofesess-ed the franchise of electors, on'equal terms with other citizens.

The Supreme Court of North Carolina, in the case of the State v. Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina.

“According to the laws of this State,’-’ says Judge Gaston., in delivering the opinion of the court, “all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the. Roman laws between citizens and''free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color of complexion, were native-born British subjects— those, born out of his allegiance were aliens. Slavery did not exist in England, but it aid in the British colonies; Slaves were not in legal parlance persons, but property. The moment •the incapacity, the disqualification of slavery, was removed, they became ,persons, and were then either British subjects, qr not British subjects, according as they were or were not born within the allegiance of'the British King. TJpon the Revolution, no other ehange took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in- North Carolina became North Carolina freemen. Foreigners, until made members-of the' State, remained aliens. Slaves, manumitted here,-became freemen, and therefore, if born within . North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State! The Constitution' extended the elective franchise'to every, freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a ,matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution.”

- In the State v. Newcomb, (5 Iredell’s R., 253,) decided in 1844, the same court referred to this casé of the State v. Manuel, and said: “That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be. one of great importance in principle. It was considered with an anxiety, and care worthy of the .principle involved, and which give it a control*574ling influence and. authority on all questions of a. similar character.”

An argument from speculative premises, however well cho.sen, that the then t state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born pn that soil, and that they were not* by the Constitution of 1780 of that State, admitted to the condition of citizens, would be -received with surprise by the people of that State, who know their own political history. . It is true, beyond all controversy, that persons of eolqr, descended from African slaves, were by that Constitution made citizens •of the State; and such of them as have had the necessary qualifications, have held and exercised the elective franchise, as ' citizens, from that time to the present. (See Com. v. Aves, 18 Pick. R., 210.)

) The Constitution of 'New Hampshire conferred the elective franchise, upon “every inhabitant of the State having the necessary qualifications,” of which color or descent-was not one.

■ The Constitution of New‘York gave the right to voté to “every male ¡inhabitant, whó shall" have resided1,” &c.; making no. discrimination between free colored persons and others. (See Con. of N. Y., Art. 2, Rev. Stats. of N. Y., vol. 1, p. 126.)

That of New- Jersey, to “all inhabitants of. this colony, of full age, who' áre worth £50 proclamation money, clear estate.” ■

New York, by its Constitution of 1820, required colored persons to havé,some qualifications as prerequisites for voting, which white persons need not possess. And New- Jersey,' by. its present Constitution, restricts the right to vote to white male citizens! Rut these changes' can have no other effect upon the present inquiry, except to show, that before they were made, no such restrictions existed; and- colored in corn-mop with white persons, were- not only citizens of those States, • but entitled to the elective franchise on the samé qualifications as white persons, as they now are in New Hampshire and Massachusetts. I shall not enter into an examination of the' existing opinions.- of that period respecting the African race, < nor into any discussion concerning the meaning of those who asserted, in the JC>eclafatión of Independence, that all men.'are created equal; that they are endowed by their- Creator with ; certain inalienable rights; that among these are life; liberty, and the pursuit of happiness. ' My own opinion is,-that a cáíín comparison of these assertions of universal abstract truths,-iand of their own individual opinions and acts,’ would not leave *575' these men tinder any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a. necessary regard to circumstanbes, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true'in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the' Declaration of Independence asserts. But this is not the place to vindicate their memory. As I conceive, we should deal Here, not with such disputes, if there can Jbe a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States, and by the notorious practice under .them. And they show, in a manner which no •argument can obscure, that in some the original thirteen States, free colored persons, before and at the time of the formation of the Conptitution; were citizens of those States.

The fourth of the fundamental articles of the Confederation was as follows: “ The free inhabitants of each of these States," paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States.”

The fact that free persons of color were citizens .of some of the seveml States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such' persons the privileges and immunities of general citizenship, were not only known to those who framed and adopte'd those. articles, but the evidence is decisive, that the fourth article was intended to have that effect, and' that more restricted language, which would have'' excluded such persons, was deliberately and purposely rejected.

' On the 25th of June, 1-778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth _ article, by inserting after the \yord “free,” and before the word “inhabitants,” the word “white,” so that the privileges and immunities of General citizenship would be secured only to white persons. 'wo States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by, its terms of inclusion, “free inhabitants,” and the!strong implication from its terms of exclusion, “paupers, vagabonds, and-fugitives from justice,’.’ Who alone were excepted, it is-clear, that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, Were entitled to the *576privileges and immunities of general citizenship of the United States. .

Did the Constitution-of the United States deprive them' or their descendants of citizenship ?

That Constitution was .ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of “the people of the United States,” by whom the Constitution was ordained and established, but in at least five of the States they had the-power to act, and doubtless did act, by their suffrages, -upon the question of its adoption. It would be strange, if we ^were to find in that instrument anything which deprived of their citizenship any part of the people of the United States Who Were among those by whom it was established. •

I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons bom on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that,' .under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United "States.

I will proceed to state' the grounds of that opinion.

.The first section of the second article of the Constitution •uses the-language, “a naturahbom citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the ‘Constitution' was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the. received general doctrine has been, in conformity "with the common law, that free persons bom .within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignly by the several States, all such persons ceased to be subjects, and became citizens of the several.States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, *577and thus to continue British subjects. (McIlvain v. Coxe’s Lessee, 4 Cranch, 209; Inglis v. Sailors’ Snug Harbor, 3 Peters, p. 99; Shanks v. Dupont, Ibid, p. 242.)

The Constitution having recognised the rule that' persons horn within the several States .are citizens of the United States, one of four things must be true:

First. That the Constitution itself has described what 'native-born persons shall or shall • not be citizens of the United States; or,

Second. That it has empowered Congress to do so; or,

Third. That all free persons, born within the several States, are citizens of the United States; or,

Fourth. That it is left to each State to determine what free persons, rbom within its limits, shall be citizens of such State, and thereby be citizens of the United States.

. If there be such a thing as citizenship of the United States acquired by birth within the States, which the Constitution expressly recognises, and no one denies, then these four alternatives embrace the entire subject, and it only remains to’ select that one which is true.

That the Constitution itself has defined citizenship of the United States by declaring what persons, born within the several States, shall or shall not be citizens of the United States,, will not be pretended. It contains no such declaration. We may dismiss the first alternative, as without doubt unfounded.

Has it empowered Congress to enact what free persons, born within the several States, shali of shall not be citizens of the United States'?

Before examining the various provisions of the Constitution which may relate to this question, it is important to consider for a moment the substantial nature, of this inquiry. It is, in effect, whether the • Constitution has empowered Congress to create privilegéd classes within the States; who alone can be entitled to the franchises and powers of citizenship of the United States. If it be admitted that the Constitution has enabled Congress to declare what free persons, bom within the several States, shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power.. If this subject is' within1 the control of Congress, it' must depend wholly on .its discretion. Eor, certainly, no limits of that discretion can be found in the Constitution; which is wholly silent concerning it; and the necessary consequence is, that the Federal Government may select classes of- persons within the several States who alone can be entitled to the political privileges of citizenship of the United'States. If this power exists, what persons born within the States may be President or Vice Pres? *5783dent of the United States, or members of either House of Congress, or bold- any office or enjoy any privilege -whereof citizenship of the United States is a necessary qualification, must depend solely on the will of Congress. By virtue of it, though Congress can grant no title of nobility, they may create an oligarchy, in whose hands would be concentrated the entire power of the Federal Government.

It is a substantive power, distinct in its nature from all others; capable of affecting not only the relations of the States to the General Government, but of controlling the political condition of the people of the United States., Certainly we ought to find this power granted by the Constitution, at least by some necessary inference, before we can say it does not remain to the States or the people. I proceed therefore to examine all the provisions of the Constitution which may have some bearing on this subject.

Among the powers expressly granted to Congress is. “the power'to establish a uniform rule of naturalization.” It is not doubted that this is a power to prescribe a-rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this, would do violence to the meaning of the term naturalization, fixed in the common-law, (Co. Lit., 8 a, 129 a; 2 Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who concurred in framing and adopting the Constitution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen, that it was (employed in the Declaration- of Independence. It was in this •sense it was expounded in the Federalist, (No. 42,) has been understood by Congress, by the Judiciary, (2 Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by commentators on the Constitution. (3 Story’s Com. on Con., 1—3; 1 Rawle on Con., 84—88; 1 Tucker’s Bl. Com. App., 255—259.)

It appears, then, that the only power expressly granted to 'Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.

"Whether there be anything in the Constitution from which ¡a broader power may be implied, will best be seen when we •some to examine the two other alternatives; which are, whether all free persons, born on the soil of the several States, or only such of them as may be citizens of each State, respectively, are thereby citizens of the United States.. The last of these alternatives, in my judgment, contains the truth. .

'' Undoubtedly, as has already been said, it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights -of citizenship. But it must be remembered, that though *579the Constitution was to form a Government, ana under it the United States of America were to be one united sovereign nation, to which loyalty and obedience on the one side, and from which- protection and privileges on the other, would be due, yet- the several sovereign States, whose people were then citizens, - were not only to continue in existence, but with powers unimpaired, except so far as they were granted by the people to the National Government.

Among the powers unquestionably possessed by the several States, was that of determining what persons should and whgt persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may,1 well enough for the purpose nowin view, be divided into three parts. ,Mrst: The power to remove the .disabilities of alienage, either by special acts in reference to each individual case, or by establishing a rule of naturalization to be administered and applied by the courts. Second: Determining what persons,should enjoy the privileges of citizenship, in respect to the internal affairs of the several States. Third! What native-born • persons should be citizens of the United States. '' _ .

■. The first-named power, that of establishing a uniform rulé of naturalization, was granted; and here the grant, according to its terms, stopped. Construing a, Constitution containing . only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization, must be admitted to be .-exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But wheh this particular subject of citizenship was under consideration, and, in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from' the residue, and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left, to the States and to the people". And this presumption is,' in my opinion, converted into a certainty, by an examination of all such other clauses of the Constitution as touch this subject. '

I will examine each which can have any possible bearing on this question.

The first clause of the second section of the third article of the Constitution is, “The judicial power shall extend to controversies between a State ,and citizens of another State; between citizens of different States; between citizens of the same' State, claiming lands under grants of different States; and between States, or the citizens thereof, and foreign States, *580citizens, or subjects.” . I do not think this clause has any considerable bearing upon the particular inquiry now under consideration. Its purpose was, to extend the judicial power to -those controversies into which local feelings or interests might so enter as to disturb the course of Justice, or give rise to suspicions that they had done so, and thus possibly give occasion to jealousy or ill will between different States, or a particular State and a foreign nation.. At the same time, 1 would remark, in passing, that it has never been held, I do not know that it has ever been supposed, that any citizen of a State could bring himself under this clause and the eleventh and twelfth sections of the judiciary act of 1789, passed in pursuance of it, who was not a citizen of the United States. But I have referred to the clause, only because it is one of the places where citizenship is mentioned by the Constitution. Whether it is entitled to any weight in this inquiry or not, it refers only to citizenship of the several States; it recognises that;' but it does not recognise citizenship of the United States as something distinct, therefrom.

As has been said, the purpose of this clause did not necessarily connect.it with citizenship of the United States, evén if that were something distinct from citizenship of the several States, in the contemplation of the Constitution. This cannot be said of other clauses of the Constitution, which I now proceed to refer to.

■ “The citizens of each State shall be entitled to all the privileges, and immunities of citizens of the several States.” Nowhere else in the Constitution, is-there anything concerning a.general citizenship; but here, privileges and immunities to be enjoyed throughout 'the United States, under and by force of the national compact, are granted and secured. In selecting those, who.- are to enjoy these national rights of citizenship, howare they described? As citizens of each State. It is to them these national rights' are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws. of. the. United States. They are to be citizens of the several States, and, as such, the privileges and immunities of general.citizenship,, derived from and guarantied by the Constitution, áre to be enjoyed by them. It would seem thát if it had been intended to constitute a class of native-born persons within the States,, who should derive their citizenship of the United States from the action of the Federal Government; this, was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States.

*581And if it was intended to secure these rights only to citizens of the United States, how has the Constitution here described such persons ? Simply as citizens of1 each State.

But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is One of the chiefest attributes of citizenship under the American' Constitutions; and the just and constitutional possession of this right is decisive evidence of citizenship. The provisions madé by a Constitution on this subject-must therefore -be looked to 'as bearing directly on the question what persons are citizens under that Constitution ; and as being decisive, to this extent, that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Govern- r ment of the United States, must be deemed citizens of the' United States. '

Here, again, the consideration presses itself upon us, that if there was designed to be a particular class of native-born persons within the States, deriving their citizenship from the' Constitution and laws of the United States, they should at least have been referred to as those by whom the President1 and House of Representatives were to be elected, and to whom they should be responsible. '

' Instead of that, we again find this subject referred to' the laws of the several States. The electors of President are to be appointed in such manner as the Legislature of each State, may direct, ‘ and the qualifications of electors of members of the House of Representatives shall be the same as for electors of the most numerous branch of the State Legislature.

„ Laying aside, then, the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons bóm within the several State?, we. find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend' on the place ’of birth; that it has not attempted practically to apply this. ■ principle by designating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question, what free persons, born within the several States, are citizens of the United States, the only answer we can receive from any of its express provisions is, the citizens of the several States are to' enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends bn their citizenship in the several States. Add to this, that the Constitution was ordained by the citizens of the several States; that they were “the people of the United States,” for whom *582' and whose posterity the Government was declared in the preamble of the Constitution to be made; that each of them was “a citizen of the United States at the time of the adoption of the Constitution,” within the meaning of those words in that instrument; that by them the Government was to be and was in fact organized; and that no power is conferred on the Government of the '-Union to discriminate between them, or to disfranchise any of them — the necessary conclusion is, that those persons born within the several States, who, by force of their respective Constitutions and laws, are citizens of - the State, are thereby citizens of the United States.

It may be proper here to notice some supposed objections to this view of the subject.

It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown thatfin five of the thirteen original States, colored persons then possessed the elective franchise, and were among fihfiffA hvwTlíYm ■fiVíA f'írmafít.n+.írm w«.a nWlsnnorl q.tw-1 N exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. - AncJ/ás free colored persons were then citizens of at least five States^ and so in every sense part ,of the people of the United States, .they- were among those for whom and whose posterity the Constitution was ordained and' established/)»

Again, it has been objected, that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens.

The answer is obvious. The Constitution has left to the States the determination what persons, born within their respective limits,- shall acquire by birth citizenship of the United States; it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress.

It has been further objected, that if free colored persons, born within a particular State, and made citizens of that State by its Constitution and laws, are thereby made citizens , of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States; and if so, then colored persons eould vote, and be *583eligible to not only Federal offices, but offices even in those States whose Constitutions and laws disqualify colored persons from voting or being elected to office.

But this position rests upon an assumption which I deem untenable. Its basis is, that no one can be deemed a citizen of the TJnited States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is not true, under the Constitution of the TJnited States, seems to me clear.

A naturalized citizen, cannot be President of the TJnited States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet, as" soon as naturalized, he is certainly a citizen of the TJnited States. Nor is any inhabitant of the District of Columbia, or of either of the Territories,,eligible to the office of Senator or Representative in Congress, though they may be citizens of the TJnited States. So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is, that citizenship, under the Constitution of the TJnited States,' is not dependent on the possession of any particular political or even of all civil rights; and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided, is a question to be determined 'by each State, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But<whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the TJnited States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but rot to such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain.citizens of a State, by reasofn of the operation of causes other than mere citizenship, are not conferred. Thus, if the laws of a State require, in addition, to *584citizenship 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 privileges, 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, under its Constitution and laws. Tt rests with the States .themselves so to frame their Constitutions and laws as. not to attach a particular 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 manifestly copied from the fourth of the Articles of Confederation, with only slight changes of phrase-' ology, 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 adopting 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 used, were "synonymous-with citizens. When the' Articles of Confederation were adopted, we were in the midst of the war of the Revolution, and there were Very few persons then embraced in the words “free'inhabitants,” who were not born on our soil. It was not a time when many, save the *585children of the soil, were willing to embark their fortunes in onr cause; and though there might he an inaccuracy in the uses of words to call free inhabitants citizens, it was then a technical rather than a 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 Commonwealth, employed to designate those whom wre should now denominate citizens. The- substance and purpose of the article prove it was in this sense it used these words: it secures to. thé 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 privileges 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 Stafes; and the just conclusion is, that though the Constitution cured an inaccuracy of language, it left the substance of this article in the Rational Constitution the same as it was in the Articles of Confederation.

The history of this fourth' article, respecting the attempt to exclude free pérsons 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 fourth 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 fio change in' its language calculated to exclude free colored persons 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 colored persons may he citizens of the United- States, it depends only on the will of a master whether he will emancipate his slave, and thereby make him a citizen. Rot so. The 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 political status of all its native-born inhabitants depends. Under the Constitution of the United States, each State has retained this power of determining .the political status of its na*586tive-born inhabitants, and no exception 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 native-born 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 not born on their soil, the Constitution "of the United States-does not recognise such citizens. As has already been said, it recognises the great principle of public law, that allegiance and^citizenship spring , from the place of birth.. It leaves to the States the application of that principle to individual eases'. It secured to the citizens of each State the privileges'and immunities of citizens in every other State. But it does not allow to the States the power to make aliens citizens, or-permit one State to take persons born on the soil of another State, and, contrary to the laws and policy of the State where'they were born, make them its citizens, and so citizens of the United States. hTo such deviation from the great rule ..of public law was contemplated by the Constitution ; and when any such attempt shall be actually made, it is to be met by applying to it those rules of law and those principles of good faith which will be sufficient to decide it, and not, in my judgment, by denying that all the free, native-born inhabitants of a State, who are its citizens under its Con-, stitution and laws, are also citizens of the United States.

It has sometimes been urged that colored persons are shown not to be citizens of the United States" by the fact that the naturalization laws apply only to white persons. But whether a person born in the United States be or be not a citizen, cannot depend on laws which refer only to aliens, and do not affect the status of persons born in the United States. The utmost effect which can be attributed to them is; to- show that-Congress" has not deemed it expedient generally to apply the rule to colored aliens. That, they might do so, if- thought fit, is clear. The Constitution has not excluded them. And since. that has conferred the power on Congress to naturalize colored aliens, it certainly shows color is not a necessary qualification for citizenship under the Constitution of the United States. It may be added, that the power to make colored persons citizens of the United States, under the Constitution, has been actually exercised in repeated and important instances. (See the Treaties with the Choctaws, of September 27, 1830, art. 14; with, the Cherokees, of May. 23, 1836, art. 12; Treaty of Guadalupe Hidalgo, February 2, 1848, art. 8.)

I do not deem it necessary to review at length the legisla*587tion of Congress having more or less bearing on the citizén-sbip of colored persons. It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of'the Government, that no such persons are citizens of the United States. Undoubtedly they have been debarred from the exercise of particular rights or privileges extended to white persons, hut, I.believe, always in terms which, by implication, admit they may be citizens. Thus the. act of May 17, 1792, for the organization of the militia, directs the enrolment of “every free, able-bodied, white-male citizen.” An assumption that none hut white persons are citzens, would he as inconsistent with the just import of this language, as that all citizens are able-bodied, or males. •

So the act of Eebruary 28, 1803, (2 Stat. at Large, 205,) to prevent the importation of certain persons into States, when by the laws thereof their admission is prohibited, in its first section forbids all masters of vessels to import or bring “ any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States,” &e. .

The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen, certainly imply there may be persons or color, natives of the United States, who are not citizens of the United States. This implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizenship of persons of color in others of the States, nor with their being citizens of the United States.

Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to this subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification of citizenship. It would be strange, if laws were found on our statute book to that effect, when, by solemn treaties, large bodies'of Mexican and ÍTorth American Indians as well as free colored inhabitants of Louisiana have been admitted to citizenship of the United States.

In the legislative debates which preceded the admission of' the State of Missouri into the Union, this question was agitated. .Its result is found in the resolution of Congress, of March 5,1821, for the admission of that State into the Union. The . Constitution of Missouri, under which that State applied for admission into the Union, provided, that it should be tbe duty . *588of the Legislature “ to pass laws to prevent free negroes and mulattoos from coming to land settling in the State, under any pretext whatever.” One ground of objection to the admission of the State under this Constitution was, that it would require the Legislature to exclude free persons of color, who would be entitled, under the second section of the fourth article of the Constitution, not only to come within the State, hut to enjoy there the privileges and immunities of citizens. The resolution of Congress admitting the State was upon the fundamental condition, “that the Constitution of Missouri shall never .be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen of either of the States of this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States.” It is true, that neither this legislative declaration, nor anything in the Constitution or laws of Missouri, could confer or take away any privilege or immunity granted by the Constitution. But it is also true, that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might he entitled to the privileges and immunities of citizens in all the States.

The conclusions at which I have arrived on this part of the case are: 1

' First. That the free native-born citizens of each State are citizens of the United States.

Second. That as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States.

Third. That every such citizen, residing in any State, has the right to sue and is liable to be sued in the Federal courts, as' a citizen of that State in which he resides.

Fourth.' That as the plea to the jurisdiction in this case shows no facts, except that the plaintiff was of African descent, and his ancestors were sold as slaves, and as these facts are nót in- ■ consistent with his citizenship of the United States, and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judgmeht of the Circuit Court overruling it was correct,

. 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 tneir assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri compre» *589mise act, and the grounds- and conclusions announced in their opinion.

Having first decided that they were hound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Coui’t.had not jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, in my opin-ión,' such an exertion of judicial power transcends the limits of the authority of the court, as described by its repeated decisions, and, as I understand, acknowledged in this opinion of the majority of the court.

In the course of that opinion, it became necessary to comment on the ease of Legrand v. Darnall, (reported in 2 Peters’s R., 664.) In that case, a bill was filed, by one alleged to be a citizen of Maryland, against one alleged to be a citizen of Pennsylvania. .The bill stated that the defendant was the son of a white man by one of his slaves; and that the defendant’s father devised to him certain lands, the title .to which was put in controversy by the bill. These facts were admitted in the answer, and upon these and other facts the court made its decree, founded on the principle that a devise of land by a master to a . slave, was by implication also a bequest of his freedom. The .facts that the defendant was of African descent, and was born a slave,-were not only before the court, but entered into the entire substance of its inquiries. The opinion of the majority Of my brethren in this case disposes of the case of Legrand v.. Darnall, by saying, among other .things, that as the fact that the defendant was born a slave only came before this court on the bill and answer, it was then too late to raise the question of the personal disability of the party, and therefore that decision is altogether inapplicable in this ease.

In this I concur. Since the decision of this court in Livingston v. Story, (11 Pet., 351,) the law has been settled, that when the declaration or bill contains the neeessary averments of citizenship,. this court cannot look at the record, to see whether those averments are true, except so far as they are put in issue by a plea to the jurisdiction. In that case, the defendant-de-, nied by his answer that Mr. Livingston was a citizen of Hew York, as he had alleged in the bill. Both parties weñt into proofs. The court refused to examine1 those proofs, with reference to the .personal disability of. the plaintiff. This is the *590settled law of the court, affirmed so lately as Shepherd v. Graves, (14 How., 27,) and Wickliff v. Owings, (17 How., 51.) (See also De Wolf v. Rabaud, 1 Pet., 476.) But I do- not understand this to be a rule which the court may depart from at its .pleasure. If it be a rule, it is as binding on the court'as on the suitors. If it removes from the latter the power to take any objection to the personal disability of a party alleged by the record to be competent, which is not shown by a plea to the jurisdiction, it is because the court are forbidden by law.to consider and decide on objections so taken. I do not consider it to be within the scope of the judicial power of the majority of the court to pass upon any question respecting the plaintiff’s citizenship in Missouri, save that raised by the plea to the juris■diction; and I do not hold any opinion of this court, or any court, binding, when expressed on a question not legitimately before it. (Carroll v. Carroll, 16 How., 275.) The judgment of this court is, that the case is to be dismissed for want of jurisdiction, because the plaintiff was not a citizen of Missouri, as he alleged in his declaration. Into that judgment, according to the settled course of this court, nothing appearing after a plea to the merits can enter. A great question of constitutional law, deeply affecting the peace and welfare of the country, is not, in my opinion, a fit subject to be thus reached.

But as, in my opinion, the Circuit Court had jurisdiction, I am obliged, to consider the question whether its judgment on the merits of the case.should stand or be reversed.

The residence of the plaintiff in the State of Illinois, and the residence of himself and his wife in the territory acquired from Erance lying north of latitude thirty-six degrees thirty minutes, and north of the State of Missouri, are each relied on by the plaintiff in error. As the residence in the terrirory affects the plaintiff’s, wife and" children as well as himself, I must in quire-what was its effect.

The general question may be stated to be, whether the plaintiff’s status, as a slave, was so changed by his reside ce within that territory, that he was not a slave in the State of Missouri,, at the time this action was brought.

In such cases, two inquiries arise, which maybe confounded, but should be kept distinct.

The first is, what was the law of the Territory into which the master find slave went, respecting the relation between them?

The second is, whether the State of Missouri recognises and allows the effect of that law of the Territory, 'on the status of the slave, on his return within its jurisdiction.

As to the first of these questions, the will of States and na*591tions, by whose municipal law slavery .is not recognised, has been manifested in three different ways. ,

One is, absolutely to dissolve the relation, and terminate the rights of the master existing under the law of the country whence the parties came. This is said by Lord Stowell, in the cáse of the slave Grace, (2 Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the cpse of Maria Louise v. Marot, (9 Louis. R., 473,) to be the law pf France; and it has been the -law of several States of this Union, in respect to slaves in- . troduced under certain conditions. (Wilson v. Isabel, 5 Call’s R., 430; Hunter v. Hulcher, 1 Leigh, 172; Stewart v. Oaks, 5 Har. and John., 107.)

The second is, where, the municipal law of a country not recognising slavery, it is the will’of the State.to refuse the master all aid to' exercise any control over his slave; and if he attempt to do so, jn a manner justifiable only by that relation, to prevent the exercise of that control. But no law exists, designed to operate directly on -the relation of master and slave, and put an end to that relation. This'is said by Lord Stowell, in the case above mentioned, to be the law of England, and by Mr. Chief Justice Shaw, in the ease of the Commonwealth v. Aves, (18 Pick., 193,) to be the law of Massachusetts.

The third is, to make a distinction between the ease of a master and his slave only temporarily in the country, animo non manendi, and those who are there to' reside for' permanent or indefinite purposes. . This is said by Mr. Wheaton to be the law of Prussia, and was formerly the statute law of several States of our Union. It is necessary in this case to keep in' view-this .distinction between those countries whose laws, are designed to act' directly on the status of a slave, and make him a freeman, and those where his master can obtain no aid from the laws to enforce his rights. , ,

It is to the last case only that the authorities, out of Missouri,. ■ yelied .on by defendant, apply, when the residence in the non-slaveholding Territory was permanent. In the Commonwealth v. Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: “From the principle above stated, on which' a slave brought here becomes free, to wit: that he hecomes,entifled to the protection of our laws, it would seem to follow, as a necessary conclusion, that if the slave waives' the protection of those íáws, and returns to the State- where he is held as a slave, his condition is hot changed.” It- was Upon this ground, as is apparent from his whole reasoning, that Sir "William Scott "rests his opinion in the case of the slave Grace. To use one of his -expressions, .the effect' of the law of England was, to put the liberty of the slave into a . parenthesis. If there had beén an *592act of Parliament declaring that a slave coming to England with his master should thereby be deemed no longer to be a slave, it is easy to see that the learned judge 'could not have arrived at the same conclusion. This distinction is very clearly stated and shown by President Tucker, in his opinion in the case of Betty v. Horton, (5 Leigh’s Virginia R., 615.) (See also Hunter v. Fletcher, 1 Leigh’s Va. R., 172; Maria Louise v. Marot, 9 Louisiana R.; Smith v. Smith, 13 Ib., 441; Thomas v. Genevieve, 16 Ib., 483; Rankin v. Lydia, 2 A. K. Marshall, 467; Davies v. Tingle, 8 B. Munroe, 539; Griffeth v. Fanny, Gilm. Va. R., 143; Lumford v. Coquillon, 14 Martin’s La. R., 405; Josephine v. Poultney, 1 Louis. Ann. R., 329.)

But if the acts of Congress on this subject are valid, the law of the Territory of Wisconsin, - within whose limits the residence of the plaintiff and his wife, and their marriage and the birth of one. or both of their children, took place,-falls under the first category, and is a law operating directly on the status of the slave. By the eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,) it was enacted that, within this Territory, “slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof-the' parties shall have been duly convicted; shall be, and is hereby, forever prohibited: Provided, always, that any person escaping ipto the same, from whom labor or service is lawfully claimed in- any State or Territory of the United States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his . or her labor or service, as aforesaid.”

By the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the same month and year of the removal of the plaintiff to Port Snélling, this part of the territory ceded by Prance, where Fort Snélling is, together with- so much of the territory of the United States east of the Mississippi as now constitutes the State of Wisconsin,-was brought, finder a Territorial Government, under the name of the .Territory of Wisconsin. By the eighteenth- section of this -act, it was enacted, “ That the inhabitants of this Territory shall be entitled, to and enjoy all and singular the rights, privileges, and advantages, granted and secured to the people of the Territoiy of the United States northwest of the river Ohio, by the articles of compact contained in the ordinance for the government of said Territory* passed on the 13th day of July, 1787; and shall be subject to. all the restrictions and prohibitions in. said articles of compact, imposed npon the people of-the said- Territory.” ^ The sixth article of that compact is, “ there shall be neither, slavery-nor involuntary servitude in the said Territory, otherwise than in *593the punishment of crimes, whereof the party shall have been duly convicted. Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive maybe lawfully reclaimed, and conveyed to the person claiming his or her labor or service,- as aforesaid.” By other provisions of this act establishing the Territory 'of Wisconsin, the laws of the United. States, and the then'existing laws 6f the State of Michigan, are extended over the Territory; the latter being subject to alteration and repeal by the legislative power of the Territory created by the act.

■ E’ürt Snelling was within the Territory of "Wisconsin, and these laws were extended oyer it. The Indian title to 'that site for a military post had been acquired from the Sioux nation as early as September 28,1805, (Am. State Papers, Indian Affairs, vol. 1, p. 744,) and until the erection of the Territorial Government, the persons at that post were governed by the rules and articles of war, .and= such laws of the United States,: including the eighth section of the act of March 6, 1820, prohibiting-slavery, .as were applicable to .their ^condition; but after the erection of the Territory, and the extension of the laws of the- United States, and the laws of Michigan over the whole of the Territory, including' this military post, the persons residing there were under the'dominion of those laws in all particulars to which the rules and articles of war did not apply. . '

It thus appears that, by these acts of Congress, not only was a general system of municipal law borrowed from the State of Michigañj which did not tolerate slavery, but.it was positively enacted that slavery and involuntary servitude, with only one exception,'specifically described, should not exist there. It is .not simply that slavery is n,ot recognised and cannot be aided by th¡e municipal law. It is recognised for the purpose of being absolutely prohibited, and declared incapable of existing-within the Territory, save in the instance of'a fugitive slave.-- • ■ '

• It would' not be easy for the Legislature .to employ more-explicit language to signify its will' that the status of slavery-should not exist within the Territory, than the words found in ■ the act of 1820, and in the ordinance of 1787; and if áñy'doubt could .exist concerning their application , to cases, of masters coming into the Territory, with their slaves to reside, that doubt must yield to the inference required by the. words of exception* That exception" is,' of cases of. fugitive slaves. An exception from a prohibition marks the extent of.the prohibition; for it would be absurd, as well-as useless, to except, from a prohibit ■ *594tion a case not contained within it. (9 Wheat., 200.) I must conclude, therefore, that it was the will of Congress that the state of involuntary servitude of a slave, coming into the Territory with his master, should cease to exist. The Supreme Court of Missouri so held in Rachel v. Walker, (4 Misso. R., 350,) which was the case of a military officer going into the Territory with two slaves..

.But it is a distinct question, whether the law of Missouri recognised and allowed effect to the change wrought in the status of the plaintiff, by force of' the laws of the Territory of Wisconsin.

I say the law of Missouri, because a judicial tribunal, in one-. State or nation, can recognise personal rights acquired by force of the law of any other State or nation, only so far as it is the law of the former State that those rights should be recognised. But, in the absence of positive law to the contrary, the will Of every civilized State must be presumed to be to allow such effect to foreign laws as is in accordance with the settled rules of international law. And legal tribunals are bound to act on this presumption. It may be assumed that the motive of the State in allowing such operation to foreign laws is what hqs been termed comity. But, as has justly been said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the State, not ■of the court. The judges have nothing to do with the motive ■of the State. Their duty is simply to ascertain and give effect to its will. And when it is found by them that its will tó de-; part from a rule of international law has hot been mainfested by the State, they are bound to assume that its will is to give effect to it. Undoubtedly, every sovereign State may refuse ■to recognise a change, wrought by the law of a foreign State, on the status of a person, while within such foreign State, even 'in eases where the rules 'of international law require that recognition. Its will to refuse such-recognition may be manifested by what we term statute law, or by the customary law of the. State. It is within the province of its judicial tribunals to inquire and adjudge whether it appears, from the statute or cus-tomary law of the State, to be the will of the State to refuse to recognise such changes of status by force of foreign lay, as the •rules of the law of nations require to be recognised. But, in my-opinion, it is not within the province of any judicial tribunal to refuse such recognition from any political considerations, or any view, it may take of the exterior political relations be-. ' tween the State and one or more foreign States, or any im- . pressions it may have that a'change of foreign opinion- and action on the subject of slavery may afford a reason , why the. State -should change its own action. ‘ To understand and- give *595just effect to such.- considerations, and to, cliange the action of . the State in consequence of them, are functions of diplomatists and legislators, not of judges.

The inquiry to he made on this part of the case is, therefore,whether the State of Missouri has, by .its statute, or its customary law,.manifested it's will to displace any rule of international law, applicable to a change of the status of a slave, by foreign law.

I have not heard it suggested that there was any statute of the State of Missouri bearing oh this question. The customary law- of Missouri is the common .law, introduced by. statute in 1816. (1 Ter. Laws, 436.) And the common law, as Blackstone says, (4 Com., 67,) adopts, in its full extent, the law of nations, and holds it to be a part of the law of .the land.

I know of no sufficient warrant for declaring that any rule of international law, concerning the recognition, in that State, of a change of status, wrought by an extra-territorial law, has been displaced or varied by the will of the State of Missouri.

I proceed then to inquire what the rules of international law prescribe concerning the change of status of the plaintiff wrought by the law of the Territory of "Wisconsin.

It is generally agreed by writers upon international law,, and the rule has been judicially applied in a great number of cases, that wherever any question may arise concerning the status of a person, it must be determined according to that law which has next previously rightfully operated on and fixed-that status. And, further, that the laws of a country do not rightfully operate up'on and fix the status of persons who are within its limits in Hiñere, or who are abiding there for definite temporary pur-' poses, as for health, curiosity, or occasional business; that these laws, known to writers on public and private international law as personal statutes, operate only on the inhabitants of the country. Not that it is or can be denied that each independent nation may, if it thinks fit, apply them to all persons within their limits. But when this is' done, not in conformity with .the. principles of international law, other States are not understoód to be willing to' recqgnise or allow- effect to such .applications of. personal statutes.

It becomes necessary, therefore, to inquire whether the operation of the laws of the Territory of Wisconsin upon the status o'f the plaintiff was or was not such an operation as these principles of international law require Other States to recognise a^d allow effect to.

. And this renders it needful to attend to the particular, facts and circumstances of this case. '

*596■It appears that, this ease came on for trial before the Circuit Court and a jury, upon an issue, in substance, whether the plaintiff,1 together with his wife and children, were the slaves of the defendant.

The court instructed the jury that, “upon 1,he ■ facts in. this case, the law is with the defendant.” This withdrew from the jury the consideration ,and decision of- every matter of fact. The. evidence án the case consisted of written admissions, signed by the counsel of the parties. If the case had been submitted .to-the judgment of the court, upon an agreed statement of facts, entered of record, in place of a special verdict, it would have been necessary for the court below, and for this court, to pronounce its judgment solely on those facts, thus agreed,, without inferring any other facts therefrom. 'By the rules of the common law applicable to such a case, and by force of the seventh article of the amendments of theiConstitution, this court is precluded from finding any fáct not agreed to by the patties on the record. Ho submission tó the court on a statement of facts was made. It was a trial by jury, in which certain admissions,' made by the parties, were the evidence. The jury were1 not only competent, but were ; bound to draw from that . evidence every inference which, in their judgment, exercised according to the rules of jaw, it would warrant. The Circuit Court took from the jury the power to draw any inferences from the admissions made by the parties, and decided the case for the defendant. This course can be justified, here, if at all, only by its appearing that upon the facts agreed, and all such' inferences of fact favorable to the plaintiff’s case, as the jury-might have been warranted in drawing from those, admissions, the law was with the defendant. Otherwise, the plaintiff would be deprived of the benefit of his trial by jury, by whom, for aught we can know, those inferences favorable to his case would have been drawn.

The material facts agreed, bearing on- this part, of the case, are, that Dr.' Emerson, the plaintiff’s master, resided about two years at the military post of Fort Snelling, being a surgeon in the army of the United States, his domicil of origin1 being Unknown; and what, if.anything, he-had done, to preserve or change'his domicil prior tó his residence at Rock Island, being also unknown.

How, it is true, that under some circumstances the residence 6f a military officer at a particular- place, in the discharge of his official duties, does not amount to the acquisition of a technical domicil.- But it cannot be affirmed, with correctness, that it never does. Theré being actual residence, and this. being presumptive evidence of domicil, all the circumstances *597of the, ease must be considered, before a legal conclusion can be reached, that his place of residence is not ,his domicil. If a military officer stationed at a particular post should entertain an expectation' that his residence there would be indefinitely protracted, and in consequence should remove his family to the' place where his duties were to be discharged, form a permanent domestic establishment there, exercise there the civil rights and discharge the civil duties of an inhabitant, while he did no act and;- manifested no intent to have a domicil elsewhere, I think no one would say that the mere fact that he was himself liable to be called away by the orders of the Gov-erment would prevent his acquisition of a technical domicil at the plac’e of the residence of himself and his family. In other words,' I do not' think a,military officer incapable of acquiring a domicil. (Bruce v. Bruce, 2 Bos. and Pul., 230; Munroe v. Douglass, 5 Mad. Ch. R., 232.) This being so, this case stands thus: there was evidence before the jury that Emerson resided about two years at Fort SneHing, in the Territory of Wisconsin. This may or may not have been with such intent as to make it his technical domicilr The presumption is that it was. It is so laid down by this court, in Ennis v. Smith, (14 How.,) and the authorities in support of the position are there referred to. His intent was a question of fact for the jury. (Fitchburg v. Winchendon, 4 Cush., 190.)

The ease was taken , from the jury. If they had power to find that the presumption of the necessary intent had not been rebutted, we cannot say, on this record, that Emerson had not his technical domicil at Fort Snelling. But, for reasons which I shall now proceed to, give, .1 do not deem it necessary in this case to determine the question of the technical domicil of Dr. Emersoh.

, It must be .admitted that the'inquiry whether the law of a particular country has rightfully fixed the status of a person, so that in accordance with the principles of international law that' status should be recognised, in other jurisdictions, ordinarily depends on the question whether the. person was domiciled in the country whose laws are asserted to have fixed his status.-Butj -in the United States, questions of this kind may arise, 'where an attempt to décide solely with reference to- technical -domicil, tested by the rules which are applicable to changes of places of abode from one country to another, would not be consistent with-sound principles. And, in my judgment,-this' is one of those cases.- . .

The residence of the plaintiff, who. was taken by his mastef, Dr- Emerson, a? a slave, from Missouri to the State of Illinois,. and thence to the Territory of Wisconsin, must be deemed to *598have been for the time being, and until he asserted his own separate intention, the same as the residence of his master; and the inquiry, whether the personal statutes of the Territory were rightfully extended over the plaintiff, and ought, in accordance with the rules of international law, to he allowed to fix his status, must depend upon the - circumstances under which Dr. Emerson went into that Territory, asad reruained there; and upon the further question, whether anything was there rightfully done by the plaintiff to cause those personal statutes to operate on him.

• Dr. Emerson was an officer in the army of the United States. •He went into the Territory to discharge his duty to the United States. The place was out of the jurisdiction of any particular State, and within the exclusive jurisdiction of the United States. It does not appear where the domicil of origin of Dr. Emerson was, nor whether 'or not he had lost it, and gained another domicil, nor of what particular State, if any, he was a citizen. .

• On what ground can it he denied that all valid laws of the United States-, constitutionally enacted by Congress for the government of the Territory, rightfully extended over an officer of the United States and his servánt who went into the Territory to remain there for an indefinite length of time, to take part in its civil or military affairs ? They were not foreigners, coming from abroad. Dr.- Emerson was a citizen of the country .which had exclusive jurisdiction over the Territory; and not only a citizen, but he went there in á public capacity, in the service of the same sovereignty which made the laws. Whatever those, laws might be, whether of the kind denominated personal statutes, or not, so far as they were intended by the legislative will, constitutionally expressed, to .operate on him and his servant, and on the relations between them, they had a rightful operation, and no other State or country can refuse to allow that those laws might rightfully operate on the plaintiff and his servant, because such a refusal would be a denial , that the United States could, by laws constitutionally enacted, ■ govern their own servants, residing on their own Territory, over which the United States had the exclusive control, and in respect to which they-are an independent sovereign power. Whether the laws now in question were constitutionally enacted, I repeat once more, is a separate question. But, assuming that they were, and that, they operated directly on the status of the plaintiff, I consider that no other State or country'could question the rightful power of the United States so to legislate, or, consistently with the settled rules of international law, could refuse to recognise the effects' *599of such legislation upon the status of their officers and servants, as valid: everywhere. _ ,

_ This alone would, in my apprehension, he sufficient to decide this question.

But there are other facts stated on thé record which should not he passed over. It is agreed- that, in the year 1836, the.plaintiff, while residing in the Territory, was married, with the consent of .Dr. Emerson, to Harriet, named in the declaration as his wife, and that Eliza and Lizzie were-the children of that marriage, the first named having been horn on the Mississippi river, north of the line of Missouri, and the other having be'en horn after their return to Missouri. And the inquiry is, whether, after the marriagé of the plaintiff in the Territory, with the consent of Dr. Emerson', any other State or cquntry can, consistently with the settled rules of international law, refuse to recognisé and treat him as a .free man, when suing for the liberty of himself, his wife, and the • children of that marriage. It is in reference to. his status, as viewed in other States and countries, that thé contract of marriage and the birth of children becomes strictly material. At the same time, it is proper-to observe that the female to whom he was married having been taken to the same military post.of Eort Snelling as a slave, and Dr. Emerson claiming also to be .her master at the time of her marriage, her status, and that of the children of the marriage, are also affected by the same considerations. ,

. If the laws of Congress governing the Territory of Wisconsin were constitutional and valid laws, thére can be no doubt these parties were capable of contracting a lawful marriage, attended with all the usual civil rights and obligations of that condition. In that Territory they were absolutely free persons, having full capacity to enter into the civil contract of marriage.

It is a principle of international law, settled beyond con,tror versy in England and America, that a marriage, valid by the law of the place where it was contracted,'; and- not in fraud of the law of .any other placed is-valid everywhere; and that no technical domicil at the place of the contract is necessary to make it so. (See Bishop on Mar. and Div., 125—129, where the cases are collected.)

If, in Missouri, the plaintiff were held to be a .slave, the validity- and operatipn of- his contract of marriage must be denied., 'He can have no legal rights; of course, not those of a husband and father. • And the same is true of his wife and ■ children. ’ The denial of his rights is. the denial of theirs. So that, though lawfully married in''the Territory,. when they came out of it, into-the State of Missouri, they were no longer *600husband and wife; and a child of that lawful marriage, though horn under the same dominion where its parents contracted a lawful marriage, is not the fruit of that marriage, nor the child of its father, hut subject to the maxim,.partus scquiiur ventrem.

It must he borne in mind that in this caso there is no ground . for the.inquiry, whether it he the will of the State of Missouri not to recognise the validity of the marriage of a fugitive slave, who escapes into .a State or. country where slavery is not allowed;, and there contracts a marriage; ol\ the validity of such a marriage, where the master^ being a citizen of the State of Missouri, voluntarily goes with his slave, in itinere, into a State' or country which does not permit slavery to exist, and the slave there contracts marriage without the consent of his master; for in this case, it is agreed, Ur. Emerson did consent; and ÚQ further question can arise concerning his rights, so far as their assertion is inconsistent with the validity of the marriage. Kor do I know of any ground for the assertion that this marriage was in fraud of any law of Missouri. It has been held by this court, that a bequest of property by a master to his slave, by necessary implication entitles the slave to his freedom; because, only as a freeman could he take and hold the bequest. (Legrand v. Darnall, 2 Pet. R., 664.) It has also been held, that'when a master goes with his slave to reside for an indefinite period in a State where slavery is not tolerated, this operates as<an act of manumission ; because it is sufficiently expressive of the consent of the master that the slave should be free. (2 Marshall’s Ken. R., 470; 14 Martin’s Louis. R., 401.)

' What, then, shall we say of the consent of the master, that the slave may. contract a lawful, marriage, attended with, all the civil rights and duties which belong to that relation; that he may enter into' a relation which none but a free man can assume — a relation which involves' not only, -the rights and duties of the slave, but those of the other party to the contract, and of their descendants to the remotest generation ? In my judgment, there can be no more effectual abandonment of the legal rights of a master over his slave, than by the consent of the master that the slave should enter'into a contract of marriage, in a free State, attended by all the civil rights and . obligations which belong to that condition.

And any claim by Ur. Emerson, or any one claiming under him, the effect of which is to deny the validity of this marriage,?, and the lawful paternity of the children born from.it, wherever asserted, is, in my judgment, a .claim inconsistent with good faith and sound reason, as well as with the rules of international law. And I go further: in my opinion, a law of the State *601of Missouri, which should thus annul, a marriage, lawfully contracted' by these parties while resident in Wisconsin, not' in fraud of any law of Missouri, or of any right of Dr. Emerson, who consented thereto, would be a law impairing the obligation of a contract, and within the .prohibition of the Constitution of the United States. (See 4 Wheat., 629, 695, 696.)

To avoid misapprehension on this important and difficult subject, I will state, distinctly, the conclusions at which I.have arrived. They are:

First. The. rules-of international law respecting the emancipation of slaves, by the rightful operation of the laws of another State or country upon the status of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State.

Second. The laws .of the United States, constitutionally enacted, which operated directly on and changed the status of a 'slave coming into the Territory of Wisconsin with his master, who went thither to reside for. an indefinite length of time, in ■ the performance of his duties as an officer of the United States, had a rightful operation on the status of the slave, and it is in conformity with -the rules of international law that this .change of status should be recognised everywhere.

Third. The laws of the United States, in operation in the Territory of Wisconsin at the time of the plaintiff’s residence there, did act directly on the status of the plaintiff, and change his status to that of a free man. .

Fourth. The plaintiff and his wife were capable of contracting, and, with the consent of Dr. Emerson, did contract a marriage in that Territory, valid under-its laws; ,and the validity of this marriage cannot be questioned in Missouri, save by showing that it was in fraud of the laws of that State, or 'of some right derived' from them ;■ which cannot be shown in this case, because the master consented to it.

Fifth. That the consent of the master that his slave, residing in a' country which does not tolerate slavery, may enter into a lawful .contract of marriage, attended with, the civil rights and duties which belong to -mat condition, is an effectual act of . emancipation. And the law does not enable Dr.^Emerson, or any-one claiming under- him, to assert a title to the married persons as islavfes, and thus destroy the obligation of the contract of marriage, and’ bastardize their issue, and reduce them to slavery. ,. ,

But fit is-insisted that the Supreme Court of Missouri has' . settled this case by its decision in Scott v. Emerson, (15 Missouri Reports, 576;) and that this decision is in conformity *602with the weight of authority elsewhere, and with sound principles. If the Supreme Court of Missouri had placed its decision on the ground that it appeared Dr. Emerson never became - domiciled in the Territory, and so its laws could not rightfully operate on him and his slave; and the facts that he went there to reside indefinitely, as an officer of the United States, and that the plaintiff was lawfully married there, with Dr. Emerson’s consent, were left out of view, the decision would find support in other cases, and I might not be prepared to. deny its correctness. But the decision is not rested on this ground. The domicil of Dr. Emerson in that Territory is not- questioned in that decision; and it is placed-on a broad denial of the ■ operation, in Missouri, of the law of ány foreign State or country upon the status of a slave, going with his master from Mis- • sóuri into such foreign State or country, even though they went thither to b¿eome, and actually became, permanent inhabitants .of such foreign State or country, the laws whereof acted directly on the status of the slave, and changed his status' to that of a freeman. i

To the correctness of such a decision I cannot assent. In my judgment, the opinion of the majority of the court in that, case is in confliet'with its previous -decisions, with a great weight of judicial authority in other slaveholding States, and with fundamental. principles of private international law. Mr. Chief Justice Gamble,-in.his dissénting opinion in that case, said:

“I regard the question as conclusively settled by repeated adjudications of this court; and- if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to- overturn them, than I would any other series of decisions^ by .which the law upon any other question had been settled. There is with me nothing in the law of slavery which distinguishes, it from the law on any other .subject, or allows any more accommodation to the. temporary excitements which . have gathered around it. ****** But in the /midst of all such excitement, it is proper that the judicial-mind, calm and self-balanced, should adhere to principle's established when there-was no feeling to disturb the view of the legal questions upon which the rights of parties depend.”

, “In this State, it has been recognised from the beginning of the Government as a correct position in law, that the master ' who takes his slave to reside in a State or Territory where sla- , very is prohibited, thereby emancipates his slave.” (Winney v. Whitesides, 1 Mo., 473; Le Grange v. Chouteau, 2 Mo., 20; Milley v. Smith, Ib., 36; Ralph v. Duncan, 3 Mo., 194; Julia v. McKinney, Ib., 270; Nat v. Ruddle, Ib., 400; Rachel v. Walker, 4 Mo., 350; Wilson v. Melvin, 592.)

*603Chief Justice Gamble has also examined the decisions of the courts of other States in which slavery is established, and finds them in accordance with these preceding decisions of the Supreme Court of Missouri to which he refers.

It would be a useless parade of learning for me to go over the ground which he has so fully and ably occupied.

But it is further insisted we are bound to follow this decision. I do not think so. .In this case, it is to be determined what laws of the United States were in operation in the Territory of Wisconsin, and what was their effect on the status of the plaintiff. Could the plaintiff contract a lawful marriage there ? Does any law of the State of Missouri impair the obligation of that contract of marriage, destroy his rights as a husband, bastardize the issue of the marriage, and reduce them to' a state of slavery ?

These questions, which arise exclusively under the Constitution and laws of the United States, this court, under the Constitution and laws of the United States, has the rightful authority finally to decide. And if we look beyond these questions, we come to the consideration whether the. rules of international law, which are part of the laws of Missouri until displaced by some statute not alleged to exist, do or do not require the status of the plaintiff, as fixed by the laws of the Territory óf Wisconsin, to be recognised in Missouri. Upon such a question, pot depending on any statute or local usage, but on principles of universal jurisprudence, this court has repeatedly asserted it could not hold itself bound by the decisions of State courts, however great respect might be felt for their learning, ability, and impartiality. (See Swift v. Tyson, 16 Peters’s R., 1; Carpenter v. The Providence Ins. Co., Ib., 495; Foxcroft v. Mallet, 4 How., 353; Rowan v. Runnels, 5 How., 134.)

Some reliance has been placed on the fact that the decision in the Supreme Court of Missouri was between these parties, and the suit there was abandoned to obtain another trial in the courts of the United States.

In Homer v. Brown, (16 How., 354,) this court made a. decision upon the construction of a devise of ■ lands, in direct opposition to the unanimous opinion of the Supreme Court of Massachusetts; between the sanie parties, respecting the same subject-matter — -the claimant having becomenonsuit in the State court, in order tp bring, his action in the Circuit Court of the United States. I did not sit in that case, having been of counsel for one of the parties while at the bar; but, on examining the report of the argument of the counsel-for the plaintiff in error, T find they made the point, that this court ought to give effect to the .construction put upon the will by the State *604court, to tKe end- that rights respecting lands may he governed .hy one law, and that the law of-the place where the lands are situated'; that they referred to the State decision of the case, reported in 3 Cushing, 390, and to many decisions of this court. But this court does-not. seem to. have considered the point of sufficient importance to notice it in their opinions. In Millar v. Austin, (13 How., 218,) ah action was brought by the endorsee of a written promise. The-quéstion was, whether it was negotiable under a statute of OMb. The Supreme. Court of that State having decided it was hot negotiable, the plaintiff became nonsuit, and.brought his' action in the Circuit Court of the United States. The decision of the Supreme Court of the State, reported'in 4 Ves., L. J., 527, was'relied on. This court unanimously held the paper to be negotiable. . ,

"When the decisions of the. highest court of a State are directly in conflict with, each other, it has'been repeatedly held, here, '-that the last decision is not'necessarily tó be taken as the rule. (State Bank v. Knoop, 16 How., 369; Pease v. Peck, 18 How., 599.)

To these considerations I desire to add, that it was not made -known tb 'the Supreme Court of Missouri, so far ás. appears,' that the plaintiff was married in "Wisconsin with the consent . of Dr. Emerson, and it is hot made known to "us that Dr. Em- . erson was a citizen of- Missouri, a fact to which that: court -. .. seem to haye attached .much importance.

. • Sitting here to administer the law between these parti.es, I db not feel at liberty to surrender, my own convictions of what the law requires, to the authority of the decision in 15 Missouri Reports..

I have thus fat assumed, merely for the purpose of the argument, that the laws of the United States,” respecting slavery in' this Territory, were constitutionally enacted by Congress. It 'remains; to inquire whether they are constitutional ana binding laws.' " , ■'

, In the argument of this part of the casé at bar, it was justly considered by all the-cbunsel to be necessary to ascertain'the . source-of -the power of Congress ovei -the territory-belonging to the United States.. Until this is ascertained, it is not possible to determine the extent, of that power.1; On the one side it Was maintaiñed that the Constitution contains, no express grant- of power to organize and govern what is now known to the laws' of the United States as a Territory. That whatever power of this;kind exists, is derived by implication; from the. capacity of the-United,States to hold and acqüire^territory out of the limits of any State, and the necessity-for its having some; government. •

*605On the other side, it was insisted that the Constitution has not failed to make an express provision for this end, and that it is found in the third section of the fourth article of the Constitution'.

To determine which of these is the correct view, it is needful to advert to some facts respecting this subject, which existed when the Constitution was framed and adopted. It will he found that these facts not only shed much light on the question, whether the framers of the Constitution omitted' to make a provision concerning the power of Congress to organize and govern Territories, but they will also aid in the construction of any provision which may have been made respecting this subject.

Under the Confederation, the unsettled territory within the limits’ of the United States had been a subject of deep interest. Some of the States insisted that these lands were.within their chartered boundaries, and that they had succeeded to the title of the Crown to the soil. On the other hand, it was argued that the vacant lands, had been acquired by the United States, by the war carried on by them under a common G-overnment and for the common interest.

This dispute was further complicated by unsettled questions of boundary among several States. It not only delayed the accession of Maryland to the Confederation, but at one time seriously threatened its existence. (5 Jour. of Cong., 208,442.) Under the pressure of these circumstances,. Congress earnestly recommended to the several States a. cession of their claims and rights to-'-the United States. (5 Jour. of Cong., 442.) And before the. Constitution was framed, it had been begun. That by blew York'had been made'on the 1st day of March, 1781; that of Virginia on the 1st day of March, 1784; that of Massachusetts on the 19th day of April, 1.785; that of Connecticut on the 14th day of .September, 17.86; that of South Carolina on tbe 8th day of August', 1787, while the Convention for framing the Constitution was in session.

It is very material to observe,- in this connection, that each of these acts cedes, in terms, to the United States,, as well the jurisdiction as the soil.

;• It is'also equally important to note that, when the Constitution was framed and adopted, this plan of vesting in the United States^ for the commpn good, the great tracts .of - ungranted lands claimed by the several States, in which so deep an interest-was. felt, was yet incomplete. It remained for North Carolina and Georgia to cede their extensive and valuable claims. These were made, by North Carolina on the 25th day of February, 1790, and by Georgia on the 24th day of April, *6061802. The terms of these last-mentioned cessions will , hereafter be noticed in another connection; hut I observe here that, each -of them distinctly shows, upon its face, that 'they were not only in execution of the general plan proposed by the Congress of the Confederation, but of a formed purpose of . each of these States, existing when. the. assent of their respective people was given to the Constitution :of the United States.

It appears, then, that when the Federal Constitution' was framed, and presented to the people of the. several States for their consideration, the unsettled territory was viewed as justly applicable .tothe,.co'mmon benefit, so far as it then''had or might attain thereafter a pecuniary value; and so far as it might become the'seat of new States, to be admitted into the Union upon an equal footing with the original States, And' also that the- relations of the United States to that unsettled territory were of. different kinds. The titles of the States of New York, Virginia, Massachusetts, Connecticut, and South Carolina, as well , of soil as of jurisdiction, had been transferred toú the United States. North Carolina and Georgia had not actually made transfers, but a confident expectation, founded on their appreciation of the justice of the general claim, .and fully justified by the results, was entertained, that these cessions would . be made. The ordinance of 1787 had made'provision for the .temporary, government of so much of the territory actually, ceded as lay nprthwe'st of the river Ohio.

, But it must have.been apparent,- both to the framers of the ■ Constitution and the people, of the several States who were. to act upon it, that the Government thus provided for, could ■ not continue, unless' the Constitution should confer, on. the United States the necessary-powers to continue it. That tern-' porary Government, under the ordinance, was to consist of certain officers, to be appointed by and ■ responsible to the Congress-of, the Confederation; their, powers .had been conferred and defined 'by the ordinance. So far as it provided for the temporary government of the Territory, it was an ordinary act of legislation, deriving its force from the legislative power of Congress, and depending for its vitality upon the continuance' of that legislative power. But the officers to be appoint-e.d for the Northwestern Territory, after the adoption -of the Constitution, must necessarily be officers of-the United States, ;and not of the Congress of the Confederation; appointed and commissioned by the President, and exercising powers derived from the United States under the Constitution..

' Such was the relation between the ..United States and the-Northwestern Territory, which all reflecting men must -have foreseen would exist, whe.n-the Government created by thé *607Constitution should supersede that of the Confederation. That if the new Government should b'e without power to govern this Territory, it could not appoint and commission officers, and send them into -the Territory, to exercise there legislative, judicial, and executive power-; and that'this Territory, which was even then foreseen to be so importánt,.both .politically and financially, to all the existing States, must he left not only without the control of the General Government, in respect -to its future political relations to the rest of the States, but absolutely without any Government, save what its inhabitants, acting in their primary capacity, might from time to 'time create for themselves.

But this Northwestern Territory was not the only territory, the soil and jurisdiction whereof were then understood to have . been ceded to the United States. The cession by South Carolina, made in August, 1787, was of “all the territory included within the river Mississippi, and a line beginning at that part of the said river which is intersected by the southern boundary of North Carolina, and continuing along the said- boundary line until it intersects the ridge or chain of mountains which divides the Eastern from the Western waters; then to be continued along the top of the said ridge of mountains, until it intersects a Tine to be drawn due west from the head of the southern branch of the Tugaloo river, to the said mountains; .and thence to run a due west course tó the river Mississippi.”

It is true that by subsequent explorations it was ascertained that the source of the Tugaloo river, upon which the title 'of South Carolina depended, was so far to the northward, that' the transfer conveyed only a narrow slip, of land, about twelve miles wide, lying on the top of the ridge of-mountains, and extending from the northern boundary, of Georgiy, to the southern boundary of North Caroline.. But this was a discov-'eiy made long .after, the cession, and there can be no doubt that the State of South Carolina, in-making the cession, and the Congress in accepting it, viewed it as a transfer to‘the ’United States of the soil and jurisdiction of an extensive and important part of the unsettled territory ceded by the Crown of Great Britain by the-treaty of peace, though its quantity or extent then remained to be ascertained.*.

It must be remembered also, as has-been already stated, that not only was there a confident expectation entertained by thé *608other States, that North Carolina and Georgia would complete the plan already so far executed by New York, Virginia, Massachusetts, Connecticut, and South Carolina, but that the opinion was in no small degree prevalent, that the just title to this “back country,” as it was termed, had vested in the United States by the treaty of peace, and could not rightfully be claimed by any individual State.

There is another consideration applicable to this part of the subject, and entitled, in my judgment, .to great weight.

The Congress of the Confederation had assumed the power not only to dispose of the lands ceded, but to institute Governments and make laws for their inhabitants. In other words, they had proceeded to act under the cession, which, as we have seen, was as well of the jurisdiction as of the soil. This ordinance was passed on the 13th of July, 1787. The Convention for framing the Constitution' was then in session at Philadelphia. The proof is direct and'decisive, that it was known to the Convention.* It is equally clear that it was admitted and understood not to he within the legitimate powers of the Confederation to pass this ordinance. (Jefferson’s Works, vol. 9, pp. 251, 276; Federalist, Nos. 38, 43;)

The importance of conferring on the new Government regular powers commensurate with the objects to be attained, and thus avoiding the alternative of a failure to execute the trust assumed by the acceptance of the cessions made and expected, or its execution by usurpation, could scarcely fail to be perceived. That it was in fact perceived, is clearly shown by'the Federalist, (No. 38,) where this very argument is made use of in commendation of the Constitution.

Keeping these facts in view, it may confidently be asserted that there is very strong reason to believe, before we examine the Constitution itself, that the necessity for a competent grant of power to hold, dispose of, and govern territory, ceded and expected to be ceded, could not have escaped the attention of those who framed or adopted the Constitution; and that if it did not escape their attention, it could not fail to be adequately provided for.

Any other conclusion would involve the assumption that a subject of the gravest national concern, respecting which the small States felt so much jealousy that it had been almost an insurmountable obstacle to the formation of the Confederation, and as to which all the States had deep pecuniary and political interests, and which had been so recently and constantly agita*609ted, was nevertheless overlooked; or that suck a subject was not overlooked, bub designedly left unprovided for, tnough.it was manifestly a subject of common concern, which belonged, to the care of the General Government, and adequate provision for which could not fail to be deemed necessary and proper.

The admission of new States, to be framed out of the ceded territory, early1 attracted the attention of the Convention. "Among the resolutions introduced by Mr. Randolph, on the 29th of May, was one on this subject, (Res. No. 10, 5 Elliot, 128,) which, having béen affirmed in Committee of the Whole; on the 5th of June, (5 Elliot, 156,) and reported to the-Convehr tion on the 13th of June, (5 Elliot, 190,) was referred to the Committee of Detail, to prepare the Constitution, on the 26th of July, (5 Elliot, 376.) This committee reported an article for the admission of new States “ lawfully constituted or established.” Nothing was said concerning the powbr of Congress to prepare or form such States. This omission struck Mr. Madison, who, on the 18th of August, (5 Elliot, 439,).moved for' the insertion of power to dispose of the unappropriated lands’ of the United States, and to institute temporary Governments. for new States arising therein.'

■ On the 29th óf August, (5 Elliot, 492,) the report of the committee was taken up, and after debate, which exhibited'' great diversity of views concerning the proper mode of providing for the subject, arising out of the supposed diversity of interests of the large and small States, and betwéen .those which had and those which had not unsettled territory, but no difference of opinion respecting the propriety and necessity of some adequate provision for the subject, Gouverneur Moms, moved the clause as it stands ■ in the Constitution. This met with general approbation, and was at once adopted.. Thé whole section is as follows:

-“New States’ may be admitted by the Congress into this Union; but no new State shall be formed or erected within the-jurisdiction of any other State, nor any State .be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of Congress.

“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing % this; Constitution shall be so construed as to prejudice any claims-of the United States or any particular Statfe.”

That Congress has some powfer to institute temporaiy Governments over the territory, I believe all agree; and, if it be admitted that the necessity of some power to govern the tem- *610■ toiy of tbe United States could not and did not escape tbe attention of tbe Convention and tbe people, and that tbe necessity is §o great, that, in tbe absence of any express grant, it is strong enough to raise an implication of the existence of that power, it would seem to follow that it is also strong enough to afford material aid in construing an express grant of power respecting that territory; and that they-who maintain the existence of tbe power, without finding any words at all in which it is conveyed, should be willing to receive a reasonable interpretation of language of tbe Constitution, manifestly intended to relate to tbe territory, and to convey to Congress some authority, concerning it. ’

It would seem, also, that when we find tbe subject-matter of •the- growth and formation and admission of new States, and tbe disposal of tbe territory for these ends, were under consideration, ahd that some provision therefor was expressly made, it is improbable that it would be,,iii its terms, a grossly inadequate provision; and that an indispensably necessary power to- institute temporary Governments, and to legislate for tbe inhabitants of tbe territory, was passed silently by, and left to be deduced from the necessity of tbe case.

In the argument at the bar, great attention has been paid' to the meaning, of tbe word “ territory.”

Ordinarily, when the territory of a sovereign power is spoken of, it refers to that tract of country which is under the political jurisdistion of that sovereign power. Thus Chief Justice Marshall (in United States v. Bevans, 3 Wheat., 386) says: “What, then, is the extent of jurisdiction which a State possesses? We answer, without hesitation, the jurisdiction of a State is coextensive yrith its territory.” Examples- might easily be multiplied of this use of the word, but they are unnecessary, because it is familiar. But the word “territory” is not used in this broad, and general sense in this clause of the Constitution.

. At the time of the adoption of the Constitution, the'United States held, a great tract of country northwest. of the Ohio-; another tract, then of unknown extent, ceded by South Carolina; and a. confident expectation was -then entertained, and •afterwards realized, that they then were'or would become the owners of other-great, tracts, claimed by North Carolina and Georgia.- These ceded tracts lay within the limits of the Ignited States, and out of the limits of any particular State; and the cessions embraced the civil -and political jurisdiction, and so- much of the soil as had not- previously been granted to in-, .dividuals..

These words, “territory belonging, to the United -States,”' *611were not used in the Constitution- to describe an abstraction, but to identify and apply to these actual subjects - matter then .existing and belonging to the United States, and other similar subjects which might-afterwards be acquired; and this being' so, all the essential qualities and incidents attending .such actual subjects are embraced within the words “territory belonging to the United States,” as fully as. if .each of those essential qualities and incidents had been specifically described. . . . ■ .

I say, the essential qualities and incidents. But in determining what were the essential qualities and. incidents of the subject with which they were dealing, we must take into consideration not only all the particular facts which were immediately before them, but the great consideration, ever present to the minds of those who; framed and adopted the Constitution, that they were making, a frame of government for the people of the United States and their posterity, under which they hoped the United States might be-, what they have now become, a great and powerful nation, possessing the power to make war and to conclude treaties, and thus to acquire territory. (See Cerré v. Pitot, 6 Cr., 336; Am. Ins. Co. v. Canter, 1 Pet., 542.) With these in view, I turn to examine the clause of the article now in question.

It is said this provision has no application to any territory save that then belonging to the United States. I have already shown that, when the Constitution was framed, a confident expectation was entertained, which was speedily realized, that North Carolina and Georgia would cede their claims to that great territory which lay west of those States. No doubt has been-suggested that the.first clause of this.same article, which 'enabled Congress to admit new States,, refers to and includes new States to be formed out of this territory, expected to be thereafter ceded by North Carolina and Georgia, as well as new States to be formed out of territory northwest of the Ohio, which then had been ceded by Virginia. It must have beet seen, therefore, that the same necessity would exist for an'authority to dispose of and make all needful regulations respecting this territory, when ceded, as existed for a like authority respecting territory which had been ceded.

.No reason has been suggested why any reluctance should have been felt, by the framers of the Constitution, to apply this provision to all the territory which might, belong to the United States, or why any distinction should have been made, founded on the accidental circumstance of the dates of the cessions a circumstance in no way material as respects the necessity for rules and regulations, or the própriety of conferring *612on the Congress power to make them. And if we. look at the course of the debates in the Convention on this article, we shall find that the then unceded lands, so far from having been left out of view in adopting this article, constituted, in’ the minds of members, a subject of even paramount import anee.

Again, in what an extraordinary position would the limitation of this clause to territory then belonging to the United States, place the territory which lay within,the chartered limits of North Carolina and G-eorgia'. The title to that territory was then claimed by those States, and by the United States; their respective claims are purposely left unsettled by the express words of this clause; and when cession's were made by those States, they were merely of their claims to this terri-toiy, the United States neither admitting nor denying the validity of those claims; so that it was impossible then, and has ever since remained impossible, to know whether this territory did or did not then belong to the United States; and, consequently, to know whether it was within or without the authority conferred by this Clause, to dispose of and make rules and regulations respecting the territory of the United States. This attributes to the eminent men who acted on this subject a want of ability and forecast, or a want of attention to the known facts upon which they were acting, in which I cannot concur.

There is not, in my judgment, anything in the language, the history, or the subject-matter of this article, which restricts its operation to territory owned by the United States when the Constitution was adopted.

But it is also insisted that provisions of the Constitution respecting territory belonging to the United States do not apply to territory acquired by treaty from a foreign nation. This objection must rest upon the position that the Constitution did not authorize the Federal Government to. acquire foreign territory, and consequently ha3 made no provision for its government when acquired; or, that though the acquisition of foreign territory was contemplated by the Constitution, its provisions concerning the admission of new States, and the making of all needful rules and regulations respecting territory , belonging to the United States, were not designed to be applicable to territory acquired .from foreign nations.

.It is undoubtedly true, that at the date of the treaty of 1803, between the United States and France, for the cession of Louisiana, it Was made a question, whether the Constitution had conferred on the executive, department of the Government of the United States power to acquire foreign territory by a treaty.

*613There is evidence that very' grave doubfsjtrá^'then entertained concerning the existence of this po'w;e?¿>'■■irmfc that there. was then a settled opinion in the executive and legislative branches of the Government, that this power did not exist, cannot be admitted, without at the .same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary /to carry it into execution, a deliberate and known violation of their oaths to support the Constitution; and whatever doubts may then have existed, the question must now be •taken to have been settled. Eour distinct acquisitions of foreign territory have been made by as many different treaties, under as many different Administrations. - Six States, formed on such territory, are now in the Union. Every branch of this Government, during a period of more than fifty years, has participated in these .transactions. To question their validity now, is vain. As was said by Mr. Chief Justice Marshall, in the American Insurance Company v. Canter, (1 Peters, 542,) “the Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or treaty.” (See Cerré v. Pitot, 6 Cr., 336.) And I add, it also possesses the power of governing it, when acquired, not by resorting to supposititious powers, nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regular tions respecting the territory of the United States.

There was to be established by the Constitution a frame of government, under which the people of the United States and their posterity were to continue indefinitely. Tq take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all territory of the United States, and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument, as it is with its language;, and I can have no hesitation in re-, jecting it.

I construe this clause, therefore, as if it had. read, Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the *614soil, so far as tbe soil may be tbe property of tbe party making tbe .cession, at tbe time of making it,

' It bas been urged that tbe words “rules and regulations ” - are not appropriate terms in which to convey authority to make law's for the government of tbe. territory.

But it m.ust be remembered that this is a grant of power to tbe Congress — that it is therefore necessarily a grant of power to legislate — and, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do tbe particular terms 'employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a Legislature to. make all needful- rules and regulations respecting tbe territory, is a power, to pass all needful laws respecting it.

Tbe word regulate, or regulation, is several times used in tbe Constitution. It is used in tbe fourtb section of tbe first article to describe those laws of tbe States, which prescribe the times, places, and manner, of choosing Senators and Representatives; m tbe second section-of tbe fourth article, to designate the legislative action of a State on the subject of fugitives .from service, having a very close relation to tbe matter of óur present inquiry; in tbe second section of tbe third article, to empower Congress to fix tbe extent of tbe appellate jurisdiction of this court; and, finally, in tbe eighth section of the first article are tbe words,ci Congress shall have power to regulate-eommerce.”

It is unnecessary to describe the body of legislation which bas been enacted under this grant of power; its variety and extent are well known. But it may be mentioned, in passing, fbat under this power to regulate commerce, Congress bas .enacted a great system of municipal laws, and extended it over tbe vessels and crews of the United States on tbe high seas and in foreign ports, and even over citizens of tbe United States resident in China; and has established judicatures, with power to inflict even capital punishment within that country;

■ If, ’ then, this clause does contain a power to legislate. respecting tbe territory, what are the limits of that power?

To' this I answer; that, in common with all the other legislative powers, of Congress, it finds limits in the express prohibitions on Congress not to do certain things'; - that, in the exercise of the legislative power, Congress cannot pass an ex post facto law.-or bill -of attainder; and so in respect to each-of tbe other prohibitions contained in tbe Constitution.

' Besides-this, the. rules and regulations must be needful. But undoubtedly tbe question whether a particular rule or regulation be needful, must be finally determined by Congress itself. Whether a law be needful, is a legislative of political, *615not a judicial, question. Whatever Opngress deems needful is so, under <the grant of power- ;

Nor am’ I aware that it has ever been questioned that laws' providing for the temporary government of the settlers on the public lands are needful, not only to prepare them for admission to the Unión as States, but even to- enable' the United States to dispose of the lands. ■ s ’

Without government and social -order, there can be' no property; for without law, -its- ownórship, its usé, and the power of disposing of it, cease io exist, in the sense in which those words are used and understood in all civilízéd States.

Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers, and to admit them into the Union as States, when in the judgment of Congress they should be fitted therefor, since these were the needs provided for, since it is confessed that Government is indispensable to provide for those needs, and the 'power is, to-make all needful miles and regulations, respecting the territory, I cannot doubt that; this is a power to govern the inhabitants of the territory, by such laws as Congress deems needful, until they obtain admission as States.

Whether they should be thus governed solely by laws ,enacted by Congress, or partly by laws' enacted by legislative' power conferred by Congress, is one of those questions which' depend on the judgment of Congress — a question which of these is needful. ’ ■ _

But it is insisted, that- whatever other powers Congress may have respecting the territory of the United States, the subject of negro slavéry forms an exception.

The Constitution declares that Congress shall have power to make .“all needful rules and regulations” respecting the territory belonging to the United States. ' -

. ■ The assertion is, though the Constitution says all, it does not mdan all — though it says all, withont qualification, it means all except such as allow or prohibit slavery. ’ It cannot be doubted that it is incumbent on those who would' thiis introduce an exception not found.,in- the language of th& instrument, to exhibit, some solid . and satisfactory reason, drawn from the subject-matter or .the purposes and objects of-the clause, the context, or from other provisions, of the' "Constitution, showing that the words employed in this clause' are not to be understood'according to their clear, plain, and natural signification. - ;

The subject-matter is the territory-of the United States’ out of the limits of every State, and consequently under the exclusive power , of the .people of the United States. - .Their *616will respecting it, manifested in tbe Constitution, can be subject to no restriction'. Tbe purposes -and objects of tbe clause were the enactment of laws concerning the disposal of tbe public, lands, and the temporary government of tbe settlers thereon until new. States should be formed. It will not be questioned that, when the Constitution of the United States was framed and adopted, the allowance and the prohibition of negro slavery were recognised subjects of municipal legislation; every State had in some measure acted thereon; and the only legislative act concerning the territory — the ordinance of 1787, which had then so recently been passed — contained a prohibition of slavery. The purpose and object of the clause being to enable Congress to provide a body of municipal law for the government of the settlers, the allowance or the prohibition of slavery comes within the known 'and recognised scope .of that purpose and object.

There is nothing in the context which qualifies the grant of power. The regulations must be “respecting the territory.” An enactment that slavery may or may not exist there, is a regulation respecting the territory. Regulations must be needful; but it is necessarily left to the legislative discretion to determine whether a law be needful. No other clause of the Constitution has been referred to at the bar, or has been seen by nie, which imposes any restriction or makes any exception concerning the power of Congress to allow or prohibit slavery in the territory belonging to the United States.

A practical construction, nearly contemporaneous with the adoption of the Constitution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind, on a question of the interpretation of the Constitution. (Stuart v. Laird, 1 Cranch, 269; Martin v. Hunter, 1 Wheat., 304; Cohens v. Virginia, 6 Wheat., 264; Prigg v. Pennsylvania, 16 Pet., 621; Cooley v. Port Wardens, 12 How., 315.)

In this view, I proceed briefly to examine the practical construction placed on the clause now in question, so far as it respects the inclusion therein of power to permit or prohibit slavery in the Territories.

It has already been stated, that after the Government of the United States was organized under the Constitution, the temporary Government of the Territory northwest of the river Ohio could no longer exisc, save under the powers conferred on Congress by the Constitution. Whatever legislative, judicial, or executive authority should be exercised therein could be derived only from the people of the United States under tlie Constitution. And, accordingly, an act vas passed on the *6177th day of August, 1789, (1 Stat. at Large, 50,) which recites: “Whereas, in'order that the ordinance of the United States in Congress assembled, for the government Of the territory northwest of the river Ohio, may continue to have full effect, it is required that certain provisions should be made, so as to adapt the same to the present Constitution of the United States."” It. then provides fob the appointment by the President of all officers, who, by force of the ordinance, were to have been appointed by the Congress of the Confederation, and their commission in the manner required by thé Constitution; and empowers the Secretary of the Territory to exercise the powers of the Governor in case of the death or necessary absence of the latter.

Here is an explicit declaration of the will of the first Congress, of which fourteen members, including Mr. Madison, had been members' of the Convention which framed the Constitution, that the ordinance, one article of which prohibited slavery, “should continue to have full effect.” Gen. Washington, who signed this bill, as President, was the President of that Convention.

It does not appear to me to he important, in this connection, that that clause in the ordinance which prohibited slavery was one of a series of articles of what'is therein termed a compact. The Congress of the Confederation had no power to make such a compact, nor to act at all on the subject; and after what had been so recently said by Mr. Madison on this subject, in the thirty-eighth number of the Federalist, I cannot suppose that ae, or any others who voted for this bill, attributed any intrinsic effect to what was. denominated in the ordinance a compact between “the original States and the people and States in the new territory;” there being no new States-then in existence in the territory, with whom a compact could be made, and the few scattered inhabitants, unorganized into a political body, not being capable of becoming a party to a treaty, even if the Congress-of the Confederation had had power to make one touching the government of that territory.

I consider tie passage of this law to have been an assertion - by the first Congress of the power of the United Státes.to prohibit slavery within this part of the territory of the United States ; - for it clearly shows that slavery was thereafter, to he prohibited there, and it could be prohibited only by an éxer-tion of the power of the United States, under the Constitution; no other power being capable of operating' within that' terri-. tory after the Constitution took effect. -

On the 2d of April, 1790, (1- Stat. at Large, 106,) the first Congress passed an act accepting- a deed of cession by North *618Carolina of that territory afterwards erected into the State'of Tennessee^ The fourth express condition contained in this deed of cession, after.providing that the inhabitants of the Territory shall be temporarily governed in the- same'..manner as those beyond the Ohio, is followed by these words: u Provided, always, that no regulations made or to he made by Congress shall tend to emancipate slaves.”

. This provision shows that it was then- understood Congress might make a regulation prohibiting slavery, and' that Congress might also allow it to continue to. exist in the Territory; and accordingly,- when, a few days later, Congress passed the act of May 20th, 1790, (1 Stat. at Large, .128,). for the government of the Territory south of the river Ohio, it provided, “ and the Government of the Territory south of the Ohio shall be similar to that now exercised in the Territory northwest of the Ohio, except so far as is otherwise provided in the conditions expressed in an act of Congress- of the present session, entitled, ‘An act to accept a cession of -the claims of the State of North Carolina to a certain district of western territory.'’ ” Under the Government thus established, slavery, existed until the Territory became the State of Tennessee.

' On the 7th of April, 1798, (1 Stat. at Large, 649,) an,act was passed to establish a Government in the Mississippi Territory in all' respects like that exercised in the. Territory-northwest of fhe Ohio, “excepting and excluding the last article of the ordinance made for the government thereof by the. late Congress, on the 13th day of July, 1787.” "When the limits of this Territory had been amicably settled with1 Georgia; -and the latter ceded all its claim thereto, it was one stipulation in the compact of cession, that the ordinance of July 13th,-1787,'.“ shall in all its parts extend'to the Territory contained in-the present act of cession,-that article only excepted which forbids slavery.” The Government of this Territory was subsequently established- and organized under the act of May 10th, 1800; but so much of the ordinance as prohibited slavery was -not put in operation there. . . . . -

. . Without going minutely into the details of each case, L will . now give reference to two classes of acts, in one of which Congress has extended the ordinance of 1787, including the article prohibiting slavery, over different Territories, and thus exerted its power to prohibit it; in the other, Congress has erected Governments, over Territories acquired from France and Spain, in which- slavery already existed, but refused to apply- .to them that part Q.f the Government under the ordinance, which -excluded slavery;.-

v'jQf-the.first class- are the act of May 7th, 1800, (2 Stat. at *619Large, 58,) for the government of the Indiana Territory; the act of January 11th, 1805, (2 Stat. at Large, 309,) for the government of Michigan Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the government of the Illinois Territory; the act of April 20th, 1836, (5 Stat. at Large, 10,) for the .government of the Territory of "Wisconsin; the act of June 12th, 1838, for the government of the Territory of IowS; the act of August 14th, 1848, for the government of the Territory of Oregon. To these instances should be added the act of March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the territory acquired from France, being northwest of Missouri, and north of thirty-six degrees thirty minutes north latitude*.

Of the second class, in which Congress refused to interfere with slavery already existing under the municipal law of France or Spaing and. established Governments by .which slavery was recognised and allowed, are: the .act of March 26th, 1804, (2 Stat. at Large, 283,) for the government of Louisiana; the act of March 2d, 1805, (2 Stat. at Large, 322,) for the government of the Territory of Orleans; the act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of the Missouri Territory; the act of March 30th, 1822, (3 Stat. at Large, 654,) for the government of the Territory or Florida. Here are eight distinct instances, beginning with the first Congress, and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States; and six distinct.instances in. which Congress organized Governments of Territories ' by which slavery was recognised and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Washin'gton, and coming regularly down as far as Mr. John Quincy Adams, thus in-eluding all who were in public life when the Constitution was adopted.

■ If the practical construction of the Constitution contemporaneously with its' going into effect, by men intimately acquainted with its history from their personal participation in. framing and' adopting it, and continued by them through. a .long series of acts of the gravest importance, be- entitled to weight in the judicial mind on a question of ^construction, it would seem to be. difficult to resist the force of the acts above adverted to.

It appears, however, from what has taken place at the bar, that notwithstanding the language of the Constitution, and the long line of legislative and exe.cutive.precedentsunder .it, three .different and opposite views are taken of the power of-Congress respecting slavery in the Territories; -

*620One is, that though Congress can make a regulation prohibiting, slavery in a Territory, they cannot make a regulation allowing it; another is, that it can neither be established nor prohibited by Congress, but that the people of a Territory, when organized by Congres's, can establish or prohibit slavery; while the third is, that the Constitution' itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and thére hold them as property.

No particular clause of the Constitution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Govern? ments, its inconsistency with the Declaration of Independence and with natural right.

The second is drawn from considerations equally general, concerning the right of self-government, and the nature of the political institutions which have been established by the people of the United States.

While the third is said to rest upon the equal right of all citizens to go with their property upon the public domain, and the inequality of a regulation which would admit the property of some and exclude the property of other citizens; and, inasmuch as slaves are chiefly held by citizens of those particular States where slavery is- established, it is insisted that a regulation excluding slavery from á Territory operates, praeticafly, to make an unjust discrimination between citizens of different States, in respect to their use and enjoyment of the territory of the United States. .

With the weight of either of these considerations, when pre-. sented to' Congress to influence its action, this court has nd concern. Qne or the other may be justly entitled to guide or control the legislative judgment upon what is a needful regulation. The question here is, whether they are sufficient to authorize this court to insert into this clause of the Constitution an exception of the exclusion or allowance of slavery, not found therein, nor in any other part of that instrument. To engraft on. any instrument a substantive exception not found in it, must he admitted to be a matter attended with great diffi-. eulty. And the difficulty increases with the importance of the-instrument, and the magnitude and . complexity of the interests involved in its construction. To allow this to be doné with the Constitution, upon reasons purely political, renders its judicial interpretation impossible — because judicial tribunals, as such, .cannot decide upon political considerations; Political, reasons have not the. requisite certainty' tq. afford rules of. juv *621ridical interpretation. They are different in different men. They are different in .the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; ■we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. "When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.

If it can be-shown, by anything in the Constitution itself, that when it confers on Congress the power to make all needful rules and regulations respecting the territory belonging to the United States, the exclusion of the allowance of slavery was excepted; or if anj^thing in the history of this provision tends to show that such an exception was intended by those who framed and adopted the Constitution to be introduced into it, I hold, it to be my duty carefully to consider, and to allow just weight to such considerations in interpreting the positive text of the Constitution. But where, the Constitution has said all needful rules and regulations, I must find something more than theoretical reasoning to induce me to say it did not mean all. »

There have been eminent instances in this court closely analogous to/this one, in which such an attempt to introduce an exception, not found in the Constitution itself, has failed of success.

By the eighth section of the first article, Congress has the power of exclusive legislation in all cases whatsoever within this District.

In the case of Loughborough v. Blake, (5 Whea., 324,) the question arose, whether Congress has power to impose direct taxes on persons and property in this District. It was insisted, that though the grant of power was in its terms broad enough to include direct taxation, it must be limited by the principle, that taxation and representation are inseparable. It would, not he easy to fix on any political truth, better established or more fully admitted in our country, than that taxation and representation must exist together. "We went into the war of the Revolution to assert it, and it is incorporated as fundamental into all American Governments. But however true and im*622portant this maxim may be,:, it is not necessarily of universal application.' It was for the people of the United States,, who ordained the' Constitution, to decide whether it should' or should not be' permitted to operate within this District; Their decision wás- embodied in the words of the Constitution; and as that contained no such exception as would permit the maxim to operate in this District, this court, interpreting that language, held that the exception did not exist.

Again, the.Constitution confers on Congress power to regulate commerce with foreign nations. Under this, Congress passed' an act on the 22d of December, 1807,. unlimited in duration, laying an embargo on all ships and vessels in the. ports or within the limits and jurisdiction of the United States. No law of the United States ever pressed so severely upon particular States. Though the constitutionality of the law was contested with an earnestness and zeal proportioned to the ruinous effects which were felt from it, and though, as Mr. Chief Justice Marshall has said, (9 Wheat., 192,) “a want of acuteness in.discovering objections to a measure to which they felt the most deep-rooted hostility will not be.imputed to those who were'arrayed in opposition, to this,” I am not aware that the fact that it prohibited the use of a particular species of property, belonging almost exclusively, to citizens of a few States," and this indefinitely, was ever supposed to show that it was unconstitutional. Something much more stringent, as a ground of legal .judgment, was relied on — that the power to regulate commerce aid not include the, power to annihilate commerce. , -

' ■ But the decision was, that under the power to regulate commerce, the,power of Congress over the subject was restricted only by those exceptions and limitations contained in the Constitution ; and as neither the clause in question-, which was,- a general grant of power to regulate commerce, nor any other '.clause of the Constitution, imposed any restrictions as to the duration of an embargo, an unlimited prohibition of the use of the shipping of the country was within the power of Congress. On this subject, Mr. Justice Daniel, speaking for the court in the case of United States v. Marigold, (9 How., 560,) says: ‘‘ Congress are, -by .the Constitution, vested with the power, to regulate commerce with foreign nations; and however, at periods of high excitement, an .application, of - the terms .‘ to regulate commerce,* such as would embrace absolute prohibition,,-may have, been questioned; yét,Ysince thé passage of the embargo and non-intercourse laws, and the, repeated judicial sanctions these statutes have .received, it can scarcely at this.. day he open'to doubt, that eveiy subject falling legitimately *623within- tbe sphere of commercial Regulation may be. partially Or wholly excluded, when either measure shall 'be demanded by the safety or the important interests of the entire nation. The power once conceded, it may operate on any and every subject of commerce to which the legislative discretion may apply it.”

If p.qwer to regulate commerce extends to. an indefinite prohibition of the use of all vessels belonging to citizens of the several States, and may operate, without exception, upon-every subject of commerce to which the legislative discretion may apply it, upon what grounds can 1 say that power to make all needful rules and regulations respecting the territory of the United States is subject to an exception of the allowance'¡or prohibition of slavery therein ? '

"While the regulation is one “respecting the territory,” while it is, in the judgment of Congress, “a needful regulation,” and is thus completely within the words of the grant, while no other clause of the Constitution can be shown, which requires t the insertion of an exception respecting slavery, and while the practical construction for a period of upwards of fifty years forbids. such an exception, it would,' in my opinion, violate -every' sound rule of interpretation to - force that exception into the Constitution upon the strength of abstract political reasoning, which we aré bound to .believe the people of the United States thought insufficient to induce them -to limit the power of Congress, because ‘what they have said contains no such limitation. . '

. Before I. proceed, further to - notice - some other'grounds of supposed objection to this power' of Congress, I desire to say, that if it were hot for my anxiety to insist upon, what I deem a correct exposition of the Constitution, if I looked only to the purposes of the argument, the source of the power of Congress - asserted in the- opinion of the majority of the -court would' answer- those purposes equally well. -For they admit .that Congress-has-power to Organize and govern'the Territories until they arrive at a suitable-condition for ádmission to the Union;' they adpait, also, that the kind of Q-overnment which shall thus, exist should be-regulated by the condition and wants of each ■Territory, -and",that jit .is necessarily committed,to the discretion of-'Congress .'to enact such laws-for that purpose as that’ discretion may dictate; and -no limit to that discretion has been. .-■shown,' or even suggested,' save’those -positive -prohibitions' to legislate, which aré found in.the-Constitution.. ; „ . . -

; I confesé myself, unable to pefeeive any- difference whatever between -my, own opinion of the. general extent of the power of. Congress and the- opinion of .the majority of the'court, sávé *624that I consider it derivable from the express language of the Constitution, while they hold it to be silently implied from the power to. acquire territory. Looking at the power of Congress over the Territories, as of the extent just described, what positive prohibition exists in the Constitution, which restrained Congress from enacting a law in 1820 to prohibit slavery north of thirty-six degrees thirty minutes north latitude?

The only one suggested is that clause in the fifth article of the amendments of the Constitution which declares' that no person shall be deprived of his life; liberty, or property, without due process of law. I will now proceed to examine- the question, whether this clause is entitled to the effect thus attributed to it. It is necessary, first, to have a clear view of the nature and incidents of that particular species of property which is now in question.

Slavery, being contrary to natural right, is' created only by municipal law. This is not only plain m 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 moré 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. (See also 1 Burge, Col. and For. Laws, 738—741, where the authorities are cofleeted.)

The status of slavery is not necessarily always attended with the same ppwers on the part of the.master. The master is subject to the supreme power of the State, whose will controls his action towards his slave, and this control must be defined and regulated by the municipal law. In one State', as at one period of the Roman law, it may put the life of the .slave into the hand of the master; others, as those of the United States, which tolerate slavery, may treat the slave as a person,-when-the mas-: ter takes his life; ’ while in others, the law. may recognise á ■ right of the slave to be protected from cruel treatment, In other words, the status .of slavery embraces every condition, from that in which the slave is.known to the law simply as a *625chattel, with no civil rights, to that in whioh he is recognised.' as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor.- Which of these conditions shall attend the status of slavery, must depend on the municipal law which creates and upholds it. .

And not only, must the. status of slavery, be created and measured by municipal law, but. the rights, powers, and obli-. gations, which grow out, of that status, must be defined, pro*-tected, and enforced, by such laws. The liability of.the master for the torts and crimes of his slave, and of third persons for assaulting or injuring or harboring or kidnapping'him, the forms and nxodes of .emancipation-and sale, their subjection to the debts of the,master, succession by death of the master, suits for freedom, the capacity of the slave'to be party toa suit, or to be a witness, with such police Regulations as have existed in all civilized'States where slavery has been tolerktedj aré among the subjects upon which municipal legislation becomes necessary when slavery is introduced.

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 then!'' 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 á Státé, 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 them1 permanently within another.juriedic--. tion, where nó municipal laws on the .subject-of slavery exist;: and that, being aware of these' principles, and having skid!,' nothing' to .interfere - with' or; displace them, or to . - compel1 \ Congress to legislate in any particular manner on the subject,.- and .-.haying .-empowered Congress to make all needful rules' and regulations'respecting- the territory of the United States^ it was their' intention to' leave to .'the. discretion of Congress' what regulations, if any, should bé made concerning slavery therein ? Moreover, if the-right exists? whát are its limits,' and what'.are its conditions?-’;If'citizens of the United States . have''.the night to-take their;slaves to a Territory, and hold-them ..there as slaves, without regard to the laws' of the Territory,!',suppose* this'right is notto be restricted to'the citizens. 'of slaveholding States. • A citizen of a State which does not tolerate'slavery can hardly be denied the power of doing the sáin'e' .thjng. ■' And whát law of slavery does, either take with hiini to.the Territory? , If it bé said to be those laws respecting *626slavery which existed in the particular State from which each slave last came, what an anomaly is this ? "Where else can wé find, under the law of .any civilized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in slavery? I say, .not merely to introduce, but permanently to continue, these anomalies. For the offspring of the female must be governed by the. foreign municipal laws to which the mother was. subject; and when any slave /is sold or passes by .succession On the death of the owner, there must pass with him, by a species of subrogation, and as a kind of unknown jus in re, the foreign municipal laws which constituted, regulated, and preserved, the status of the slave before his exportation. Whatever theoretical importance may be- now supposed to belong to the maintenance of such a right, I feel a perfect conviction that it would, if ever tried, prove to be as impracticable in fact,, as it is, in my judgment, monstrous in theory. ■

I consider the/assumption which lies at the basis of this theory to be unsound; not in its just sense, and when properly understood, but in the' sense which has been attached to" it. That assumption is," that the territory ceded by France was acquired for the equal benefit of all the citizens of the United States. Í agree' to the position.' But it "was acquired for their benefit in their collective, not their individual, capacities. It was acquired for their benefit, as an organized political sóciety, subsisting as “the people of the United States,” under the Constitution of the United States; to be administered justly and impartially,' and as nearly as’ possible for the equal benefit of every individual citizen, according-to the best judgment and disbretion. of the Congress; to whose power, as the Legislature' of the nation which acquired it, the people of'the United States have, committed, its administration. , Whatever individual claims may be founded on local circumstances, or sectional differences of-condition, cannot, in-my opinion,i be recognised in this court, without .arrogating to .the judicial, branch of the Government powers not committed to it; and which,- with all the unaffected respect I feel for it, when acting in its proper sphere, I .do not think it fitted to -wield.

Nor, in my judgment, will .the position, that a prohibition to bring 'slaves into a Territory deprives, any one of his property without due process of law, bear -examination.

Itmust .be remembered that this restriction on, the, legisla--five power is not peculiar to the Constitution'of the United States; it was borrowed from. Magna Gharta; was-brought to America by-our ancestors, 'as part of. their inherited liberties, ■ and lhas -existed in all the States, usually in the very words of *627the great charter. It existed in every political community in America in 1787, when- the ordinance prohibiting slavery north and west, of the Ohio was passed.

And if a prohibition of slavery in a Territory in 1820 violated this principle of Magna, Charta, the ordinance of 1787 also violated it; and what power had, I do not say thé Congress of the Confederation alone, but 'the Legislature of Virginia, or the Legislature of any or all the. States of the Confederacy, to consent to such a violation?,, The .people of the States had conferred no such power. I think I may at least say, if; the Congress did then violate Magna Gharta- by the ordinance, no one discovered that violation.; Besides, if the prohibition upon all persons, citizens as well as others, to. bring slaves into a Territory, and a declaration that if brought they sha^ll be free, deprives citizens of their .property without'due process of láw, what shall we say of the legislation of many of the slavehold-ing States.which have enacted the same prohibition ? As early as October, 1778, a law was passéd in Virginia, that thereafter no slave should.be imported into that Commonwealth by pea or by land; and that every slave who should be imported should become free. A' eitizien of Virginia purchased in Mary-, land a slave who belonged to another citizen of .Virginia, and removed with the slave to Virginia. The slave" sued for her freedom,"and recovered it; as maybe seen inWilson w: Isabel, (5 Call’s R., 425.). See also Hunter v. Hulsher, (1 Leigh, 172;) ánd a similar; law has been' recognised as válid in Maryland, in Stewart v. Oaks, (5 Har. and John., 107.) I am not aware that such laws, .though they exist in many States, were ever supposed to be in conflict with the principié of Magna Charta incorporated into the State Constitutions. It was certainly understood by the Convention which framed the Constitution, ahd has been so understood ever since, that, under the power to regulate commerce, Congress could prohibit the importation of slavés; and the exercise of the- power was restrained till 1808.’ A citizen of the -United States owns .slaves in Cuba, and brings theni to the United States,^where they- are set free by the legislation .of Congress. Does this legislation deprive him of his" properly without due process of law? If so, what becomes .of the laws prohibiting the slave trade?- If not, how can-a.similar regulation respecting a Territory violate the fifth-amendment of the Constitution?

. .Some reliance' was placed by the defendant’s eounsel upon the fact that the prohibition of slavery, in this territory was in the words, “that slavery, &c., shall'be and is hereby forever prohibited.” But the insertion of the word forever can have no legal effect. Every enactment not expressly limited in its *628duration continues,in force until repealed or abrogated by some competent power, and tbe use of tbe word “forever!’ can. give to tbe law no more durable operation. . Tbe argument' is, that Congress cannot so legislate as to bind tbe. future • States formed but of tbe' territory, and that in tbis instance it bas attempted to do so.- Of, tbe political reasons wbicb .may bave induced the • Congress to use these words, and which caused them to expect that subsequent' Legislatures would conform their action to the then general» opinion, of tbe country that it ought-to be permanent, tbis court cgn take, no cognizance. ", ,

However fit such considerations are to control the action of' Congress, .and however reluctant a statesman may be to disturb-what has.beén settled, every; law made by Congress may be-jepealed, and, saving private rights, and public rights gained by States, its repeal is subject to tbe absolute .will., of. the same power which enacted tit/ If Congress-had enacted that ; the crime o'f murder, committed in this Indian Territory, north of ' thirty-six,^degrees.thirty’:minutes,-by Or on any white man," should"/brewer’ be punishable with death, -it would seem to me ■an". insufficient-objection tó an indictment, found .While it was-' a Territory,' that "at some future day States might exist there, and so the law was invalid, because, by its;.terms, it was-to. continue in fbrOe forever. -Such an -objection rests- upon a-misapprehension ,of' the province and-power .of courts respecting the constitutionality of laws enacted by the Legislature.'■

If. the. Constitution prescribe one rule,, and-the law another- and different, rule, it is.- the' &uty...0f -courts.- to • declare-, that-the . Constitution, -', and, not, the law, • governs the ease before them forjudgiñent. -. -If .the law include.no case save thpse for-which the; Constitution.' has burnished a, different rule, or no ease which the, Legislature has the. p'pwer to govern, [then the law. can - have- no: .operation. If it includes, cases, which-dhe Legislature: has power .to' govern;, and concerning - which -the Constitution 'does- not- prescribe, a.different rule,, the- law goW erns those':cases, though- it. may,-in-its terms, attempt to.in- , elude others, ori ,-which it cannot "operate In; Other'words, this court cannot declare void an act of Congress which"con--stitutio.naily 'embraces some -cases;' though-other cases, -within its terms, are. beyond the control of". Congress* or. beyond ..the reach of that particular' ,ÍU\yj'.,- . If, therefore, Congress' had - power, tó make .a law .'excluding, slavery. from this territory, while under the exclusive., power , of -the United .States, the use of the word “forever” does not .invalidate the law,- so long-as Congress has.--the; exclusive .legislative power-.,in the . territory. ' ' "

*629But it is further insisted that the treaty of 1803, between the United States and France, by wbicb this territory was acquired, has so restrained the constitutional powers of Congress, that it cannot, by law, prohibit the introduction of slavery into that part of this territory north and west of Missouri, and north of thirty-six degrees thirty minutes north latitude.

By a treaty with a foreign-nation, the United States may rightfully stipulate that the Congress will or will not exercise its legislative power in some particular manner, on some particular subject. Such promises, when made, should be voluntarily kept, with the most scrupulous good faith. 'But that a treaty with a foreign nation can deprive the Congress of any part of the legislative power conferred by the people, so that it no longer can legislate as it was empowered by the Constitution to do, I more than doubt.

The powers of the Government do and must remain .unimpaired. The responsibility of. the Government to a foreign nation, for the exercise of those powers, is quite another matter. That responsibility is to be met, and justified to the foreign nation, according to the requirements of the rules of public law; .but never upon the assumption’that the United States had parted with dr restricted any power of acting according to its own tree will, governed solely by its own. appreciation of its duty.

The second séction of the fourth article is, “ This Constitution, and the laws of the' United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land.” ■ This has made treaties part of our municipal law; but it has not assigned to them any particular ■degree of authority, nor declared that laws so enacted shall be irrepealable. No- supremacy is assigned- to treaties over acts of Congress. That they are not perpetual, and must be in ' some way repealable, all' will agree.

If the President and'the. Senate alone possess thé power to repeal or modify a law'found in’ a treaty, inasmuch as they cap change or abrogate one-treaty only by making another in-Cdnsistent with the first, the Government of the United States could not act at all,, to-that effect, without the consent of some foreign Government. I do not consider, I am not aware it has ever been considere^, that the Constitution has placed our country in this helpless condition. The action of Congress in repealing the treaties with .France by the act of July 7th, 1798, (1 Stat. at Large, 578,) was in conformity with these views. In the case of Taylor et al. v. Morton, (2 Curtis’s Cir. Ct. R., *630454,) I bad occasion, to consider this Subject, and I adhere tó the views there expressed..

If, therefore, it were admitted that the treaty between the United States and France- did contain an express stipulation that the United States ^ would not exclude slavery from so much of the ceded territory as is now- in question, this court could not declare that an act of Congress excluding it was. void by force of the treaty. "Whether or no a case existed sufficient to justify a refusal to execute such -a' stipulation, would not be a judicial, but a political and legislative question, wholly beyond the authority of this court to try and determine. It would belong'to diplomacy and legislation, and not to the administration of existing laws. Such a stipulation in a treaty, j¡o legislate or'not to legislate in a particular way, has been repeatedly held in this court to address itself to the political or the legislative power, by whose action thereon this court is bound. (Foster v. Nicolson, 2 Peters, 314; Garcia v. Lee, 12 Peters, 519.)

But, in my judgment, this treaty contains no stipulation in any manner affecting the action.of the United States respecting the territory in question. Before examining the language of the treaty, it is material to bear in mind that the part..of the ceded territory lying north of thirty-six degr'ées thirty minutes, and .west and north of the-present State of Missouri, wa,s then a wilderness, Uninhabited save by savages,' whose possessory title had-not then been extinguished.

It. is iinpossible for me. to conceive on what ground France could have advanced a claim, or could have desired tó advance a claim, to restrain the United States from maMng any rules and regulations respecting this, territory, "which the United States might think fit to make; and still, less can I conceive of any reason which would have induced the United States to yield to such - a claiml "It was to be expected- that France, would desire to make the change of sovereignty and jurisdiction as little burdensome as possible to the then, inhabitants of Louisiana, and might well exhibit even an anxious solicitude to protect their property and persons, and secure to them and their posterity their religiou's and political -rights; -and the United States, as a just Government,- might readily-accede ta. all proper stipulations ' respecting those who were -about. ,to have théir-allegiance transferred, -But what'.interest France could have in uninhabited territory, wh ch¿ in-the language.oí.-, the treaty, was to be transferred “forever, and in fuíl sovereignty, ”'tó the.United States, pr how the United'Btates'.pQuld.1. consent to allow a foréigh .nation -t,ó'interfere in its -purely , internal affairs, in which that' foreign nation had no concern *631whatever, is difficult for me to conjecture. In my judgment, this treaty contains nothing of the Mud.

■ The third article is supposed to have á hearing on, the question. It is as follows: “ The inhabitants of the ceded, territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States; an -at the mean time they shall be maintained and protected i u the enjoyment of their liberty, properly, and the, religion they profess.” ■ .

There are two views of this article, each of which,, I think, decisively shows that it was not intended to restrain the Congress from excluding slavery from that part of the ceded territory then uninhabitéd. The first is, that, manifestly, its sole object was to protect individual rights Of the then inhabitants of the territory. They.are to be “maintained and protected in the free enjoyment of their liberty, property, and the re-ligión they profess.” But this article does not sécure to them the right to go upon the public domain ceded by the treaty, either with or without their slaves. The right or power of doing this did not exist before or at the time the treaty was made. The French and Spanish Governments while they held the country, as well as the United States when they acquired it, always exercised the undoubted right of excluding inhabitants from the Indian country, and of determining when and on what conditions it should be opened to settlers. And a stipulation, that the then inhabitants of Louisiana should be protected in their property,'can have no reference to théir use of that property, where they had no right, under the treaty,.to go with it, save at' the will of the United States. If one who-was an inhabitant of Louisiana at the time of the treaty had. afterwards taken property then owned by hini, consisting. of fire-arms, ammunition, and spirits, and had gone into the Indian country north of thirty-six degrees thirty minutes, to sell them to the Indians, all must agree the third article of the treaty would not have protected him from indictment under the áet of Congress of March 30, 1802, (2 Stat. at Large, 139,) adopted and extended to this territory by the act of March 26, 1804, (2 Stat. at Large, 283.)

Besides, whatever rights were secured were individual rights. If. Congress should pass any law which violated such rights of -any individual, and those rights were, of such a character as not to be within the lawful control of.,Congress under the Constitution, that1 individual could complain, and the act of Congress, as to such rights of his, would be inoperative; but it *632would be valid and operative as to all other persons, whose individual rights did not come under the protection of the treaty. Add inasmuch as it . does not appear that any inhabitant of Louisiana* whose rights were secured by treaty, had been injured, it would be wholly inadmissible for this court to assume, first, that -one or more, such cases may have existed; and, second, that if any did exist, the, entire law was void — not only as ío fió se cases, if any, in which it could not rightfully operate, hut as to all others, wholly unconnected with the treaty, in which' such law could rightfully operate.

Eat it is quite unnecessary, in my opinion, to pursue this inquiry further, because it clearly appears from the language of the article,' and it: has been decided by this court, that the stipulation was temporary, and ceased to’have any effect when the then inhabitants of the Territory of Louisiana, in whose behalf the stipulation was made, were incorporated into the Union. '

. -In the eases of New Orleans v. De Armas et al., (9 Peters, 223,) the question was, whether a title to property, which existed át the date of the treaty, continded to be protected by-the treaty after the State of Louisiana was - admitted to the - Unión. The ’ third article of the treaty was relied on. Mr. ,'Chief Justice Marshall said: “ This article obviously contemplates two objects. One, that Louisiana shall be admitted into •the Union as- soon as possible, on an equal footing with, the’ other States; and the other* that, till such admission, the inhabitants of the ceded, territory shall be protected in the free ;enjoyment pf their liberty, property, and religion. Had any one of these rights been violated while these stipulations con-’ tinuéd'in force, the individual supposing himself to be injured might have "brought his case into this court; under the twenty-fifth section of the judicial act. But this stipulation ceased to Operate .when Louisiana became a, member of the Union, and ■its inhabitants were “admitted to the enjoyment of all the rights, adyantages, and immunities, of citizens of the United States.

The cases of Chouteau v. Marguerita, (12 Peters, 507,) and Permoli v. New Orleans, (3 How., 589,) are in conformity with this view of. the treaty.

■ To convert this. temporary ¡.stipulation of the treaty, in behalf of..French subjects who then inhabited a small portion of Louisiana,,-into a permanent restriction upon, the power ,of Congress to regulate- territory'then uninhabited, and to assert ' that it pot only restrains Congress from affecting the rights' of, property'of . the then inhabitants, but enabled' them and all' ■other citizens, of. the United States to go into any part of the *633.ceded territory with'their slaves, and hold them there, is a construction of this treaty so opposed to its natural meaning, and so far beyond its subject-matter and the evident design of the • parties, that I cannot assent to it. • In my opinion, this treaty has no bearing’on the present question.

For these reasons, l am of opinion that so much of the several acts of Congress as prohibited slavery and involuntary sel' vitude within that part of the "‘Territory of Wisconsin lying north of thirty-six degrees thirty minutes north latitude, ana .west of the river Mississippi, were constitutional and valid laws.

I have, expressed my opinion, and the reasons therefor, at far greater length than I could have wished, upon the different- questions on which I have found- it necessary to pass, to arrive at a judgment on the case at bar. These questions are numerous, and the grave importance-of some of them required ine to exhibit fulty-the grounds of my opinion. I have touch-jed no question which, in the view I have tqben, it was not absolutely necessary, for me to pass upon, to ascertain whether the judgment of the Circuit Court should stand or be reversed. I have avoided no*question on which the validity of that judgment depends, V* To-have done either more or less, would have been inconsistent with my views of my duty.

In my opinion, the judgment of the Circuit Court Bhould he reversed, andffhe cause remanded for a new trial.

Mr. Justice MILLER,

now, April 14th, 1873, delivered the opinion of the court.

These cases are brought here by .writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State.

The cases named on a preceding page,* with others which have beeu brought here and dismissed by agreement, were all decided by the Supreme Court of Louisiana in favor of the Slaughter-House Company, as we shall hereafter call it for the sake of brevity, and these writs are brought to reverse those decisions.

The records were filed in this court in 1870, and were argued before it at length on a motion made by plaintiffs in error for an order in the nature of an injunction or super*58sedeas, pending the action of the court on .the merits. The opinion on that motion is reported in 10 Wallace, 278.

On account of the importance of the questions involved in these eases they were, by permission of the court, taken up out of their order on the docket and argued in January, 1872. At that hearing one of the justices was absent, and it was found, on consultation, that there was a diversity of views among those who wore present. Impressed with the gravity of the questions raised in the argument, the court under, .these circumstances ordered that the cases be placed on the calendar and reargiled before a full bench. This argument was had early in February last.

Preliminary to t.he consideration of those questions is a motion by the defendant to dismiss the cases, on the ground ■that the contest between the parties has been adjusted by an agreement made since the records came into this court, and that part of that agreement is that these writs should be dismissed. This motion was heard with the argument on the merits, and was much pressed by counsel. It is supported by affidavits and by copies of the written agreement relied on. It is sufficient to say of these that we do not find in them satisfactory evidence that the agreement is binding upon all the parties to the record who are named as plaintiffs in the several writs of error, and that there are parties now before the court, in each of the three cases, the names of which appear on a preceding page,* who have not consented to- their dismissal, and who are not bound by the action of those who have so consented. They have a rigiat to be heard, and the motion to dismiss cannot prevail.

The records show that the plaintjffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of- the Üñited States. The jurisdiction and the duty of this court *59to review the judgment of the State court on those questions is clear and is imperative.

The statute thus assailed as unconstitutional was-passed March 8t-h,-1869, and is entitled'“An act to protect the health of the city o.f New Orleans, to locate the stock-landings and slaughter-houses,, and to incorporate the Crescent City Live-Stock Landing and Slaughter-House Company.”

The first section forbids the lauding or slaughtering of animals whose fiesh is intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughter-houses or abattoirs within those limits- except by the corporation thereby created, which is also limited to certain places after-wards mentioned; Suitable penalties are enacted for violations of this prohibition.

• The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers.

The -third aud fourth sections authorize the company to establish and erect within certain territorial limits, therein defined, one or more stock-yards, stock-landings, and slaughter-houses, and imposes upon it the duty of erecting, on- or before the first day of June, 1869, one grand slaughterhouse of sufficient capacity for slaughtering five hundred animals per day.

It declares that the company, after it shall have-prepared all the necessary buildings, yards, and other conveniences for that purpose, shall have the sole aud exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privilege granted by the act, and that all such animals shall be landed at the stock-landings and slaughtered at the slaughterhouses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat aud for each animal landed.

Section five orders the closing up of all other stock-land*60inga and slaughter-houses after the first day of Juné, in the parishes of Orleans, Jefferson,'and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughter-houses under a heavy penalty for each- refusal. Another section fixes a limit to the charges to be made 'by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended-to be so slaughtered, by an officer appointed by the governor of the State for that purpose.

These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us.

This statute is denounced not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of. persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens — the whole of the butchers of the city — of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of .themselves and their families; and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city.

But a critical examination of the act hardjy justifies these assertions.

It is true that it grants, for a period of twenty-five years, exclusive privileges. And whether those privileges are at the expense of the community in the sense of a curtailment of any of their fundamental rights, or even in the sense of doing them an injury, is a question open to considerations' to be hereafter stated. But it is not true that it deprives the butchers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit, or furnishing the people of the city with the necessary daily supply of animal food.

The act divides itself into two main grants of privilege,— the one in reference to stock-landings and stock-yards, and *61the other to slaughter-houses. That the landing of live-, stock in large droves, from steamboats on the bank of'the river, and from railroad trains, should, for the safety and comfort of the people and the care of the animals, be limited to proper places, and those not numerous, it needs no argument to prove. Nor can it be injurious to the general community that while the- duty of making ample nreparation for this is imposed upon a few men, or a corporation, they should, to enable them to do it successfully, have the exclusive right of providing such landing-places, and receiving a fair compensation for the service.

It is, however, the slaughter-house privilege, which is mainly relied on to justify the charges of gross injustice to the public, and invasion of private right.

It is not, and cannot be successfully controverted,-that it is'both the right and the duty of the legislative body — the supreme power of the State or municipality — tó prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else.

The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary,.the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so, to- slaughter in their houses; and. they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place and to pay a reasonable compensation for the use of the accommodations furnished him at that place.

The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the *62duties and guards imposed upon the. company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit.

The power here exercised by the legislature of Louisiana is, in its essential - uature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details.

“ Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power tq propel cars, the building with combustible materials, and the burial of the dead, may all,” says Chancellor Kent,* “ be interdicted by law’, in the midst of dense-masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of. the community.” This is called the police power; and it is declared by Chief-Justice Shaw† that it is much easier to perceive-and realize the existence and sources of it than to mark its boundaries, ■or prescribe limits tó its exercise.

This power is, and-must be from its very nature, incapable of any very exact definition or limitation. ' Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial úse of property. “It extends,” says another eminent .judge,‡ “to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property-within the State; . . . and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. -Of the perfect right of the legislature to do this no question ever was, or,' upon acknowledged general principles, ever cau be made, so far as natural persons are concerned.”

*63The regulation of the place and manner of conducting the slaughtering of animals, and the business of butchering within a city, and the inspect!' n of the animals to be killed for meat, and of the meat afterwards, are among the most necessary and frequent exercises of this power.' It is .not, therefore, needed that we should seek for a comprehensive definition, but-rather look for the proper source of its exercise.

In Gibbons v. Ogden * Chief Justice Marshall, speaking of inspection laws passed by the States, .says: “ They form a portion of that immense mass of legislation which .controls everything within the territory of a State not surrendered to the General Government — all which can be most advantageously administered by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &e., are component parts. No direct general power over these objects is granted to Congress; and consequently they remain subject to State legislation.”

The exclusive authority of State legislation over this subject is strikingly illustrated in the case of the City of New York v. Miln. † Iu that case the defendant was prosecuted for failing to comply with a statute of New York which required of every master of a vessel arriving from a foreign port, in that of New York City, to report the names of all his passengers, with certain-particulars of their age, occupation, last place of settlement, and place of their birth. It was argued that this act was an invasion of the exclusive, right of Congress to regulate commerce. And it cannot be denied that such a statute operated at least indirectly upon the -commercial intercourse between the citizens of the United States and of foreign countries. But notwithstanding this it was held to be an -exercise of the police power properly within the control of the State, and unaffected by the clause of the Constitution which conferred on Congress the right to regulate commerce.

*64To the same purpose are the recent case's of the The License Tax, * aud United States v. De Witt. † In the latter case an act of Congress which undertook as a part of the internal revenue laws to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inflammable at less than a prescribed temperature, was held to be void, because as a police regulation the power to make such a law belonged to the States, and did not belong to Congress.

It cannot be denied that the statute under consideration is aptly .framed to remove from the more densely populated part of the city, the noxious slaughter-houses, and large and offensive collections of animals necessarily incident to the slaughtering business of a large city, aud to locate them where the convenience, health, and comfort of the people require they shall be located. And it must be conceded that the means adopted by the act for this purpose are appropriate, are stringent, and effectual. But it is said that in creating a corporation for this purpose, and conferring upon it exclusive privileges — privileges which it is said constitute a monopoly — the legislature has exceeded its power. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the corporation which it created, it is believed that no question would have been raised as- to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best a Stained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit- of debate. The proposition is ably discussed and affirmed in the ease of McCulloch v. The State of Maryland, ‡ in relation to the power of .Congress to organize *65the Bank of- the United States to aid in the fiscal operations of the government.

It can readily be seen that the interested vigilance of the corporation created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock-landing and slaughtering business for the good of the city than the ordinary efforts of the officers of the law.

Unless, therefore, it can be maintained that the exclusive privilege granted • by this charter to the corporation, is beyond the power of the legislature of Louisiana, there can be no just exception to the validity of the statute. And in this respect we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a-consideration for the privilege is well defined, and its enforcement well guarded. The prices or charges to be made by the company are limited by the statute, and we are not advised that they are on the whole exorbitant or unjust.

The proposition is, therefore, reduced to these terms: Can any exclusive privileges be granted to any of its citizens, or to a corporation, by.the legislature of a State?

The eminent and learned counsel who has twice argued the negative of this question, has displayed a research into the history- of monopolies in England, and the European continent, only equalled by the eloquence with which they are denounced.

But it is to be observed, that all such references are to monopolies established by the monarch in derogation of the-rights of his subjects, or arise out of transactions in which-the people were unrepresented, and their interests uncared for. The great Case of Monopolies, reported by Coke, and so fully stated in the brief, was undoubtedly a contést of the commons against the monarch. The decision is based upon .the ground that it was against common law, and the' argument was aimed at the unlawful assumption of power by the crown; for whoever doubted the authority of Parliament to change or modify the common law ?, The discussion in the House, of Commons cited from Macaulay clearly *66establishes that the contest was between the crown, and'the people represented in Parliament.

But we think it may be safely affirmed, that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies'of this country, have from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges — privileges denied to other citizens — privileges which come within any just definition of the word monopoly, as .much as those now under consideration ; and that the power •to do this has never been questioned or denied.. Nor can it he truthfully denied, that some of the most useful and beneficial enterprises set on foot for the general good, have been made successful by means of these exclusive rights, and could only have been conducted to success in that way.

■ It may, therefore, he considered as established, that the authority of the legislature of Louisiana to pass the present statute is ample, unless some restraint in the exercise' of that power be found in the constitution of that-State or in the amendments to the Constitution of the United States, adopted since the date of the decisions we have already cited.

If any such restraint is supposed to exist in the constitu-' tion of the State, the Supreme Court of Louisiana hawing necessarily passed on that question, it would not be open to review in this court.

The plaintiffs in error accepting this issue, allege that- the statute is a violation of the Constitution of the United States in these several particulars:

That it creates an involuntary servitude forbidden by the thirteenth article of amendment;

That it abridges the privileges and immunities of citizens of the United States;

That it denies to the plaintiffs the equal protection of the laws; ánd,

That it deprives them of their property without due process of law; contrary to the provisions of the first section oí ■the fourteenth article of amendment.

*67This court is thus called upon for the first, time to give construction to these articles.

We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions' so far-reaching and pervading in theii consequences, so profoundly interesting to the people of this country, and so important in their bearing-upon the relations of the United-States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any pf its present members. We have given every opportunity for a full tearing at the bar; we have discussed it freely and compared views amoiij ourselves; we have taken ample time for careful delibeiation, and w.e now propose to announce the judgments which we have formed in the construction of those articles,, so far as .we have found them necessary to the decision of the cases before, us, and beyond that we have neither the inclination nor the right to go.

Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original; and the Twelfth, adopted in eighteen hundred and'three, was so nearly so as'to have become, like all the others, historical and of another age.- But within the last eight years three other articles of amendment of vast importance have been added by the voice of the people to that now venerable instrument.

The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt coueeruing their true meaning. Nor can such doubts, when any reasonably exist, be. safely and rationally solved without a reference to that history; for in it is found the occasion and the necessity for recurring again to the great.source of power in this country, the people of the States, for additional guarantees of human rights; *68additional powers to the Federal government.; additional restraints upon those of the States. Fortunately that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt.

The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction ánd those who desired additional safeguards for its security and perpetuation, culminated in -the effort, on the part of most of the States in Which slavery existed, to separate from the Federal government, and to resist its'authority. This constituted the war of the- rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery.

In that struggle slavery, as a legalized social relation, perished. ■ It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery they could do nothing.less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for they proved themselves men in that terrible crisis) offered their services.and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. ' The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles. Hence the thirteenth article of amendment of that iustru*69ment. Its two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated.

“ 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

“ 2. Congress shall have power to enforce this article by appropriate legislation.”

To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all' the human race within the jurisdiction of this government— a declaration designed to establish the freedom of four millions of slaves — and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it.

That a personal servitude was meant is proved by the use of the word “involuntary,” which can only apply to human beings. The exception of servitude as a punishment for crime gives-an idea of the class of servitude that is meant. The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose, was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprenticeship, for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word slavery had been used. The case of the apprentice slave, held under a law of Maryland, liberated by Chief Justice Chase, on a 'writ of habeas- corpus under this article, illustrates this course of observation.* And it is all that we deem necessary to say on the application of that article to the statute of Louisiana, now under consideration.

*70The pi’oeess of restoring to their proper relations with the Federal government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.

■ They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside ou and cultivate the soil without the right to purchase or own it. They were excluded from, many occupations of gain, and were not permitted' to give testimony in the courts' in any case where a white man was a party. It was said that their lives were at the mercy of bacl men, either because the laws for their protection were insufficient or were not enforced.

These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis, of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they *71ratified that article by a formal vote of their legislative bodies.

Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete aud dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years’ experience satisfied the thoughtful men who had been the authors, of the other two amendments that, notwithstanding 'the restraints of those articles on the States, aud the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a face of men distinctively marked as was the negro, living in the midst of another and domiuant'race, could neyer be fully secured in their person and their property without the right of suffrage.

Hence the fifteenth amendment, which declares that “ the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.” The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.

We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of che newly-made freeman aud citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, *72mentions the negro by speaking of his color and his slavery. But it is just as true'that each of the other articles was addressed to the. grievances of that race, and designed to. remedy thém as the fifteenth.

We do not say that ho one else but the negro can share in . this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in'the mind of the Congress which proposed the thirteenth article,, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop-slavery of the Mexican or Chinese race within our territory, this amendment may. safely be trusted to make it void.' And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may Hot be of African descent. But what we do say, and what we wish tó be 'understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to th’d purpose which we have said-was'the. pervading spirit of them all, the evil which they were designed to i’emedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accom plish it.

The fibst section of the .fourteenth article, to which our attention is more specially- invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by. erhiuent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. "Whether *73this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott ease, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the'condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who .had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the' United States, and also citizenship of a State, the first clause of the first section was framed.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, áre citizens of the United States and of the State wherein they reside.”

The first observation, we have to make on this clause is, tliat.it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose Was establish the citizenship,of the negro can' admit of no doubt. The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction 'between citizenship of the United States and citizenship of a State is clearly recognized and established. *74Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. lie must reside withiu the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.

We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly ou the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.

The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” ' It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when'it is so carefully used, aud used in contradistinction, to citizens of the United States, in the very sentence which precedes it.. It is too clear for argument that the change in phraseology was adopted under.standingly and with a purpose.

Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only" the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be,- are not intended to have any additional protection by this paragraph of the amendment.

*75If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such the latter must rest-for their security and protection where they have heretofore rested; for they are n.ot embraced by this paragraph of the amendment.

The first occurrence of the words ‘‘privileges and immunities” in our constitutional history, is to be found in the fourth of the articles of. the old Confederation.

It declares “that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, 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; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges, of' trade and commerce, subject to the same duties, impositions:,, and restrictions as the inhabitants thereof respectively/*

. In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision- is found iu section two of the fourth article, in the following words: “ The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”

There can be but little question that the- purpose of both ■these provisions is the same, and that the privileges and immunities intended are the same in each. Iu the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give som,e general idea of the class of civil rights meant by the phrase.

Fortunately we are not without judicial, construction of this clause of the Constitution. The first and the leading case on the-subject is that of Corfield v. Coryell, decided by Mr. Justice Washington iu the Circuit Court for the District of Pennsylvania iu 1828.*'

*76“ The inquiry,” he says, “ is, what are the privileges and immunities of citizens of the several States ? ' "We feel no hesitation in confining these expressions to those privileges and immunities which ar & fundamental; which belong of right to the citizens of all free governments, and which ha. e at all times been enjoyed by citizens of the several States which compose this Union; from the time of their becoming free, independent, and sovereign. What these fundamental' principles are, it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, With the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.”

This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland, * while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right •for the establishment and protection of which. organized government is .instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure.

In the case of Paul v. Virginia, † the court, in expounding this clause of the Constitution, says that “the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter *77States under their constitution and laws by virtue of their being citizens.”

The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.

Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.-

It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the /very few express limitations which the Federal Constitution imposed upon the States — such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation , of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make of enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the *78plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation. of the States, on the civil rights of their own citizens, witji authority to nullify such as it did not approve as consistent with those rights, as,they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to thecoutrol of Congress, in the exercise of powers' heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges *79and immunities of citizens of the United States which no State can abridge, until.some case involving those privileges may make it necessary to do so.

But lest it should be said that no such privileges and immunities are to be found if those we.have been considering are excluded, we venture to suggest some which owe their -existence to the Federal government^ its National character, its Constitution, or its iaws.

One of these is well described in the case of Crandall v. Nevada * It. is said to be-the right of the citizen of this great country, protected by implied guarantees of its Constitution, “to come to the seat of government to assert any claim he may have upon that government, to transact any business he' may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which .all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States.” And quoting from the language of Chief Justice Taney in another ease, it is said “ that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;” and .it is, as snch citizens, that théir rights are. supported in this court in Crandall v. Nevada.

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt., nor that the right depends upon his character as a citizen of tile. United States. The right to peaceably assemble- and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States,'however they may-penetrate the territory of the several States, all rights secured to.our citizens by treaties with foreigu nations,' *80are dependent upon citizenship of the United States, and not citizenship of a State. One Of these privileges is conferred by the very article under consideration. ' It is that a citizen of the United States.can, of his own volition, become a citizen of any State of the Union by a bond fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered.

But it is useless to'pursue this branch of the inquiry, since we are of opinion that the tights claimed by these plaintiff's in drror, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the-United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Uuited States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within itá jurisdiction thé equal protection of its laws.”

The argument has not been much pressed in these cases that the defendant’s charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of 'these paragraphs has .been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions'of nearly all the States, as a restraint upon the power of the States. This law. then, has practically been the same as it'now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government.

We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it *81is sufficient tó say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the- butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.

“Nor sliall any State deny to any person within its jurisdiction the equal protection of the laws.”

In the light of the history of these amendments, and the pervading purpose of 'them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be' remedied by this clause, and by it such laws are forbidden.

If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever’ be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, tha.t a'strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such ease iu the one before us, and do not deem it necessary .to go over the argument again, as it may have relation to this particular clause of the amendment.

In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate the powers of the National government from those of the State governments, and though this line has *82never beeu' very well defined in public opinion, such a division has continued from that day to this.

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at .that time from the Federal power. And it cannot be denied' that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that -the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined- resistance to the General Government.'

Unquestionably this has given great force to the argument, arid added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments afiy purpose to destroy the main features of the gen-' eral system.- Undertbe pressure of all the excited feeling growing out of the war, "our statesmen have still believed that the existence of the States with powers for domestic and'local government, including the regulation of civil rights — the rights of person and of property — was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power On that of the Nation.

But. whatever fluctuations may be seen in'the history of public opinion on this subject during, the period of our' national existence, we think it will be fouud that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Féderal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts.

*83The judgments of the Supreme Court of Louisiana in these cases a~e

Affirmed.

Mr. Justice FIFLD,

dissenting:

I am unable’ to agree with the majority of the court in these cases, and will proceed to state the reasons of my dissent from tlieir judgment.

The cases grow out of the act of the legislature of the State of Louisiana, entitled An act to pi’otect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate ‘ The Crescent City Live-Stock Landing and Slaughter-House Company,’ ” which was approved on the eighth of March, 1869, and went into operation on the first of June following. The act creates the corporation mentioned in its title, which is composed of seventeen persons designated by name, and invests them- and-their successors with the' powers usually conferred upon corporations in addition to their special and exclusive privileges. It first declares that it shall not be lawful, after the first day of June, 1889, to “land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-landing, yards, slaughter-houses, .or abattoirs within the city of New Orleans or the parishes of Orleans, Jefferson, and St. Bernard,” except as provided in the act; and imposes a penalty of two hundred and fifty dollars for each violation of its provisions. It then' authorizes the corporation mentioned to establish and erect within the parish of St. Bernard and the corporate limits of New Orleans, below the United States barracks, on the east side of the Mississippi, or-at any point below a designated • railroad depot on the west side of the rivei’, “ wharves, stables, sheds, yards, and buildings, necessary to land', stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals,” and provides that cattle and 'other animals, destined for sale or slaughter in the city of New Orleans or its environs, shall be landed at the landings and yards of the company, and be there *84yarded, sheltered, and protected, if necessary; and that the company shall be entitled to certain prescribed fees for the use of its wharves, and for each animal landed, and be authorized to detain the animals until the fees are paid, and if not paid within fifteen days to take proceedings for their sale. Every person violating- any of these provisions, or landing, yarding, or keeping animals elsewhere, is subjected to a fine of two hundred and fifty dollars.

The act then requires the corporation to erect a grand slaughter-house of sufficient dimensions to accommodate all butchers, a.nd in which five.hundred animals may be slaughtered a day, with a sufficient number of sheds and stables for the stock received at the port of New Orleans, at the same time authorizing the company to erect other landing-places and other slaughter-houses at any points consistent with the provisions of the act.

The act then provides that when the slaughter-houses and .accessory buildings have been completed and thrown open for use, public notice thereof shall be given for thirty days, and within that time “ all other stock-landings and slaughter-houses within the parishes of Orleans, Jefferson, and St. Bernard shall be closed, and it shall no longer be lawful to slaughter cattle, hogs, calves, sheep, or goats, the meat of which is determined [destined] for sale within the parishes aforesaid, under a penalty of one hundred dollars for each and every offence.”

The act then provides that the company shall receive for every animal slaughtered in its buildings certain prescribed .fees, besides the head, feet, gore, and entrails of all animals except of swine.

Other provisions of the act require the inspection of the animals before they are slaughtered, and allow the construction of railways to facilitate communication with the buildings of the company and the city of New Orleans.

But it is only the special and exclusive privileges conferred by the act that this court-has to consider in the cases before it.. These privileges are granted for the period of twenty-five years. Their exclusive character not only fol*85lows from the provisions I have cited, but it is declared in express terms in the act. In the third section the language is tl.iat the'corporation “ shall have the sole and exclusive 'privilege oí conducting and carrying on the live-stock, landing, and slaughter-house business within the limits and privileges grauted' by the provisions of the act.” And in the fourth section the language is, that after the first of June,. 1869, the company shall have “ the exclusive privilege of having landed at their landing-places all animals intended for sale or slaughter in the parishes of Orleans and Jefferson,” and “the exclusive privilege of having slaughtered” in its slaughter-houses all animals, the meat of which is intended for sale in these parishes.

In order to understand the real character of these special privileges, it.is necessary to know the extent of country and of population which they affect. The parish of Orleans contains an area of country of 150 square miles; the parish of Jefferson, 384 square miles; and the parish of St. Bernard, 620 square miles. The three parishes together contain an area of 1154 square miles, and they have a population of between two and three hundred thousand people.

The plaintiffs in error deny the validity of the act in question, so far as it confers the special and exclusive privileges mentioned. The first case before us was brought by an association of butchers in the three parishes against the corporation, to prevent the assertion and enforcement of these privileges. The second case w-as instituted by the attorney-general of the State, in the name of the State, to protect the corporation in the enjoyment of these privileges, and to prevent an association of stock-dealers and butchers from acquiring a tract of land in the same district with the corporation, upon which to erect suitable buildings for receiving, keeping, aud slaughtering cattle, and preparing animal food for market. The third case was. commenced by the corporation itself, to restrain the defendants from carrying on a business similar to its own, in violation of its alleged exclusive privileges.

The substance of the averments of the plaintiffs in. error *86is this: That prior to the passage of the act in question they were engaged in the lawful and necessary business of procuring and bringing to the parishes of Orleans, Jefferson, and St. Bernard, animals suitable for human food, and in preparing such food for market; that in the prosecution of this business they had provided in these parishes 'suitable establishments for landing, sheltering, keeping, and slaughtering cattle and the sale of meat; that with their association about four hundred persons were connected, and that in the parishes named about a thousand persons were thus engaged iu. procuring, preparing, and selling animal food. And they complain that the business of landing, yarding, and keeping, within the parishes named, cattle intended for sale' or slaughter, which was lawful for them to pursue before the first day of June, 1869, is made by that act unlawful for any one except the corporation named; and that the business of slaughtering cattle and preparing animal food for market, which it was lawful for them to pursue in these parishes before that day, is made by that act unlawful for them to pursue afterwards, except in the buildings of the company, and upon payment of certain prescribed fees, and a surrender of a valuable portion of each animal slaughtered. And they contend that the lawful business of landing, yarding, sheltering, and keeping cattle intended for sale or slaughter, which they in common with every individual in the community of the three parishes had a right to follow, cannot be thus taken from them and given-over for a period of twenty-five years to the sole and exclusive enjoyment of a corporation of seventeen persons or of anybody else. And they-also contend that the lawful and necessary business'of slaughtering cattle and preparing animal food for market, which they and all other individuals had a right to follow, cannot be thus restricted within this territory of 1154 square miles to the buildings of this corporation; or be subjected to tribute for the emolument of that body.

No one will deny the abstract justice which lies in the position of the plaintiffs in error; and I shall endeavor to *87show that the position has some support in the fundamental law of the country.

It is contended in justification for the act in question that it was adopted iu the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State. That power undoubtedly extends to all regulations' affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways.. All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of thq court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.

In the law in question there are only two provisions which can properly be called police regulations — -the one’ which requires the landing and slaughtering of animals below the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When .these requirements are complied with, the sanitary purposes of the act are accomplished. Iu all other particulars the act is a mere grant to a corporation created by it of special and exclusive privileges by which the health of the city is in no way promoted. It is plain that if the corporation can, without endangering the health of the public, carry on the business of lauding, keeping, and slaughtering cattle withiii a district below the city embracing an area of over a thousand square miles, it would not endanger the public health if other persons were also permitted to carry oil the same business within the same district under similar conditions as to the inspection of the animals. The health of the city might require the removal froifi its limits and suburbs of all buildings for keeping and slaughtering cattle, but no such *88object could possibly justify legislation removing such buildings from a large part of the State for the benefit of a single corporation. The pretence of sanitary regulations for the grant of the exclusive privileges is a shallow one, which merits only this passing notice.

It is also sought to justify the act in question on the same principle that exclusive grants for ferries, bridges, and turnpikes are sanctioned. But it can fiud no support there. Those grants are of franchises of a public character appertaining to the government. Their use usually requires the exercise of the sovereign right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges, and ferries for the convenience of the public, and if it chooses to 'devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroaching- upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual.

Nor is there any analogy between this act of Louisiana and the legislation which confers upon the inventor of a new and useful improvement an-exclusive right to make and sell to others his invention. The government in this way only secures to the inventor the temporary enjoyment of that which, without, him, would not have existed. It thus only recognizes in the inventor a temporary property iu the product of his own brain.

The act of Louisiana presents the naked case, uhaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively *89for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions.

If exclusive privileges of this character can be granted to a corporation of seventeen persous, they may, in the discretion of the legislature, be equally granted to a single individual. If they may be granted for twenty-five years they may be equally granted for a century, and in' perpetuity. If they may be granted for the landing and keeping of animals intended for sale or slaughter they may be equally ■granted for the landing and storing of grain and other products of the earth, or for any article of commerce. If they may be granted for structures in which animal food is prepared for market they may be equally grantéd for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained,.there is no monopoly, in the most odious form, which may not be upheld.

The question presented is, therefore, one of-the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth i amendment does afford sufih protection, and was1 so intended by the Congress which framed and the States ■which adopted it.

The counsel for the plaintiffs in error have contended, with great force, that the act in question is also inhibited by the thirteenth amendment.

That amendment prohibits slavery and involuntary servitude, except as a punishment for crime, but I have not supposed it was susceptible of a construction which would cover the enactment in question. I have been so accustomed to regard it as intended to meet that form of slavery which had. *90previously prevailed in this country, and to which the recent civil war owed its existence, that 1 was not prepared, nor am I yet, to give to it the extent and force ascribed by counsel. Still it is evident that the language of the amendment is not used in a restrictive sense. It is not confined to African slavery alone. It is general and universal in its application. Slavery of white men as well as of black men is prohibited, and not, merely slavery in the strict sense of the term, but involuntary servitude in every form.

The words “involuntary servitude” have not been the subject of any judicial or legislative exposition, that I am aware of, in this country, except that which is found in the Civil Eights Act, which will be hereafter noticed. It is, however, clear that they include something more than slavery in the strict sense of the term; they include also serfage, vaásalage, villenage, peonage, and,all other forms of compulsory service'for the mere benefit or pleasure of1 others. Nor is1 this the full import, of the terms. The abolition of slavery and involuntary servitude was intended to make every one born in this country a freeman, and as such to .give to him the right to pursue the ordinary avocatious of life without other testraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a • condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term; in a condition of slavery, but probabty none would deny that he would be in a condition of servitude. He certainly. would not possess the liberties nor enjoy the privileges of a freeman. .The compulsion which wmuld force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great' an invasion of his liberty as the compulsion which would, forcé him to labor for the benefit or pleasure of another, *91.and would equally constitute an element of servitude; The counsel of the plaintiffs in error therefore contend that “ wherever a law of a State, or a law of the United Slates, makes a discrimination between classes of persons, which deprives the one eiass of their freedom or their property, or. which makes a caste of them to subserve the power, pride, avarice, vanity, or vengeance of others,” there involuntary servitude exists within the meaning of the thirteenth amendment.

It is not necessary, in my judgment, for the disposition of the present case in favor of the plaintiffs in error, to accept as entirely correct this conclusion of counsel. It, however, finds support in the act of Congress known as the Civil Rights Act, which was framed ajid adopted upon a construction of the thirteenth amendment, giving to its language a similar breadth. That amendment was ratified on 'the eighteenth of Detíepaber, 1865,* †and in April of the following year the Civil Rights Act was passed.† Its first section, declares that all persoiis born iu the United States, and not subject to any foreign power,, excluding Indians not taxed, are “ citizens of the United States,” atid that “ such citizens, of every race £t,nd color, without regard to any previous condition of slavery, or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizens.”

This legislation was. supported upon the theory that citizens of the United States as such were entitled to the rights and privileges' enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an invol*92notary servitude. Senator Trumbull, who drew the act and who was its earuest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure .was intended to give eflect to the declaration of the amendment, and to secure to all persons in the United S.tates practical freedom. After referring to several statutes passed in some of the Southern States; discriminating between the freedmeu and white citizens, and after citing the definition of civil liberty given by Blackstone, the Senator said: “I take it that any statute which is not equal to all, aud which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.”*

By the act of Louisiana, within the three parishes named, a territory exceeding one thousand one hundred square miles, and embracing over two hundred thousand people, every man who pursues the business of preparing animal food fop market must take his animals to the buildings of the favored company, and must perform his work in them, and for the use of the buildings must pay a prescribed tribute to the company, and leave with it a valuable portion ■of each animal slaughtered. Every man in these parishes who has a.horse or other animal for sale, must carry him to the yards and stables of this company, and for their use pay a like tribute. He is not allowed to do his work in his own buildings, or to take his animals to his own stables or keep them in his own yards, even though they should be erected in the same district as the buildings, stables, and yards of the company,' and that district embraces over eleven hundred square miles. .The prohibitions imposed by this act upon butchers and dealers in cattle in these parishes, and the special privileges conferred upon the favored corporation, are similar in principle and as odious in character as the restrictions imposed in.the last century upon the peasantry in áome parts of France, where, as says a French *93writer, the peasant was prohilffed “ to hunt on his own lands, to fish in his own waters, to grind at his own mill, to cook at his own oven, to dry his clothes on his own machines, to whet his instruments at his own grindstone, to make his own wine, his oil, and his cider at his own press,'. . . or to sell his commodities at the public market.” The exclusive right to all these privileges was vested in'the lords of the vicinage. “The history of the mpst execrable tyranny of ancient times,” says the same writer, “ offers nothing like this. This category of oppressions cannot be applied to a free man, or to the peasant, except in violation of his rights.”

, But if the exclusive privileges conferred upon the Louisiana corporation can be sustained, it is not perceived why exclusive privileges for the construction and keejúng of ovens, machines, grindstones, wine-presses, and for all the numerous trades and pursuits for the prosecution of which buildiugs are required, may not be equally bestowed upon other corporations or private individuals, and for periods of indefinite duration.

It is not necessary, however, as I have said, to. rest my objections to the' act in question upon tne terms and meaning of'the thirteenth amendment. The provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration. The amendment was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Eights Act, and to place the common rights of American citizens under the protection of the National government. It first declares that “ all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” It then déclares that “ no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due *94process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

The first clause of this amendment determines who are citizens of the United State's, and how their citizenship is created. Before its enactment there was much diversity of opinion among jurists and statesmen whether there was any such citizenship independent of that of the State, and, if any existed, as to the manner in which it originated. With a great number the opinion prevailed that there -was no such-citizenship independent of the citizenship of.the State. Such was the opinion of Mr. Calhoun and the class represented by him. In his c'elebrated speech in 'the Senate upon the Force Bill, in'1838, referring to the reliance expressed by a senator upon the fact that we are citizens of the United States;- he said: “ If by citizen of the United States he means a citizen' at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found-in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution; is entitled to all privileges and immunities .of citizens in the several States; and it is. in this and no other sense that we are citizens of the United States.”*

In the Dred Scott case this subject of citizenship of the United States was fully and elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been generally accepted by the profession of'the country as the one containing the soundest views of constitutional l$,w. And he held that, under the Constitution, citizenship of the United States in reference to natives was dependent upon citizen-, ship in the several States, under their constitutions and laws.

*95The Chief Justice, in that case, and a majority of the court with him, held that the words “people of the United States” and “ citizens ” were synonymous terms; that the people of the respective .States were the parties to the Constitution; that these people consisted of the free inhabitants of thooe States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization ; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that 'it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges .of a citizen under,the Constitution, and that therefore the descendants of persons brought to this country and sold as slaves were not, and could not be citizens within the meaning of the Constitution.

The first clause of the fourteenth amendment changes this whole subject, and removes .it from the region of discussion aud doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or-' laws of any State or the condition of their apcestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong to him as a free man and a free- citizen, now belong to him' as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. .They are thus -affected in a State by the wisdom of its laws, the ability of its officers, the efficiency of its magistrates, the education and'morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way caii they be affected by the action of the State, or by. the residence of the citizen therein. - .They do not derive *96their existence from its legislation, and cannot be destroyed by its power.

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated iu the Constitution or necessarily7 implied as belonging to citizens of the United States,dt was a vain and idle enactmeut, which accomplished nothing, and most unnecessarily excited Congress and'the people on its passage. "With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

What, then, are the privileges and immunities which are secured against abridgment by State legislation ?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right “ to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and .property.” ' That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legis*97lation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.*

The terms, privileges and immunities, are not new in the' amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that “the citizeus of each State shall be entitled to all privileges and immunities of citizens in the several States,” and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell,† Mr. Justice Washington said he had “ no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;” and, in considering what those' fundamental privileges were, he said that perhaps it would be mor< tedious than difficult to enumerate them, but that they might be “all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with .the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly pre,scribe for the general good of the whole.” This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those lohich of right belong to the citizens of all free governments. Clearly among these- must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. In the discus*98sions iu Congress upon the passage of theCivil Rights Act repeated- reference, was made to this language of Mr. -Justice Washington. It was cited by Senator Trumbull with the observation that it enumerated the-very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declared by the act citizens of the United States,-would thenceforth be entitled to the rights of citizens, and that these were the great fundamental rights set forth in the act; and that they were set forth “as appertaining to every freeman.”

The privileges and immunities designated'in the second section of the fourth article of the Constitution áre, then, according to the decision cited, those which of right belong to the citizens of all free governments, and they can be enjoyed under that clause by the citizens of each State in the several States upon the same terms and conditions as they are enjoyed by the citizens of the latter States. No discrimination can be made by one State against the citizens of other .States in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citizens-. It is a clause which insures equality iu the enjoyment of these rights between citizens of the several States whilst in the same State.

Nor is there anything in the opinion in the case of Paul v. Virginia,* which at all militates against these views, as is supposed by the majority of the court. The act of Virginia, of 1866, which was under consideration in that case, provided that no insurance company, not incorporated under the laws of the State, should carry on its business within, the State without previously obtaining a license for that purpose; and that it should not receive such license until it had deposited with the treasurer of the State bonds of a specified character, to an amount varying from thirty tq fifty thousand dollars. No such deposit was required of insurance companies incorporated by the State,"for carrying on *99their business within the State; and in the case cited the. validity of the discriminating provisions of the statute of Virginia between her own corporations and the corporations of other ..States, was assailed. It was- contended that the statute in this particular was in conflict with, that clause of the Constitution which declares that “ the citizens of eac-h State shall be entitled to all privileges and immunities of citizens in the several States.” But the court answered, that corporations were not citizens within the meaning of this clause; that the term citizens as there used applied only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the. legislature and possessing only the attributes which the legislature had prescribed; that though it had been held that where contracts or rights of property were to be enforced by or against a corporation, the courts of the United States would, for the purpose pf maintaining jurisdiction, consider the corporation as representing citizens of the State, under the laws of which it was created, and to this extent would-treat a corporation ns a citizen within the provision of the Constitution extending the judicial power of the United States to controversies between citizens of different States, it had never been held in any case which had come under its observation, either in the State.or Federal courts, that a corporation was a citizen within the meaning of the clause in question, entitling the citizens of each State to the privileges and immunities of citizens in the several States. And the court observed, that the privileges and immunities secured by that provision were those privileges and immunities which were common to the citizens in the latter States, under.their constitution aud laws, by virtue of their being citizens; that special privileges enjoyed by citizens in their own States were not secured in other States by the provision; that it was not intended by it to give to the laws of one State any operation in other States; that they could have no such operation except by the permission, expressed or implied, of those States; and that the special privileges which they conferred must, therefore, be-enjoyed at home unless the assent *100of other States to their enjoyment therein were given. And so the court held, that a corporation, being a grant of special privileges to the corporators, had no legal existence beyond the limits of the sovereignty where created, and that tKe recognition of its existence by other States, and the enforcement of its contracts made therein, depended purely upon the assent of those States, which could be granted upon such terms and conditions'as those States might think proper to impose.

The whole purport of the decision was, that citizens of one State do not carry '.wdth them iuto other States any special privileges or immunities, conferred by the law's of their own States, of a corporate or other character. That decision has no pertinency to the questions involved in this case.' The common privileges and immunities which of right belong to all citizens, stand on a very different footing. These the citizens of each State do carry with them' into other States and are secured by the clause in question, in their enjoyment upon terms of equality with'citizens of the latter'States. This equality in one particular was enforced by this court in the recent case of Ward v. The State of Maryland, reported in the 12th of Wallace. A statute of that State required the paymeut of a larger sum from a non-resident trader for a license to enable him to sell his merchandise in the State, than it did of a resident trader,.and the court held-, that the statute in thus discriminating against the nouresident trader contravened tli.e clause' securing to the- citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which urns an essential incident to his ownership, possessed by the non-resideut, wras subjected by the statute of Maryland to a greater burden than was imposed upon a like privilege of- her own citizens. The privileges of the non-resident were in this particular abridged by that legislation.

What the clause in question did for the protection of the citizens of one State against hostile and discriminating legislation of'other States, the fourteenth amendment does for *101the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If under the fourth article of the Constitution equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment the same equality is secured between citizens of the United States.

It will not be pretended that under the fourth article of the Constitution any State could create a monopoly in any known trade or manufacture in favor of her own citizens, or any portion of them, which would exclude an equal participation in the trade or manufacture monopolized by citizens of other States. She could not confer, for example, upon any of her citizens the sole right to manufacture shoes, or boots, or silk, or the sole right to sell those articles in the State so as to exclude nou-resideut citizens from engaging in a similar manufacture or sale. The nou-resideut citizens could claim equality of privilege under the provisions of the fourth article with the citizens of the State exercising the monopoly as well as with other’s, and thus, as respects them, the monopoly would cease. If this were not so it would be in the power of the State to exclude at any time the citizens of other States from participation in particular branches of commerce or trade, and extend the exclusion from time to time so as effectually to prevent any traffic with them.

Now, what the clause in question does for the protection of citizens of one State against the creation of monopolies in favor of citizens of other States, the fourteenth amendment does for the protection of every citizen of the United States against the creation of any monopoly whatever. The privileges and .immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State. The fourteenth amendment places them under the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness, and were *102held void at. common law in the great Case of Monopolies, decided during the reign of Queen Elizabeth.

A monopoly is defined “ to be an institution or allowance from the sovereign power of the State by grant, commission, or otherwise, to any person or corporation, for the sole buying, selling, making, working, or using of anything,, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.” All such grants relating to any known trade or manufacture have been held by all the judges of England, whenever they havp come up for consideration, to be void at common law as destroying the freedom- of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it into the power of the grantees to enhance the price of commodities. The definition embraces, it will be observed, not merely the sole privilege of .buying and selling particular articles, or of engaging in their manufacture, but also the sole privilege of using anything by which others' may be restrained of the freedom or liberty they previously had in any lawful trade, or hindered in such trade. It thus covers-in every particular the possession and use of suitable, yards, stables, and buildings for keeping aud protecting cattle and other animals, and for their slaughter. Such establishments are essential to the free and successful prosecution by any butcher of the lawful trade of preparing animal food for market. The exclusive privilege of supplying such yards, buildings, and other conveniences for'the prosecution of this business in a large- district of country, granted by the act of Louisiana to seventeen persons, is as much a monopoly as though the act had granted to the company the exclusive privilege of buying aud selling the animals themselves. It equally restrains the butchers in the freedom and liberty they previously had, and hihders them in their lawful trade.

The reasons given for the judgment in the Case of Monopolies apply with equal force to the case at bar. In that case a patent had been granted to the plaintiff giving him the sole *103right to import playing-cards, and' the entire traffic in them, and the sole right to make such cards within the realm. The defendant, in disregard of this patent, made and sold some gross of such cards and imported others, and was accordingly sued for infringing upon the exclusive privileges of the plaintiff. As to a portion of the cards made and sold within the realm, he pleaded that he was a haberdasher in-London and a free citizen of that city, and as such had a right to make and sell them. The court held the plea good and the grant void, as against the common law and divers acts of Parliament. “ All trades,” said the court, “as weli mechanical as .others, which prevent idleness (the baue of the commonwealth) and exercise men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance, to serve the queen when occasion shall require, are profitable for the commonwealth, and therefore the grant to the plaintiff to have the sole making of them is against the common law and the benefit and liberty of the subject.” * The case of Davenant and Hufdis was cited in support of this position. In that case a company of merchant tailors in London, having power by charter .to make ordinances for the better rule and government of the company, so that they were cousonant to law and reason, made an ordinance that any brother of the society who should have any cloth dressed by a cloth-worker, uot being a brother of the society, should put one-half of his cloth to some brother of the same society who exercised the art of a cloth-worlcer, upon pain of forfeiting ten shillings, “and it was adjudged that the ordinance, although it had the countenance of a charter, was against the common law, because it toas against the liberty of the subject; for every subject, by the law, has freedom and liberty to put his cloth to be dressed ■by what cloth-worker he pleases, and cannot be restrained to certain persons, for that in effect would be a monopoly, and, therefore, such ordinance, by color of a charter or any grant .by charter to such effect, would be void.” ■

*104Although"fho court, in its opinion, refers to the increase in prices and deterioration in quality of commodities which necessarily result from the grant of monopolies, the main ground"of the decision was their interference with the liberty of the subject po pui-sue for his maintenance and that of his family any lawful trade or employment. This liberty is assumed to be the-natural right of every Englishman.

The struggle of the English people against monopolies forms one of the most interesting and'instructive chapters in their history. It finally ended in the passage of the statute of 21st James I, by which it was declared “ that all monopolies and" all commissions, grants, licenses, charters, and letters-patent, to any person or persons, bodies politic or corporate, whatsoever, of or for the sole buying, selling, rriáking, working, or using of'anything” within the realm, or the dominion of Wales were altogether contrary to the laws of the realm and utterly void, with the exception pf patents for new inventions for a limited period, and for printing, then supposed to belong to the prerogative of the king, and .for the preparation and manufacture of certairi articles and ordnance intended for the prosecution of war.

The common law of England, as is thus seen, condemned all monopolies in any- known trade or manufacture, and declared void all grants of special privileges whereby others could be deprived of any liberty which they previously had, or be hindered in their lawful trade. The statute of James I, to which I have referred, only embodied the law as it had been previously declared by the courts of England, although frequently disregarded by the sovereigns of that country.

The common law of England is the basis of the jurisprudence of the United States. It was brought to this country by the colonists, together with the English statutes, and was established h.ere so far as it was applicable to their condition. That law and-the benefit of such of the-English statutes as existed at the time of their colonization, and which they had by experience found to be- applicable to their circumstances, were claimed by the Congress of the United Colonies in 1774 as a part of their “ indubitable rights and liberties.”*105 * Of the .statutes, the benefits of which was thus claimed, the statute of James I against monopolies was one of the most important. And when the Colonies separated from the rnoth’er country no privilege vías more fully recognized or more completely incorporated into the fundamental law of the country than that every free subject in the British empire was entitled to pursue his happiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others. The immortal document which proclaimed the independence of the country declared as self-evident truths that the Creator had endowed all meu “ with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted among men.”

If it be said that the civil law and not the common law is the basis of the jurisprudence of Louisiana, I answer that the decree of Louis XVI, in 1776, abolished all monopolies of trades and all special privileges of corporations, guilds, and trading companies, and authorized every person to ex-.efcisfe, without restraint, his' art, trade, or, profession, au.d §úch .has béeirthe law of France and of her colonies' ever .since’,' and that law prevailed in Louisiana at the time of her cession .to flip United States. Since then, notwithstanding tile 'existence ,in that State of the civil'law as the basis qf her j'urispTU deuce, freedom of pursuit has been always recognized as the common right of her’citizens. But were this otherwise, the fourteenth ahlendment secures the like protection do all citizens in that State against any abridgment of their common Tights, as in other States. That amendment was intended to give practical effect to the declaration of 1776 of inalienable rights,'rights which are the gift of the Creator, which the' law does not confer, but only recognizes. If thfe trader in Lopdon could plead that he was a free' citizen of that city against the enforcement to his injury of monopolies, surely‘tmder the fourteenth amendment every *106citizeu of the United States should be able to plead his citizenship of the republic as a protection against áuy similar invasion of his. privileges and immunities.

So fundamental has this privilege of every citizen to be free from disparaging and unequal enactments, in the pursuit of the ordinary avocations of life, been regarded, that few instances have arisen where the principle, has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exception of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactfnent interfering with the privilege of the citizen has been pronounced illegal and void. When a case under the same law, under which the present cases have arisen, came before the Circuit Court of’ the United States in the District of Louisiana, there was no hesitation on the part of the court in declaring the law, in its exclusive features, to be an invasion of one of the fundamental privileges of the citizen.* †The presiding justice, in .delivering the opinion of the court, observed that it might be difficult to enumerate or define what were the essential privileges of a citizen of the United States, which a State could not by its laws invade, but that so far as the question under consideration was concerned, it might be safely said that “ it is one of the privileges of every American citizen to adopt and follow such .lawful industrial pursuit, not injurious to the community, as he may see fit, without unreasonable regulation or molestation, and without-being restricted by any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free governments.’* And again : “ There is' no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is. nothing more nor Jess than the sacred right of labor.”

In the City of Chicago v. Rumpff † which was before the Supreme Court of Illinois, we have a case similar in all its *107features to the one at bar. That city being authorized by its charter to regulate and license the slaughtering of animals within its corporate, limits, the common council passed what was termed an ordinance in reference thereto, whereby a particular building was designated for the slaughtering of all animal's intended for sale or consumption in.the city, the owners of which were granted the exclusive right for a specified period to have all such animals slaughtered at their establish men t, they to be paid a specific sum for the privilege of slaughtering tnere by all persons exercising it. The validity of this'action of .the'corporate authorities was as-’ sailed on the ground of the grant of exclusive privileges, and the court said:. “The charter authorizes the city authorities to license or regulate such establishments. Where that body has made the necessary regulations, required for the health or comfort of the inhabitants, all persous inclined '-to pursue such an occupation should have an opportunity of conforming to such regulations, otherwise the ordinance ■ would be unreasonable and tend to oppression. Or, if they should regard it for the interest of the city that such establishments should be licensed, the ordinance should be so framed that all persous desiring it might obtáin licenses by conforming to the prescribed terms and regulations' for the governmeut'of such business.- We regard it neither as a regulation nor a license of the business to'confine it to one-building or. to ¿ive it to one individual. Such an action is oppressive, and creates a monopoly that never could have been contemplated by the General Assembly. It impairs the' rights of all óther persons,' and cuts them oft' from a share in not only a legal, but a necessary business. Whether we consider this as an ordinance or a contract, it is equally unauthorized, ¿s' being opposed to the'rules governing the adoption of municipal by-laws. The principle of equality ■ of rights to the corporators is. violated by this contract. If the common council may require all of the animals for the consumption of,the city to be slaughtered in a single building, or on a particular lot, and the owner be-paid a specific sum for the privilege, what would prevent the making a *108similar contract with some other person .that all of the vegetables, or fruits, the flour, the groceries, the dry goods, or other commodities should be sold on his lot and he receive a compensation for the privilege ? We can see no difference in principle.”

It is true that the court,in this opinion was speák-ing of a municipal ordinance and not of an act of the legislature of a State. But, as it is justly observed by counsel, a legislative body is no more entitled to destroy the equality of rights of citizens, nor to fetter the industry of a city, than' a municipal government. These rights are protected from invasion by the'fundamental law.

In the case of the Norwich Gaslight Company v. The Norwich City Gas Company, * which was before the Supreme Court of Connecticut, it appeared that the common council of the city of Norwich had passed a resolution purporting to grant to one Treadway, his heirs and assigns, for the period of fifteen years, the right to lay gas-pipes in the streets of that city, declaring that no other person or corporation should, by the consent of the common council, lay gas-pipes, in the streets during that time; The plaintiffs having purchased of Treadway, undertook to assert an exclusive right to’ use the streets for their purposes, as against another company which was using the streets for the same purposes. And the court said: “As, then, no consideration whatever, either of a public or private character, was reserved for the grant; and as the business of manufacturing aud selling gas is an ordinary business, like the manufacture of léather, or any other article of trade in respect to which the government has no exclusive prerogative, we think that so far as tlie restriction of other persons than the plaintiffs from using the str’eets for the purpose of distributing gas by means of pipes, can fairly be viewed as intended to operate as a restriction upon its free manufácture aud sale, it comes-directly within the definition aud description of a monopoly; and although we have no direct constitutional provision against a monop*109•oly, yet the whole theory of a free government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of Bights, the first section of which declares £ that no man or set of men are entitled to exclusive public emoluments or privileges from the community,’ to render them void.”

In the Mayor of the City of Hudson v. Thorne,* an application was made to the chancellor of New York to dissolve an injunction restraining the defendants from erecting a building in the city of Hudson upon a vacant lot owned by them, intended to be used as a hay-press. The common council of the city had passed an ordinance directing that no person should erect, or construct, or cause to be erected or constructed, any wooden or frame barn, stable, or hay-press of certain dimensions, within certain specified limits in the city, without its permission. It appeared, however,, that there were such buildings already in existence, not only in compact parts of the city, but also within the prohibited limits, the occupation of which for the storing and pressing of hay the common council did not intend to restrain. And the chancellor-said: “If the manufacture of pressed hay within the compact parts of the city is dangerous in causing or promoting fires, the common council have the power expressly given by their charter to prevent the carrying on of such manufacture; hutas all by-laws must be reasonable, the common council cannot make a by-law which shall permit one person to carry on the dangerous business and prohibit another who has an equal right from pursuing the same business.”

In all these cases there is a recognition of the equality of right among citizens in the pursuit of the ordinary avocations of life, and a declaration that all grants of exclusive privileges, in contravention of this equality, are against common right, and void.

This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, *110throughout the-whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, nil pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may proscribe such regulations for every pursuit and calling of life as will promotedhe public-health, secure the good order and advance the general prosperity of society, but when once prescribed, the pursuit or Calling must be free to be followed by every citizen who is within the conditions-designated, and will-conform to-the regulations. This is the fundamental idea upon which our institutions rest; and unless adhered to in the legislation of the country our government will be a .republic only in name. The fourteenth amendment,in my judgment, makes it essential to the validity of •the legislatibo of every State that this equality of light should be respected. How widely’this equality has been departed from, how .entirely rejected and trampled upon by the act of .Louisiana, I have: already shown. And it .is to me a matter of profound regret that its validity is recognized by a, majority of this court, for by it'the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.* As stated by the Supreme Court of Connecticut, in *111the cáse cited, grants of exclusive privileges, such as is made by tbe aet in question, are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void. That only is.a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.* *

I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to state that they concur with me in this dissenting opinion.

Mr. Justice BRADLEY,

also dissenting:

I concur in the opinion which has just been read by Mr. Justice Field; but desire to add a few observations for the purpose of more fully illustrating my views on the important question, decided in these cases, and the special grounds on -which they rest.

The fourteenth amendment to the Constitution of the United States, section 1, declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the.United States.

.The legislature of Louisiana, under pretence of making a police regulation for the promotion of the public health, passed an act conferring upon a corporation, created by the act, the exclusive right, for twenty-five years, to have and maintain slaughter-houses, landings for cattle, and yards for *112confining cattle intended for slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a territory containing nearly twelve hundred square miles, including the city of New Orleans; aud prohibiting all other persons from building, keeping, or having slaughter-houses, landings for cattle, and yards for confining cattle intended for slaughter within the said limits; and requiring that all cattle and other animals to be slaughtered for food in that district should be brought to the slaughter-houses aud works of the favored compauy to be slaughtered, aud a payment of a fee to the company for such act.

It is contended that this prohibition abridges the privileges and immunities of citizens of the United States, especially of the plaintiffs in error, who were particularly affected thereby; and whether it does so or not is the simple question in this case. And the solution of this question depends upon the solution of two other questions, to wit:

First. Is it one of the rights aud privileges of a citizen of the United States to pursue such civil employment as he may choose to adopt, subject to such reasonable regulations as may be^prescribed by law?

Secondly. Is a monopoly, or exclusive right, given to one person to the exclusion of all others, to keep slaughter'honses, in a district of nearly twelve hundred square miles, for the supply of meat for a large city, a reasonable 'regulation of that employment which the legislature has a right tb impose ?-

The first of these questions is one of vast importance, and lies at the very foundations of our government. The question is now settled by the fourteenth amendment itself, that citizenship o.f, the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen’s place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, *113and an equality of rights with every other citizen; and the whole power of the nation is pledged'to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. And when the spirit of lawlessness, mob violence, and sectional hate can be so completely repressed as to give full practical effect to this right, we shall be a happier nation, and a more prosperous one than we now are. Citizenship of the United States ought to be, and, according to the Constitution, is, a sure and undoubted title to equal rights in any and every State in this Union, subject h> such regulations as the legislature may rightfully prescribe. If a man be denied full equality before the law, he is' denied one of the essential rights of citizenship as a citizen of the United States.

Every citizen, then, being primarily a citizen of the United States, and, secondarily, a citizen of the State where he resides, what, in general, are the privileges andimmunites of a citizen of the United States? Is the right, libei-ty, or' privilege of choosing any lawful employment one of them?

If a State legislature should pass a law prohibiting the inhabitants of a particular township, county, or city, from tanning leather or making shoes, would such a law violate any privileges or immunities of those inhabitants as citizens of the United States, or only their privileges and' immunities as citizens of that particular State ? Or if a State legislature should pass a law of caste, making all trades and professions, or certain enumerated trades and professions, hereditary, so that no one could follow any such trades or professions except that which was pursued by his father, would such a law violate the privileges and immunities of the people of that State as citizens of the United States', or only as citizens of the State? Would they have no redress but to appeal to the courts of that particular State ?

This seems to me to be the essential question before us for consideration. And,’in my judgment, the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all -lawful regulations) is one of *114his most valuable rights, and one which the legislature of. a State cannot invade, whether restrained by its own constitution or not.

The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which-this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves. I speak now of the rights of citizens of any free government. Granting for the present that the citizens of one government d’annot claim the privileges of citizens in another government; that prior to the union of our North American States the citizens of one State could not claim the privileges of citizens in another State; or, that after the uniou wTas formed the citizens of the United States, as such, could not claim the privileges of citizens in any particular State; yet the citizens of each of the States and the citizens of the United States would be entitled to certain privileges and immunities as citizens, at the hands of their own government — privileges and immunities which, their own governments respectively would be bound' to respect and maintain. In this free country, the people of which inherited certain traditionary rights and privileges from their ancestors, citizenship means something. It has certain privileges and immunities attached to it which the government, whether restricted bj' express or implied limitations, cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And these privileges and immunities attach as well to citizenship of the United States as to citizenship of the States.

The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation’s history. One of these fundamental rights was expressed in these words, found in Magua Oharta: “No freeman shall be taken, or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn *115him but by lawful judgment of his peers or by the law of the land.” English constitutional writers expound this article as rendering life, liberty, and property inviolable, except by due process of law. This is the very right which the 'plaintiffs in error claim in this case. Another of these rights was that of habeas corpus, or the right of having any invasion of personal liberty judicially examined into, ,at once, by a competent judicial magistrate. Blackstone classifies these fundamental rights under three heads, as the absolute rights of individuals, to wit: the right of personal security, the right of personal liberty, and the right of private property. And of the last he says: “ The third absolute right, inherent in every Englishman, is that of property, which consists in thé free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land.”

The privileges and immunities of Englishmen were established and secured by long usage and by various acts.of Parliament. But it may be said that the Parliament of' England has unlimited authority, and might repeal the laws which have from time to time been enacted. Theoretically this is so, but practically it is not. England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any'material respect would produce a revolution in an hour. A violation of one of the fundamental principles of that constitution in the Colonies, namely, the principle that recognizes the property of the people as their own, and which, therefore, regards all taxes for the. support of government as gifts of the people through their representatives, and regards taxation without representation as subversive of free government, was the origin of our own revolution.

This, it is true, was the violation of a political right; but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country; and the Declaration of Independence, which *116was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition : “ That all men are created equal; that they aré endowed by- their Creator with certain iualienable rights; that among these are life, liberty, and the pursuit of happiness.” Here again we have the great threefold division of the rights of freemen, asserted as the rights of man. Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only 'be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for. the mutual good of all; and these fights, I contend, belong to the citizens of every free government.

For the. preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right he cannot be a -freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.

I think sufficient has been said to show, that citizenship is not an empty name, but that, in this country at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to State citizenship, and not to citizenship of the United States, appears to me to evince a*very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people.

On this point the often-quoted language of Mr. Justice Washington, in Corfield v. Coryell,* is very instructive. Being *117called upon to expound that clause in the fourth article of the Constitution, which declares that “ the citizens of each State shall be entitled to all the privileges and immunities of, citizens in the several States,” he says: “ The inquiry is, what are the privileges and immunities of citizens in the several States ? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming.free, independent, and sovereign. What these fundamental privileges are' it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject', nevertheless, to such restraints as the government may justly prescribe for’ the general good of the whole; the right of a citizen of one State to pass through, or to reside in, any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of hateas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental.”

-It is pertinent to observe that both the clause of the Constitution referred to, and Justice Washington in his comment on it, speak of the privileges and immunities of citizens in a State;- not of citizens of a State. . It is the privileges and immunities of citizens, that is, of citizens as such, that are to be accorded to citizens of other States when they are found in any State; or, as Justice Washington says, “privileges and immunities which are, in their nature, funda-men*118tal; which belong, of right, to the citizens of all free governments.”

It is true the courts have usually regarded the clause referred to as securing ouly an equality of privileges with the citizens of the State in which the párties are found. Equality before the law is undoubtedly one of the privileges and immunities of every citizen. I am not aware that any case has arisen in which it became necessary to vindicate any other fundamental privilege of citizenship; although rights have been claimed which were not deemed fundamental, and have been rejected as not within the protection of this clause. Be this; however, as it may, the language of the clause is as I have stated it, and seems fairly susceptible of a broader interpretation than that which makes it a guarantee of mere equality of privileges with other citizens.

But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.- The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were ouly secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and im* *119munities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.

But even if the Constitution were silent, the fundamental privileges-and immunities of citizens, as such, would be no less real and no less inviolable thau they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and’enjoying property; the privilege of engaging in any lawful employment for a livelihood ; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not. Inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated; and' among these none tis more essential and fundamental than the right to follow such profession or employment as each one may choose, subject only to uniform regulations equally applicable to all.

II. The next-question to be determined in this case is: Is a monopoly or exclusive right, given to one person, or corporation, to the exclusion- of all others, to keep slaughterhouses in a district of nearly twelve hundred square miles, for the supply of meat for a great city, a reasonable regulation of that employment which the legislature has a right to impose ?

The keeping of a slaughter-house is part of, and incidental ‘to, the trade of a butcher — one of the- ordinary occupations of human life. To compel á butcher, or rather' all the butchers of a large city and an extensive district, to slaughter'their cattle in another person’s slaughter-house and pay him a toll therefor, is such a restriction upon the trade as materially to interfere with its prosecution. It is onerous, unreasonable, arbitrary, and unjust. It has none of the *120qualities of a police regulation. If it were really a police regulation, it would undoubtedly be within the power of the legislature. . That portion of the act which requires, all slaughter-houses to be located below the city, and to be subject to inspection, &e., is clearly a police regulation. That portion which allows no one but the favored corppany to ■build, own, or have slaughter-houses is not a police regulation., and has not the faintest semblance of one. It is one of those arbitrary and. unjust laws made in the interest of a few scheming individuals, by which some of the Southern States have, within the past few years, been so deplorably oppressed and impoverished. It seems to me strange that it can be viewed in any other light.

The granting of monopolies, or exclusive privileges to individuals or-corporations, is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was-so felt by tbe'English nation as far back as thp reigns of Elizabeth and James. A fierce struggle for the suppression of such monopolies, and for abolishing the prerogative of creating them, was made and was successful. The statute of 21st James, abolishing monopolies, was one of those constitutional landmarks of English liberty which the English nation so highly prize and so jealously preserve. It was a part of that inheritance which our fathers brought with them. This statute abolished all monopolies except grants for a term of years to the inventors of new manufactures. . This exception is the groundwork'of patents for new inventions and copyrights of. books. These have always been sustained as beneficial:to the state.'. But all other monopolies were abolished, as tending to' the impoverishment of the people and to-interference with their.free pursuits. And ever since, that struggle nó English-speaking people have ever endured such an odious badge of tyranny.-

It has been suggested that this was a mere legislative act, and that the British Parliament, as well as our own legislatures, have frequently disregarded it-, by granting exclusive privileges for érecting ferries, railroads, markets, and other establishments Of a public kind. It requires but-a slight *121acquaintance with legal history to know that grants of this kind of franchises are totally different from the monopolies of. commodities of of ordinary callings or .pursuits. These public franchises can only be exercised under authority from ■the government, and the" government may grant them on such conditions as.it sees til. But eveu. these'exclusive privileges are becoming more and more odious, and are. getting to be more and more regarded as wrong in principle, and as inimical to the just rights and greatest good of the people. But to cite them as proof of the power of legislatures to create mere monopolies, such as no free and enlightened community any longer endures, appears to me, to say the least, very strange and illogical.

Lastly: Can the Federal courts administer relief to citizens of the United States whose privileges and immunities have been abridged by a State? Of this I entertain no doubt. Prior to the fourteenth amendment this eould not be done, except in a few instances, for the want of the requisite authority.

As the great mass of citizens of the United States were $lso citizens of individual States, many of their general privileges and immunities would be the same in the one capacity as in the other. Having this double citizenship, and the great body of municipal laws intended for the protection of person and property being the laws of the State, and no provision being made, and no machinery provided by the Constitution, except in a few. specified cases, for any interference by the General Government between a State and its citizens,-the protection of the citizen in.the enjoyment of his fundamental privileges and immunities (except where a citizen of one State went iuto-another State) was largely left to State laws and State courts, where they will still continue .to be left unless actually invaded by the unconstitutional acts or delinquency of the State governments themselves.

Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens, of the United States, except *122in a few specified cases, that cannot be said now, since the adoption of the fourteenth amendment. In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen.

The first section of this amendment, after declaring that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States aud of the State wherein they reside, proceeds to declare further, that “ no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life j liberty, or property,, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws;” and that Congress shall have power to enforce by appropriate legislation the provisions of this article.

Now, here is a clear prohibition on the States against making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.

If my views are correet'with regard to what are the privileges and immunities of citizens, it follows conclusively that any. law which .establishes a 'sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens.

• The amendment also prohibits any State from depriving any person (citizen or otherwise) of life, liberty, or property, without due process of law.

In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of. choice is a portion ofdheir liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section.

The constitutional question is distinctly raised in these cases; the constitutional right is expressly claimed; it was *123violated by State law, which was sustained by the State court, and we are called upon in a legitimate and proper way to afford redress. Our jurisdiction and .our duty are plain and imperative.

It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and .I think it was purposely so expressed.

The mischief to be remedied was not merely slavery and its incidents and consequences; but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestatiou.

But great fears are expressed that this construction of the amendment will lead to enactments by Congress interfering with the internal affairs of the States, and establishing therein civil and criminal codes of law for the government of the citizens, and thus abolishing the State governments in everything but name; or else, that it will lead the Federal eoui’ts to draw to their cognizance the supervision of State tribunals on every subject of judicial inquiry, on the plea of ascertaining whether the privileges and immunities of citizens have not been abridged.

In my judgment no such practical inconveniences would arise. Very little, if any, legislation' on the part of Congress would be required to carry the amendment into effect. Like the prohibition against passing a law impairing the obligation of a contract, it would execute itself. The point would *124be regularly raised,, in a suit at law, aud settled by final reference to the Federal court. As the privileges and immunities protected are only those fundamental ones which belong to every citizen, they would soon become so far defined as to cause but a slight accumulation of business in the Federal courts. Besides, the recognized existence of the law would prevent its frequent violation. But even if the business of the National courts should be increased, Congress could easily supply the remedy by increasing their number aud efficiency. The great question is, What is'the true construction of the amendment ? When once we find that, we shall find the means of giving it effect. The argument from inconvenience ought not to have a very controlling influeiiee in questions of this sort. The National will and National interest are of far greater importance.

In my opinion the judgment of the Supreme Court of Louisiana ought to be reversed.

Miv Justice SWAYNE,

dissenting:

• I concur in the dissent in these cases and in the views expressed by my brethren, Mr. Justice Field and Mr. Justice Bradley.' I desire, however, to submit a few additional remarks.

The first eleven amendments to the Constitution were intended to be checks and limitations upon the government which that instrument called into existence. They had their origin in a spirit of jealousy on the part-of the States, which existed when the Constitution was adopted. The first ten were proposed in 1789 by the first Congress at its first session after the organization of the government. The eleventh was proposed in 1794, and the twelfth in 1803. The one last mentioned regulates the mode of electing the .President aud Vice-President. It neither increased nor diminished the power of the General Government, aud may be said in that respect to occupy neutral ground. No further amendrpents were made until 1865, a period of -more than sixty .years. The thirteenth amendment was proposed by Congress on the 1st of February, 1865, the fourteenth oil *125the 16th of June, 1866, and the-fifteenth on the 27th of' February, 1869. These amendments are a. new departure, and mark an important epoch in the constitutional history of the country. They trench directly upon the power of the States, and deeply affect those bodies. They are,'in this respect, at the opposite pole from the first eleven.*

Fairly construed these amendments may be said to rise to the dignity of a new Magna Charta. The thirteenth blotted out slavery and forbade forever its restoration. It struck the .fetters from four- millions of human beings and raised them at once to the sphere of freemen. This was an act of grace and justice performed by the Nation. Before the war it could have been done only by the States where the institution existed, acting severally and separately from each other. ' The power then rested wholly with them. In that way, apparently, such a result could never have occurred. The power of Congress did not extend to the subject, except in the Territories.

The fourteenth amendment consists of five sections. The first is as follows: “All persons born or naturalized within the United' States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they, reside. No State sliall make any law which shall abridge the privileges or immunities of citizens of the United States, nor shall auy State deprive any person of life; liberty, ■or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

The fifth section declares-that Congress shall have power to enforce the provisions of this amendment by appropriate legislation.

The fifteenth amendment declares that the right to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. Until this amendment was adopted the sub*126ject to which it relates was wholly within the jurisdiction of the States. The General Government was excluded from participation.

The first section of the-fourteenth amendment is alone involved in the consideration of these cases. No searching analysis is necessary to eliminate its meaning. Its language is intelligible and direct. Nothing can be more transparent. .Every word employed has an established significa-' tion. There is no room for construction.1 There is nothing to construe. Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out.

(1.) Citizens of the States and of the United States are defined.

(2.) It is declared that no State shall, by law, abridge the ■privileges or immunities of citizens of the United States,

(3.)’ That no State shall deprive any person, whether a citizen or not, of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

A citizen of a State is ipsa fado a citizen óf the United States. No one can be the former without being also the latter; but the latter, by losing his' residence in one State without acquiring it in another, although he continues to be the latter, ceases for the time to be the former. “ The privileges and-immunities ” of a citizen of the United States'include, among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation. ' The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection. All those which belong to the citizen of a State, except as to bills of attainder, ex post fado *127laws, and laws impairing the obligation of contracts,* †are left to the guardianship of the bills of rights, constitutions, and laws of the Statés respectively. Those fights may all be enjoyed in every State by the citizens of every other State by virtue of clause 2, section 4, article 1, of the Constitution of the United States as it was originally framed. This section does not in anywise affect them; such was not its purpose.

In the next category, obviously ex industriñ, to prevent, as far as may be, the possibility of misinterpretation, either as to persons or things, the phrases “citizens of the United States” and “privileges and immunities” are dropped, ‘and more simple and comprehensive terms are substituted. The substitutes are “any persou,” aud “life,” “liberty,” aud “ property,” and “ the-equal protection of the laws.” Life, liberty, and property are forbidden to be taken “ without due process of law,”- and “ equal protection of the laws” is guaranteed to all. Life is the gift of G-od, and the right to preserve it is the most-sacred of the rights of man. Liberty is freedom from- all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection. The right to make it available is next in importance to the rights of life and liberty.. It lies to a large extent at the foundation of most other forms of property, and of all solid individual and national prosperity. “Due process of. law” is the application of the law as it exists in the fair and regular course of administrative procedure! “ The equal protection of tile laws” places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness.†

*128It is admitted that the plaintiffs in error are citizens of the United States, and persons within the jurisdiction of Louisiana. The cases before us, therefore, present but two questions.

(1.) Does the act of the legislature creating the monopoly in question abridge the privileges and immunities of the plaintiffs in error as citizens of the United States?

(2.) Does-it deprive them of liberty'or property without due process of law, or deny them the equal protection of the laws of the State, they being persons “ within its jurisdiction ?”

Both these inquiries I remit for their answer as to the facts to the opinions of my brethren, Mr. Justice Field and Mr. Justice Bradley. They are full and conclusive upon the subject. A more flagrant and indefensible invasion of the rights of many for the benefit of a few has not occurred in the legislative history of the country. The response to both inquiries should be in the affirmative. In my opinion the case.s, as presented in the record, are clearly within the letter and meaning of both the negative categories'of the sixth section. The judgments before us should, therefore, be reversed.

These amendments are all consequences of the late civil war. The prejudices and apprehension as to the central government which prevailed when the Constitution was adopted were dispelled by the light of experience. The public mind became satisfied that there was less danger of tyranny in the head than of anarchy and tyranny in the members. The provisions of this section are all eminently conservative in their character. They are a bulwark of defence, and can never be made an engine of oppression. The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language “ citizens of the United States” was meant all such citizens; and by “ any person” *129was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men. It is objected that the power conferred is novel and large. The answer is that the novelty was known and the measure deliberately adopted. The power is beneficent.in its nature, and cannot be abused. It is such as should exist in every well-ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided ? It is necessary to enable the government of the nation to secure to every one within its jurisdiction the rights and privileges enumerated, which, according to'the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy. Without such authority any government claiming to be national is glaringly defective. The construction adopted by the majority of my brethren is, in my judgment,mauch too narrow. It defeats, by a limitation not anticipated, the intent of those by whom the instrument was,framed and of those by whom it was adopted. To the extent of that limitation it turns, as it were, what was meant for bread into a stone. By the Constitution, as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the States. That.want was intended to be supplied by this amendment Against the former this court has been called upon more than once to interpose. Authority of the same amplitude was intended to be conferred as to the latter. But this arm of our jurisdiction is, in these cases, stricken down by the judgment just given. Nowhere, than in this court, ought the will of the nation, as thus expressed, to be more liberally construed or more cordially executed. This determination of the raaj'ority seems to me-to lie far in the other direction.

*130• I earnestly hope that the consequences to follow may prove less serious and far-reaching than the, minority fear they will be.

*548Mr. Chief Justice Waite

delivered the opinion of the court.

This case comes here with a certificate by the judges of the Circuit Court for the District of Louisiana that they were divided in opinion upon a question which occurred at the hearing. It presents for our consideration an indictment containing sixteen counts, divided into two series of eight counts each, based upon sect. 6 of the Enforcement Act of May 31,1870. That section is as follows: —

“ That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court, — the fine not to exceed $5,000, and the imprisonment not to exceed ten years; and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, of trust created by the constitution or laws of the United States.” 16 Stat. 141.

The question certified arose upon a motion in arrest of judgment after a verdict of guilty generally upon the whole sixteen counts, and is stated to be, whether “ the said sixteen counts of said indictment are severally good and sufficient in law, and contain charges of criminal matter indictable under the laws of the United States.”

The general charge in the first eight counts is that of “ banding,” and in the second eight, that of “ conspiring ” together to injure, oppress, threaten, and intimidate Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color, with the intent thereby to hinder and prevent them in their free exercise and enjoyment of rights and privileges “ granted and secured ” to them “ in common with all other good citizens of the United States by the constitution and laws of the United States.”

The offences provided for by the statute in question do not consist in the mere “banding” or “conspiring” of two or *549more persons together, but in.their banding or conspiring with the intent, or for any of the purposes, specified. To bring this case under the operation of the statute, therefore, it must appear that the right, the enjoyment of which the conspirators intended to hinder or prevent, was one granted or secured by the constitution or laws of the United States. If it does not so appear, the criminal matter charged has not been made indictable by any act of Congress.

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-House Cases, 16 Wall. 74.

Citizens' are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose.

Experience made the fact known to the people of the United States that they required a national government for national purposes. The separate governments of the separate States, bound together by the articles of confederation alone, were not sufficient for the promotion of the general welfare of the people in respect to foreign nations, or for their complete protection as citizens of the confederated States. For this reason, the people of the United States, “ in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for *550the common defence, promote the general welfare, and secure the blessings of liberty ” to themselves and their .posterity (Const. Preamble), ordained and established the government of the United States, and defined its powers by a constitution, which they adopted as its fundamental law, and made its rule of action.

The government thus established and defined is to some extent a government of the States in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the States; but beyond, it has no existence. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.

The people of the United States resident within any State are subject to two governments : one State, and the other National ; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate, jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act. Thus, if a marshal of the United States is unlawfully resisted while executing the process of the courts within a State, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the State by the breach of peace, in the assault. So, too, if one passes counterfeited coin of the United States within a State, it may be an offence against the United States and the State: the United States, because it discredits the coin; and the State, because of -the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship *551which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.

We now proceed to an examination of the indictment, to ascertain whether the several rights, which it is alleged the defendants intended to interfere with, are such as had been in law and in fact granted or secured by the constitution or laws of the United States.

The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their “ lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose.” The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It “ derives its source,” to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, “ from those laws whose authority is acknowledged by civilized man throughout the world.” It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id. 203, subject to State jurisdic*552tion. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The first amendment to the Constitution prohibits Congress from abridging “the right of the people to assemble and to petition the government for a redress of grievances.” This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, “the scope and application of these amendments are no longer subjects of discussion here.” They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people mu.st look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in *553these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been Avithin the statute, and Avithin the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, Avill be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.

The second and tenth counts are equally defective. The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their felloAV-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the “ powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,” “not surrendered or restrained” by the Constitution of the United States.

The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, “of their respective several lives and liberty of person without due process of law.” This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being Avithin the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. “ To secure these rights,” says the Declaration of Independence, “ governments are instituted among men, deriving their just powers from the consent of the governed.” The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these “ unalienable rights with which they were endowed by their Creator.” Sovereignty, for this purpose, rests alone with the States. It is no more the duty or Avithin the power of the United States to punish for a conspiracy *554to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.

The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it secures “the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.” These counts in the indictment do not call for the exercise of any of the powers conferred by this provision in the amendment.

The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in “ the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States; and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens.” There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case as presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.

The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing *555to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.

No question arises under the Civil Rights Act of April 9,1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color.

Another objection is made to these counts, that they are too vague and uncertain. This will be considered hereafter, in connection with the same objection to other counts.

The sixth and fourteenth counts state the intent of the defendants to have been to hinder and prevent the citizens named, being of African descent, and colored, “ in the free exercise and enjoyment of their several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana, or by the people of and in the parish of Grant aforesaid.” In Minor v. Happersett, 21 Wall. 178, we decided that the Constitution of the United States has not conferred the right of suffrage upon any one, and that the United States have no voters of their own creation in the States. In United States v. Reese et al., supra, p. 214, we hold that the fifteenth amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in the exercise of that right on *556account of race, &c., is. The right to vote in the States conies from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States; but the last has been.

Inasmuch, therefore, as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race, &c., it does not appear that it was their intent to interfere with any right granted or secured by the constitution or laws of the United States. We may suspect that race was the cause of the hostility; but it is not so averred. This is material to a description of the substance of the offence, and cannot be supplied by implication. Every thing essential must be charged positively, and not inferentially. The defect here is not in form, but in substance.

The seventh and fifteenth counts are no better than the sixth and fourteenth. The intent here charged is to put the parties named in great fear of bodily harm, and to injure and oppress them, because, being and having been in all things qualified, they had voted “ at an election before that time had and held according to law by the people of the said State of Louisiana, in said State, to wit, on the fourth day of November, A.D. 1872, and at divers other elections by the people of the State, also before that time had and held according to law.” There is nothing to show that the elections voted at were any other than State elections, or that the conspiracy was formed on account of the race’ of the parties against whom the conspirators were to act. The charge as made is really of nothing more than a conspiracy to commit a breach of the peace within a State. Certainly it will not be claimed that the United States have the power or are required to do mere police duty in the States. If a State cannot protect itself against domestic violence, the United States may, upon the call of the executive, when the legislature cannot be convened, lend their assistance for that purpose. This is a guaranty of the Constitution (art. 4, sect. 4); but it applies to no case like this.

We are, therefore, of the opinion that the first, second, third, fourth, sixth, seventh, ninth, tenth, eleventh, twelfth, fourteenth, *557and fifteenth counts do not contain charges of a criminal nature made indictable under the laws of the United States, and that consequently they are not good and sufficient in law. They do not show that it was the intent of the defendants, by their conspiracy, to hinder or prevent the enjoyment of any right granted or secured by the Constitution.

We come now to consider the fifth and thirteenth and the eighth and sixteenth counts, which may be brought together for that purpose. The intent charged in the fifth and thirteenth is “ to hinder and prevent the parties in their respective free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the United States, and as citizens of said State of Louisiana,” “ for the reason that they, . . . being then and there citizens of said State and of the United States, were persons of African descent and race, and persons of color, and not white citizens thereof; ” and in the eighth and sixteenth, to hinder and' prevent them “ in their several and respective free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the constitution and laws of the United States.” The same general statement of the rights to be interfered with is found in the fifth and thirteenth counts.

According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all. The statute provides for the punishment of those who conspire “ to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States.” These counts in the indictment charge, in substance, that the intent in this case was to hinder and prevent these citizens in the free exercise and enjoyment of “ every, each, all, a,nd singular ” the rights granted them by the Constitution, &c. There is no specification of any particular right. The language is broad enough to cover all.

In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right “to be in*558formed of the nature and cause of the accusation.” Amend. VI. In United States v. Mills, 7 Pet. 142, this was construed to mean, that the indictment must set forth the offence “ with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged; ” and in United States v. Cook, 17 Wall. 174, that “ every ingredient of which the offence is composed must be accurately and clearly alleged.” It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, “ includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition ; but it must state the species, — it must descend to particulars. 1 Arch. Cr. Pr. and PL, 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.

It is a crime to steal goods and chattels ; but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This, because the accused must be advised of the essential particulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of larceny. So, too, it is in some States a crime for two or more persons to conspire to cheat and defraud another out of his property; but it has been held that an indictment for such an offence must contain allegations setting forth the means proposed to be used to accomplish the purpose. This, because, to make such a purpose criminal, the conspiracy must be to cheat and defraud in a mode made criminal by statute; and as all cheating and defrauding has not been made criminal, it is necessary for the indictment to state the means proposed, in order that the court *559may see tliat they are in fact illegal. State v. Parker, 43 N. H. 83 ; State v. Keach, 40 Vt. 118; Alderman v. The People, 4 Mich. 414; State v. Roberts, 34 Me. 32. In Maine, it is an offence for two or more to conspire with the intent unlawfully and wickedly to commit any crime punishable by imprisonment in the State prison (State v. Roberts); but we think it will hardly be claimed that an indictment would be good under this statute, which charges the object of the conspiracy to have been “ unlawfully and wickedly to commit each, every, all, and singular the crimes punishable by imprisonment in the State prison.” All crimes are not so punishable. Whether a particular crime be such a one or not, is a question of law. The accused has, therefore, the right to have a specification of the charge against him in this respect, in order that he may decide whether he should present his defence by motion to quash, demurrer, or plea; and the court, that it may determine whether the facts will sustain the indictment. So here, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, &c. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court, not the prosecutor. Therefore, the indictment should state the particulars, to inform the court as well as the accused. It must be made to appear — that is to say, appear from the indictment, without going further — that the acts charged will, if proved, support a conviction for the offence alleged.

But it is needless to pursue the argument further. The conclusion is irresistible, that these counts are too vague and general. They lack the certainty and precision required by the established rules of criminal pleading. It follows that they are not good and sufficient in law. They are so defective that no judgment of conviction should be pronounced upon them.

The order of the Circuit Court arresting the judgment upon the verdict is, therefore, affirmed ; and the cause remanded, with instructions to discharge the defendants.

Mr. Justice Clifford

dissenting.

I concur that the judgment in this case should be arrested, but for reasons quite different from those given by the court.

*560Power is vested in Congress to enforce by appropriate legislation the prohibition contained in the fourteenth amendment of the Constitution; and the fifth section of the Enforcement Act provides to the effect, that persons who prevent, hinder, control, or intimidate, or who attempt to prevent, hinder, control, or intimidate, any person to whom the right of suffrage is secured or guaranteed by that amendment, from exercising, or in exercising such right, by means of bribery or threats; of depriving such person of employment or occupation; or of ejecting such person from rented house, lands, or other property ; or by threats of refusing to renew leases or contracts for labor; or by threats of violence to himself or family, — such person so offending shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined or imprisoned, or both, as therein provided. 16 Stat. 141.

Provision is also made, by sect. 6 of the same act, that, if two or more persons shall band or conspire together, or go in disguise, upon the public highway, or upon the premises of another, with intent to violate any provision of that act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution and laws of the United States, or because of his having exercised the same, such persons shall be deemed guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, and be further punished as therein provided.

More than one hundred persons were jointly indicted at the April Term, 1873, of the Circuit Court of the United States for the District of Louisiana, charged with offences in violation of the provisions of the, Enforcement Act. By the record, it appears that the indictment contained thirty-two counts, in two series of sixteen counts each: that the first series were drawn under the fifth and sixth sections of the act; and that the second series were drawn under the seventh section of the same act; and that the latter series charged that the prisoners are guilty of murder committed by them in the act of violating some of the provisions of the two preceding sections of that act.

Eight of the persons named in the indictment appeared on *561the 10th of -June, 1874, and went to trial under the plea of not guilty, previously entered at the time of their arraignment. Three of those who.went to trial — to wit, the three defendants named in the transcript — were found guilty by the jury on the first series of the counts of the indictment, and not guilty on the second series of the counts in the same indictment.

Subsequently the convicted defendants filed a motion for a new trial, which motion being overruled they filed a motion in arrest of judgment. Hearing was had upon that motion; and the opinions of the judges of the Circuit Court being opposed, the matter in difference was duly certified to this court, the question being whether the motion in arrest of judgment ought to be granted or denied.

Two only of the causes of arrest assigned in the motion will be considered in answering the questions certified: (1.) Because the matters and things set forth and charged in the several counts in question do not constitute offences against the laws of the United States, and do not come within the purview, true intent, and meaning of the Enforcement Act. (2.) Because the several counts of the indictment in question are too vague, insufficient, and uncertain to afford the accused proper notice to plead and prepare their defence, and do not set forth any offence defined by the Enforcement Act.

Pour other causes of arrest were assigned; but, in the view taken of the case, it will be sufficient to examine the two causes above set forth.

Since the questions were certified into this court, the parties have been fully heard in respect to all the questions presented for decision in the transcript. Questions not pressed at the argument will not be considered; and, inasmuch as the counsel in behalf of the United States confined their arguments entirely to the thirteenth, fourteenth, and sixteenth counts of the first series in the indictment, the answers may well be limited to these counts, the others being virtually abandoned. Mere introductory allegations will be omitted as unimportant, for the reason that the questions to be answered relate to the allegations of the respective counts describing the offence.

As described in the thirteenth count, the charge is, that the *562defendants did, at the time and place mentioned, combine, conspire, and confederate together, between and among themselves, for and with the unlawful and felonious intent and purpose one Levi Nelson and one Alexander Tillman, each of whom being then and there a citizen of the United States, of African descent, and a person of color, unlawfully and feloniously to injure, oppress, threaten, and intimidate, with the unlawful and felonious intent thereby the said persons of color, respectively, then and there to hinder and prevent in their respective and several free exercise and enjoyment of the rights, privileges, and immunities, and protection, granted and secured to them respectively as citizens of the United States and citizens of the State, by reason of their race and color; and because that they, the said persons of color, being then and there citizens of the State and of the United States, were then and there persons of African descent and race, and persons of color, and not white citizens thereof; the same being a right or privilege granted or secured to the said persons of color respectively, in common with all other good citizens of the United States, by the Federal Constitution and the laws of Congress.

Matters of law conceded, in the opinion of the court, may be assumed to be correct without argument; and, if so, then discussion is not necessary to show that every ingredient of which an offence is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested before sentence, or be reversed on a writ of error. United States v. Cook, 17 Wall. 174.

Offences created by statute, as well as offences at common law, must be accurately and clearly described in an indictment; and, if the offence cannot be so described without expanding the allegations beyond the mere words of the statute, then it is clear that the allegations of the indictment must be expanded to that extent, as it is universally true that no indictment is sufficient which does not accurately and clearly allege all the ingredients of which the offence is composed, so as to bring the accused within the true intent and meaning of the statute defining the offence. Authorities of great weight, besides those referred to by me, in the dissenting opinion just read, *563may be found in support of that proposition. 2 East, P. C. 1124; Dord v. People, 9 Barb. 675; Ike v. State, 23 Miss. 525; State v. Eldridge, 7 Eng. 608.

Every offence consists of certain acts done or omitted under certain circumstances; and, in the indictment for the offence, it is not sufficient to charge the accused generally with having committed the offence, but all the circumstances constituting the offence must be specially set forth. Arch. Cr. PL, 15th ed., 43.

Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens thereofand the fourteenth amendment also provides, that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Congress may, doubtless, prohibit any violation of that provision, and may provide that any person convicted of violating the same shall be guilty of an offence, and be subject to such reasonable punishment as Congress may prescribe.

Conspiracies of the kind described in the introductory clause of the sixth section of the Enforcement Act are explicitly forbidden by the subsequent clauses of the same section; and it may be that if the indictment was for a conspiracy at common law, and was pending in a tribunal having jurisdiction of common-law offences, the indictment in its present form might be sufficient, even though it contains no definite allegation whatever of any particular overt act committed by the defendants in pursuance of the alleged conspiracy.

Decided cases may doubtless be found in which it is held that an indictment for a conspiracy, at common law, may be sustained where there is an unlawful agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means; and authorities maybe referred to which support the proposition, that the indictment, if the conspiracy is well pleaded, is sufficient, even though it be not alleged that any overt act had been done in pursuance of the unlawful combination.

Suffice it to say, however, that the authorities to that effect are opposed by another class of authorities equally respectable, and even more numerous, which decide that the indictment is *564bad unless it is alleged that some overt act was committed in pursuance of tbe intent and purpose of tbe alleged conspiracy; and in all the latter class of cases it is held, that the overt act, as well as the unlawful combination, must be clearly and accurately alleged.

Two reasons of a conclusive nature, however, may be assigned which show, beyond all doubt, that it is not necessary to enter into the inquiry which class of those decisions is correct.

1. Because the common law is not a source of jurisdiction in the circuit courts, nor in any other Federal court.

Circuit courts have no common-law jurisdiction of offences of any grade or description; and it is equally clear that the appellate jurisdiction of the Supreme Court does not extend to any case or any question, in a case not within the jurisdiction of the subordinate Federal courts. State v. Wheeling Bridge Co., 13 How. 563; United States v. Hudson et al., 7 Cranch, 32.

2. Because it is conceded that the offence described in the indictment is an offence created' and defined by an act of Congress.

Indictments for offences created and defined by statute must in all cases follow the words of the statute: and, where there is no departure from that rule, the indictment is in general sufficient, except in cases where the statute is elliptical, or where, by necessary implication, other constituents are component parts of the offence; as where the words of the statute defining the offence have a compound signification, or are enlarged by what immediately precedes or follows the words describing the offence, and in the same connection. Cases of the kind do arise, as where, in the dissenting opinion in United States v. Reese et al., supra, p. 222, it was held, that the words offer to pay a capitation tax were so expanded by a succeeding clause of the same sentence that the word “ offer ” necessarily included readiness to perform what was offered, the provision being that the offer should be equivalent to actual performance if the offer failed to be carried into execution by the wrongful act or omission of the party to whom the offer was made.

Two offences are in fact created and defined by the sixth section of the Enforcement Act, both of which consist of a *565conspiracy Avith an intent to perpetrate a forbidden act. They are alike in respect to the conspiracy; but differ very Avidely in respect to the act embraced in the prohibition.

1. Persons, two or more, are forbidden to band or conspire together, or go in disguise upon the public liigliAvay, or on the premises of another, with intent to violate any provision of the Enforcement Act, Avhich is an act of twenty-three sections.

Much discussion of that clause is certainly unnecessary, as no one of the counts under consideration is founded on it, or contains any allegations describing such an offence. Such a conspiracy with intent to injure, oppress, threaten, or intimidate any person, is also forbidden by the succeeding clause of that section, if it be done Avith intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of having exercised the same. Sufficient appears in the thirteenth count to Avarrant the conclusion, that the grand jury intended to charge the defendants AA'ith the second offence created and defined in the sixth section of the Enforcement Act.

Indefinite and vague as the description of the offence there defined is, it is obvious that it is greatly more so as described in the allegations of the thirteenth count. By the act of Congress, the prohibition is extended to any right or privilege granted or secured by the constitution or laws of Congress; leaving it to the pleader to specify the particular right or privilege which had been invaded, in order to give the accusation that certainty which the rules of criminal pleading everywhere require in an indictment; but the pleader in this case, overlooking any necessity for any such specification, and making no attempt to comply Avith the rules of criminal pleading in that regard, describes the supposed offence in terms much more vague and indefinite than those employed in the act of Congress.

Instead of specifying the particular right or privilege which had been invaded, the pleader .proceeds to allege that the defendants, Avith all the others named in the indictment, did combine, conspire, and confederate together, Avith the unlawful intent and purpose the said persons of African descent and *566persons of color then and there to injure, oppress, threaten, and intimidate, and thereby then and there to hinder and prevent them in the free exercise and enjoyment of the rights, privileges, and immunities and protection granted and secured to them as citizens of the United States and citizens of the State, without any other specification of the rights, privileges, immunities, and protection which had been violated or invaded, or which were threatened, except what follows; to wit, the same being a right or privilege granted or secured in common with all other good citizens by the constitution and laws of the United States.

Vague and indefinite allegations of the kind are not sufficient to inform the accused in a criminal prosecution of the nature and cause of the accusation against him, within the meaning of the sixth amendment of the Constitution.

Valuable rights and privileges, almost without number, are granted and secured to citizens by the constitution and laws of Congress; none of which may be, with impunity, invaded in violation of the prohibition contained in that section. Congress intended by that provision to protect citizens in the enjoyment of all such rights and privileges; but in affording such protection in the mode there provided Congress never intended to open the door to the invasion of the rule requiring certainty in criminal pleading, which for ages has been regai'ded as one of the great safeguards of the citizen against oppressive and groundless prosecutions.

Judge Story says the indictment must charge the time and place and nature and circumstances of the offence with clearness and certainty, so that the party may have full notice of the charge, and be able to make his defence with all reasonable knowledge and ability. 2 Story, Const., sect. 1785.

Nothing need be added to show that the fourteenth count is founded upon the same clause in the sixth section of the Enforcement Act as the thirteenth count, which will supersede the necessity of any extended remarks to explain the nature and character of the offence there created and defined. Enough has already been remarked to show that that particular clause of the section was passed to protect citizens in the free exercise and enjoyment of every right or privilege granted *567or secured to them by the constitution and laws of Congress, and to provide for the punishment of those who band or conspire together, in the manner described, to injute, oppress, or intimidate any citizen, to prevent or hinder him from the free exercise and enjoyment of all such rights or privileges, or because of his having exercised any such right or privilege so granted or secured.

What is charged in the fourteenth count is, that the defendants did combine, conspire, and confederate the said citizens of African descent and persons of color to injure, oppress, threaten, and intimidate, with intent the said citizens thereby to prevent and hinder in the free exercise and enjoyment of the right and privilege to vote at any election to be thereafter had and held according to law by the people of the State, or by the people of the parish; they, the defendants, well knowing that the said citizens were lawfully qualified to vote at any such election thereafter to be had and held.

Confessedly, some of the defects existing in the preceding count are avoided in the count in question; as, for example, the description of the particular right or privilege of the said citizens which it was the intent of the defendants to invade is clearly alleged: but the difficulty in the count is, that it does not allege for what purpose the election or elections were to be ordered, nor when or where the elections were to be had and held. All that is alleged upon the subject is, that it was the intent of the defendants to prevent and hinder the said citizens of African descent and persons of color in the free exercise and enjoyment of the right and privilege to vote at any election thereafter to be had and held, according to law, by the people of the State, or by the people of the parish, without any other allegation whatever as to the purpose of the election, or any allegation as to the time and place when and where the election was to be had and held.

Elections thereafter to be held must mean something different from pending elections; but whether the pleader means to charge that the intent and purpose of the alleged conspiracy extended only to the next succeeding elections to be held in the State or parish, or to all future elections to be held in the State or parish during the lifetime of the parties, may admit of *568a serious question, which cannot be easily solved by any thing contained in the allegations.of the count.

Reasonable certainty, all will agree, is required in criminal pleading; and if so it must be conceded, we think, that the allegation in question fails to comply with that requirement. Accused persons, as matter of common justice, ought to have the charge against them set forth in such terms that they may readily understand the nature and character of the accusation, in order that they, when arraigned, may know what answer to make to it, and that they may not be embarrassed in conducting their defence; and the charge ought also to be laid in such terms that, if the party accused is put to trial, the verdict and judgment may be pleaded in bar of a second accusation for the same offence.

Tested by these considerations, it is quite clear that the fourteenth count is not sufficient to warrant the conviction and sentence of the accused.

Defects and imperfections of the same kind as those pointed out in the thirteenth count also exist in the sixteenth count, and of a more decided character in the latter count than in the former; conclusive proof of which will appear by a brief examination of a few of the most material allegations of the charge against the defendants. Suffice it to say, without entering into details, that the introductory allegations of the count are in all respects the same as in the thirteenth and fourteenth counts. None of the introductory allegations allege that any overt act was perpetrated in pursuance of the alleged conspiracy; but the jurors proceed to present that the unlawful and felonious intent and purpose of the defendants were to prevent and hinder the said citizens of African descent and persons of color, by the means therein described, in the free exercise and enjoyment of each, every, all, and singular the several rights and privileges granted and secured to them by the constitution and laws of the United States in common with all other good citizens, without any attempt to describe or designate any particular right or privilege which it was the purpose and intent of the defendants to invade, abridge, or deny.

Descriptive allegations in criminal pleading are required to be reasonably definite and certain, as a necessary safeguard *569to tlie accused against surprise, misconception, and error in conducting Ms defence, and in order that the judgment in the case may be a bar to a second accusation for the same charge. Considerations of the kind are entitled to respect; but it is obvious, that, if such a description of the ingredient of an offence created and defined by an act of Congress is held to be sufficient, the indictment must become a snare to the accused; as it is scarcely possible that an allegation can be framed which would be less certain, or more at variance Avith the universal rule that every ingredient of the offence must be clearly and accurately described so as to bring the defendant within the true intent and meaning of the proA’ision defining the offence. Such a vague and indefinite description of a material ingredient of the offence is not a compliance with the rules of pleading in framing an indictment. On the contrary, such an indictment is insufficient, and must be held bad on demurrer or in arrest of judgment.

Certain other causes for arresting the judgment are assigned in the record, which deny the constitutionality of the Enforcement Act; but, having come to the conclusion that the indictment is insufficient, it is not necessary to consider that question.

Mr, Justice MILLER

delivered-the opinion of the court.

The record in this case is not very perfect, but it may be fairly taken that the plaintiff asserted her right to a license on the grounds, among others, that she was’a citizen of the United States, and that having been a citizen of Vermont at one time, she.was, in the State of Illinois, entitled to any right granted to citizens of the latter State.

The court having overruled these claims of right founded on the clauses of the Federal Constitution before referred *138to, those propositions may be considered as properly before this court.

As. regards the provision of the Constitution that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable.

The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State whose laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Constitution gavfe her no protection against its courts or its legislation.

The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont.

While she remained in Vermont that circumstance madé her a citizen of that State. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the State of-Illinois.

The fourteenth amendment declares that citizens of the United States are citizens of the State within which they reside; therefore the plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois.

We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But the plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first, section of the fourteenth amendment.

In regard to that amendment counsel for the plaintiff" in this court truly says that there are certain privileges and immunities which beloug to a citizen of the United States as such; otherwise it would be nonsense for the fourteenth amendment to prohibit a State from abridging them, and he proceeds to argue that admission to the bar of a State of a person who possesses the requisite learning,-and character is ohe of those whibh a State may not deny.

*139Iii this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and "these alone which a State is forbidden to abridge. . But the right to-admission to practice in the courts of a State is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly mai y prominent and distinguished lawyers have beeu admitted to practice, both in the State and Federal courts, who were not citizens of the United-States or of any State. But, on whatever basis this right may be placed, so far as it can have any relation t.o citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State, and as to Federal courts, it would .relate to citizenship of the United States.

The opinion just delivered in the Slaughter-House Cases* renders elaborate argument in the present Case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.

It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case.

Judgment affirmed. .

Mr. Justice-BE ADLEY:

I concur in the judgment of the court in this case, by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read.

*140The claim of the plaintiff’, who is a married woman, to be admitted to practice as an attorney and counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood! The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the .bar, and the legislature had not made any change in this respect, but had simply provided that no person'should be admitted to practice as attorney or counsellor without having previously obtained a license for that purpose from two justices.of the Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. .In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The'court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the-proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation .the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the legislature had intended to adopt any different rule.

The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue 'any lawful employment for a livelihood (the .practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment'in civil life,.

*141It certainly cannot be affirmejj as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector aud defender. The natural and proper timidity and delicapy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic- sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong,-or should belong, to the family institution ■ is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the commou law that it became a ma£im of that system .of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; aud, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon„this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him.- This very incapacity Was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully' to perform the duties and trusts that belong to the office of an attorney and counsellor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and.mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. ' Aud the rules of civil society *142must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

The humane movements of modern society ^ which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex,.have my heartiest concurrence. But I am not prepared to say that it is one.of her fundamental rights and privileges-to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions .and .callings demanding special skill aud confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of-the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall, receive the benefit of those energies and responsibilities, aud that decision and firmness which are presumed to predominate in the sterner sex.

For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.

Mr. Justice SWAYNE and Mr. Justice FIELD concurred in the foregoing opinion of Mr. Justice BRADLEY.

The CHIEF JUSTICE dissented from the judgment of the court, and from all the opinions.

Mr. Justice Strong

delivered the opinion of the court.

The plaintiff in error, a colored man, was indicted for murder in the Circuit Court of Ohio County, in West Virginia, on the 20th of October, 1874, and upon trial was convicted and sentenced. The record was then removed to' the Supreme (Court of the State, and there the judgment of the Circuit Court was affirmed. The present case is a writ of error to that court, and it is mow, in substance, averred that at the trial in the State court the defendant (now plaintiff in error) was denied rights to which he was entitled under the Constitution and laws of the United States.

In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented his petition, verified by his oath, praying for a removal of the cause, into the Circuit Court of the United States, assigning, as ground for the removal, that “by virtue of the laws of the State of West Virginia no colored mam was eligible to be a member of the grand jury or to serve on a petit jury in the State; that white men are so eligible, and that by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man.” This petition was denied by the State court, and the cause was forced to trial.

Motions to quash the venire, “ because the law under which *305it was issued was unconstitutional, null, and void,” and successive motions to challenge the array of the panel, for a new trial, and in arrest of judgment were then made, all of which were overruled and made by exceptions parts of the record.

The law of the State to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March, 1873 (Acts of 1872-73, p. 102), and it is as follows: “All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.” The persons excepted are State officials.

In this court, several errors have been assigned, and the controlling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color; and, second, if he has such a right, and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States?

It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury.

The questions are important, for they demand a construction of the recent amendments of the Constitution. If the defendant has a right to have a jury selected for the trial of his case without discrimination against all persons of his race or color, because of their race or color, the right, if not created, is protected by those amendments, and the legislation of Congress under them. The Fourteenth Amendment ordains that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or *306enforce any laws which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

This is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its pro*307visions by appropriate legislation. To quote the language used by us in the Slaughter-House Cases, “No one can fail to be impressed with the one pervading purpose found in all the amendments, lying at the foundation of each, and without which none of them would have been suggested, — we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.” So again: “The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied, and by it [the Fourteenth Amendment] such laws were forbidden. If, however, the States did not conform their laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation.” And it was added, “We doubt very much whether any action of a State, not directed by way of discrimination against the negroes, as a class, will ever, be held to come within the purview, of this provision.”

If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the *308colored race, — the right to exemption from unfriendly legislation against them distinctively as colored, —exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.

That the West Virginia statute respecting juries — the statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error — is such a discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. If in those States where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating equally with the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws. Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.

The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, “ The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by *309the Great Charter.” It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called “packing juries.” It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the constitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the States in which they resided; and the apprehension that through prejudice they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the amendment would have been unnecessary, and it might have been left to the States to extend equality of protection.

In view of these considerations, it is hard to see why the statute of West Virginia should not be regarded as. discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?

*310We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it. To quote further from 16 Wall., supra: “In giving construction to any of these articles [amendments], it is necessary to keep the main purpose steadily in view.” “It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.” We are not now called upon to affirm or deny that it had other purposes.

The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.

Concluding, therefore, that the statute of West Virginia, discriminating, in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State, it remains only to be considered whether the power of Congress to enforce the provisions of the Fourteenth Amendment by appropriate legislation is sufficient to justify the enactment of sect. 641 of the Revised Statutes.

A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress. Prigg v. The Commonwealth of Pennsylvania, 16 Pet. 539. So in *311 United States v. Reese (92 U. S. 214), it was said by the Chief Justice of this court: “ Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected.” But there is express authority to protect the rights and immunities referred to in the Fourteenth Amendment, and to enforce observance of them by appropriate congressional legislation. And one very efficient and appropriate mode of extending such protection and seeuririg to a party the enjoyment of the right or immunity, is a law providing for the removal of his case from a State court, in which the right is denied by the State law, into a Federal court, where it will be upheld. This is an ordinary mode of protecting rights and immunities conferred by the Federal Constitution and laws. Sect. 641. is such a provision. It enacts that “when any civil suit or criminal prosecution is commenced in any State court for any cause whatsoever against anyperson who is denied, or cannot enforce, in the judicial tribunals of the State, or in the part of the State where such prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial, or final hearing of the case, stating the facts, and verified by oath, be removed before trial into the next Circuit Court of the United States to be held in the district where it is pending.”

This act plainly has reference to sects. 1977 and 1978 of the statutes which partially enumerate the rights and immunities intended to be guaranteed by the Constitution, the first of which declares that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, *312pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” This act puts in the form of a statute what had been substantially ordained by the constitutional amendment. It was a step towards enforcing the constitutional provisions. Sect. 641 was an advanced step, fully warranted, we think, by the fifth section of the Fourteenth Amendment.

We have heretofore considered and affirmed the constitutional power of Congress to authorize the removal from State courts into the circuit courts of the United States, before trial, of criminal prosecutions for alleged offences against the laws of the State, when the defence presents a Federal question, or when a right under the Federal Constitution or laws is involved. Tennessee v. Davis, supra, p. 257. It is unnecessary now to repeat what we there said.

That the petition of the plaintiff in error, filed by him in the State court before the trial of his case, made a case for removal into the Federal Circuit Court, under sect. 641, is very plain, if, by the constitutional amendment and sect. 1977 of the Revised Statutes, he was entitled to immunity from discrimination against him in the selection of jurors, because of their color, as we have endeavored to show that he was. It set forth sufficient facts to exhibit a denial of that immunity, and a denial by the statute law of the State.

There was error, therefore, in proceeding to the trial of the indictment against him after his petition was filed, as also in overruling his challenge to the array of the jury, and in refusing to quash the panel.

The judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with instructions to reverse the judgment of the Circuit Court of Ohio county; and it is

So ordered.

Mr. Justice Field.

I dissent from the judgment of the court in this case, on the grounds stated in my opinion in Ex parte Virginia (infra, p. 349), and Mr. Justice Clifford concurs with me.

Mr. Justice Bradley

delivered the opinion of the court. After stating the facts in the above language he continued:

It is obvious that the primary and important question in all *9the cases is the constitutionality of the law: for if the law is unconstitutional none of the prosecutions can stand.

The sections of the law referred to provide as follows:

“'Sec. l. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

“ Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offence, be deemed guilty of a misdemeanor, and, upon conviction, thereof, shall, be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any State: And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively.”

Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part.

The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, *10public conveyances, and theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges, of inns, public conveyances, theatres, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens; and vice versa. The second section makes it a penal offence in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section.

Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.

The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon the States. It declares that:

*11“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correc*12tion of their operation and effect. A quite full discussion of this aspect of the amendment may be found in United States v. Cruikshank, 92 U. S. 542; Virginia v. Rives, 100 U. S. 313; and Ex parte Virginia, 100 U. S. 339.

An apt illustration of this distinction may be found in some of the provisions of the original Constitution. Take the subject of contracts, for example. The Constitution prohibited the States from passing any law impairing the obligation of contracts. This did not give to Congress power to provide laws for the general enforcement of contracts; nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by State legislation might be counteracted and corrected: and this power was exercised. The remedy which Congress actually provided was that contained in the 25th section of the Judiciary Act of 1789, 1 Stat. 85, giving to the Supreme Court of the United States jurisdiction by writ of error to review the final decisions of State courts whenever they should sustain the validity of a State statute or authority alleged to be repugnant to the Constitution or laws of the United States. By this means, if a State law was passed impairing the obligation of a contract, and the State tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of Congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of contracts generally; and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably Congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a State law; and under the broad provisions of the act of March 3d, 1875, ch. 137, 18 Stat. 470, giving to the circuit courts jurisdiction of all cases arising under the Constitution and laws of the United States, it is possible that such jurisdiction now exists. But under that, or any other law, it must appear as *13well by allegation, as proof at the trial, that the Constitution had been violated by the action of the State legislature. Some obnoxious State law passed, or that, might be passed, is necessary to be assumed in order to lay the foundation of any federal remedy in the case; and for the very sufficient reason that the constitutional prohibition is against State laws impairing the obligation of contracts.

And so in the present case, until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: for the prohibitions of the amendment are against State laws and acts done under State authority. Of course, legislation may, and should be, provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State laws, or State action of some kind, adverse to the, rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole, domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which include all civil rights that men have), are by the amendment sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case; and that, because the denial by a State to any persons, of the equal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may *14adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the States. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offences, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in States which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities.

If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress with equal show of authority enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the States may deprive persons of life, liberty, and property without due process of law (and the amendment itself does suppose this), why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theatres? The truth is, that the implication of a power to legislate in this manner is based *15upon the assumption that if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares, that powers not delegated to the Unitted States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.

We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be constitutional. That section declares “that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.” In Ex parte Virginia, 100 U. S. 339, it was held that an indictment against a State officer under this section for excluding persons of color from the jury list is sustainable. But a moment’s attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created by the law, and the first part of the section is aimed at certain disqualifying laws, namely, those which make mere race or color a disqualification; and the second clause is directed against those who, assuming to use the authority of the State government, carry into effect such a rule of disqualification. In the Virginia case, the State, through its officer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute book of the State actually laid down any such rule of disqualification, or not, the State, through its officer, enforced such a rule: and it is against such State action, through its officers and agents, that the last clause of the section is directed. *16This aspect of the law was deemed sufficient to divest it of any unconstitutional character, and makes it differ widely from the first and second sections of the same act which we are now considering.

These sections, in the objectionable features before referred to, are different also from the law ordinarily called the “ Civil Rights Bill,” originally passed April 9th, 1866, 14 Stat. 27, ch. 31, and re-enacted with some modifications in sections 16, 17, 18, of the Enforcement Act, -passed May 31st, 1870, 16 Stat. 140, ch. 114. That law, as re-enacted, after declaring that all persons within the- jurisdiction of the United States shall have the same right in every -State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding, proceeds to enact, that any. person who, under color of any law, statute, ordinance, regulation or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any rights secured or protected by the preceding section (above quoted), or to different punishment, pains, or penalties, on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and subject to fine and imprisonment as specified in the act. This law is clearly corrective in its character, intended to counteract and furnish redress against State laws and -proceedings, and customs haying the force of law, which sanction the wrongful acts specified.- In the Revised Statutes, it is true, a very important clause, to wit, the words “any law, statute, ordinance, regulation or custom to the contrary notwithstanding,” which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to State, laws, by making the penalty apply only to those who should subject *17parties to a deprivation of their rights under color of any statute, ordinance,'custom, etc., of any State or Territory: thus preserving the corrective character of the legislation. Bev. St. §§ 1977, 1978, 1979, 5510. The Civil Bights Bill here referred to is analogous in its character to what a law would have been under the original Constitution, declaring that the validity of contracts should not be unpaired, and that if any person bound by a contract should refuse to comply with it, under color or pretence that it had been rendered void or invalid by a State law, he should be liable to an action upon it in the, courts of the United States, with the addition of a .penalty for setting up such an .unjust and unconstitutional defence.

In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect' his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive a man. of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right m a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow citizen; but, unless protected in these wrongful acts by some shield of State law or State authority, he cannot destroy or injure -the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the State where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offences, but abrogation and *18denial of rights, which it denounces, and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights, for. whicu the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume • that in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.

Of course, these remarks do not apply to those cases in which Congress'is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the States, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes, the coining of money, the establishment of post offices and post xéads, the declaring of war, etc. In these cases Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must- necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited State laws or proceedings of State officers.

If the principles of interpretation which we have laid down are correct, as we deem them to be (and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case of United States v. Harris, 106 U. S. 629), it is clear that the law in question cannot be sustained by any grant of legislative power .made to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying to any person the equal protection of the laws, and declares that Congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse State legislation oh- the subr *19jeet, declares that all persons shall he entitled to equal accommodations and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not' corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces State legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed Congress with plenary power over the whole subject, is not now the question. What we have to decide is, whether such plenary power has been conferred upon Congress by the Fourteenth Amendment; and, in our 'judgment, it has not.

We have discussed'the question presented by the law on the assumption that a right to enjoy equal accommodation and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a right, or not, is a different question which, in the'view we have taken of the validity of the law on the ground already stated, it is not necessary to examine.

We have also discussed the validity of the law in reference to cases arising in the States only; and not in reference to cases .arising in the Territories or the District of Columbia, which are subject to the plenary legislation of Congress in every branch of municipal regulation. Whether the law wpuld be a valid one as applied to the Territories and the District is not a question for consideration in the cases before us :• they all being cases arising within the limits of States. And whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another, is also' a question which is not now before us, as the sections in question are not conceived in any such view.

*20- But the power of Congress to adopt direct and primary, as distinguished from corrective legislation, on the subject in hand, is sought, in the second place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares “that neither slavery, nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject "to their jurisdiction; ” and it gives Congress power to enforce the amendment by appropriate legislation.

This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom. Still, • legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary .servitude shall not exist in any part of the United States.

It is true, that slavery cannot exist without law, any more than property in lands and goods can exist without law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and. decreeing universal civil and political freedom throughout the United States^ and it is assumed, that the power vested in Congress tp enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all .badges and incidents'of slavery in the United States: and upon this assumption it is claimed, that this is sufficient author-' ity for. declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement; the argument being, that the denial of such equal accommodations and privileges'is, in itself, a subjection to a species of servitude withiii the meaning of the amendment. Conceding the major proposition to be true, that *21Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theatre, does subject that person to any form of servitude, or tend to fasten upon bim any badge of slavery ? If it does not, then power to pass the. law is not found in the Thirteenth Amendment.

In a very able and learned presentation of the cognate question as to the extent of the rights, privileges and immunities of citizens which cannot rightfully be abridged by state laws under the Fourteenth Amendment, made in a former case, a long list of burdens and disabilities of a servile'character, incident to feudal vassalage in France, and which were abolished by the decrees of the National Assembly, was presented for the purpose of showing that all inequalities and observances exacted by 'one man from another were servitudes, or badges of slavery, which a great nation, in its effort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom, which had the force of law, and exacted by one man from another without the latter’s consent.' Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the Fourteenth, no less than to the Thirteenth Amendment ; nor any greater doubt that Congress has adequate power to forbid any such servitude from being exacted.

But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theatre, of its accommodations and privileges to an individual, even though the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial ? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the Fourteenth Amendment, is another question.. But'what has it to do with the question of slavery ?

It may be that by the Black Code (as it was called), in the times when slavery prevailed, the proprietors of inns and public *22conveyances were forbidden to receive persons of the African race, because it might assist slaves' to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party’s legal right as a citizen, and amenable to the prohibitions of the Fourteenth Amendment.

* The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master’s will, disability to hold property, to make contracts, to" have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution^ Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the Civil Rights' Bill of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities,-the necessary incidents of slavery, constituting its substance and visible form; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens. "Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it afterward received from the Fourteenth Amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that at that time (in 1866) Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust • what may be called the social rights of men and races in the community; but only to. declare and vindicate those fundamental rights which appertain to the* essence of-citizenship, and the enjoyment or deprivation of which constitutes the essential- distinction between freedom and slavery.

*23We must not forget that the province and scope of the Thirteenth and Fourteenth amendments are different; the former simply abolished slavery: the latter prohibited the States from abridging the privileges or immunities of citizens of the United States; from depriving them of life, liberty, or property without due process of law, and from denying to any' the equal protection of the laws. The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it-has power to counteract and render nugatory all State laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty or property without due process. of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment* the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; under the Fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings.

The only question under, the present head, therefore, is, whether the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, by an individual, and without any sanction or support from' any State law or regulation, does inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this country % Many wrongs may be obnoxious to the prohibitions ’ of the Fourteenth Amendment which are not, in any just sense, incidents or elements of slavery., - Such, for* example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the fright to pursue any peaceful *24avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not necessarily be so to the Thirteenth, when not involving the idea of any subjection of one man to another. ^The Thirteenth Amendment has respect, not to distinctions of race, or class, or color, but to slavery.) The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.

. Now, conceding, for the sake of the argument, that the admission to an inn, a public conveyance, or a place .of public amusement, on equal terms with all other citizens, is the right of every man and all classes of men, is it a.ny more .than one of those rights which the states by the Fourteenth Amendment are forbidden to deny to any person 2 And is the Constitution violated. until the denial of the right has some State, sanction or authority 2 Can the act of a mere individual, the owner of the Ann,the public conveyance or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an. ordinary civil injury, properly, cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears 2

■ After giving to these .questions all the consideration which their importance demands, w;e are forced to the conclusion that such an act of refusal has nothing tp do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the State; or if those laws are adverse to his- rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the Fourteenth Amendment. (It would be running the slavery argument into the ground to make .it apply to every act of discrimination which a person may see .fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in *25other matters of intercourse or business: Innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. ' If the laws themselves make any unjust discrimination, amenable to the prohibitions of the Fourteenth Amendment, Congress has full power to afford a remedy under that amendment and in accordance with it.)

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere-citizen, and ceases to be the special favorite of the laws, and 1 when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s.rights.aie protected.1' There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential fights of life, liberty and property the same as white citizens; yet no one, at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment (which merely abolishes slavery), but by force of the Thirteenth and Fifteenth Amendments.

On the whole Ave are of opinion, that no countenance of authority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendment of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned.

This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael Ryan, and of Richard A. Robinson and Wife v. The Memphis & Charles*26ton Railroad Company, the judgments must be affirmed. In the other cases, the answer to be given will .be that the first and second sections of the act of Congress of March 1st, 1815, entitled “ An Act to protect all citizens in, their civil and legal rights,” are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered.

Mr. Justice Harlan

dissenting.

The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism.' “ It is not the words of the law but the internal sense of it that makes the law: the letter of the law is the body; the sense and reason of the law is the soul.” ' Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging ;'to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full, effect be given to the intent with which they were adopted.

The purpose of the first section of the a'ct of Congress of March 1, 1815, was to prevent race discrimination in respect of the accommodations and facilities of inns, public conveyances, and places of public amusement. It does not assume to define the general conditions and limitations under -which inns, public conveyances, and places of public amusement may be conducted, but only declares that' such conditions and limitations, whatever they may be, shall not be applied so as to work a *27discrimination solely because oí" race, color, or previous condition of servitude. The second section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen, of that equality of right given by the first section, except. for reasons by law applicable to citizens of every race or color and regardless of any previous condition of servitude.

There seems to be no substantial difference between my brethren and myself as to the purpose of Congress; for, they say that the essence of .-the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theatres; but that such enjoyment shall not be subject to conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. The effect of the statute, the court says, is, that colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement- as are enjoyed by white persons; and vice versa,.

The court adjudges, I think erroneously, that Congress is without power, under either the Thirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second sections of the statute are, in all their parts, unconstitutional and void.

Whether the legislative department of the government has transcended the limits of its constitutional powers, “ is at all times,” said this court in Fletcher v. Peck, 6 Cr. 128, “ a question of much delicacy, which ought seldom, if ever, to bo decided in the affirmative, in a doubtful case. . . . The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibihty with each other.” More recently in Sinking Fund Cases, 99 U. S., 718, we said: “It is our duty when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States, but this declaration should never be made except in a clear case. Every possible presumption is *28in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.”

Before considering the language and scope of these amendments it-will be proper to recall the relations subsisting, prior to their adoption, between the national- government and the institution'of slavery, as indicated by the provisions of the Constitution, the legislation of Congress, and the decisions of this court. In this mode we may obtain keys with which to open the mind of the people, and discover the thought intended to be expressed. -

In section 2 of article IV. of the Constitution it was provided that “ no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” Under the authority of this clause Congress passed the Fugitive Slave Law of 1193, establishing a mode for the recovery of fugitive slaves, and prescribing a penalty against any person who should knowingly and willingly obstruct or hinder the master, bis agent, or attorney, in seizing, arresting, and recovering the fugitive, or who should rescue the fugitive from him, or who should harbor or conceal the slave after notice that he was a fugitive.

In Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, this court had occasion to define the powers and duties of Congress in reference to fugitives from labor. Speaking by TVTr.Justice Story it laid down these propositions:

That a clause of the Constitution conferring a right should not be so construed ás to make it shadowy, or unsubstantial, or leave the citizen without a remedial power adequate for its protection, when another construction equally accordant with the words and the sense in which they were used, would enforce and protect the right granted;

That Congress is not restricted to legislation for the execu*29tion of its expressly granted powers; but, for the protection of rights guaranteed by the Constitution, may employ such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed;

That the'Constitution recognized the master’s right of property in his fugitive slave, and, as incidental thereto, the right of seizing and recovering him, regardless of any State law, or regulation, or local custom whatsoever; and,

.That the right of the master to have his slave, thus escaping, delivered up on claim, being guaranteed by the Constitution, the fair implication was that the national government was clothed with appropriate authority and functions to enforce it.

The court said: “ The fundamental principle, applicable to all cases of this sort, would seem to be that when the end is required the means are given, and when the duty is enjoined the ability to perform it is contemplated to exist on the part of the functionary to whom it is entrusted.” Again: “ It would be a strange anomaly and forced construction to suppose that the national government meant to .rely for the due fulfilment of its own proper duties, and the rights which it intended to secure, upon State legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union, should be confided to State sovereignty which could not rightfully act beyond its own territorial limits.”-

The act of 1793 was, upon these grounds, adjudged to be a constitutional exercise of the powers of Congress.

It is to be observed from the report of Priggs’ case that Pennsylvania,, by her attorney-general, pressed the argument that the pbligation t'o surrender fugitive slaves was on the States and for the States, subject to the restriction that 'thfey should-not pass laws or establish regulations liberating such fugitives; that the Constitution, did not take from the States the right to determine the status of all persons within their respective jurisdictions; that it Avas for the State in Avhich the alleged fugitive Avas found to determine, through her courts or in such modes as she prescribed,'whether the person arrested Avas, in fact, a freeman or a fugitive slave; that the sole power *30of the general government in the premises was, by judicial instrumentality, to restrain and correct, not to forbid and prevent in the absence of hostile State action; and that, for the general government to assume primary authority to legislate on the subject of fugitive slaves, to the exclusion of the States, would be a dangerous encroachment on State sovereignty. But to such suggestions this court turned a deaf ear, and adjudged that primary legislation by Congress to enforce the master’s right was authorized by the Constitution.

We next come to the Fugitive Slave Act of 1850, the constitutionality of which rested, as did that of 1793, solely upon the implied power of Congress to enforce the master’s rights. The provisions of that act were far in advance of previous legislation. They placed at the disposal of the master seeking to recover his fugitive slave, substantially the whole power of the nation. It invested commissioners, appointed under the act, with power to summon the posse comitatus for the enforcement of its provisions, and commanded all good citizens to assist in its prompt and efficient execution whenever their services were required as part of the posse comitatus. Without going into the details of that act, it is sufficient to say that Congress omitted from it nothing which the utmost ingenuity could suggest as essential to the successful enforcement of the master’s claim to recover his fugitive slave. And this court, in Ableman v. Booth, 21 How. 506, adjudged it' to be “ in all of its provisions fully authorized by the Constitution of the United States.”

The only .other case, prior to the adoption of the recent amendments, to which reference will be made, is that of Dred Scott v. Sanford, 19 Flow. 399. That case was. instituted in a circuit court of the .United States by Dred Scott, claiming to be a citizen of Missouri, the defendant being a citizen of another State. Its object was to assert the title of himself and family to freedom. The defendant pleaded in abatement that Scott — being of African descent, whose ancestors, of pure African blood, were brought into this country and sold as slaves — was not a citizen. The only matter in issue, said the court, was whether the descendants of slaves thus imported *31and sold, when they should he emancipated, or who were horn 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.

In determining that question the court instituted an inquiry as to who. were citizens of the several States at the adoption of the Constitution, and who, at that time, were recognized as the people whose rights and liberties had been violated by the British government. The result was a declaration, by this court, speaking by Chief Justice Taney, that the legislation and histories of the times, and the language used in the Declaration of Independence, showed “ 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 instrument; ” that “ they had for more than a century before been regarded as beings of an inferior race, 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 Avhite man Avas bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit; ” that he Avas “ bought and sold, and treated as an ordinary article of merchandise and traffic, AvheneATer a profit could be made by it; ” and, that “ this opinion Avas at that time fixed and universal in the civilized portion of the Avhite race. It Avas regarded as an axiom in morals as Avell as in politics, Avhich 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, Avithout for a moment doubting the correctness of this opinion.”

The judgment of the court was that the words “ people of the United States ” and “.citizens ” meant the same thing, both describing “ the political body who, according to our republican institutions, form the sovereignty and hold the power and conduct the government through their representatives; ” that “ they are what we familiarly call the £ sovereign people,’ and *32every citizen is one of this people and a constituent member of this sovereignty; ” but, that the class of persons described in the plea in abatement did not compose a portion of this people, were not “included, and were not intended tó be included, under the word ‘ citizens ’ in the Constitution; ” that, therefore, they could “ claim nonfe of the rights and privileges which that instrument provides for and secures to citizens ^ of the United States; ” that, “ on the contrary, they were at that time considered as á 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.”

Such were the relations'which formerly existed between' the government, whether national or state, and the descendants, whether free or in bondage, of those of African- blood, who had been imported into this country and sold as slaves.

The first section of the Thirteenth Amendment provides that “ neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Its second section declares that “ Congress shall have power to enforce this article by appropriate legislation.” This amendment was followed by the Civil Rights' Act of April 9,1866, which, among other things, provided that “ all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared ■ to be citizens - of the United States.” 14 Stat. 27. The power of .Congress, in this mode, to elevate the enfranchised race to'national citizenship, was maintained by the supporters of the act of 1866 to be as full and complete as its power, by general statute, to make the children, being of full age, of persons naturalized in this country, citizens of the United States without going through the process of naturalization. The act of 1866, in this respect, was also likened to that of 1843, in which Congress declared “ that' the Stockbridge tribe of Indians, and each and every one of them, shall be deemed to be and are hereby declared to be, citizens of the United States to *33all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens, and shall in all respects be subject to the laws of the United States.” If the act of 1866 was valid in conferring national citizenship upon all embraced by its terms, then the colored race, enfranchised by the Thirteenth Amendment, becafne citizens 'pf the United States prior to the adoption of the Fourteenth Amendment. But, in the view which I take of the present' case, it is not necessary to examine this question.

((The terms of the Thirteenth Amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States. No race, as such, can be-excluded from the benefits or rights thereby conferred. ) Yet, it is historically '.true that that amendment was suggested by the condition, in this country, of that race which had been declared, by this court, to have had — according to the opinion entertained by the most civilized portion of the white race, at the time of the adoption of the Constitution — “ no rights Avhich the Avhite man was bound to respect,” none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in a peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an act of Congress to aid in saving from overthroAV a government which, theretofore, by all of its departments, had treated them as an inferior race, Avith no legal rights or privileges except such- as the Avhite race might choose to grant them.

These are the circumstances under which the Thirteenth Amendment Avas proposed for adoption. They are now recalled only that Ave may better understand Avhat was in the minds of the people when that amendment was considered, and what Avere the mischiefs to be remediéd and the grievances to be redressed by its adoption.

"We have seen that the poAver of Congress, by legislation, to enforce the master’s right to have his slave delivered up on claim was implied from the recognition of that right in the national Constitution. But the. poAver conferred by the Thirteenth Amendment does not rest- upqn implication or *34inference. Those who framed it were riot ignorant of the discussion, covering many years of our country’s history, as to the constitutional power of Congress to enact the Fugitive Slave Laws of W93 and 1850. When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in the land, and to establish universal freedom, there was a fixed purpose to place the authority of Congress in the premises beyond the possibility of a doubt. Therefore, ex industria, power to enforce- the Thirteenth Amendment,, by appropriate legislation, was expressly granted. Legislation for that purpose, my. .brethren concede, may be direct and primary. But to what specific ends may it be directed ? This court- has uniformly held that the national government has the power, whether expressly given or not, to secure and protect rights conferred or guaranteed by the Constitution. United States v. Reese, 92 U. S. 214; Strauder v. West Virginia, 100 U. S. 303. That doctrine ought not now to be abandoned when the inquiry is not as to an implied power to protect the master’s rights, but what may Congress, under powers expressly granted, do for the protection of freedom and the rights necessarily inhering in a state of freedom.

The .Thirteenth Amendment, it is conceded, did something more than to prohibit’ slavery as an institution, resting upon distinctions of race, and upheld by positive law. My brethren admit that it established and decreed universal emit freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such-protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide j) Were the States against whose protest the institution was destroyed, to be left.free, so far as .national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental right's which by uriiversal concession, inhere in a state of freedom ? *35Had the Thirteenth Amendment stopped with the sweeping declaration, in its first section, against the existence of slavery and involuntary servitude, except for crime, Congress would have had the power, by implication, according to the doctrines of Prigg v. Commonwealth of Pennsylvania, repeated in Strauder v. West Virginia, to protect the freedom established, and eonsequently, to secure the enjoyment of such civil rights as were fundamental in freedom. That it can exert its authority to that extent is made clear, and was intended to be made clear, by the express grant of power contained in the second section of the Amendment.

That there are burdens and .disabilities which constitute badges of slavery and servitude, and that' the power to enforce by appropriate legislation the Thirteenth Amendment may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its bádges and incidents, are propositions which ought to be deemed indisputable. They lie at the foundation of the Civil Rights Act of 1866. Whether that act was authorized by the Thirteenth Amendment alone, without the support which it subsequently received from thé Fourteenth Amendment, after. the adoption of which it was re-enacted with some additions, my brethren do not consider it necessary to inquire. Bút I submit, with all respect to thorn, that its constitutionality is conclusively shown by their opinion. They admit, as I have said, that the Thirteenth Amendment established freedom; that there are burdens and disabilities, the necessary incidents of slavery, which constitute its substance and visible form; that Congress, by the act of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to remove certain burdens and disabilities, the necessary incidents of slavery, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enfore contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property as is enjoyed by white citizens; that under the Thirteenth Amendment, Congress has to do with slavery and *36its incidents'; and that legislation, so far as necessary or proper to eradicate all forms and incidents of'slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not. These propositions being conceded, it -is impos.srble, as it seems, to me, to question the constitutional validity of the Civil Rights Act of 1866. I do not contend that the Thirteenth Amendment invests Congress with- authority, by legislation, to define and regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several States. But I hold that-since slavery, as the court has-repeatedly declared, Slaughter-house Cases, 16 Wall. 36; Strauder v. West Virginia, 100 U. S. 303, was the' moving or principal cause of the adoption of that- amendment, and since • that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil'rights7 as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment, by appropriate legislation,, may enact laws to protect that .people against the deprivation, because of their race, of 'any civil rights granted to other freemen in the samé State; and such legislation may be of a direct and primary character, operating upon States, their officers and agents, and, also, upon, at least, such individuals and corporations as exercise public-functions and wield power and authority under the .State.

To test .the correctness of this position, let us suppose that, prior to the adoption of the Fourteenth Amendment, a State had passed a statute denying to freemen of African descent, resident within its limits, the same right which was accorded to white persons, of making and enforcing contracts, and. of inheriting, purchasing, leasing, selling and conveying property-; or a statute subjecting colored people to severer punishment for particular offences than was prescribed for white persons, or excluding that race from the benefit of the laws exempting homesteads from execution. Recall the legislation of 1865-6 in some of the States, of which this court, in the Slaughter*37House Gases, said, that it imposed upon the colored race onerous disabilities and burdens; curtailed their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; forbade them to appear in the towns in any other character, than menial servants; required them to reside on and cultivate the soil, without the right to purchase or own it; excluded them from many occupations of' gain; and denied them the privilege of giving testimony in the courts where a white man was a party. 16 Wall. 57. Can there be- any doubt that all such enactments might have been reached by direct legislation upon the part of Congress under its express power to enforce the Thirteenth Amendment? Would any court have hesitated to declare that such legislation imposed badges of servitude in conflict with the civil freedom ordained by that amendment ? That it would have been also, in conflict with the Fourteenth Amendment, because inconsistent with the fundamental rights of American citizenship, does not prove that it would have been consistent with the Thirteenth Amendment.

What has been said is sufficient to show that the power of Congress under the Thirteenth Amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protecting the liberated race against discrimination, in respect of legal rights belonging to freemen, where such discrimination is based upon race.

It remains now to inquire what are the legal' rights of colored persons in respect of the accommodations, privileges and facilities of public conveyances, inns and places of public amusement ?

First, as to public conveyances on land and water. In New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, this court, speaking by Mr.. Justice Nelson, said that a common carrier is “ in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.” To the same effect is Munn v. Illinois, 94 U. S. 113. In Olcott v. Supervisors, 16 Wall. 678, it was ruled that *38failroads are public idghways, established by authority of the State for the public use; that they are none the less public highways, becaused controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the convenience of the public; that no matter who is the agent, or. what is the agency, the function performed is that of the State; that although the owners may be private companies, they may be compelled to permit the public-to use these works in the manner in which they can be used; _ that, upon these grounds alone, have the • courts sustained the investiture. of railroad , corporations with the State’s right of eminent ddmain, or the right of municipal corporations, under legislative authority, to assess, levy and collect taxes to aid in the construction of railroads. So in Township of Queensbury v. Culver, 19 Wall. 83, it was said that a municipal subscription of- railroad stock was in aid of the construction and maintenance of a public highway, and for the- promotion of a public use. Again, in Township of Pine Grove v. Talcott, 19 Wall. 666: “Though the corporation [railroad] was' private, its work was public, as much so as if it were to be constructed by the State.” To the like effect are- numerous adjudications in this and the State courts with- which the profession is familiar. The Supreme Judicial Court of Massachusetts in Inhabitants of Worcester v. The Western R. R. Corporation, 4 Met. 564, said in reference to a railroad:

, “ The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole,community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement. . . . It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation ; but it is in trust for the public.” In Erie, Etc., R. R. Co. v. Casey, 26 Penn. St. 287, thecourt, referring to an act repealing the .'charter of a railroad, and under which the State took possession of the road, said: “ It is a public highway, solemnly devoted to public use; When the lands were taken it was for such use, or they could not have been taken at all. „ . . Railroads es*39tablished upon land taken by the right of eminent domain by authority of the commonwealth, created by her laws as thoroughfares for commerce, are her highways. No corporation has property in them, though it máy have franchises annexed to and exercisable within them.”

In many courts it has been held that because of the public interest in such a corporation the land of a railroad company cannot be levied on and sold' under execution-by a creditor. The sum of the adjudged cases is that a railroad corporation is a govermnental agency, -created primarily for public purposes, and subject to be controlled for the public benefit. Upon this ground the State, when unfettered by contract, may regulate, in its discretion, the' rates of fares of passengers and freight. And upon this ground, too, the State may regulate the entire management of railroads in all matters affecting the convenience and safety of the public; as, for example, by regulating speed, compelling stops of prescribed length at stations, and prohibiting discriminations and favoritism. If the corporation neglect or refuse to discharge its duties to. the public, it may be coerced to do so by appropriate proceedings in the name or in behalf of the State.

Such being the relations these corporations hold to the public, it would seem that the right of a colored person to use an improved public highway, upon the terms accorded to freemen of other races, is as fundamental, in the state of freedom established in this country, as are any of the rights which my brethren concede to be so far fundamental as to be deemed the essence of civil freedom. “Personal liberty consists,” says Blackstone, “ in the power of locomotion, of changing situation, or removing one’s person to whatever places one’s own inclination may direct, without restraint, unless by due course of law.” But of what value is this right of locomotion, if it may be clogged by such burdens :as Congress intended by the act of 1815 to.remove? They are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained, except upon the assumption that there is, in this land of universal liberty, a class which may still be discriminated against, even in respect of rights of a character *40so necessary and supreme, that, deprived of their enjoyment in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most essential means of existence; and all this solely because they belong to a particular race which the nation has liberated. The Thirteenth Amendment alone obliterated the race line, so far as all'rights fundamental in a state of freedom' are concerned.

. Second, as to inns. The same general observations'which have, been made as to railroads are applicable to inns. The word ‘ inn ’ has a technical legal signification. It means, in the act of 1875, just what it meant at common law. A mere private boarding-house is not an.inn, nor is its keeper subject to the responsibilities, or entitled to the privileges of a common innkeeper. . “ To constitute one an innkeeper, within the legal force of that term, he must keep a house of entertainment or lodging for all travellers or wayfarers who might choose to accept the same, being of good character or conduct.” Redfield on Carriers, etc., § 575. Says Judge Story:

“ An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travellers and passengers, their 'horses and attendants. An innkeeper is bound to take in all travellers'and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation ; and he must guard their goods with proper diligence. . . . If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor......They (carriers of passengers) are no more at liberty to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations to a guest.” Story on Bailments, §§ 475-6.

In Rex v. Ivens, 7 Carrington & Payne, 213, 32 E. C. L. 495, the court, speaking by Mr. Justice Coleridge, said:

“An indictment lies against an innkeeper who refuses to receive a guest, he having at the time, room in his house ; and either the price of the guest’s entertainment being tendered to him, or such circumstances occurring as will dispense with that *41tender. This law is founded- in good sense. The innkeeper is not to select his guests. He has no right to say to one, you shall come to my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travellers and supplying them with what they want.”

These authorities are sufficient to show that a keeper of an inn is in the exercise of a quasi public employment. The law gives him special privileges and he is charged with certain duties and responsibilities to the public. The public nature of his employment forbids him from discriminating against any person asking admission as a guest on account of the race or color of that person.

Third. As to places of public amusement. It may be argued that the managers of such places have no duties to perform with which the public-are, in any legal sense, concerned, or with which the public have any right to interfere; and, that the exclusion of a black man from a place of public amusement, on account of his race, or the denial to him, on that ground, of equal accommodations at such places, violates no legal right for the vindication of which he may invoke the aid of the courts. My answer is, that places of public amusement, within the meaning of the act of 1815, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction. A license from the public to establish a place of public amusement, imports, in law, equality of right, at such places, among ah the members of that public. This must be-so, unless it be — which I deny — that the common municipal government of all the people may, in the exertion of its powers, conferred for the benefit of all, discriminate or authorize discrimination against a particular race, solely because of its former condition M servitude.

I also submit, whether it can be said — in-view of the doctrines of this court as announced in Munn v. State of Illinois, *4294 U. S. 113, and reaffirmed in Peik v. Chicago & N. W. Railway Co., 94 U. S. 164 — that the management of places of public amusement is a purely private matter, -with which government has no rightful concern ? In the Munn case the question wás whether the State of Illinois could fix, by law, the maximum of charges for the storage of grain in certain warehouses in that State — the private property of individual citizens. After quoting a remark attributed to Lord Chief Justice Hale, to the effect that when private property is “affected with a public interest it ceases to be juris jprimati only,” the court says: •

“ Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in- that (usé, .and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.”

The doctrines of Munn v. Illinois havq never been modified by this court, and I am justified, upon the authority of that case, in saying , that places of public amusement, conducted under the authority of the law, are clothed with a public interest, because use'd in a' manner to make them of public consequence and to affect the community at large. The law may therefore regulate, to some extent, the mode in which they shall be conducted, and, consequently, the public have rights in respect of such places, which- may be vindicated by the law. It is consequently not a matter purely of private concern.

Congress has not, in these matters, entered the domain of ¡State control and supervision. It does not, as I have said, assume to prescribe the, general conditions and limitations under which inns, public conveyances, and places of public amusement, shall be conducted or managed. It simply declares, in effect, that since the nation has established universal freedom in this country, for all time, there shall be no discrimination, based merely upon race or color, in respect of thé accommodations *43and advantages of public conveyances, inns, and places of public amusement.

I am of the opinion that such discrimination practised by corporations and individuals in. the exercise of their public or quasi-public functions is a badge of servitude the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the Thirteenth Amendment; and, consequently, without reference to its enlarged power under the Fourteenth Amendment, the act of March 1,1875, is not, in my judgment, repugnaht to the Constitution.

It remains now to consider these cases with reference to the power Congress has possessed since the adoption of the Fourteenth Amendment. Much that has been said as to the power of Congress under the Thirteenth Amendment is applicable to .this branch of the discussion, and will not be repeated.

Before the adoption of the récent amendments, it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a State, or even of the United States, with the rights and privileges guaranteed to citizens by the national Constitution; further, that one might have all the rights and privileges of a citizen of a State without being- a citizen in the sense in which that word was used in the national Constitution, and without being entitled to the privileges and immunities of citizens of the several States. S.tül, further, between the adoption of the Thirteenth Amendment and the proposal by Congress of the Fourteenth Amendment, on June 16, 1866, the statute books of several of the States, as we have seen, had become loaded down with enactments which, under the guise of Apprentice, Vagrant, and Contract regulations, sought to keep the colored race in a condition, practically; of servitude. . It was openly announced that whatever might.be the rights which persons of that race had, as freemen, under the guarantees of the national Constitution, they could not become citizens of a State, with the privileges belonging to citizens, except by the consent of such State; consequently, that their ciyil rights, as citizens of the State, depended entirely upon State legislation. To meet this new peril to the black race, that the *44purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of Congress, the Fourteenth Amendment was proposed for adoption.

Remembering that this court, in the Slaughter-Mouse. Oases, declared that the one pervading purpose found in all the recent amendments, lying at the foundation of. each, and without which none of them would have been suggested — was “ the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made'freeman and citizen from the oppression-of those who had formerly exercised unlimited dominión over him that each amendment was addressed primarily to the grievances' of that race — let us proceed to consider the language of the Fourteenth Amendment.

Its first and fifth sections are in these words:

“ Sec. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State'wherein they reside. - N-o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws.

“ Sec. 5. That Congress shall have power .to enforce, by appropriate legislation, the provisions of this article.”

It was adjudged in Strauder v. Vest Virginia, 100 U. S. 303, and Ex parte Virginia, 100 U. S. 339, and my brethren concede, that positive rights and privileges were intended to be secured, ánd are in fací secured, by the Fourteenth Amendment.

But when, under what circumstances, and' to what extent, may Congress, by meads of legislation, exert its power to enforce the provisions of this amendment? The theory of the opinion of the majority of the court — the foundation upon which their reasoniilg seems to rest — is, that the general government cannot, in advance of hostile State laws or hostile State *45proceedings, actively interfere for the protection of any of the rights, privileges, and immunities secured by the Fourteenth Amendment. It is said that such rights, privileges, and immunities are secured by way of prohibition against State laws and State proceedings affecting such rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; also, that congressional legislation must necessarily be predicated.upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect.

In illustration of its position, the court refers to the clause of the Constitution forbidding the passage by a State of any law impairing the obligation of contracts. That clause does not, I submit, furnish a proper illustration of the scope and effect of the fifth section of the Fourteenth Amendment. No express power is given Congress to enforce, by primary direct legislation, the prohibition upon State laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumerated powers of Congress and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof. And, as heretofore shown, there is also, by necessary implication, power in Congress, by legislation, to protect a right derived from the national Constitution. But a prohibition upon a State is not a power in Congress or in the national government. It is simply a denial of power -to the State. And the only mode in which the inhibition upon State laws impairing the obligation • of contracts can be enforced, is, indirectly, through the courts, in suits where the parties raise some question as to the constitutional validity of such laws. The judicial power of the United' States extends to such suits for the reason that they are suits arising under the Constitution. The Fourteenth Amendment presents' the first instance in our history of the investiture of Congress .with affirmative power, by legislation, to enforce an express prohibition upon the States. It is not said that th% judicial power of the nation may be exerted for the enforcement of that amendment; No enlargement of the judicial power was required, /for it is clear *46that had the fifth section of the Fourteenth Amendment been entirely omitted; the judiciary could have stricken down all State laws and nullified all State proceedings in hostility to rights and privileges secured or recognized by that amendment. The power given is, in terms, by congressional legislation, to enforce the provisions of the amendment.

The assumption that this amendment consists wholly of prohibitions upon State laws and State proceedings ,in hostility to its provisions, is unauthorized by its language. The first clause of the first section — “ All -persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State Wherein they reside ” —is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well citizenship of the United States, as citizenship of the State in which they respectively resided. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the “ People of the United States.” They became, instantly, citizens of the United States, amd of their respective States. Further, they were brought, by this supreme act of the nation, within the direct operation of that provision of the Constitution which declares that “ the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Art. 4, § 2.

The citizenship thus acquired, by that race, in virtue of an affirmative grant from the nation, may be protected, not alone by the judicial branch of the government, but by congressional legislation of a primary direct character; this, because the power of Congress is not restricted to the enforcement of prohibitions upon State laWs or State action. It is, in terms distinct and positive, to enforce “ the provisions of this article ” of amendment; not simply those of a prohibitive character, but the provisions — all of the provisions — affirmative and prohibitive, of the amendment. It is, therefore, a grave misconception to suppose that the fifth section of the amendment has reference exclusively to express prohibitions upon State laws or State action. If any right was created by that amendment, the *47grant of power, through appropriate legislation, to enforce its provisions, authorizes Congress, by means of legislation, operating throughout the entire Union, to guard, secure, and protect that right.

It is, therefore, an essential inquiry what, if any, right, privilege or immunity was given, by the nation, to colored persons, when they were made citizens'of thé State in which they reside ? Did the constitutional grant of State citizenship to that race, of its own force, invest them with any rights, privileges and immunities whatever? That they became entitled," upon the adoption of the Fourteenth Amendment, “ to all privileges and irqmunities of citizens in the several States,” within the meaning of section 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. "What are the privileges and- immunities to which, by that clause of the Constitution, they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free republican government, such as.are “ common to the citizens in the latter-. States under their constitutions and laws by virtue of their being citizens.” Of that provision it has been said, with.the approval of this court, that no other one in the Constitution has tended so strongly to constitute the citizens' of the United States one people. Ward v. Maryland, 12 Wall. 418; Corfield v. Coryell, 4 Wash. C. C. 371; Paul v. Virginia, 8 Wall. 168; Slaughter-house Cases, 16 id. 36.

Although this court has wisely forborne any attempt,, by a comprehensive definition, to indicate all of the privileges and immunities to which the citizen of a State is entitled, of right, when within the jurisdiction of other States, I hazard nothing, in view . of former adjudications, in saying that no State can sustain her: denial to colored citizens of other States, while within her limits', of privileges or immunities, fundamental in republican citizenship, upon the ground that she accords such privileges and immunities only to her white citizens and withholds them from her colored citizens. The colored citizens of other States, within the jurisdiction of that State, could claim, in virtue of section 2 of article 4 of the Constitution, every privilege and immunity *48•which that State secures to her white citizens. Otherwise, it would be in thex power of any State, by discriminating class legislation against its own citizens 'of a particular race or color, to withhold from citizens of other States, belonging to that proscribed race, when within her limits, privileges and immunities of -the character regarded by all courts as fundamental in citizenship; and that, too, when the constitutional guaranty is that the citizens of each State shall be entitled to “ all privileges and immunities of citizens of the several States.” No State may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other States, of whatever race, to enjoy in that State all such privileges and immunities, as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, while in the jurisdiction of Tennessee, is entitled to enjoy-any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter State. It is not to be supposed that any one will controvert this proposition.

But what was secured to colored citizens of the United States —as between them and their respective States — by the national grant to them of State citizenship ? "With what rights, privi7 leges, or immunities did this grant invest them ? There is one, if there be no other — exemption from race discrimination in respect of any civil right belonging to citizens of the white race-in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right, in their own State, unless the recent amendments be splendid baubles, thrown out to delude those who deserved fair and generous treatment' at the hands of the nation. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship, that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals or corporations1 exercising public functions or authority, against any citizen because of his race or previous condition of servitude. In United States v. Cruikshank, 92 U. S. 542, it was said- at page 555, that .the *49rights of life and personal liberty are natural rights of man, and that “ the equality of the rights of citizens is a principle of republicanism.” And in Ex parte Virginia, 100 U. S. 334, the einphatic language of this court is that “ one great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude, in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States.” So, in Strauder v. West Virginia, 100 U. S. 306, the court, alluding to the Fourteenth Amendment, said: “ This is one of a series of constitutional provisions having a common purpose, namely, securing -to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.” Again, in Neal v. Delaware, 103 U. S. 386, it was ruled that this amendment was designed, primarily, “ to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons.”

The language of this court with reference to the Fifteenth Amendment, adds to the force of this view. In United States v. Cruikshank, it was said: “ In United States v. Reese, 92 U. S. 214, we held that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise, on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is. not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, &c., is. The right to vote in the' States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been.”

Here, in language at once clear and forcible, is stated the principle for which I contend. It can scarcely be claimed that exemption from race discrimination, in respect of civil rights, against those to whom State citizenship was granted by the *50nation, is any less, for the colored race, a new constitutional right, derived from and secured by the national Constitution, than is exemption from such discrimination in the exercise of the elective franchise. It cannot be'that the latter is an attribute of national citizenship, while the other is not essential in national citizenship, or fundamental'in State citizenship.

If, then, exemption from discrimination, in respect of civil rights, is a new constitutional right, secured by the grant of State citizenship to colored citizens of the United States — and I do not see how this can now be questioned — why may not the nation, by means of its own legislation of a primary direct character, guard, protect and enforce that right ? It is a right and privilege which the nation 'conferred. It did. not .come from the States in which those colored. citizens reside. It has been the.established doctrine of this court during all its history, accepted as essential to the national supremacy, that Congress, in the absence of a positive delegation of power to the State legislatures, may, by its own legislation, enforce and protect any right derived'from or created by the national Constitution.. It was so declared in Prigg v. Commonwealth of Pennsylvania. It Was reiterated in United States v. Reese, 92 U. S. 214, where the' court said' that “rights and immunities created by and dependent upon the Constitution of the United States can be protected by Congress. The form arid manner of the protection may be such as Congress, in the legitimate exercise of its discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected.” It was distinctly reaffirmed in Strauder v. West Virginia, 100 U. S. 310, where we said that “ a right or immunity created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected- by Congress.” How then can it be claimed in view of the declarations of this court in former cases, that exemption of colored citizens, within their States, from race discrimination, in respect of the civil rights of citizens, is not an immunity created or derived from the national Constitution ?

This court has always given a broad and liberal construction to the Constitution, so as to enable Congress, by legislation, to *51enforce rights secured by that instrument. The legislation which Congress may enact, in execution of its power to enforce the provisions of this amendment, is such as may be appropriate to protect the right granted. The word appropriate was undoubtedly used with reference to its meaning, as established by repeated decisions of this court. Under given circumstances, that which the' court characterizes as corrective legislation might be deemed by Congress appropriate and entirely sufficient. Under other circumstances primary direct legislation may be'required. But it is for Congress, not the judiciary, to say that legislation is appropriate — that is — best adapted to the end to be attained. The judiciary may not, with safety to our institutions, enter the domain of legislative discretion, and dictate the means which Congress shall employ in the exercise of its granted powers. That would be sheer usurpation of the functions of a co-ordinate department, which, if often repeated, and permanently acquiesced in, would work a radical change in our system of government. In United States v. Fisher, 2 Cr. 358, the court said that “Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution.” “ The sound construction of the Constitution,” said Chief Justice Marshall, “ must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution,' are constitutional.” McCulloch v. Maryland, 4 Wh. 421.

Must these rules of construction be now abandoned? Are the. powers of the national legislature to be restrained in proportion as the rights and privileges, derived from the nation, are valuable? 'Are constitutional provisions, enacted to secure the dearest rights of freemen and citizens, to be subjected to that rule of construction, applicable to private instruments, *52which requires that the words to be interpreted must be taken most "Strongly against those who employ them? Or, shall it be remembered that “ a constitution of government, foúnded by' the people for themselves and their posterity, and for objects of the most momentous nature — for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty — necessarily- requires that every interpretation of its' powers should have a constant refer-' ence to these objects ? No interpretation of the words.in which those powers are granted can be a sound pne, which narrows down their ordinary import so as to defeat those objects.” 1 Story Const. § 422.

The opinion of the court, as I.have said, proceeds upon the ground that the power of Congress to legislate for the protection of the rights and - privileges secured by the Fourteenth Amendment cannot be brought into activity except with the view, and as it may become necessary, to correct and annul State laws and State proceedings in hostility to such rights and privileges. In the absence of State laws, or State action adverse to such rights and privileges, the nation may not actively interfere for their protection and .security, even against corporations and individuals exercising public or quasi public functions. Such I understand to.be the position of my brethren. If the grant to colored citizens of the United States of citizenship in their respective States, imports exemption from race discrimination, in their States, in respect of such civil rights as belong to citizenship, then,' to hold that the amendment remits' that right to the States for their protection, primarily, and stays the hands of the nation, until it is assailed by State laws or State proceedings, is to adjudge that the amendment, so far from enlarging the powers of Congress^ — as we have heretofore said it did— not only curtails them, but reverses the ■ policy which the general government has pursued from its very organization. Such an interpretation of the amendment is a denial to Congress of the power, by appropriate legislation, to enforce one of its provisions. In view of the circumstances under which the recent amendments were incorporated into the Constitution, and especially in view of the peculiar character of. the new *53rights they created and secured, it ought not to he presumed that-the general government has abdicated its authority, by national legislation, direct and primary in its character, to guard and protect privileges- and immunities secured by that instrument. Such an interpretation of the Constitution ought not to be accepted if it be possible to avoid it. Its acceptance would lead to this anomalous result: that whereas, prior to the amendments, Congress, with the sanction of this court, passed the most stringent laws — operating directly and primarily upon States and their officers and agents, as well as upon individuals —in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution; do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties, whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution,- why shall the hands • of Congress be tied, so that — under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship — it may not, by 'means of direct legislation, bring the whole power of this nation to bear upon States and their officers, and upon such individuals and corporations exercising 'public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land ?

It does not seem to me that the fact that, by the second, clause of the first section of the Fourteenth Amendment, the States are expressly prohibited from making or enforcing laws abridging the privileges and immunities of citizens of the United States, furnishes any sufficient reason .for holding or maintaining that the amendment was intended to deny Congress the power, by general, primary, and direct legislation, of *54protecting citizens of • the several States, being also citizens of the United States, against all discrimination, in respect of their rights as citizens, which is founded on race," color, or previous ¡condition of servitude.

Such an interpretation of the .amendment is plainly' repugnant to its fifth section, conferring upon Congress power, by appropriate legislation, to enforce not merely the provisions containing prohibitions upon the States, but all of the provisions of the amendment, including the provisions, express and implied, in the first clause of the first section of the article granting citizenship. This alone is sufficient for holding that Congress is not restricted to the enactment of laws adapted to counteract and redress the operation of State legislation, or the action of State officers, of the character prohibited by the amendment. It ivas perfectly' well known thac the great danger to the equal enjoyment by citizens .of their rights, as citizens, was to' be apprehended not altogether from unfriendly State legislation, but from the hostile action of corporations and individuals m the States. And it is to be presumed that it was intended, by that section, to clothe Congress with power and authority to meet that danger. If the rights intended to be secured by the act of 1875 are such as belong to the citizen, in common or equally with other citizens in the same State, then it is not to be. denied that such legislation is peculiarly appropriate to the end which Congress is authorized to accomplish, viz-., to protect the citizen,fin ;respect of such rights, against discrimination on account of his race. Recurring to the specific prohibition in the Fourteenth Amendment upon the making or enforcing i of State laws abridging the privileges of citizens of the United .States, I remark that if, as held in the Slaughter-House Oases, the privileges here referred to were those which belonged to citizenship' of the United States, as distinguished from those belonging to State citizenship, it was impossible for any State prior to the adoption, of that amendment to have enforced laws of that character. The judiciary could have annulled all such legislation under the provision that the Constitution shall be the, supreme law of the land, anything in the constitution or laws of any. State to the contrary notwithstanding. The States .were *55already under an implied prohibition not to abridge any privilege or immunity belonging to citizens of the United States as such. Consequently, the prohibition upon State laws in hostility to rights belonging to citizens of the United States, was intended — in, view of the introduction into the body of, citizens of a race formerly denied the essential rights of citizenship — only as an express .limitation on the powers of the States, and was not intended to diminish, in the slightest degree, the authority which the nation has always exercised, of protecting, by means of its own direct legislation, rights created or secured by the Constitution. Any purpose to diminish the national- authority in respect of privileges derived from the nation is distinctly negatived by the express grant of power, by legislation, to enforce every prqvision of the amendment, including that which, by the grant of citizenship-in the State, secures exemption from race discrimination in respect of the civil rights of citizens.

It is said that any interpretation of the Fourteenth Amendment different from that adopted by the majority of the court, would imply that Congress had authority to enact a municipal code for all the States, covering every matter affecting the life, liberty, and property of the citizens of the several States. Not so. Prior to the adoption of that amendment the constitutions of the several States, without perhaps an exception, secured all persons against deprivation of life, liberty, or property, otherwise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws. Those rights, therefore, existed before that amendment was proposed or adopted, and .were not created by it. If, by reason of that fact, it be assumed that protection in these rights of persons still rests primarily with thé States, and that Congress may not interfere except to enforce, by means of corrective legislation, the prohibitions upon State laws or State proceedings inconsistent with those rights,-it does not at all follow, that privileges which have been grcmted by the nation, may not • be protected by primary legislation upon the part of Congress. The personal rights and immunities recognized in the prohibitive clauses of the amendment were, prior to its adoption, *56under the protection, primarily, of the States, while rights, created by or derived from the United States, have always been, and, in' the nature of things, should always be, primarily, under'the protection of the general government. Exemption from race discrimination in- respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new right, created by the nation, with express power in Congress, by legislation, to enforce the constitutional provision from which it is derived. If, in some sense, such race discrimination is, within the letter of the last clause of the first section, a denial of that equal protection of the laws which is secured against State denial to all persons, whether citizens or not, it cannot be possible that a mere prohibition upon such State denial, or a prohibition upon State' laws abridging the privileges and immunities of citizens of the. United States, takes from the nation the power which it has uniformly exercised of protecting, by direct primary legislation, those privileges and immunities which existed under the Constitution before the adoption of the Fourteenth Amendment, or have been created by that amendment in behalf of those thereby made citizens of their respective States,

This construction does not in any degree intrench upon the just rights of the States in the control of their domestic affairs. It simply recognizes the enlarged powers conferred by the recent amendments upon the general government. In the view which I take of those amendments, the States possess the same authority which they have always had to define and regulate the civil rights which their own people, in virtue of State citizenship, may enjoy within their respective limits ; except that its exercise is now subject to the expressly granted power of Congress, by legislation, to enforce the provisions of such amendments — a power which necessarily carries with it authority, by national legislation, to protect and secure the privileges and immunities which are created by or are derived from those amendments. That exemption of citizens from discrimination based on race or color, in respect of civil rights, is one of those privileges or immunities, can no longer be deemed an open question in this court.

*57It was said of the ease of Dred Scott v. Sandford, that tins court, there overruled the action of two generations, virtually inserted a new clause in the Constitution, changed its character, and made a new departure'in the workings of the federal government. I may be permitted to say that if the recent amendments are so construed that Congress may not, in its own discretion, aqd independently of the action or non-action of the. States, provide, by legislation of. a direct character, for the security of rights created by the national Constitution; if it be adjudged that the obligation to protect the fundamental privileges.and immunities granted by the Four-, •teenth Amendment to citizens residing in the several States, rests primarily, not on the nation, but on the States; if it be further adjudged that individuals and corporations, exercising, public functions, or wielding power under public authority, may, without liability to direct primary legislation on the part of Congress, make the race of- citizens the ground for denying them that equality of civil rights which the Constitution ordains as a principle of republican citizenship'; then, not only the foundations upon which the national supremacy has always securely rested will be materially disturbed, but we shall enter upon an era of constitutional law, when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of the master.

But if it were conceded that the power of Congress could not be brought into activity until the rights specified in the act of 1875 had been abridged or denied by some State law or State action, I maintain that the decision of the court is erroneous. There has been adverse State action within -the Fourteenth Amendment as heretofore interpreted by this court. I allude to Ex parte Virginia, supra. It appears, in that case, that one Cole, judge of a county court, was charged with the duty, by the laws of Virginia, of selecting grand and petit jurors. The law of the State did not authorize or permit him, in -making such selections; to discriminate against colored citizens because of their’ race. But he, was indicted in the federal court, under the act of 1875, for making such discriminations. *58The attorney-general of Virginia contended before- ns, that tbe State bad done its duty, and bad not authorized or directed that comity judge to do what be was charged with having done; that tbe State bad not denied to. the colored race tbe equal protection of tbe laws; and that consequently tbe act of Cole must be deemed bis individual act, in contravention of tbe -Will of tbe State. Plausible as this argument was, it failed to convince this court, and after saying that tbe Fourteenth Amendment bad reference to tbe political body denominated a State, “ by whatever 'instruments br in whatever modes that action may be taken,” and that a State acts by its legislative, executive, and judicial authorities, and can act in no other way, we proceeded:

“ The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdic- ' tiori the equal, protection of the laws. Whoever, by virtue of public position under a State government, deprives- another of property, life, or liberty without due process of law, or denies or takes away .the equal protection of the laws, violates the constitutional inhibition ; and, as he acts under the name and for the State, and is clothed with' the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or evade it. But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must' act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State, in the denial of the rights which were intended to be secured.” Ex parte Virginia, 100 U. S. 346-7.

In every material sense applicable to tbe practical enforcement of tbe Fourteenth Amendment, railroad'corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of tbe State, because tbey are charged with *59duties to the public, and'are amenable, in respect of their duties and functions, to governmental regulation. ' It seems to me that, within the principle settled in Ex parte Virginia, a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality of civil rights secured to him by law, 'is a denial by the State, within the meaning of the Fourteenth Amendment.; If it. be not, then that race is left, in respect of the civil rights in question, practically at- the mercy of corporations and individuals wielding power under the States.

But the court says that Congress did not, in the act of 1866, assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, sis distinguished from technically legal, rights of individuals. No., government ever has brought, or ever, can bring, its people into social intercourse against their wishes. Whethér one person will permit or maintain social relations with another is a matter with which government has no concern. I agree that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard ; for even upon grounds of race, no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him. What I affirm is that no State, nor the officers of any State, nor any corporation or individual wielding power under State authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in those rights, because of their race, or because they once labored under the disabilities of slavery imposed upon them as a-race. The rights which Congress, by the act of 1875, endeavored to secure and protect are legal, not social rights. The right, for instance, of a colored citizen to use the accommodations' of a public highway, upon the same terms as are permitted to white citizens, is’no more a social right than his right, under the law, to use the public streets of a city or a town, or a turnpike road, or a public market, or a post office, or his right to sit *60in a public building with others, of whatever race,, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our - seeing in this court-room citizens of the white and black races sitting side by side, watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house, or court-room, was an invasion of the social rights of white persons who may frequent such places. And yet,' such a suggestion would' be quite as sound in law — I say it with all respect— as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of .the white race.

The court, in its opinion, reserves the question whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another. I beg to suggest that that precise question was substantially presented here in the only one of these cases r dating to railroads — Robinson and Wife v. Memphis & Charleston Railroad Company. In that case it appears that Mrs. Robinson, a citizen of Mississippi, purchased a railroad ticket entitling her to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. Might not the. act of 1875 be maintained in that case, as applicable at least to commerce between -the States, notwithstanding it does not, upon its face, profess to have been passed in pursuance of the power of Congress to regulate commerce ? Has it ever been held that the judiciary should overturn a statute, because the legislative department did not accurately recite therein the particular provision of the Constitution authorizing its enactment? We have often enforced municipal bonds in aid of -railroad subscriptions, where they failed to recite the statute authorizing their issue, but recited one which did not sustain their validity. The inquiry in such cases has been, was there, in any statute, authority for the execution of the bonds ? Hpon this branch of the case, it may be remarked that the State of Louisiana, in 1869, passed a statute *61giving to passengers, without regard to race or color, equality of right in the accommodations of railroad and street cars, steamboats or other water crafts, stage coaches, omnibuses, or other vehicles. But in Hall v. De Cuir, 95 U. S. 487, that act was. pronounced unconstitutional so far as it related to commerce between the States, this court saying that “ if the public good requires .such legislation it must come from Congress, and not from the States.” I suggest, that it may become a pertinent inquiry whether Congress may, in the exertion of its power to regulate commerce among the States, enforce among passengers on public Conveyances, equality of right, without regard to race, color or previous condition of servitude, if it be true — which I do not admit — that such legislation would be an interference by government with the social rights of the people.

My brethren say, that when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to'be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are pro-* tected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The statute of 18-75,- now adjudged to be unconstitutional, is for the benefit of citizens of every' race and color. What the nation, through Congress, has sought to accomplish in reference to that race, is — what had already been done in every State of the Union for the white race — to secure and protect rights belonging to them as -freemen and citizens; nothing more. It was not deemed enough “to help the feeble up, but to support him after.” The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The • difficulty has been to compel a recognition' of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. *62At every step, in this direction, the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, “for it is ubiqui-' tous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.” To-day, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were, adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may-choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree — for the due enforcement of which, by appropriate legislation, Congress has been invested with express power — every one must bow, whai> ever may have been, or whatever now are, his'individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.

Eor the reasons stated I feel 'constrained to withhold my assent to the opinion of the court.

Me. Justice Bkown,

after stating the case, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890. providing for separate railway carriages for the white and colored races. Acts 1890, No. Ill, p. 152.

The first section of the statute enacts “ that all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches, other than, the ones, assigned, to them on account of the race they belong to.”

By the second section it was enacted “ that the officers of such passenger trains shall have power and are hereby required *541to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.55

The third section provides penalties for the refusal or neglect of the officers, directors, conductors and employes of railway companies to comply with the act, with a proviso that “ nothing in this act shall be construed as applying to nurses attending children of the other race.55 The fourth section is immaterial.

The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven eighths Caucasian and one eighth African" blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate *542said coach and take a seat in another assigned to persons of the colored race, and having refused to comply with such demand he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.

1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude — a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. This amendment was said in the Slaughter-house cases, 16 "Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word “ servitude ” was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency.

So, too, in the Civil Rights cases, 109 U. S. 3, 24, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but *543only as involving an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears. “It would be running the slavery argument into the ground,” said Mr. Justice Bradley, “to make it apply to every act of discrimination which a person may see. fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal within other matters of intercourse or business.”

A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or -enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-house eases, 16 "Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.

*544The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equalitj1, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. “The great principle,” said Chief Justice Shaw, p. 206, “advanced by the learned and eloquent advocate for the plaintiff,” (Mr. Charles Sumner,) “is, that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. . . . But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.” It was held that the powers of the committee extended to the establish*545ment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, Bev. Stat. D. C. §§ 281, 282, 283, 310, 319, as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 198; Lehew v. Brummell, 15 S. W. Rep. 765; Ward v. Flood, 48 California, 36; Bertonneau v. School Directors, 3 Woods, 177; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Indiana, 327; Dawson v. Lee, 83 Kentucky, 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State. State v. Gibson, 36 Indiana, 389.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of eases. Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gilson v. Mississippi, 162 U. S. 565. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of *546color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company’s providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Company v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons travelling within that State, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U. S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the States.

In the Civil Rights case, 109 U. S. 3, it was held that an act of Congress, entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court Mr. Justice Bradley observed that the Fourteenth Amendment “ does not invest Congress with power to legislate upon subjects that are within the *547domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.”

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, New Orleans &c. Railway v. Mississippi, 133 U. S. 587, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger ears by a partition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi, 66 Mississippi,. 662, had held that the statute applied solely to commerce within the State, and, that being the construction of the state statute by its highest court, was accepted as conclusive. “If it be a matter,” said the court, p. 591, “respecting commerce wholly within a State, and not interfering with commerce between the States, then, obviously, there is no violation of the commerce clause of the Federal Constitution..... No question arises under this section, as to the power of the State to separate in different compartments interstate pas*548sengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is, whether the State has the power to require that railroad trains within her limits shall have separate accommodations for the two races; that affecting only commerce within the State is no invasion of the power given to Congress by the commerce clause.”

A like course of reasoning applies to the case under consideration, since the Supreme Court of Louisiana in the case of the State ex rel. Abbott v. Hicks, Judge, et al., 44 La. Ann. 770, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers travelling exclusively within the borders of the State. The case was decided largely upon the authority of Railway Co. v. State, 66 Mississippi, 662, and affirmed by this court in 133 U. S. 587. In the present case no questiou of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the State of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in West Chester &c. Railroad v. Miles, 55 Penn. St. 209; Day v. Owen, 5 Michigan, 520; Chicago &c. Railway v. Williams, 55 Illinois, 185; Chesapeake &c. Railroad v. Wells, 85 Tennessee, 613; Memphis &c. Railroad v. Benson, 85 Tennessee, 627; The Sue, 22 Fed. Rep. 843; Logwood v. Memphis &c. Railroad, 23 Fed. Rep. 318; McGuinn v. Forbes, 37 Fed. Rep. 639; People v. King, 18 N. E. Rep. 245; Houck v. South Pac. Railway, 38 Fed. Rep. 226; Heard v. Georgia Railroad Co., 3 Int. Com. Com’n, 111; S. C., 1 Ibid. 428.

While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act, that denies to the passenger compensa*549tion in damages for a refusal to receive him into the coach in which he properly belongs, is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the State’s attorney, that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white, and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property> in the same sense that a right of action, or of inheritance, is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men’s houses to be painted white, and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side *550of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class. Thus in Yick Wo v. Hopkins, 118 U. S. 356, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the Constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the. term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying, or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Company v. Husen, 95 U. S. 465; Louisville & Nashville Railroad v. Kentucky, 161 U. S. 677, and cases cited on p. 700; Daggett v. Hudson, 43 Ohio St. 548; Capen v. Foster, 12 Pick. 485; State ex rel. Wood v. Baker, 38 Wisconsin, 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Rems, 41 Penn. St. 396; Orman v. Riley, 15 California, 48.

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with, reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances *551is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voíuntáry consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N. Y. 438, 448, “this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed.” Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly *552or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race, (State v. Chavers, 5 Jones, [N. C.] 1, p. 11); others that it depends upon the preponderance of blood, (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three fourths. (People v. Dean, 14 Michigan, 406; Jones v. Commonwealth, 80 Virginia, 538.) But these are questions to be determined under the laws of each State and are not properly put in issue in this case. Under the allegations of his petition it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is, therefore,

Affirmed.

Me. Justice Harlan

dissenting.

By the Louisiana statute, the validity of which is here involved, all railway companies (other than street railroad companies) carrying passengers in that State are required to have separate but equal accommodations for white and colored persons, “ by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.” Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person, to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, *553he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors and employes of railroad companies to comply with the provisions of the act.

Only “nurses attending children of*the other race” are excepted from the operation of the statute. No exception is made of colored attendants travelling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while travelling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act, “ white and colored races,” necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

Thus the State regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise “ of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.” Mr. Justice Strong, delivering the judgment of *554this court in Olcott v. The Supervisors, 16 Wall. 678, 694, said: “ That railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State’s right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Vet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land'for,the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use ? ” So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: “ Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the State.” So, in Inhabitants of Worcester v. Western Railroad Corporation, 4 Met. 564: “ The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike or highway, a public easement.” It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public.”

In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the *555race of citizens when the civil rights of those citizens are involved. Indeed, such legislation, as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States.

The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that “ all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of-the United States and of the State wherein they reside,” and that “ no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” These two amendments, if enforced according to their true intent and meaning, will protect all the civil lights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the Fifteenth Amendment that “ the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure “ to a race recently emancipated, a race that through *556many generations have been held in slavery, all the civil rights that the superior race enjoy.” They declared, in legal effect, this court has further said, “ that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” "We also said: “ The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored — exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race and however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. Strauder v. West Virginia, 100 U. S. 303, 306, 307; Virginia v. Rives, 100 U. S. 313; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370, 386; Bush v. Kentucky, 107 U. S. 110, 116. At the present term, referring to the previous adjudications, this court declared that “ underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government or the States against any citizen because of his race. All citizens are equal before the law.” Gibson v. Mississippi, 162 U. S. 565.

The decisions referred to show the scope of the recent amendments of the Constitution. They also show that it is not within the power of a State to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.

It was said in argument that the statute of Louisiana does *557not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Bailroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. “Personal liberty,” it has been well said, “ consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” 1 Bl. Com. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from travelling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other ? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road *558or street ? "Why may it not require sheriffs to assign whites to one side of a court-room and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day ? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics ?

The answer given at the argument to these questions' was that regulations of .the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that the legislative intention being clearly ascertained, “ the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.” Stat. & Const. Constr. 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes, liberally, in order to carry out the legisla*559tive will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Bred Scott case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that at the time of the adoption of the Constitution they were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant *560race, 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.” 19 How. 393, 40á. The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race — a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by mekns of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that' the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race. State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the *561war, under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when travelling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives- for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race, if his rights under the law were recognized. But he objects, and ought never to cease objecting to the proposition, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.

*562The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.

If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. "We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of “ equal” accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

The result of the whole matter is, that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a State cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a State may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a “partition,” when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperilled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a “partition,” and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a moveable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the “partition” used in the court room happens to be stationary, provision could be made for screens with openings through *563which, jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating citizens of the United States of a particular race, would be held to be consistent with the Constitution.

I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable, because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights' which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

I am of opinion that the statute of Louisiana is-inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community called the *564People of the United States, for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

Me. Justice Brewer did not hear the argument or participate in the decision of this case.

Mr. Chief Justice White

delivered the opinion of the court.

This case is before us on a certificate drawn by the . court below as the basis of two questions which are submitted for our solution in order to enable the court corretítly to decide issues in a case which it has under consideration. Those issues arose from an indictment and conviction of certain election officers of the State of Oklahoma (the plaintiffs in error) of the crime of having conspired unlawfully, wilfully and fraudulently to deprive certain negro citizens, on account of their race and color, of a right to vote at a general election held in that State in 1910, they being entitled to vote under the state law and which right was secured to them by the Fifteenth Amendment to the Constitution of the United States: The prosecution was directly concerned with § 5508, Rev. Stat., now § 19 of the Penal Code which is as follows:

“If two or inore persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five, thousand dollars and imprisoned not more thán ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.”

*355We concentrate and state from the certificate only-matters which we deem essential to dispose of the questions asked.

Suffrage in Oklahoma whs regulated by § 1, Article III of the Constitution under which the State was admitted into the Union. Shortly after the admission there was submitted an amendment to the Constitution making a radical change in that article which was adopted prior to November 8, 1910. At an election for members of Congress which followed the adoption of this Amendment certain election officers in enforcing its provisions refused to allow certain negro citizens to vote who were clearly entitled to vote under the provision of the Constitution under which the State was admitted, that is, before the amendment, and who, it is equally clear, were not entitled to vote under the provision of the suffrage amendment if that amendment governed. The persons so excluded based their claim of right to vote upon the original Constitution and upon the assertion that the suffrage amendment was void because in conflict with the prohibitions of the Fifteenth Amendment and therefore afforded no basis for denying them the right guaranteed and protected by that Amendment. And upon the assumption that this claim was justified and that the, election officers had violated the Fifteenth Amendment in denying the right to vote, this prosecution, as we have said, was commenced. At the trial the court instructed that by the Fifteenth Amendment the States were prohibited from discriminating as to suffrage because of race, cplor, or previous condition of servitude and that Congress in pursuance of the authority which, was conferred upon it by the very terms of the Amendment to enforce its provisions had enacted the following (Rev. Stat., § 2004):

“All citizens of the United States who are otherwise qualified by law to vote at any election by the people of any State, Territory, district, . . . municipality, ... or *356other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.”

It then instructed as follows:

“The State amendment which imposes the test of reading and writing any section of the State- constitution as a condition to voting to persons not on or prior to January 1, 1866, entitled to vote under some form of government, or then resident in some foreign nation, or a lineal descendant of such person, is not valid, but you may consider it in so far as it was in good faith relied and acted upon by the defendants in ascertaining their intent and motive. If you believe from the evidence that the defendants formed a common design and cooperated in denying the colored voters of Union Township precinct, or any of them, entitled to vote, the privilege of voting, but this was due to a mistaken belief sincerely entertained by the defendants as to the qualifications of the voters — that is, if the motive actuating the defendants was honest, and they simply erred in the conception of their duty — then the criminal intent requisite to their guilt is wanting and they cannot be convicted. On the other hand, if they knew or believed these colored persons were entitled to vote, and their purpose was to unfairly and fraudulently deny the right of suffrage to them, or any of them entitled thereto, on account of their race and color, then their purpose was a corrupt one, and they cannot be shielded by their official positions.”

The questions which the court below asks are these:

“1. Was the amendment to the constitution of Oklahoma, heretofore set forth, valid?

“2. Was that amendment void in so far as it attempted to debar from the right or privilege of voting for a qualified *357candidate for a Member of Congress in Oklahoma, unless they were able to read and write any section of the constitution of Oklahoma, negro citizens of the United States who were otherwise qualified to vote for a qualified candidate for a Member of Congress in that State, but who were not, and none of whose lineal ancestors was, entitled to vote under any form of government on January 1, 1866, or at any time prior thereto, because they were then slaves?”

As these questions obviously relate to the provisions concerning suffrage in the original constitution and the amendment to those provisions which forms the basis of the controversy, we state the text of both. The original clause so far as material was this:

"The qualified electors of the State shall be male citizens of. the United States, male citizens.of the State, and male-persons of Indian descent native of the United States, who are over the age of twenty-one years, who have resided in the State one year, in the county six months, and in the election precinct thirty days, next preceding the election at which any such elector offers to vote.”

And this is the amendment:

“No person shall be registered as an elector of this State or be allowed to vote in any election herein, unless he be able to read and write any section of the constitution of the State of Oklahoma; but no person who was, on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign.nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such constitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration be required. Should registration be dispensed with, the provisions of this section shall be enforced by the *358precinct election officer when electors apply for ballots to vote.”

Considering the questions in the light of the text of the suffrage amendment it is apparent that they are twofold because of the twofold character of the provisions as to suffrage which the amendment contains. The first question is concerned with that provision of the amendment which fixes a standard by which the right to vote is given upon conditions existing on January 1, 1866, and relieves those coming within that standard from the standard based on a literacy test which is established by the other provision of the amendment. The second question asks as to the validity of the literacy test and how far, if intrinsically valid, it would continue to exist and be operative in the event the standard based upon January 1, 1866, should be held to be illegal as violative of the Fifteenth Amendment.

To avoid that which is unnecessary let us at once consider and sift the propositions of the United States on the one hand and of the plaintiffs in error on the other, in order to reach with precision the real and final question to be considered. The United States insists that the provision of the amendment which fixes a standard based upon January 1,1866, is repugnant to the prohibitions of the Fifteenth Amendment because in substance and effect that provision, if not an express, is certainly an open repudiation, of the Fifteenth' Amendment and hence the provision in question was stricken with nullity in its inception by the self-operative force of the Amendment, and as the result of the same power was at all subsequent times devoid of any vitality whatever.

For the plaintiffs in error on the other hand it is said the. States have the power to fix standards for suffrage and that power was not taken away by the Fifteenth Amendment but only limited to the extent of the prohibitions which that Amendment established. This being true, as the *359standard fixed does not in terms make any discrimination on account of race, color, or previous condition of servitude, since all, whether negro or white, who come within its requirements enjoy the privilege of voting, there is no ground upon which to rest the contention that the provision violates the Fifteenth Amendment. This, it js insisted, must be the case unless it is intended to expressly deny the State’s right to provide a standard for suffrage, or what is equivalent thereto, tp assert: a, that the judgment of the' State exercised in the exertion of that power is subject to Federal judicial review or supervision, or b, that it may be questioned and be brought within the prohibitions of the Amendment by attributing to the legislative authority an occult motive to violate the Amendment or by assuming that an exercise of the otherwise lawful, power may be invalidated because of conclusions concerning its operation in practical execution and resulting discrimination arising therefrom, albeit such discrimination was not expressed in the standard fixed or fairly to be implied but simply arose from inequalities naturally inhering in those who must come within the standard in order to enjoy the right to vote.

On the other hand the United States denies the relevancy of these contentions. It says state power to provide for suffrage is not disputed, although, of course, the authority of the Fifteenth Amendment and the limit on that power which it imposes is insisted upon. Hence, no assertion denying the right of a State to exert judgment and discretion in fixing the qualification of suffrage is advanced and no right to question the motive of the State in establishing a standard as to such subjects under such circumstances or to review or supervise the same is relied upon and no power to destroy an otherwise valid exertion of authority upon the mere ultimate operation of the power exercised is asserted. And applying these principles to the very case in hand the argument of the *360Government in substance says: No question is raised by the Government concerning the validity of the literacy test provided for in the amendment under consideration as an independent standard since the conclusion is plain that that test rests on the exercise of state judgment and therefore cannot be here assailed either by disregarding the State’s power to judge on the subject or by testing its motive in enacting- the provision. The real question involved, so the argument of the Government insists, is the repugnancy of the standard which the amendment makes, based upon the conditions existing on January 1, 1866, because on its face, and inherently considering the substance of things, that standard.is a mere denial of the restrictions imposed by the prohibitions of the Fifteenth Amendment and by necessary result re-creates and perpetuates the very conditions which the Amendment was intended to destroy. From this it is urged that no legitimate discretion could have entered into the fixing of such standard which involved only the determination to directly set at naught or by indirection avoid the commands of the Amendment. And it is insisted that nothing . contrary to these propositions is involved in the contention of the Government that if the standard which the suffrage amendment fixes based upon the conditions existing on January 1, 1866, be found to be void for the reasons urged, the other and literacy test is also void, since that contention rests, not upon any assertion on the part of the Government of any abstract repugnancy of the literacy test to the prohibitions of the Fifteenth Amendment, • but upon the relation between that test and the other as formulated in the suffrage amendment and the inevitable result which it is deemed must follow from holding it to be void if the other is so declared to be.

Looking comprehensively at these contentions of the parties it plainly results that the conflict between them is *361much, narrower than it would seem to be because the premise which the arguments of the plaintiffs in error attribute to the propositions of the United States is by it denied. On the very face of things it is clear that the United States disclaims the gloss put upon its contentions by limiting them to the propositions ^hich we have hitherto pointed out, since it rests the contentions which it makes as to the assailed provision of the suffrage amendment solely upon the ground that it involves an unmistakable, although it may be a somewhat disguised, refusal to give effect to the prohibitions of the Fifteenth Amendment by creating a standard which it is repeated but calls to life the very conditions which that Amendment was adopted to destroy and which it had destroyed.

The questions then are: (1) Giving to the propositions of the Government the interpretation which the Government puts upon them and assuming that the suffrage provision has the significance which the Government assumes it to have, is that provision-as a matter of law repugnant to the Fifteenth Amendment? which leads us of course to consider the operation and effect of the Fifteenth Amendment. (2) ,If yes, has the assailed amendment in so far as it fixes a standard for voting as of January 1, 1866, the meaning which the Government attributes to it? which leads us to analyze and interpret that provision of the amendment. (3) If the investigation as to the two prior subjects establishes that the standard fixed as of January 1, 1866, is void, what if any effect does that conclusion have upon the literacy standard otherwise established by the amendment? which involves • determining whether that standard, if legal, may survive the recognition of the fact that the other or 1866 standard has not and never had any legal existence: Let us consider these subjects under separate headings.

1. The operation and effect of the Fifteenth Amendment. This is its text:

*362“Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

“Section 2. The Congress shall have power to enforce this article by appropriate legislation.”

(a) Beyond doubt the Amendment does not take away from the state governments in a general sense the power over suffrage which has belonged to those ■ governments from the beginning and without the possession of which power the .whole fabric upon which the division of state and national authority under the Constitution and the organization of both governments rest would be without support and both the authority of the nation and the State would fall to the ground. In fact, the very command of the Amendment recognizes the possession of the general power by the State, since the Amendment seeks to regulate its exercise as to the particular subject with which it deals.

(b) But it is equally beyond the possibility of question that the Amendment in express terms restricts the power of the United States or the States to abridge or deny the right of a citizen of the United States to vote on account of race, color or previous condition of servitude. The restriction is coincident with the power and prevents its exertion in disregard of the command of the Amendment. But while this is true, it is true also that the,Amendment does not change, modify or deprive the States of their full power as to suffrage except of course as to the subject with which the Amendment deals and to the extent that obedience to its command is necessary. Thus the authority over suffrage which the States possess and the limitation which the Amendment imposes are coordinate and one may not destroy the other without bringing about the destruction of both.

(c) While in the true sense, therefore, the Amendment *363gives no right of suffrage, it was long ago recognized that in operation its prohibition might measurably have that effect; that is to say, that as the command of the Amendment was self-executing and reached without legislative action the conditions of discrimination against which it was aimed, the result might arise, that as a consequence of the striking down of a discriminating clause a right of suffrage -would be enjoyed by reason of the generic character of the provision which would remain after the discrimination was stricken out. Ex parte Yarbrough, 110 U. S. 651; Neal v. Delaware, 103 U. S. 370. A familiar illustration of this doctrine resulted from the effect of the adoption of the Amendment on state constitutions in which at the time of the adoption of the Amendment the right of suffrage was conferred on all white male citizens, since by the inherent power of the Amendment the word white disappeared and therefore all male citizens without discrimination on account of race, color or previous condition of servitude came under the generic grant of suffrage made by the State.

With these principles before us how can there be room for any serious dispute concerning the repugnancy of the standard based upon January 1, 1866 (a date which preceded the adoption of the Fifteenth Amendment), if the suffrage provision fixing that standard is susceptible of the significance which the Government attributes to it? Indeed, there seems no escape from the conclusion that to hold that there was even possibility for dispute on the subject would be but to declare that the Fifteenth Amendment not only had not the self-executing power which it has been recognized to have from the beginning, but that its provisions were wholly inoperative because susceptible of being rendered inapplicable by mere forms of expression embodying no exercise of judgment and resting upon no discernible reason other than the purpose to disregard the prohibitions of the Amendment by creating a standard of *364voting which on its face was in substance but a revitalization of conditions which when they prevailed in the past had been destroyed by the self-operative force of the Amendment.

2. The standard of January 1, 1866, fixed in the. suffrage amendment and its significance.

The inquiry of course here is, Does the amendment as to the particular standard which this heading embraces involve the mere refusal to comply with the commands of the> Fifteenth Amendment as previously stated? This leads us for the purpose of the analysis to recur to the text of the suffrage amendment. Its opening sentence fixes the literacy standard which is all-inclusive since it is general in its expression and contains no word of discrimination on account of race or color or any other reason. This however is immediately followed by the provisions creating the standard based upon the condition existing on January 1, 1866, and carving out those coming under that standard from the inclusion in the literacy test which would have controlled them but for the exclusion thus expressly provided for. The provision is this:

“But no person who was, on January 1, 1866, or at any time prior thereto, entitled to vote under any fprm of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such constitution.”

We have difficulty in finding words to more clearly demonstrate the conviction we entertain that this standard has the characteristics which the Government attributes to it than does the mere statement of the text. It is true it contains no express words of an exclusion from the standard which it establishes of any person on account of race, color, or previous condition of servitude prohibited by the Fifteenth Amendment, but the standard itself inherently brings that result into existence since it is based *365purely upon a period of time before the enactment of the Fifteenth Amendment and makes that period the controlling and dominant test of the right of suffrage. In other words, we seek in vain for any ground which would sustain any other interpretation but that the provision, recurring to the conditions existing before the Fifteenth Amendment was adopted and the continuance of which the Fifteenth Amendment prohibited, proposed by in substance and effect lifting those conditions over to a period of time after the Amendment to make them the basis of the right to suffrage conferred in direct and positive disregard of the Fifteenth Amendment: And the same result, we are of opinion, is demonstrated by considering whether it is possible to discover any basis of reason for the standard thus fixed other than' the purpose above' stated. We say this because we are unable to discover how, unless the prohibitions of the Fifteenth Amendment were considered, the slightest reason was afforded for basing the classification upon a period of time prior to the Fifteenth Amendment. Certainly it cannot be said that there was any peculiar necromancy in the time named which engendered attributes affecting the qualification to vote which would not exist at another and different period unless the Fifteenth Amendment was in view.

While these considerations establish that the standard fixed on the basis of the 1866 test is void, they do not enable us to reply even to the first question asked by the court below, since to do so we must consider the literacy standard established by the suffrage amendment and the possibility of its surviving the determination of the fact that the 1866 standard never took life since it was void from the beginning because of the operation upon it of the prohibitions of the Fifteenth Amendment. And this brings us to the last heading:

3. The determination of the validity of the literacy test and the possibility of its surviving the disappearance of the 1866 *366 standard with which it is associated in the suffrage amendment.

No time need be spent on the question of the validity of the literacy test considered alone since as we have seen its establishment was but the exercise by the State of a lawful power vested in it not subject to our supervision, and indeed, its validity is admitted.. Whether this test is so connected with the other one relating to the situation on January 1, 1866, that the invalidity of the latter requires the rejection of the former is really a question of state law, but in the absence of any decision on the subject by the Supreme Court of the State, we must determine it for ourselves. We are of opinion that neither forms of classification nor methods of enumeration should be made the basis'of striking down a provision which was independently legal and therefore was lawfully enacted because" of the removal of an illegal provision with which the legal provision or provisions may have been associated. We state what we hold to be the rule thus strongly because we are of opinion that on a subject like the one under consideration involving the establishment of a right whose exercise lies at the very basis of government a much more exacting standard is required than would ordinarily'obtain where the influence of the declared unconstitutionality of one provision of a statute upon another and constitutional provision is required to be fixed. Of course, rigorous as is this rule and imperative as is the duty not to violate it, it does not mean that it applies in a case where it expressly, appears that a contrary conclusion must be reached if the plain letter and necessary intendment of the provision under consideration so compels, or where such a result is rendered necessary because to follow the contrary course would give rise to such an extreme .and anomalous situation as would cause it to be impossible to conclude that it could have been upon any hypothesis whatever within, the mind of the law-making power.

*367Does the general rule here govern or is the case controlled by one or the other of the exceptional conditions which we have just stated, is then the remaining question to be decided. Coming to solve it we are of opinion that by a consideration of the text of the suffrage amendment in so far as it deals with the literacy test and to the extent that it creates the standard based upon conditions existing on January 1,1866, the case is taken out of the general rule and brought under the first of the exceptions stated. We say this because in our opinion the very language of the suffrage amendment expresses, not by implication nor by forms of classification nor by the order in which they are made, but by direct and positive language the command that the persons embraced in the 1866 standard should not be under any conditions subjected to the literacy test, a command which would be virtually set at naught if on the obliteration of the one standard by the force of the Fifteenth Amendment the other standard should be held to continue in force.

The reasons previously stated dispose of the case and make it plain that it is our duty to answer the first question, No, and the second, Yes; but before we direct the entry of an order to that effect we come briefly to dispose of an issue the consideration of which we have hitherto postponed from a desire not to break the continuity of discussion as to the general and important subject before us.

In various forms of statement not challenging the instructions given by the trial court concretely considered concerning the liability of the election officers for their official conduct, it is insisted that as in connection with the instructions the jury was charged that • the suffrage amendment was unconstitutional because of its repugnancy to the Fifteenth Amendment, therefore taken as a whole the charge was erroneous. But we are of opinion . that this contention is without merit, especially in view *368of the doctrine long since settled concerning the self-executing power of the Fifteenth Amendment and of what we have held to be the nature and character of the suffrage amendment in question. The contention concerning the inapplicability of § 5508, Rev. Stat., now.§ 19 of the Penal Code, or of its repeal by implication, is fully answered by the ruling this day made in United States v. Mosley, No. 180, post, p. 383.

We answer the first question, No, and the second question, Yes.

And it-will be so certified.

Mr. Justice McReynolds took no part in the consideration and decision of this case.

*342Me. Chief Justice Hughes

delivered the opinion of the Court.

Petitioner Lloyd Gaines, a negro, was refused admission to the School of Law at the State University of Missouri. Asserting that this refusal constituted a denial by the State of the equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution, petitioner brought this action for mandamus to compel the curators of the University to admit him. On final hearing, an alternative writ was quashed and a peremptory writ was denied by the Circuit Court. The Supreme Court of the State affirmed the judgment. 113 S. W. 2d 783. We granted certiorari, October 10, 1938.

Petitioner is a citizen of Missouri. In August, 1935, he was graduated with the degree of Bachelor of Arts at the Lincoln University, an institution maintained by the State of Missouri for the higher education of negroes. That University has no law school. Upon the filing of his application for admission to the law school of the University of Missouri, the registrar advised him to communicate with the president of Lincoln University and the latter directed petitioner’s attention to § 9622 of the Revised Statutes of Missouri (1929), providing as follows:

“Sec. 9622. May arrange for attendance at university of any adjacent state — Tuition fees. — Pending the full development of the Lincoln university, the board of *343curators shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri, and which are not taught at the Lincoln university and to pay the reasonable tuition fees for such attendance; provided that whenever the board of curators deem it advisable they shall have the power to open any necessary school or department. (Laws 1921, p. 86, § 7.)”

Petitioner was advised to apply to the State Superintendent of Schools for aid under that statute. It was admitted on the trial that petitioner’s “work and credits at the Lincoln University would qualify him for admission to the School of Law of the University of Missouri if he were found otherwise eligible.” He was refused admission upon the ground that it was “contrary to' the constitution, laws and public policy of the State to admit a negro as a student in the University of Missouri.” It appears that there are schools of law in connection with the state universities of four adjacent States, Kansas, Nebraska, Iowa and Illinois, where nonresident negroes are admitted.

The clear and definite conclusions of the state court in construing the pertinent state legislation narrow the issue. The action of the curators, who are representatives of the State in the management of the state university (R. S. Mo., § 9625), must be regarded as state action.1 The state constitution provides that separate free public schools shall be established for the education of children of African descent (Art. XI, § 3), and by statute separate high school facilities are supplied for colored students equal to those provided for white students (R. S. Mo., *344§§ 9346-9349). While there is no express constitutional provision requiring that the white and negro races be separated for the purpose of higher education, the state court on a comprehensive review of the state statutes held that it was intended to separate the white and negro races for that purpose also. Referring in particular to Lincoln University, the court deemed it to be clear “that the Legislature intended to bring the Lincoln University up to the standard of the University of Missouri, and give to the whites and negroes an equal opportunity for higher education — the whites at the University of Missouri, and the negroes at Lincoln University.” Further, the court concluded that the provisions of § 9622 (above quoted) to the effect that negro residents “may attend the university of any adjacent State with their tuition paid, pending the full development of Lincoln University,” made it evident “that the Legislature did not intend that negroes and whites should attend the same university in this State.” In that view it necessarily followed that the curators of the University of Missouri acted in accordance with the policy of the State in denying petitioner admission to its School of Law upon the sole ground of his race.

In answering petitioner’s contention that this discrimination constituted a denial of his constitutional right, the state court has fully recognized the obligation of the State to provide negroes with advantages for higher education substantially equal to the advantages afforded to white students. The State has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions. Plessy v. Ferguson, 163 U. S. 537, 544; McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151, 160; Gong Lum v. Rice, 275 U. S. 78, 85, 86. Compare Gumming v. Board of Education, 175 U. S. 528, 544, 545. Respondents’ counsel have appropriately emphasized the special *345solicitude of the State for the higher education of negroes as shown in the establishment of Lincoln University, a state institution well conducted on a plane with the University of Missouri so far as the offered courses are concerned. It is said that Missouri is a pioneer in that field and is the only State in the Union which has established a separate university for negroes on the same basis as the state university for white students. But, commendable as is that action, the fact remains that instruction in law for negroes is not now afforded by the State, either at Lincoln University or elsewhere within the State, and that the State excludes negroes from the advantages of the law school it has established at the University of Missouri.

It is manifest that this discrimination, if not relieved by the provisions we shall presently discuss, would constitute a denial of equal protection. That was the conclusion of the Court of Appeals of Maryland in circumstances substantially similar in that aspect. University of Maryland v. Murray, 169 Md. 478; 182 A. 690. It there appeared that the State of Maryland had “undertaken the function of education in the law” but had “omitted students of one race from the only adequate provision made for it, and omitted them solely because of their color”; that if those students were to be offered “equal treatment in the performance of the function, they must, at present, be admitted to the one school provided.” Id., p. 489. A provision for scholarships to enable negroes to attend colleges outside the State, mainly for the purpose of professional studies, was found to be inadequate (Id., pp. 485, 486) and the question, “whether with aid in any amount it is sufficient to send the negroes outside the State for legal education,” the Court of Appeals found it unnecessary to discuss. Accordingly, a writ of mandamus to admit the applicant was issued to the officers and *346regents of the University of Maryland as the agents of the State entrusted with the conduct of that institution.

The Supreme Court of Missouri in the instant case has distinguished the decision in Maryland upon the grounds- — (1) that in Missouri, but not in Maryland, there is “a legislative declaration of a purpose to establish a law school for negroes at Lincoln University whenever necessary or practical”; and (2) that, “pending the estab-ishment of such a school, adequate provision has been made for the legal education of negro students in recognized schools outside of this State.” 113 S. W. 2d, p. 791.

As to the first ground, it appears that the policy of establishing a law school at Lincoln University has not yet ripened into an actual establishment, and it cannot be said that a mere declaration of purpose, still unfulfilled, is enough. The provision for legal education at Lincoln is at present entirely lacking. Respondents' counsel urge that if, on the date when petitioner applied for admission to the University of Missouri, he had instead applied to the curators of Lincoln University it would have been their duty to establish a law school; that this “agency of the State,” to which he should have applied, was “specifically charged with the mandatory duty to furnish him what he seeks.” We do not read the opinion of the Supreme Court as construing the state statute to impose such a “mandatory duty” as the argument seems to assert. The.state court quoted the language of § 9618, R. S. Mo. 1929, set forth in the margin,2 making it the mandatory *347duty of the board of curators to establish a law school in Lincoln University “whenever necessary and practicable in their opinion.” This qualification of their duty, explicitly stated in the statute, manifestly leaves it to the judgment of the curators to decide when it will be necessary and practicable to establish a law school, and the state court so construed the statute. Emphasizing the discretion of the curators, the court said:

“The statute was enacted in 1921. Since its enactment no negro, not even appellant, has applied to Lincoln University for a law education. This fact demonstrates the wisdom of the legislature in leaving it to the judgment of the board of curators to determine when it would be necessary or practicable to establish a law school for negroes at Lincoln University. Pending that time adequate provision is made for the legal education of ne-groes in the university of some adjacent State, as heretofore pointed out.” 113 S. W. 2d p. 791.

The state court has not held that it would have been the duty of the curators to establish a law school at Lincoln University for the petitioner on his application. Their duty, as the court defined it, would have been either to supply a law school at Lincoln University as provided in § 9618 or to furnish him the opportunity to obtain his legal training in another State as provided in § 9622. Thus the law left the curators free to adopt the latter course. The state court has not ruled or intimated that their failure or refusal to establish a law school for a very few students, still less for one student, would have been an abuse of the discretion with which the curators were entrusted. And, apparently, it was because of that discre*348tion, and of the postponement which its exercise in accordance with the terms of the statute would entail until necessity and practicability appeared, that the state court considered and upheld as adequate the provision for the legal education of negroes, who were citizens of Missouri, in the universities of adjacent States. We may put on one side respondent’s contention that there were funds available at Lincoln University for the creation of a law department and the suggestions with respect to the number of instructors who would be needed for that purpose and the cost of supplying them. The president of Lincoln University did not advert to the existence or prospective use of funds for that purpose when he advised petitioner to apply to the State Superintendent of Schools for aid under § 9622. At best, the evidence to which argument as to available funds is addressed admits of conflicting inferences, and the decision of the state court did not hinge on any such matter. In the light of its ruling we must regard the question whether the provision for the legal education in other States of negroes resident in Missouri is sufficient to satisfy the constitutional requirement of equal protection, as the pivot upon which this case turns.

The state court stresses the advantages that are afforded by the law schools of the adjacent States, — Kansas, Nebraska, Iowa and Illinois, — which admit non-resident negroes. The court considered that these were schools of high standing where one desiring to practice law in Missouri can get “as sound, comprehensive, valuable legal education” as in the University of Missouri; that the system of education in the former is the same as that in the latter and is designed to give the students a basis for the practice of law in any State where the Anglo-American system of law obtains; that the law school of the University of Missouri does not specialize in Missouri law and that the course of study and the case books used *349in the five schools are substantially identical. Petitioner insists that for one intending to practice in Missouri there are special advantages in attending a law school there, both in relation to the opportunities for the particular study of Missouri law and for the observation of the local courts,3 and also in view of the prestige of the Missouri law school among the citizens of the State, his prospective clients. Proceeding with its examination of relative advantages, the state court found that the difference in distances to be traveled afforded no substantial ground of complaint and that there was an adequate appropriation to meet the full tuition fees which petitioner' would have to pay.

We think that these matters are beside the point. The basic consideration is not as to what sort of opportunities other States provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State. The question here is not of a duty of the State to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the State upon the basis of an equality of right. By the operation of the laws of Missouri a privilege has been created for white law students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege *350which the State has set up, and the provision for the payment of tuition fees in another State does not remove the discrimination.

The equal protection of the laws is “a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U. S. 356, 369. Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities,— each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system. It seems to be implicit in respondents’ argument that if other States did not provide courses for legal education, it would nevertheless be the constitutional duty of Missouri when it supplied such courses for white students to make equivalent provision for negroes. But that plain duty would exist because it rested upon the State independently of the action of other States. We find it impossible to conclude that what otherwise would be an unconstitutional discrimination, with respect to the legal right to the enjoyment of opportunities within the State, can be justified by requiring resort to opportunities elsewhere. That resort may mitigate the inconvenience of the discrimination but cannot serve to validate it.

Nor can we regard the fact that there is but a limited demand in Missouri for the legal education of negroes as excusing the discrimination in favor of whites. We had occasion to consider a cognate question in the case *351of McCabe v. Atchison, T. & S. F. Ry. Co., supra. There the argument was advanced, in relation to the provision by a carrier of sleeping cars, dining and chair cars, that the limited demand by negroes justified the State in permitting the furnishing of such accommodations exclusively for white persons. We found that argument to be without merit. It made, we said, the constitutional right “depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor, but, if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey which under substantially the same circumstances is furnished to another traveler, he may properly complain that his constitutional privilege has been invaded.” Id., pp. 161, 162.

Here, petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity.

It is urged, however, that the provision for tuition outside the State is a temporary one, — that it is intended to operate merely pending the establishment of a law department for negroes at Lincoln University. While in that sense the discrimination may be termed temporary, it may nevertheless continue for an indefinite period by reason of the discretion given to the curators of Lincoln *352University and the alternative of arranging for tuition in other States, as permitted by the state law as construed by the state court, so long as the curators find it unnecessary and impracticable to provide facilities for the legal instruction of negroes within the State. In that view, we cannot regard the discrimination as excused by what is called its temporary character.

We do not find that the decision of the state court turns on any procedural question. The action was for mandamus, but it does not appear that the remedy would have been deemed inappropriate if the asserted federal right had been sustained. In that situation the remedy by mandamus was found to be a proper one in University of Maryland v. Murray, supra. In the instant case, the state court did note that petitioner had not applied to the management of Lincoln University for legal training. But, as we have said, the state court did not rule that it would have been the duty of the curators to grant such an application, but on the contrary took the view, as we understand it, that the curators were entitled under the state law to refuse such an application and in its stead to provide for petitioner’s tuition in an adjacent State. That conclusion presented the federal question as to the constitutional adequacy of such a provision while equal opportunity for legal training within the State was not furnished, and this federal question the state court entertained and passed upon. We must conclude that in so doing the court denied the federal right which petitioner set up and the question as to the correctness of that decision is before us. We are of the opinion that the ruling was error, and that petitioner was entitled to be admitted to the law school of the State University in the absence of other and proper provision for his legal training within the State.

The judgment of the Supreme Court of Missouri is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed.

*353Separate opinion

of Mr. Justice McReynolds.

Considering the disclosures of the record, the Supreme Court of Missouri arrived at a tenable conclusion and its judgment should be affirmed. That court well understood the grave difficulties of the situation and rightly refused to upset the settled legislative policy of the State by directing a mandamus.

In Cumming v. Richmond County Board of Education, 175 U. S. 528, 545, this Court through Mr. Justice Harlan declared — “The education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.” Gong Lum v. Rice, 275 U. S. 78, 85— opinion by Mr. Chief Justice Taft — asserts: “The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear.”

For a long time Missouri has acted upon the view that the best interest of her people demands separation of whites and negroes in schools. Under the opinion just announced, I presume she may abandon her law school and thereby disadvantage her white citizens without improving petitioner’s opportunities for legal instruction; or she may break down the settled practice concerning separate schools and thereby, as indicated by experience, damnify both races. Whether by some other course it may be possible for her to avoid condemnation is matter for conjecture.

The State has offered to provide the negro petitioner opportunity for study of the law — if perchance that is the thing really desired — by paying his tuition at some nearby school of good standing. This is far from unmistakable disregard of his rights and in the circum*354stances is enough to satisfy any reasonable demand for specialized training. It appears that never before has a negro applied for admission to the Law School and none has ever asked that Lincoln University provide legal instruction.

The problem presented obviously is a difficult and highly practical one. A fair effort to solve it has been made by offering adequate opportunity for study when sought in good faith. The State should not be unduly hampered through theorization inadequately restrained by experience.

This proceeding commenced in April, 1936. Petitioner then twenty-four years old asked mandamus to compel his admission to the University in September, 1936, notwithstanding plain legislative inhibition. Mandamus is not a writ of right but is granted only in the court’s discretion upon consideration of all the circumstances. Duncan Townsite Co. v. Lane, 245 U. S. 308, 311; United States ex rel. Arant v. Lane, 249 U. S. 367, 371.

The Supreme Court of Missouri did not consider the propriety of granting the writ under the theory of the law now accepted here. That, of course, will be matter open for its consideration upon return of the cause.

Mr. Justice Butler concurs in the above views.

Per Curiam.

On January 14, 1946, the petitioner, a Negro, concededly qualified to receive the professional legal education offered by the State, applied for admission to the School of Law of the University of Oklahoma, the only institution for legal education supported and maintained by the taxpayers of the State of Oklahoma. Petitioner’s application for admission was denied, solely because of her color.

Petitioner then made application for a writ of mandamus in the District Court of Cleveland County, Oklahoma. The writ of mandamus was refused, and the Supreme Court of the State of Oklahoma affirmed the judgment of the District Court. 199 Okla. 36, 180 P. 2d 135. We brought the case here for review.

The petitioner is entitled to secure legal education afforded by a state institution. To this time, it has been denied her although during the same period many *633white applicants have been afforded legal education by the State. The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938).

The judgment of the Supreme Court of Oklahoma is reversed and the cause is remanded to that court for proceedings not inconsistent with this opinion.

The mandate shall issue forthwith.

Reversed.

*631Mr. Chief Justice Vinson

delivered the opinion of the Court.

This case and McLaurin v. Oklahoma State Regents, post, p. 637, present different aspects of this general question : To what extent does the Equal Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish between students of different races in professional and graduate education in a state university? Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court. We have frequently reiterated that this Court will decide constitutional questions only when necessary to the disposition of the case at hand, and that such decisions will be drawn as narrowly as possible. Rescue Army v. Municipal Court, 331 U. S. 549 (1947), and cases cited therein. Because of this traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in these cases is unnecessary to their disposition.

In the instant case, petitioner filed an application for admission to the University of Texas Law School for the February, 1946 term. His application was rejected solely because he is a Negro.1 Petitioner thereupon brought this suit for mandamus against the appropriate school officials, respondents here, to compel his admission. At that time, there was no law school in Texas which admitted Negroes.

The state trial court recognized that the action of the State in denying petitioner the opportunity to gain *632a legal education while granting it to others deprived him of the equal protection of the laws guaranteed by the Fourteenth Amendment. The court did not grant the relief requested, however, but continued the case for six months to allow the State to supply substantially equal facilities. At the expiration of the six months, in December, 1946, the court denied the writ on the showing that the authorized university officials had adopted an order calling for the opening of a law school for Negroes the following February. While petitioner’s appeal was pending, such a school was made available, but petitioner refused to register therein. The Texas Court of Civil Appeals set aside the trial court’s judgment and ordered the cause “remanded generally to the trial court for further proceedings without prejudice to the rights of any party to this suit.”

On remand, a hearing was held on the issue of the equality of the educational facilities at the newly established school as compared with the University of Texas Law School. Finding that the new school offered petitioner “privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas,” the trial court denied mandamus. The Court of Civil Appeals affirmed. 210 S. W. 2d 442 (1948). Petitioner’s application for a writ of error was denied by the Texas Supreme Court. We granted certiorari, 338 U. S. 865 (1949), because of the manifest importance of the constitutional issues involved.

The University of Texas Law School, from which petitioner was excluded, was staffed by a faculty of sixteen full-time and three part-time professors, some of whom are nationally recognized authorities in their field. Its student body numbered 850. The library contained over 65,000 volumes. Among the other facilities available to the students were a law review, moot court facilities, *633scholarship funds, and Order of the Coif affiliation. The school’s alumni occupy the most distinguished positions in the private practice of the law and in the public life of the State. It may properly be considered one of the nation’s ranking law schools.

The law school for Negroes which was to have opened in February, 1947, would have had no independent faculty or library. The teaching was to be carried on by four members of the University of Texas Law School faculty, who were to maintain their offices at the University of Texas while teaching at both institutions. Few of the 10,000 volumes ordered for the library had arrived;2 nor was there any full-time librarian. The school lacked accreditation.

Since the trial of this case, respondents report the opening of a law school at the Texas State University for Negroes. It is apparently on the road to full accreditation. It has a faculty of five full-time professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and legal aid association; and one alumnus who has become a member of the Texas Bar.

Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law *634review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.

Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.

It may be argued that excluding petitioner from that school is no different from excluding white students from the new law school. This contention overlooks realities. It is unlikely that a member of a group so decisively in the majority, attending a school with rich traditions and *635prestige which only a history of consistently maintained excellence could command, would claim that the opportunities afforded him for legal education were unequal to those held open to petitioner. That such a claim, if made, would be dishonored by the State, is no answer. “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” Shelley v. Kraemer, 334 U. S. 1, 22 (1948)!

It is fundamental that these cases concern rights which are personal and present. This Court has stated unanimously that “The State must provide [legal education] for [petitioner] in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group.” Sipuel v. Board of Regents, 332 U. S. 631, 633 (1948). That case “did not present the issue whether a state might not satisfy the equal protection clause of the Fourteenth Amendment by establishing a separate law school for Negroes.” Fisher v. Hurst, 333 U. S. 147, 150 (1948). In Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 351 (1938), the Court, speaking through Chief Justice Hughes, declared that “petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity.” These are the only cases in this Court which present the issue of the constitutional validity of race distinctions in state-supported graduate and professional education.

In accordance with these cases, petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State. We cannot, therefore, *636agree with respondents that the doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896), requires affirmance of the judgment below. Nor need we reach petitioner’s contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation. See supra, p. 631.

We hold that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School. The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed.

Mr. Chief Justice Vinson

delivered the opinion of the Court.

In this case, we are faced with the question whether a state may, after admitting a student to graduate instruction in its state university, afford him different treatment from other students solely because of his race. We decide only this issue; see Sweatt v. Painter, ante, p. 629.

Appellant is a Negro citizen of Oklahoma. Possessing a Master’s Degree, he applied for admission to the University of Oklahoma in order to pursue studies and courses leading to a Doctorate in Education. At that time, his application was denied, solely because of his race. The school authorities were required to exclude him by the Oklahoma statutes, 70 Okla. Stat. (1941) §§ 455, 456, 457, which made it a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught. Appellant filed a complaint requesting injunctive relief, alleging that the action of the school authorities and the statutes upon which their action was based were unconstitutional and deprived him *639of the equal protection of the laws. Citing our decisions in Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938), and Sipuel v. Board of Regents, 332 U. S. 631 (1948), a statutory three-judge District Court held that the State had a Constitutional duty to provide him with the education he sought as soon as it provided that education for applicants of any other group. It further held that to the extent the Oklahoma statutes denied him admission they were unconstitutional and void. On the assumption, however, that the State would follow the constitutional mandate, the court refused to grant the injunction, retaining jurisdiction of the cause with full power to issue any necessary and proper orders to secure McLaurin the equal protection of the laws. 87 F. Supp. 526.

Following this decision, the Oklahoma legislature amended these statutes to permit the admission of Negroes to institutions of higher learning attended by white students, in cases where such institutions offered courses not available in the Negro schools. The amendment provided, however, that in such cases the program of instruction “shall be given at such colleges or institutions of higher education upon a segregated basis.”1 Appel*640lant was thereupon admitted to the University of Oklahoma Graduate School. In apparent conformity with the amendment, his admission was made subject to “such rules and regulations as to segregation as the President of the University shall consider to afford to Mr. G. W. Mc-Laurin substantially equal educational opportunities as are afforded to other persons seeking the same education in the Graduate College,” a condition which does not appear to have been withdrawn. Thus he was required to sit apart at a designated desk in an anteroom adjoining the classroom; to sit at a designated desk on the mezzanine floor of the library, but not to use the desks in the regular reading room; and to sit at a designated table and to eat at a different time from the other students in the school cafeteria.

To remove these conditions, appellant filed a motion to modify the order and judgment of the District Court. That court held that such treatment did not violate the provisions of the Fourteenth Amendment and denied the motion. 87 F. Supp. 528. This appeal followed.

In the interval between the decision of the court below and the hearing in this Court, the treatment afforded appellant was altered. For some time, the section of the classroom in which appellant sat was surrounded by a rail on which there was a sign stating, “Reserved For Colored,” but these have been removed. He is now assigned to a seat in the classroom in a row specified for colored students; he is assigned to a table in the library on the main floor; and he is permitted to eat at the same time in the cafeteria as other students, although here again he is assigned to a special table.

It is said that the separations imposed by the State in this case are in form merely nominal. McLaurin uses the same classroom, library and cafeteria as students of other races; there is no indication that the seats to which he is assigned in these rooms have any disadvantage *641of location. He may wait in line in the cafeteria and there stand and talk with his fellow students, but while he eats he must remain apart.

These restrictions were obviously imposed in order to comply, as nearly as could be, with the statutory requirements of Oklahoma. But they signify that the State, in administering the facilities it affords for professional and graduate study, sets McLaurin apart from the other students. The result is that appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.

Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant’s case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained.

It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference — a Constitutional difference — between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar. Shelley v. Kraemer, 334 U. S. 1, 13-14 (1948). The removal of the state restrictions will not necessarily abate individual and group predilections, prejudices and choices. But at the very least, the state will not be depriving appellant of the opportunity *642to secure acceptance by his fellow students on his own merits.

We conclude that the conditions under which this appellant is required to receive his education deprive him of his personal and present right to the equal protection of the laws. See Sweatt v. Painter, ante, p. 629. We hold that under these circumstances the Fourteenth Amendment precludes differences in treatment by the state based upon race. Appellant, having been admitted to a state-supported graduate school, must receive the same treatment at the hands of the state as students of other races. The judgment is

Reversed.