Mr. Justice CATRON.
 
     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 abatement
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 of
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.) Nor 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 averments,
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 of error. The
authorities are very conclusive on this point. Shephered 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 averments 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. Unless 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 Nelson, 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 France
to the United States, which lies north of thirty-six degrees
thirty minutes north latitude, slavery and involuntary 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
the Territories of the United States by force of the third
section 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 our 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 Carolina, 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 matter 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 Virginia 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 New York had
ceded hers. In August, 1787, Sough Carolina ceded to the
Confederation her pretension of claim to territory west of that
State. And North 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 Confederation.
 
     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. No 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:
 
          "Resolved, 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 National
     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.)
 
 
     These, with the resolution, that a district for the location
of the seat of Government should be 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.
 
     North 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 United 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 is asking much of a
judge, who had for nearly twenty years been exercising
jurisdiction, from the western Missouri line to the Rocky
Mountains, and, on 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 been 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, by its legislation
directly, or by 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
United States, in virtue of the Constitution, by 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 territory 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 Northwest 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
Northwest 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.
 
     In 1790, North Carolina ceded her western territory, now the
State of Tennessee, and stipulated that the inhabitants thereof
should enjoy 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 be 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 slavery 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 power of Congress stand west of the
Mississippi river? The country there was acquired from France, by
treaty, in 1803. It declares, that the First Consul, in the name
of the French Republic, doth hereby deed 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 religion which they
profess."
 
     Louisiana was province where slavery was not only lawful,
but where property in slaves was the most valuable of all
personal 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
contemplated future population, the treaty as expressly provided
as it did for the inhabitants residing in the province when the
treaty was made. All these were to be protected "in the 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 religion, 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 follow 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 1803 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 New
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 thirtysix
degrees thirty minutes north, is only in the degree of grossness
presented by the lower line.
 
     The Missouri compromise 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 of
Louisiana.
 
     That the United States Government stipulated in favor of the
inhabitants to the extent here contended for, has not been
seriously denied, as far as I know; but the argument is, that
Congress and 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 in other parts. In other words, that Congress could
repeal the third article entirely, at its pleasure. This I deny.
     The compacts with North Carolina and Georgia were treaties
also, and stood on the same 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 North
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 North Carolina or Georgia ceded her western territory, the
citizens of the State (in either case) could 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 of slave
property. The Federal Constitution was relied 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 them.
The Constitution having provided that "The citizens of each State
shall be 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 great fundamental
condition of the Union -- the equality of the States.
 
     Congress cannot do indirectly what the Constitution
prohibits directly. If 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 amount 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 line, and so to provide that the Northern people shall
manufacture for those of the South, and barter for the staple
articles slaves 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 species of property, lawful
throughout Louisiana when it was acquired, and lawful in the
State from whence it was brought, so Congresss might exclude any
or all property.
 
     The case 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 title directly, that it might be done
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 enjoy 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 Constituion 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, and
that the territory was taken by the United States with this
condition imposed. I also 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 a
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
compromise, violates the 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.
 
 
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