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.

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

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

Dissenting Opinion of Justice Curtis.1

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 the citizens of the United States under the Confederation..

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

1 19 Howard, 393.

of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.

I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its constitution and laws. And my opinion is, that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its constitution or laws, is also a citizen of the United States.

The Constitution having recognized the rule that persons born 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, born within its limits, shall be citizens of such State, and thereby be citizens of the United States. . . .

The conclusions at which I have arrived on this part of the

case are:

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 not inconsistent with his citizenship of the United States, and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judgment 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;

CHAPTER XLVIII

POPULAR SOVEREIGNTY AND THE DRED SCOTT DECISION

THE peculiar merit claimed for the Kansas-Nebraska Bill was that it /would rid Congress of a vexatious question by providing for a popular referendum on slavery in the Territories. Two circumstances prevented a fair test of this device: the bitter and unexpected struggle between the pro-slavery and free-soil settlers in Kansas, and the decision of the Supreme Court in the case of Dred Scott. Whatever efficacy might still be claimed for popular sovereignty, it could hardly stand as a principle of public law after the Supreme Court had registered its opinion that Congress might not prohibit slavery in the Territories. The senatorial contest between Douglas and Lincoln in Illinois brought out the various aspects of the constitutional question. The candidates met in seven joint debates through the State. In the opening debate at Ottawa, Lincoln propounded the crucial question to which Douglas made reply at Freeport in the second encounter. The concluding extract is from a speech made by Lincoln at Columbus, Ohio, in the following year.

139. The Freeport Doctrine.1

The next question propounded to me by Mr. Lincoln is, Can the people of a Territory in any lawful way, against the wishes of any citizen of the United States, exclude slavery from their limits prior to the formation of a State constitution? I answer emphatically, as Mr. Lincoln has heard me answer a hundred times from every stump in Illinois, that in my opinion the people of a Territory can, by lawful means, exclude slavery from their limits prior to the formation of a State constitution. Mr. Lincoln knew that I had answered that question over and over again. He heard me argue the Nebraska bill on that principle all over the State in 1854, in 1855, and in 1856, and he has no excuse for pretending to be in doubt as to my position on that question. It matters not what way the Supreme Court may hereafter decide as to the abstract question whether slavery may or may not go into a Territory under the Constitution,

1 Speech of Douglas at Freeport, August 27, 1858. The LincolnDouglas Debates of 1858 (Sparks ed.), 161-62.

the people have the lawful means to introduce it or exclude it as they please, for the reason that slavery cannot exist a day or an hour anywhere, unless it is supported by local police regulations. Those police regulations can only be established by the local legislature; and if the people are opposed to slavery, they will elect representatives to that body who will by unfriendly legislation effectually prevent the introduction of it into their midst. If, on the contrary, they are for it, their legislation will favor its extension. Hence, no matter what the decision of the Supreme Court may be on that abstract question, still the right of the people to make a Slave Territory or a Free Territory is perfect and complete under the Nebraska bill. I hope Mr. Lincoln deems my answer satisfactory on that point.

140. Lincoln's Reply at Jonesboro.1

The second interrogatory that I propounded to him was this:

66

Question 2. Can the people of a United States Territory, in any lawful way, against the wish of any citizen of the United States, exclude slavery from its limits prior to the formation of a State Constitution?"

To this Judge Douglas answered that they can lawfully exclude slavery from the Territory prior to the formation of a Constitution. He goes on to tell us how it can be done. As I understand him, he holds that it can be done by the Territorial Legislature refusing to make any enactments for the protection of slavery in the Territory, and especially by adopting unfriendly legislation to it. For the sake of clearness, I state it again: that they can exclude slavery from the Territory, 1st, by withholding what he assumes to be an indispensable assistance to it in the way of legislation; and, 2d, by unfriendly legislation. If I rightly understand him, I wish to ask your attention for a while to his position.

In the first place, the Supreme Court of the United States has decided that any Congressional prohibition of slavery in the Territories is unconstitutional; that they have reached this

1 September 15. The Lincoln-Douglas Debates of 1858, 242-45.