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a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word 'citizen' and the word 'people."

"And, upon a full and careful consideration of the subject, the court is of opinion that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri, within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts."

§ 637. Of the judges concurring in the decision, only Judge Daniel considered this question in his separate opinion. His argument (19 How. 475) is founded on the assumption that citizen must mean more than free inhabitant, native or naturalized, having a domicil. (See particularly p. 481.) The greater part of his argument is to the effect that a slave cannot be translated to the condition of citizen by the act of the master in manumission. (Ib. 477-480.) Finally, said Judge Daniel, "The correct conclusions upon the question here considered would seem to be these: That in the establishment of the several communities now the States of this Union, and in the formation of

'Nothing in this Opinion is more remarkable than the presentation of the individuals of the white race as, together, constituting a political entity, while severally endowed with sovereignty as a personal right; of the idea that they are "citizens" and "the people," in virtue of this sovereign power, and that even without regard to their individual possession of the elective franchise; and of a "citizen race" of sovereigns, or sovereign race of citizens, with a " subject race" of persons who are not distinguishable from " 'property." In this respect many coincidences may be found between the opinions in this case and an article in the Southern Quarterly Review of April, 1854, Vol. IX. p. 311, on Lieber's Civil Liberty, by the late Judge McCord, of South Carolina.

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Judge Daniel referred to the Roman law. In addition to what has been said on that argument, ante, Vol. I. p. 214, may be noticed Codex, X. 40, 7. Cives quidem origo, manumissio, allectio, vel adoptio; incolas vero domicilium facit. Also, Ulpiani Frag. Tit. 1, de Libertis, 5. Libertorum genera sunt tria; cives Romani, Latini Juniani, dediticiorum numero. 6. Cives Romani sunt liberti, &c. Even while recognizing the law of the Corpus Juris Civilis to be against him, Judge Daniel arbitrarily sets it aside for the law of the Roman republic. 19 How. 478. The law of the Romans is of authority only as it has actually been adopted by modern nations (ante, Vol. I. pp. 29, 144), and it is the law of Justinian's time, rather than that of any earlier period, that has been so received. In selecting a period of its development favorable to his own theories, Judge Daniel illustrated the error of supposing the Roman law to have authority according to its intrinsic

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 sovereignty-the State-exerted [482] 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 and never was recognized either by the lan.guage 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 the 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

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Seeming to mean that negroes were known only as property irrespective of any law making them slaves. So Judge Taney (19 How. 415), referring to law of Connecticut respecting negroes. Ante, p. 290.

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."

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§ 638. Judge McLean's conclusion (19 Howard, 531) that a native born negro domiciled in a State and of free condition under its local law is a citizen in view of the clause in the third Article, has been noticed in another place;' he does not allude to the clanses of the fourth Article. It is remarkable that the Judge recognizes the question to be, Who may be a citizen of a State? and not, Who may be a citizen of the United States? which last is that which the other Justices who examined this point would seem to have proposed to themselves, while examining the question whether Dred Scott was a citizen of Missouri. Judge McLean would probably determine the citizens of the United States by first determining who are citizens of a State; for on page 533 he says, "No person can legally be made a citizen of a State, and consequently a citizen of the United States, of foreign birth, unless he be naturalized under the acts of Congress."

§639. In this case Mr. Justice Curtis examined the question which he thus states (19 Howard, 571):-"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

It will be noticed that Judge Daniel, like the Chief Justice (ante, pp. 293, 294), assumed a peculiar definition for naturalization, and ignored the fact that the ques tion was, Who is citizen of a State?

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1 Vol. I. p. 436.

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 then reside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive the 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 a 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 [572] uses the language, "a citizen of the United States 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.

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It may safely be said that the citizens of the several States were citizens of the United States under the Confedera*To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at

tion.

1 At the very beginning of the inquiry, Judge Curtis, like Judge Daniel and the Chief Justice, substitutes a search after the citizens of the United States, for the question, Who are citizens of a State? though he will distinguish these last in order to ascertain those first mentioned. The two other judges would, on the contrary, determine the citizens of the United States without regard to State citizenship.

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," &c.

On pp. 573, 574, Judge Curtis referred to the constitutional law of several of the States to show that free negroes were citizens of those States and electors at the time of the ratification of the Articles of Confederation,' as showing, "in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States" (ib. p. 575), and proceeds:

"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 several 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 adopted 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, 1778, 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 word "free," and before the word "inhabitants," the word "white," so that the privileges and immunities of

1 Citing the language of Judge Gaston, in State v. Manuel, and the reference to it in State v. Newsom, ante, pp. 87, 88, notes. Judge Curtis considered the language of the Declaration of Independence of little importance as compared with these State constitutions, but expressed the opinion that the authors of that instrument did not intend to say "that the creator of all men had endowed the white race exclusively with the great natural rights" which it asserts. 19 How. 574, 575.

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