suppose that there is no doubt that this is the case with regard to fictitious "persons" created by State authority. The legislature of Massachusetts makes of an aggregation of individuals, under its own laws, a "corporation," and as such gives it the right to sue and be sued under its corporate name. Does anybody doubt that, under that name, and by right of its act of incorporation, and only by privileges given to it by the State of Massachusetts, it may sue and be sued in the federal courts? And so in the case of a black man claimed as a slave by a person residing in a State other than that in which he claims to be a freeman. It is as much an abstract denial of justice to refuse him the right to bring suit in a United States court, as it would be for the State court to say that he should have no "petition for freedom" when the claimant is a citizen of the same State. In point of fact, the United States courts have recognized the fact that blacks can be citizens far enough to sue and be sued, and even to try this very question before them, when the case came up from the court of the District of Columbia. In the case of Williams v. Ash (1 Howard, 12-14, in 1843), Chief Justice Taney himself delivered the following opinion :

"This case is brought here by writ of error from the Circuit Court, and came before that court upon a petition for freedom. It appeared upon the trial that the petitioner was the property of Mary Ann Greenfield, of Prince George's County in the State of Maryland, who died in 1824, having first duly made her last will and testament, whereby, among other things, she bequeathed the petitioner, with sundry other slaves, to her nephew, G. T. Greenfield, with a proviso in the following words: 'Provided, he shall not carry them out of the State of Maryland, or sell them to any one, in either of which events I devise the said negroes to be free for life.' Upon the death of the testatrix, G. T. Greenfield took possession of the petitioner (James Ash) until December, 1839, when he sold the petitioner to the defendant (Williams), and the petition for freedom was filed shortly after the sale.

"Upon this evidence the Circuit Court instructed the jury, that, by the fact of such sale of the petitioner, the estate or property of the petitioner so bequeathed to Greenfield ceased and determined, and he therefore became entitled to his freedom. We think the bequest in the will was a conditional limitation of freedom to the petitioner, and that it took effect the moment he was sold. The judgment of the Circuit Court is therefore affirmed."

Now this plaintiff was just as much "a descendant of persons of African blood, who were brought to this country and sold as slaves," as was Dred Scott. Yet the court entertained the case and gave the man his freedom. The mode by which the question came before the court, indeed, was different from that by which it was attempted in this case to obtain a decision upon the actual claim of the plaintiff to freedom; but the whole of the general reasoning, by which the " majority of the court now come to the conclusion that Dred Scott was not a citizen of Missouri, would be applicable to show that. Mr. Williams was not a citizen of the United States.

Before leaving this part of the case, we cannot but advert to a striking passage in the opinion of Mr. Justice Curtis, which appears to us to be entirely inconsistent with his general views of the laws of citizenship and the rights of negroes, as so clearly set forth in this opinion. He says:

"It may be further objected, that, if free colored persons may be 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. Not 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 native-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 recognize such citizens. As has already been said, it recognizes the great principles 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 cases. It leaves 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. No 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 Constitution and laws, are also citizens of the United States." - pp. 585, 586.

The imagined "deviation from the great rule of public law" is found in the fact that the State which acknowledges as a citizen an emancipated slave from another State would be naturalizing a foreigner, and so exercising a power which is granted exclusively to the Federal government. But we think it is clear that the negro, in the supposed case, whether he is a citizen or not, is certainly not a foreigner. He owes allegiance to no foreign power, and he is a native-born inhabitant of the United States. He has been under disabilities which are now removed. By the Constitution of Massachusetts a "pauper" is deprived of the privileges of citizenship (we do not say that he is not in some sense a citizen); but suppose such a person should "come into his fortune," and remove to Virginia to live upon and spend it, would he have to be naturalized before he could vote? To suppose that an emancipated slave could become a citizen of a free State, and so acquire the privileges and immunities of a citizen of the United States, does not-as Judge Curtis has himself well explained (p. 583) — imply that he necessarily acquires "all the privileges and immunities that belong to particular citizens attended by other qualifications," or that he could return to a slave State and claim rights which free people of color in that State do not enjoy. We are at a loss, therefore, to see why the learned judge has sought out this singular exception to his general theory of citizenship growing out of birth, or to find in his reasoning good ground to support it.

So much for the question whether a negro may sue in the courts of the United States. The other question discussed in 5TH S. VOL. I. NO. I.

VOL. LXIII.

8

the opinion before us, and the decision of which went further with most of the judges in controlling the result of the case, was the question of fact: Even if a negro can sue in our courts, was Dred Scott entitled to his freedom? From the statement of facts which we have given, it will be seen that, in order to set aside his claim, it was necessary to show, either, 1st, that the act of March 6, 1820, which prohibited slavery in the territory where he resided for two years, was not binding; or, 2d, that, if he acquired freedom under that act, he lost it again by his return to Missouri. It seemed a rash undertaking, notwithstanding the known "cast of mind"

so to speak of the court, when it was announced that a judgment was to be asked for in this case upon the ground of the invalidity of the Ordinance of 1787, and the unconstitutionality of the Missouri act of 1820. A great line of public policy inaugurated by the founders of the government itself, and coeval with the Constitution, and an act founded upon it by the deliberate consent of men of all parties,which had been practically the law of a vast territory for the terms respectively of seventy and thirty years, were to be set aside and annulled, in order to decide a case of trespass pending in a Missouri court. It cannot be said that the result is actually accomplished. As we have already said, if this case of trespass was, for want of jurisdiction, not before the court, the court cannot have decided that the Missouri Compromise is unconstitutional. But it is also true, that a large majority of the members of the court have taken this opportunity to argue that it is unconstitutional, and to place on record their opinions to this effect, among the "decisions" of the court.

The space which we have devoted to the consideration of the other point, while it precludes us from examining in detail the discussions which this one brought forth, has, we trust, been so occupied as to show the animus, the controlling spirit and bias, with which this distinct question was approached by the several judges. The same views of the nature of the slavery question, which ruled the argument there, determined this. If a black man cannot sue, because he is presumed to be property, so Congress cannot prohibit slavery

in a territory without depriving citizens of the United States of their property. It is not thought necessary to allege that any particular man is deprived of property without consideration by such an act. It is assumed that, as there are slaveowners, they are injured by the restriction. The inquiry into the powers of Congress with regard to the government of territory not included in the several States is thus conducted upon principles with regard to the interpretation of language, and the foundation, nature, and extent of rights of sovereignty, which would astonish any publicist who did not know the particular point to be reached, as the result of the inquiry.

The argument of the majority of the court is briefly this,— that the clause in the Constitution authorizing Congress to make "all needful rules and regulations for the government of the territory and other property of the United States," applies only to territory surrendered by the British government at the close of the Revolutionary war to the then existing Confederation; that government cannot acquire territory to be "held as a colony," but until territory that it has acquired (by conquest or purchase) has a population which Congress thinks entitles it to admission as a State, it may govern it in its discretion, exercising no powers that it would not have over citizens of the United States "in respect to their rights. of person or rights of property." The government, and the citizen, whenever the territory is open to settlement, both enter it with their respective rights defined and limited by the Constitution.

All of this save the restriction of the terms of the Constitution to territory already ceded to the United States, which is unimportant because the court are obliged to imply the same powers for all other territory in the absence of a direct grant might equally form a part of a decision that the slavery restriction was constitutional. But under the position with regard to slave property taken by the court, namely, that the white race holds the black race as property, the application of it takes quite the other direction. The Chief Justice says:

"Now, as we have already said in an earlier part of this opinion,