The following selection from Justice Curtis' opinion is confined to his demonstration of the capacity of free persons of color to be citizens, within the meaning of the judiciary act, and of the constitutional authority of congress to exclude slavery from the territories.

OPINION.

I dissent from the opinion pronounced by the chief justice, and 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. The circuit court adjudged the plea insufficient; and the first question for our consideration is whether the sufficiency of that plea is before this court for judgment upon this writ of error. The part of the judicial power of the United States conferred by congress on the circuit courts being limited to certain described cases and controversies, the question whether a particular 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 jurisdiction was adjudged insufficient, finally waived 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 of 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 law. 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. 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. For, 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 cir

Mollan v. Torrance, 9 Wheat. 537.

cuit 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. Upon a writ of error, the whole record is open for inspection, and, if any error be found in it, the judgment is reversed. 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. Abr. "Error," H, 4. And this court followed this practice in Capron v. Van Noorden, 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 power of the United States 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. It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted." I con

2 Bank of United States v. Smith, 11 Wheat. 171.

2 Cranch, 126.

Piquignot v. Pennsylvania R. Co., 16 How. 104.
Cutler v. Rae, 7 How. 729.

sider, 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 case to which the constitution and laws of the United States have not extended that power.

[Justice Curtis then proceeded to examine the plea to the jurisdiction. When the plaintiff has alleged on the record the necessary citizenship, 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 show the truth of his plea. The defendant's plea was a special traverse of the plaintiff's allegation of citizenship, and the facts set out in the plea as the ground of the traverse must of themselves constitute, in point of law, a negative of the allegation thus traversed. Upon a demurrer to this plea, the question arose whether the fact that the plaintiff was a negro of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves, might 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.]

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 uses the language: "A citizen of the United States at the time of the adoption of this 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 State of America, organized under the constitution. When, therefore, the constitution speaks of the 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 respect to the inhabitants of such territory, it may safely be 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 was left to

stand upon the action of the several states, and to the natural consequence of such action, that the citizens of each state should be 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 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. The supreme court of North Carolina, in the case of State v. Manuel, 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.