sure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship.

"This argument overlooks the language of the provision in the Constitution of which we are speaking.

"Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens.

"So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States does not apply to them.

"Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognized as citizens, but belong to an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens.

"But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State; as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United

States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the [423] State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation, and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guarantees rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution, when these privileges and immunities were provided for the protection of the citizen in other States."

The case of Legrand v. Darnall, 2 Peters, 664, which had been referred to as a decision that the descendant of a slave may sue as a citizen in a court of the United States, is then examined (19 How. 423-425). Judge Taney then says:

"The only two provisions which point to them' and include them, treat them as property, and make it a duty of the government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a government [426] of special, delegated powers, no authority beyond these two provisions can be constitutionally exercised. The government of the United States had no right to interfere for any other

1 It would appear that the antecedent is "the African race," mentioned in the close of the paragraph preceding the citation of Legrand v. Darnall, 19 How.

purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society require. The States evidently intended to reserve this power exclusively to themselves.

"No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

"What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to

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.

2

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 language 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

1 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.