The Washington union., 1857-05-27

ton ITSELF have the legislation OF the different States
before about the tme and since the constitution
adopted we have the legislation of Congress, nom the
time OF It's adoption TO recent period and have the
constant and uniform action of the executive depart
ment all concuring together and leading 10 the same
result And anything in relation TO the construction
of the constitution be regarded as settled il is that
which we now give to the word citizen and the word
people"
And upon full and careful consideration Of the sub
ect the court Is Of opinion that upon the facts stated in
the plea in abatement Dred Scott was not citizen of
Missouri within the meaning Of the constitution of the
United States, and not entitled such TO in its
courts and consequently that the circuit court had
jurisdiction of the case and that the Judgment on the
plea in abatement Is erroneous.
We aware that doubts entertained by some Of
the members of the court whether the plea in abatement
legally before the court upon this writ of but if
that plea is regarded waived Of the case upon
any other ground yet the question TO the jurisdiction
of the circuit court presented the face of the bill Of
exception ITSELF taken by the plaintiff at the trial for
he admits that he and his wife born slaves, but
deavos to make out his title to freedom and citizenship
by showing that they taken by their to
tain places hereinafter mentioned, where slavery could
not by law exist and that they thereby became Free and
upon their return TO Missouri became citizens of that
State.
Now if the removal of which he speaks did not give
them their freedom then by his admission he is still
slave and whatever opinions may be entertained in
favor OF the citizenship of free person of the African
race, supposes that slave is citizen of the State
of the United States If therefore, the acts done by
his did not make them free persons he is still
slave and certainly incapable of suing in the character of
citizen.
The principle of law is too well settled to be disputed
that court give Judgment for either party where
it has jurisdiction and if upon the showing Of Scott
himself 1t appeared that he still slave, the case
ought to have been dismissed and the judgment against
him and in favor of the defendant for costs is like that
the plea in abatement erroneous and the suit ought
to have been dismissed by the circuit court for want of
jurisdiction in that court
But berore we proceed to examine this part of the
case may be proper to notice objection taken to the
judicial authority of this court to decide it, and it has
been said that this court has decided against the urs
dction of the circuit court the plea in abatement it
has right to examine any question presented by the
exception and that anything it may say upon that part
of the will be extra judicial and ober dicta
This is q manifest mistake there can be no doubt
to the jurisdiction of this court to revise the Judgment of
circuit court and to it for any apparent
the record whether it be the of giving judg
in which it had jurisdiction, any
other material error-and this too, whether there is
plea in abatement or not.
The objection appears to have arisen from confoundng
wrts of to State court with wTs of to cir
cult court of the United States. Undoubtedly upon
writ of to State court unless the record shows
that gives jurisdiction, the must be dismissed
for want of jurisdiction in this court And if it is disms
sed that ground we have right to examine and de-
eide upon any question presented by the bill of excep
tons or any other part of the record wrs error
to State court, and to circuit court of the United
States, regulated by different laws, and stand upon
entirely different principles And in writ OF error to
circuit court Of the United States the whole record is be-
this court for examination and decision and if the
in controversy is large enough to give jurisdiction it
not only the right but is the judicial duty of the
court to examine the whole presented by the
ord and ii il appears upon its face that any material
have been committed by the court below it
the duty of this court to the Judgment and
mand the And certainly in passing judg
Inent upon the merits in favor of either party
which was authorized to try and which it had
jurisdiction is grave court commit
The plea in abatement is not plea to the jurisdiction
Of this court but to the jurisdiction of the circuit court
And it appears by the record before that the circuit
court committed error in deciding that had jurisdc
tion upon the facts in the case, admitted by the plead
ngs 1t the duty of the appellate tribunal to correct
this but that could not be done by dismssng the
for want of jurisdiction herc-for that would leave
the judgment in full force and the injured
party without remedy And the appellate court there
fore exercises the power for which alone appellate courts
constituted by reversing the judgment of the court
below for this error 1t exercises its proper and approp
jurisdiction the Judgment and proceedings of the
circuit court they appear upon the record brought up
by the writ of error.
The correction of error the court below does not
deprive the appellate court Of the power of examining
further into the record and correcting any other material
which may have been committed by the inferior
court There certainly rule of law, any prac
tice any decision of court, which questions
this power in the appellate tribunal On the contrary it
the daily practice of this court and of all appellate
courts where they the Judgment of inferior
court to correct by Its opinions whatever errors
may appear the record material to the and they
have always held it be their duty to do where the
silence of the court might lead to msconstruction fu
ture controversy and the point has been relied by
either side, and argued before the court
In tho before u.s. have already decided that the
circuit court erred in deciding that it had jurisdiction
upon the facts admitted by the pleadings And it APP
pears that in the further progress of the case it acted
upon the principle it had decided the plead
ngs and gave judgment for the defendant where upon
the facts admitted in the exception it had jurisdiction
We at loss to understand upon what principle of
law applicable to appellate jurisdiction can be supposed
that this court has judicial authority to correct the
aforementioned error because they had before corrected
the former by what process of reasoning it be
made out that the Of inferior court in actually
pronouncng judgment for of the parties in in
which it had jurisdiction cannot be looked into
rected by this court because have decided similar
question presented in the pcadngs The last point
distinctly presented by the facts contained in the plaintiffs
bill of exceptions which he himself brings here by
this writ of 1t the point which chiefly
pied the attention of the counsel both sides in the
gument and the judgment which this court must render
upon both is precisely the IL must in each
of them exercise jurisdiction the Judgment and
for the committed by the court below
and issue mandate to the circuit court to conform its
Judgment to the opinion pronounced by this court by dis
missing the for want of jurisdiction in the circuit
court This The constant and nyarable practice OF this
court where it judgment for want of jursdc
tion in the circuit court.
1t scarcely be necessary TO pursue such question
further The want of jurisdiction in the court below may
appear the record without any plea in abatement
exercised jurisdiction in where the plaintiff had
pain and adeuuate MT and it by