Weekly national intelligencer., 1857-06-27
THE DRED SCOTT CASE.
SUPREME COURT OF THE UNITED STATES


dissent from the opinion pronounced by the Chief
Justice and from the judgment which the majority of the
court think it proper render in this The plain
tiff alleged, in his declaration, that he citizen of
the State sf Missouri and that the defendant citi-
of the State Of New York 1t is not doubted that it
necessary make each of these allegations, to
tain the jurisdiction the circuit court The defendant
denied by plea to the jurisdiction either sufficient
insufficient that the plaintiff citizen of the State of
Missouri The plaintiff demurred that plea The cir
eut court adjudged the plea insufficient, and the first
question for consideration is whether the sciency
of that plea is before this court for judgment upon this
writ of The part the judicial power of the Uni
ted States conferred by Congress the circuit courts
being limited certain described and controver-
sies the question whether particular is within the
cognizance of circuit court may be raised by plea to
the Jurisdiction OF such When that question has
been raised the circuit must in the first instance,
pass upon and determine it. Whether its determination
be fnal subject review by this appellate court,
depend upon the viii of Congress upon which body
the Constitution conferred the power with certain
restrictions, establish nerioh courts, to determine
their jurisdiction, and to regulate the appellate power
of this court The twenty section of the judiciary
act of l7s9 which allows writ OF error from na udg
ments of circuit courts provides that there shall be
reversal this court such writ of for in
ruling any plea in abatement other than plea to the
risdon 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
their jurisdiction in civil cases; and that when
record comes here upon writ of error or appeal,
and its inspection it appears ts this court that the
circuit court had not jurisdiction its Judgment must De
reversed and the cause remanded, be dismissed for
want of jurisdiction.
1t is alleged by the defendant in in this
that the plea the jurisdiction was sufficient plea that
it shows on inspection of its allegations confessed by
the demurrer that the plaintiff not citizen of the
State of Missouri that upon this record II must appear
10 this that the not within the Judicial
power of the United States defined and granted by the
Constitution because II was not suit by citizen OF
ene State against citizen of another State
To this it is answered, first, that the defendant by
pleading over after the plea TO the jurisdiction was ad-
judged insufficient, finally waived all beneht OF that
plea
When that plea adjudged insufficient the defend
obliged to answer over He held no alternative
He could stop the further progress OF the case IN the
circuit by writ of which the suhclency
of his plea TO the Jurisdiction could be tried in this court
because the Judgment that plea not final, and no
writ of error would e He forced TO plead to the
merits 1t be hen that he waived the bene
fit of his plea TO the jurisdiction by answering over
Waiver includes consent Here there consent
And if the benefit of the plea finally lost, must be-
by any waiver but because the laws of the United
States have not provided any mode of reviewing the de-
cison of the circuit court such plea, when that de-
cision is against the defendant. This is not the law
Whether the decision of the circuit court plea to the
jurisdiction be against the plaintiff against the de-
fendsut the losing party may have any alleged error IN
law, in ruling such plea, examined in this court
writ of error when the matter in controversy exceeds the
value of thousand dollars. If the decision
be against the plaintiff and his suit dismissed for want
of jurisdiction the judgment is technically nal and he
may once sue out his writ of NOLAN Tor
rance, Wheat, $751; If the decision be against the de-
fendant though he mast and wait for final
judgment the 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 m
rsdction. The fact that he pleaded over to the merits,
under compusion, have effect his right to OBJ
ject the jurisdiction If this not so, the condi
ton of the parties would be grossly unequal For
tn he
tiff he could take mis- writ of and have the
ruling reviewed here; while if the plea were ruled
against the defendant he must only wait for final
judgment but could in event have the ruling of the
circuit court upon the plea reviewed by tbs
know of ground for saying that the laws of the United
States have thus disseminated between the parties to
suit in its courts.
1t is further objected thaas the Judgment the circuit
court was in favor of the defendant and the writ of
in this sued by the plaintiff the defendant
is in condition to assign any error IN the record
and therefore this is precluded from considering
the question whether the circuit court had jurisdiction
The practice of this court does not require technical
assignment Of errors (See the rule Upon writ OF
the whole record is open for Inspections and any
be found in it the judgment is reversed Bank of
U. s. .. Smith, IL Wheat, 17l.1
II is true general rule that the court will not al
low party to rely onaDy thing cause for reyers-
ing judg nent which for his advantage. In this
follow ancient rule of the law But care
full that law of the preservation of the of its
courts that 1t made exception out of that general rule
and allowed party to assign for that which was
fer his advantage, if it departure by the court
itself from its settled of procedure The cases on
this subject collected in Bac. Ab Error d. And
tais followed this practice in Capron Van Moor
den, (Cranch, 1867 where the plaintiff below procured
the reversal of Judgment for the defendant, On the
ground that the plaintiffs allegations of citizenship had
shown jurisdiction
But is necessary to determine whether the de-
fendan be allowed assign want of jurisdiction
error in judgment in his favor The true aues-
ton is what either of the parties may be allowed to
do, but whether this court will affirm judg
the circuit court the merits when 1t appears
the record by plea the jurisdiction, that is
which the judicial power of the United States does
extend The of the court is, where motion
made by either party its own motion, to reverse
such judgment for want Of jurisdiction, not only in
where is shown, negatively by plea to the ju-
risdicon that jurisdiction docs not exist but where
it does not appear airmatively, that it does exist
(Pequignot .. The Pennsylvania R. r. Co., Is How,
104 IL acts upon the principle that the judicial power
of the United States must not be exerted in case to
which does not extend If both parties desire to
have it exerted. (Cutler D. Rae, How, 729.) con-
sider therefore, that when there plea to the urs
dction of the circuit court in brought here by
writ of error the first duty of this court s pone if
moved ii by either party to examine the suciency
of that plea and thus take that neither the cir
cult this court shall the Judicial power of
the United States in to which the Constitution and
laws of the United States have not extended that
proceed therefore, to examine the plea to the uris
diction.
do not perceive any sound reason why it is be
judged by the rules of the law applicable to such
pleas 1t is true, where the jurisdiction of the circuit
depends the citizenship Of the parties is in
cumbent the plaintiff to allege the record the
necessary citizenship but when he has done So the de-
fendant must inerposea plea in abatement the alega
tons whereof show that the court has not jurisdiction
and ia m he of rla