The Washington union., 1857-05-29
The supreme cour, of the United states.
THE DRED SCOTT CASE.
JuDor McIEAss DISSENTING OPINION
The Official Report.

Mr. Justice Mclean dissenting
This is before writ of from the circuit
court for the district of Missouri
An action OF trespass brought which charges the
defendant with assault and imprisonment OF the plain
TIM and also OF Harriet Scott his wife, Eliza and Lizzie
his two children the ground that they were his slaves
which without right ON his part, and against law
The defendant filed a plea in abatement, THAT said
of action and each and every OF the any such
accrued to the said Dred Scott accrued out of the us
dicton of this court and exclusively within the jursdc
ton of the of the State Of Missouri, for that to
wit said plaintiff Dred Scott is not citizen of the State
of Missouri, alleged in his declaration because he is
negro Of African descent his ancestors of pure Afi
blood and brought into this country and sold
negro slaves and this the said Sandford is ready to
verify wherefore he prays judgment whether the court
win take further oognnce OF the action afore-
said -
To this a demurrer fled which, on argument, was
sustained by the court the plea in abatement being held
insufficient the defendant ruled to plead over I'm
der this rule he pleaded l. Not guilty. e That Dred
Scott negro slave the property of the defendant
and 8. That Harriet the wife, and Eliza and Lizzie the
daughters of the plaintiff the lawful slaves OF the
defendant
Joined the first plea and replicatons of de
iyura filed to the other pleas.
The parties agreed to the following facts In the year
1884 the plaintiff negro slave belonging to DR. EN-
erson, who surgeon in the army of the United
States In that year Dr. Emerson took the plaintiff from
the State of Missouri to the post of Rock Island in the
State of Illinois, and held him there slave until the
month of April or May, 1886 AT the time last men
toned Dir. Emerson removed the plaintiff from Rock
Island to the military post at Fort Smelling, situate
the west bank of the Mississippi river in the territory
known Upper Louisiana acquired by the United States
of France and situate north of latitude thrtyx degrees
thirty minutes north and north of the State of Missouri
DR. Emerson held the plaintiff in slavery at Fort Smelling
from the last mentioned date until the year 1888.
In the year 1885 Harriet who is named in the second
count of the plaintiffs declaration the negro slave
of Major Ialiaerro who belonged to the army OF the
United States. In that year Major Iaaferro took Har
ret to Fort Smelling, military post situated as herenbe
a,lE harf aplnu until tha
1885, and then sold and delivered her slave, at Fort
Smelling unto Dr. Emerson, who held her in slavery, at
that place, until the year 1888.
In the year 1886 the plaintiff and Harriet
ried at Fort Sneng with the consent of Dr. Emerson
who claimed to be their master and owner. Eliza and
Lizzie named in the third count of the plaintiffs decla
ration are the fruit of that marriage Eliza about four
teen years old, and born board the steamboat
Gpsey north of the north line of the State of Missouri
and upon the river Mississippi Lizzie is about seven
years old and born in the State of Missouri at the
military post called Jefferson Barracks.
In the year 1888 Dr. Emerson removed the plaintiff
and said Harriet and their daughter Eliza from Fort
Smelling to the State of Missouri where they have
since resided
and conveyed the plaintiff, Harriet Eliza, and Lizzie to
the defendant slaves and he has since claimed to
hold them slaves
At the times mentioned in the plaintiffs declaration
the defendant claiming to be the owner laid his hands
upon said plaintiff, Harriet, Eliza, and Lizzie and i'm
prisoned them; doing in this respect, however more
than he might lawfully do If they of right his slaves
at such times.
In the first place. the plea the jurisdiction not be-
fore this writ of error. demurrer to the plea
sustained, which ruled the plea bad, and the defend
ant, on leave pleaded
The decision the demurrer in favor of the plain
tiff and the plaintiff prosecutes this writ of error, he
does not complain of the decision the demurrer. The
defendant might have complained of this decision
against him, and have prosecuted writ of to
it, But the case under the instruction of the
court to the jury decided in his favor of he
had ground of complaint
But it is said if the court, looking at the record
shall clearly perceive that the circuit court had urs
diction, it is ground for the dismissal of the This
may be characterized rather sharp practice and
which seldom, ever No cited in the
gument authority and not single precisely in
point recoected in reports The pleadngs do not
show want of jurisdiction. This want of jurisdiction
only be ascertaned by judgment the demurrer to the
special plea No such case it is believed be cited But
If this rule of practice is to be applied in this case and
the plaintiff in is required TO answer and main
tain well the points ruled in his favor to show the
of those ruled against him. he has than
ordinary duty to perform Under such circumstances the
want of jurisdiction in the circuit court must be clear
as not to admit of doubt Now, the plea which raises
the question Of Jurisdiction in my Judgment radically
detective The gavamen of the plea is this That the
plaintiff is negro of African descent his ancestors being
of pure African blood and brought into this coun
try and sold as negro slaves
There is averment in this plea which shows or con-
duces to show inability in the plaintiff to in the
domicl in any other State that he is not free
in Missouri He is avered to have had negro ancestry
but this does not show that he is not citizen of Mis-
souri, within the meaning of the act of Congress author
izng him to sue in the circuit court II has been
held necessary to constitute citizen within the act that
he should have the qualifications of electo Females
and minors may in the federal courts and may any
individual who has permanent domic in the State
der whose laws his rights protected and to which he
allegiance.
Being born under constitution and laws no natu-
ralizaon is required, Of foreign BIRTH to make
him citizen The most general and appropriate dein-
ton of the term citizen is IA freeman Being free
man, and having his domic in State different from
that of the defendant he is citizen within the act of
Congress- and the courts of the Union open to him
1t has often been held that the jurisdiction regards
parties only be exercised between citizens of differ
ent States and that residence is not sufficient but
this has been said to distinguish temporary from per-
manent residence
To constitute good plea to the jurisdiction it must
negative those qualities and rights which enable nd-
vidual to in the federal courts This has not been
done and this ground the plea detective and the
demurrer properly sustained. No implication can
aid plea in abatement in bar; it must be complete
in ITSELF the facts stated If true, must abate bar the
right of the plaintiff to This is not the character of
the above plea The facts stated if admitted are not
inconsistent with other facts which may be presumed
and which bring the plaintiff within the act of Congress
plaintiff is slave, that would against him the
matter in controversy and embrace the entire merits
the case in plea TO the Jurisdiction But beyond the
facts set out in the plea the court to sustain it,
the plaintiff to be slave which is decisive on the
merits This liz short and an efectual mode of detidnp