Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/12

 arguments founded on such positions as the following: "The only private property which the Constitution has specifically recognized, and has imposed it as a direct obligation both on the States and the federal government to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty." p. 490. The italics are Mr. Justice Daniel's.

I. The first question, on which the court is supposed to have expressed an opinion, is whether a negro can be a citizen of the United States.

The plea to the jurisdiction presented this point in the circuit court in the following modified form, namely, Whether a person of pure African blood, whose ancestors were imported into this country as slaves, could be a citizen of Missouri, authorized to sue in the circuit court of the United States under those provisions of the Constitution and laws, which give that court jurisdiction of all controversies between citizens of different States.

There were great differences of opinion and of reasoning among the judges upon the question whether the point raised by the plea to the jurisdiction was open upon this writ of error, after the defendant had pleaded to the merits and obtained judgment in his favor in the court below. We are inclined to think that it was not open in the supreme court, for the following reasons: It has been well settled for more than half a century, that the supreme court of the United States has no jurisdiction except where it has been expressly conferred by congress, and that, as the twenty-second section of the judiciary act of 1789 permits writs of error to a circuit court of the United States only upon "final judgments and decrees in civil actions," no writ of error lies upon a mere interlocutory judgment, such as one that the defendant answer over. Rutherford v. Fisher, 4 Dallas, 22. A writ of error upon a final judgment would, of course, bring before the higher court not only that judgment, but also every previous order or ruling against the plaintiff in error, which was a necessary step for the court to take in arriving at that judgment, and which appears on the record. A final judgment is a judgment which finally disposes of the suit in the court which renders it. Thus, in this case, if the plaintiff's demurrer had been overruled, and the plea to the jurisdiction sustained, the judgment dismissing the suit would have been a final judgment, and the plaintiff might have sued out his