Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/14

 upon it, (pp. 458, 469, 493, 518.) Only the Chief Justice and Justices Wayne, Daniel, and Curtis, considered the point: but the last did not deem it a good answer to the plaintiff's suit. It is clear, therefore, that only four judges out of nine considered it as a question to be decided; and that only two of his associates agreed with the Chief Justice in his conclusion that a negro, under the circumstances stated in this plea, could not maintain an action in the courts of the United States. It may be added that Mr. Justice McLean declares that, if the question is to be deemed open, in his opinion a negro may be a citizen within the meaning of the Constitution, p. 531.

This being the case, we do not see how the court could remit the cause to the circuit court with instructions to dismiss it for want of jurisdiction; for we had supposed it to be the settled law of the supreme court, that the citizenship of the parties, if duly averred in the writ, could not be tried except on a plea to the jurisdiction. Livingston v. Story, 11 Peters, 393; Sheppard v. Graves, 14 Howard, 510. But the judgment of the court, as stated by the Chief Justice at the conclusion of his opinion, which undoubtedly corresponds with the mandate sent to the circuit court, and in which a majority of the judges must have concurred, is, "that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the circuit court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must consequently be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction." The only ground on which this judgment could have been arrived at is, that the question of jurisdiction is open at any stage of a cause in the courts of the United States, if appearing on the record; and that position is distinctly asserted by the Chief Justice on pages 427, 429, 430. The conclusion of the majority of the court therefore was, that, upon all the facts in the case, the plaintiff was a slave, and therefore not capable of suing as a citizen. How far those facts limit the point adjudged, we shall consider hereafter.

But as the general question of the citizenship of free negroes is of great interest and importance, and was discussed at length by some of the judges, it is worthy of a careful examination. The Chief Justice well states the question thus: "The words 'people of the United States' and 'citizens,' are synonymous terms, and mean the same