not to be a citizen of the United States, and therefore disqualified to sue in a United States Court; and that the suit ought, on that ground, to be remanded to be dismissed for want of jurisdiction. Grier and Campbell (making with the other three a majority of the court) concurred in this remanding for dismissal, and such was the judgment of the court. Both Grier and Campbell based themselves, however, not on the plea in abatement, but on the fact apparent, as they thought, in the agreed statement of facts which made a part of the record, that Scott was a slave, and on that ground disqualified to sue, and they both seemed to think that the more regular course would be to confirm the judgment of the court below. Such a confirmation of the judgment of the court below, Nelson and Catron held to be the only proper course, thus siding, so far as the question of jurisdiction was concerned, with Curtis and McLean, while even Grier (making up, with the other four, a majority of the court) went so far as to admit that the record showed a prima facie case of jurisdiction.
McLean and Catron held, that as there was no appeal from the judgment of the Circuit Court on the plea in abatement, the question of jurisdiction was not before the court. Taney, Wayne, Daniel and Curtis held, per contra, that, as the courts of the United States were of limited jurisdiction, the question of jurisdiction was always in order. Grier, Nelson and Campbell were silent on this point.
Three judges—Taney, Wayne and Daniel—held that, although the court below had no jurisdiction, and the case must be dismissed on that ground, it was still competent for the Supreme Court to give an opinion on the merits of the case, and on all the questions therein involved. McLean and Curtis dissented from this view. In their opinion, any doctrines laid down under such circumstances must be regarded as extra-judicial. They based their right of going into the merits on the assumption that the court below had jurisdiction, a view in which they were sustained by Catron and Grier. Nelson and Campbell, as they had avoided any expression of opinion on the question of jurisdiction, did the same on this question of judicial propriety; but Nelson, by confining himself, in his opinion, to the single point of the revival of Scott's condition of slavery by his return to Missouri, seemed to concur in the view of judicial propriety taken by McLean and Curtis.
Three judges—Taney, Wayne and Daniel—held that a negro of African descent was incapable of being a citizen of the United States, or even of suing as such in a federal court. From this doctrine McLean and Curtis expressly dissented, while Nelson, Grier, Campbell and Catron avoided any expression of opinion upon it.
Taney, Wayne, Daniel and Campbell held that the constitution conferred no power on Congress to legislate for the territories, the power to make all needful rules and regulations being confined solely to the disposition of lands as property, and even that authority being limited to the territories belonging to the United States (i. e. the territory northwest of the Ohio) when the constitution was made. They, however, seemed to admit a certain power of legislation
