ip,
this court cannot look at the record, to see whether those averments
are true, except so far as they are put in issue by a plea to the
jurisdiction. In that case, the defendant denied by his answer that
Mr. Livingston was a citizen of New York, as he had alleged in the
bill. Both parties went into proofs. The court refused to examine
those proofs, with reference to the personal disability of the
plaintiff. This is the settled law of the court, affirmed so lately
as Shepherd _v._ Graves, (14 How., 27,) and Wickliff _v._ Owings, (17
How., 51.) (See also De Wolf _v._ Rabaud, 1 Pet., 476.) But I do not
understand this to be a rule which the court may depart from at its
pleasure. If it be a rule, it is as binding on the court as on the
suitors. If it removes from the latter the power to take any objection
to the personal disability of a party alleged by the record to be
competent, which is not shown by a plea to the jurisdiction, it is
because the court are forbidden by law to consider and decide on
objections so taken. I do not consider it to be within the scope of
the judicial power of the majority of the court to pass upon any
question respecting the plaintiff's citizenship in Missouri, save that
raised by the plea to the jurisdiction; and I do not hold any opinion
of this court, or any court, binding, when expressed on a question not
legitimately before it. (Carroll _v._ Carroll, 16 How., 275.) The
judgment of this court is, that the case is to be dismissed for want
of jurisdiction, because the plaintiff was not a citizen of Missouri,
as he alleged in his declaration. Into that judgment, according to the
settled course of this court, nothing appearing after a plea to the
merits can enter. A great question of constitutional law, deeply
affecting the peace and welfare of the country, is not, in my opinion,
a fit subject to be thus reached.

But as, in my opinion, the Circuit Court had jurisdiction, I am
obliged to consider the question whether its judgment on the merits of
the case should stand or be reversed.

The residence of the plaintiff in the State of Illinois, and the
residence of himself and his wife in the territory acquired from
France lying north of latitude thirty-six degrees thirty minutes, and
north of the State of Missouri, are each relied on by the plaintiff in
error. As the residence in the territory affects the plaintiff's wife
and children as well as himself, I must inquire what was its effect.