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the right of
Dred Scott to bring this action, as follows:
First. That the free, native-born citizens of each State are citizens of the United States.
Second. That, as free colored persons, born within some of the States, are citizens of those States, such persons are also citizens of the United States.
Third. That every such citizen, residing in any State, has a right to sue, and is liable to be sued, in the Federal Courts, as a citizen of that State in which he resides.
Fourth. That, as the plea to the jurisdiction in this case shows no facts except that the plaintiff was of African descent, and that his ancestors were sold as slaves, and as these facts are not inconsistent with his citizenship of the United States and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judgment of the Circuit Court overruling it was correct.
I dissent, therefore, from that part of the opinion of the majority of the court in which it is held that a person of African descent cannot be a citizen of the United States; and I regret I must go further, and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri Compromise act, and the grounds and conclusions announced in their opinion.
Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Court had not jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the act of 1820.
On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of the Court, as described by its repeated decisions, and, as I understand, acknowledged in this opinion of the majority of the Court.
Mr. Curtis proceeds to confute at length, and with decided ability, the doctrines of tile majority, affirming the invalidity of the
Missouri Restriction, and asserting the paramount right of each slaveholder to remove with his slaves into any territory of the
United States, and there retain and control them under the regis of the
Federal Constitution.
He shows, further, that the majority erred in upholding a majority of the Supreme Court of
Missouri in overruling their own
Chief Justice and their own former decisions, whereby it had been established, in accordance with kindred decisions in
Louisiana, as in other Slave States, that a slave taken by his master, or removed with his assent, to a Free State, or to any country wherein Slavery is prohibited, becomes thereby a freeman, and cannot be returned or reduced again to Slavery.
It cannot, however, be necessary to quote further on this head.
He concludes:
For these reasons, I am of the opinion that so much of the several acts of Congress as prohibited Slavery and involuntary servitude within that part of the Territory of Missouri lying north of thirty-six degrees thirty minutes north latitude, and west of the river Mississippi, were constitutional and valid laws.
In my opinion, the judgment of the Circuit Court should be reversed, and the cause remanded for a new trial.
The majority of the
Justices composing the Supreme Court, after deciding that
Dred Scott had no standing in that Court, and that the case was, therefore, entirely beyond, or outside of, its jurisdiction, had proceeded to take and make jurisdiction, for the purpose of ousting Congress and the people from all right or power to exclude Slavery from the
Federal Territories, organized or unorganized.
Congress had repeatedly, and from the very origin of the
Government, legislated on this subject, and to this end. The Supreme Court now interposes, in a case
