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the right or power of any State to elevate persons (or, as he would say,
property) of
African descent to citizenship of the
United States, “by any direct or indirect proceeding,” so as to entitle them to sue, or be sued, in the
Federal tribunals.
And, having thus put
Dred Scott out of court, and finished the case, he proceeds to deal with the political questions introduced and discussed by
Chief Justice Taney, in order “to put them finally to rest.”
He is horror-struck at the “inequalities,” the disfranchisement, and the degradation, involved in the prohibition of Slavery in the
Federal territories, which he reprehends and stigmatizes as follows:
Nothing can be more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them, because they are the owners of slaves, than the fact that the same instrument, which imparts to Congress its very existence, and its every function, guarantees to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, further, that 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 guarantee.
There is much more of this, but the above must suffice.
Mr. Daniel, pushing his doctrines to their legitimate result, pronounces the Ordinance of ‘87 only equal in constitutionality and validity with the
Missouri Restriction — that is to say, essentially null and void.
Mr. Justice Campbell, of
Alabama, followed with a general assent to the views of
Chief Justice Taney.
Mr. Justice Catron, of
Tennessee, concurs with
Justice Nelson, that
Dred Scott has no right to freedom, at the hands of this court, on the ground of his two years residence in
Illinois; but he dissents from the
Chief Justice's notion that the power over the territories, expressly given to Congress by the
Constitution, has no force or application
beyond the territory possessed by us when that Constitution was framed.
In fact, as he had been hanging men for the last twenty years under this very power, he could not well do otherwise.
He says:
It is due to myself to say, that it is asking much of a judge, who has for nearly twenty years been exercising jurisdiction from the Western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had all the while been acting in mistake, and as an usurper.
More than sixty years have passed away since Congress has exercised power to govern the territories, by its legislation directly, or by territorial charters, subject to repeal at all times; and it is now too late to call that power in question, if this Court could disregard its own decisions, which it cannot do, as I think.
Several points in his opinion evince a sturdy independence; yet he concludes that that clause of the
Constitution which provides that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” gives slaveholders an indefeasible right to carry their slaves into, and hold them in, the territories.
Col. Benton1 observes that the
