previous next

Xviii. The Dred Scott case.

Dred Scott, a negro, was, previously to 1834, held as a slave in Missouri by Dr. Emerson, a surgeon in the U. S. Army. In that year, the doctor was transferred to the military post at Rock Island, in the State of Illinois, and took his slave with him. Here, Major Taliaferro (also of the army) had, in 1835, in his service a black known as Harriet, whom he likewise held as his slave. The major was transferred that year to Fort Snelling, on the other side of the Missippi, in what is now known as Minnesota, but was then an unorganized territory of the United States, expressly covered by the Slavery Prohibition included in the Missouri Compromise of 1820. Dr. Emerson was likewise transferred to Fort Snelling in 1836, and here bought Harriet of Major Taliaferro, and held her and Dred as his slaves; they being married to each other with his consent [252] soon after his arrival at the Fort. Two children were born to them; Eliza, in 1838, on board the steamboat Gipsy, on their way down the Mississippi, but still north of the Missouri line; Lizzie, seven years later, at Jefferson Barracks, in the State of Missouri. The doctor, with Dred, Harriet, and Eliza, returned thence to St. Louis, and he there continued to hold them as his slaves, until he sold them, several years later, to John F. A. Sanford, of the State and City of New York. Finally, Dred brought suit for his freedom, on the above state of facts, in the State Circuit Court of St. Louis County, Missouri, and obtained a verdict and judgment in his favor. But this was reversed by a judgment on a writ of error to the Supreme Court of that State, from which an appeal was taken to the courts of the United States, and the case came to trial in May, 1854. Having been fully heard by the Supreme Court at Washington, that court was about to decide it at its term of 1855-6; but the controlling majority of its Judges concluded, in view of the pending Presidential election, and the strong excitement which the Nebraska bill and the Kansas outrages had aroused throughout the Free States, to defer rendering judgment until its next session. It is quite probable that its action in the premises, if made public at the time originally intended, would have reversed the issue of that Presidential election. The eminent Chief Justice John Marshall, who had so long presided over that tribunal, and whose opinions had won for it a weight and influence rarely accorded to any court, died in 1835 at the ripe age of eighty. None of the Judges appointed by any predecessor of Gen. Jackson survived. Of the nine who now composed that august tribunal, eight had been selected from the ranks of the Democratic party, and most of them for other considerations than those of eminent legal ability or acquirements. John McLean, of Ohio, was placed on the bench, in 1829, by Gen. Jackson, in order to make room for a Postmaster-General who would remove from office the postmasters who had supported Mr. Adams and appoint Jacksonians to their places; which McLean — having been continued in office by Mr. Adams, though himself for Jackson — could not decently do. Roger B. Taney, of Maryland, was likewise appointed by Jackson in 1836, as a reward for his services in accepting the post of Secretary of the Treasury and removing the Federal deposits from the United States Bank, upon the dismissal of William J. Duane, of Pennsylvania, for refusing to make such removal. Mr. Taney, born in 1777, was an ultra Federalist previously to his becoming a Jacksonian, but always a devotee of prerogative and power. Of his associates, beside Judge McLean, only Samuel Nelson, of New York, and Benjamin R. Curtis, of Massachusetts, were ever presumed qualified, either by nature or attainments, for judicial eminence.

The decision and opinions of this Court, in the case of Dred Scott, had not been made public when Mr. Buchanan was inaugurated;1 but that gentleman had undoubtedly been favored with a private intimation of their scope and bearing: [253] hence the following prelusive suggestions of his Inaugural Address:

We have recently passed through a Presidential contest, in which the passions of our fellow-citizens were excited to the highest degree by questions of deep and vital importance; but, when the people proclaimed their will, the tempest at once subsided, and all was calm.

The voice of the majority, speaking in the manner prescribed by the Constitution, was heard; and instant submission followed. Our own country could alone have exhibited so grand and striking a spectacle of the capacity of man for self-government.

What a happy conception, then, was it for Congress to apply this simple rule — that the will of the majority shall govern — to the settlement of the question of domestic Slavery in the territories! Congress is neither “to legislate Slavery into any territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.” As a natural consequence, Congress has already prescribed that, when the Territory of Kansas shall be admitted as a State, it “ shall be received into the Union with or without Slavery, as their Constitution may prescribe at the time of their admission.”

A difference of opinion has arisen in regard to the point of time when the people of a territory shall decide this question for themselves.

This is, happily, a matter of but little practical importance. Besides, it is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit.

Not many days thereafter, the decision and opinions thus heralded, and commended as a new and admirable exemplification of “Popular Sovereignty,” and the “happy conception” embodied in the Kansas-Nebraska bill, were revealed, with due trumpeting and laudation, to an expectant world. Chief Justice Taney, in pronouncing the decision of the Court, which nullified the Missouri Restriction, or any restriction by Congress on the boundless diffusion of Slavery throughout the territories of the Union, commenced by denying to Dred Scott, or to any person “whose ancestors were imported to this country and sold as slaves,” any right to sue in a court of the United States. He said:

The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

The Chief Justice proceeds to affirm, not only that no persons who had been, or whose ancestors had been, slaves, were regarded as citizens previously to, or at the time of, adopting the Federal Constitution, but that no State has, or can have, any right to confer citizenship on such persons. Bearing in mind the citations from our revolutionary and post-revolutionary history, embodied in the earlier chapters of this work,2 the reader will be puzzled to decide whether Law, Humanity, or History, is most flagrantly defied in that portion of Chief Justice Taney's opinion which follows:

In the opinion of the Court, the legislation and history of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become [254] free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it, in a manner too plain to be mistaken.

They had, for more than a century before, been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to Slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals, as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men of every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in Slavery for their own use, but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more engaged in this commerce than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterward formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time.

The immortal language of the preamble to the Declaration of Independence, wherein “life, liberty, and the pursuit of happiness,” are proclaimed the self-evident, inalienable rights of all men, might well stagger the most brazen and subtle attorney, but not a case-hardened Chief Justice. He tosses them aside in this fashion:

The general words above quoted would seem to embrace the whole human family; and, if they were used in a similar instrument at this day, would be so understood. But it is too clear to dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration; for, if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and, instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men — high in literary acquirements — high in their sense of honor — and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not, in any part of the civilized world, be supposed to embrace the negro race; which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to Slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken3 of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

This state of public opinion had, undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.

Mr. Taney here deliberately asserts that “the unhappy black race” [255] were “never thought of or spoken of except as property,” before and when the Constitution was adopted, “as is equally evident from its provisions and language.” Had he been asked to say, then, what the Constitution can mean by declaring (Art. I. § 2) that “representatives and direct taxes shall be apportioned among the several States which may be included in this Union, according to their respective numbers; which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons,” he might have hesitated for an answer, but never blushed; since, very soon after this, he proceeds to argue that, when this same article of the Constitution ( § 9) declares that Congress shall not, prior to the year 1808, prohibit “the migration or importation of such persons as any of the States now existing shall think proper to admit,” but a tax or duty may be imposed “on such importation, not exceeding ten dollars for each person,” he coolly says, the importation which it thus sanctions, “was unquestionably of all persons of the race of which we are now speaking.”

The Chief Justice proceeds to defy history and common sense by asserting that, in the days of the fathers, even emancipated blacks “were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free.” He is so kind as to tell the people of the Free States that the efforts of Wesley, and Edwards, and Hopkins, and Franklin, and Jay, and all the other eminent divines, patriots, and statesmen, who appealed to their consciences and their hearts against Slavery as unjust and cruel, had no existence, or, at least, no effect — that Slavery was abolished by our fathers, not at all because it was felt to be wrong, but because it was found to be unprofitable in this particular locality. On this point, he says:

(It is very true that, in that portion of the Union where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and, when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and productions of these States: for some of these States where it had ceased, or nearly ceased, to exist, were actively engaged in the Slave-Trade; procuring cargoes on the coast of Africa, and transporting them for sale to those parts of the Union where their labor was found to be profitable, and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided. And it can hardly be supposed that, in the States where it was then countenanced in its worst form — that is, in the seizure and transportation — the people could have regarded those who were emancipated as entitled to equal rights with themselves.

How utterly mistaken this is, the recollection of thousands will establish. The very few persons at the North who were openly engaged in this slave-trading, fifty or eighty years ago, though shrewd, wealthy, and powerful, were never held in good repute; and the stain of their nefarious traffic still sullies their innocent descendants. Bad as our great marts may be, and blinded by the lust of gain as our trading classes may seem, there never was an hour when it was desirable to be known [256] on the exchange of New York or Boston as a slave-trader; and no man today blazons the fact that the wealth he inherits was obtained by successful ventures on the Slave-Coast.

Mr. Taney proceeds to show, after his fashion, that no State can make its black people citizens, because that would be very inconvenient and unsafe for the slaveholders of other States. “For,” he says:

If they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport; and, without obstruction, to sojourn there as long as they pleased; to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

Having thus determined, to his own satisfaction, that Dred Scott, being a negro and descended from slaves, had no right to bring this suit, and no standing in the Federal Courts, and that the Court has no authority in the premises, the Chief Justice proceeds to take jurisdiction, in order to obtain a footing from which to nullify the Missouri Restriction and deny the right of Congress to exclude Slavery from any territory. To this end, he affirms that that clause of the Constitution (Art. IV. § 3) which says “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,” applies only to such territory as belonged to the United States at the time the Constitution was framed! The territory covered by the Missouri Restriction, having all been acquired since that time, is not, in his view, subject to this provision.

He proceeds to affirm that, by the mere fact of our acquiring territory, “the Government and the citizen both enter it under the authority of the Constitution;” in other words, that the Constitution takes effect upon any territory that our Government may acquire, at the instant of such acquisition, in such manner as to create and uphold the right of every slaveholder to take his slaves thither and hold them there as property. But this particular and only clause of the Constitution relating to territory has no application or subsisting validity; because, if it had, it might enable Congress to prohibit Slavery therein. The Chief Justice, therefore, nullifies the Missouri Restriction, and all kindred restrictions, in the following terms:

Upon these considerations, it is the opinion of the Court that the act of Congress which prohibited a citizen from holding property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and it is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory, even if they had been carried there by the owner, with the intention of becoming a permanent resident.

But Dred's freedom was claimed on still another ground; viz.: that he had been taken by his master to [257] the Free State of Illinois, and there retained some two or three years. But this the Chief Justice disposes of by declaring that his claim was not properly before the court; that the question raised by it was to be adjudged by the tribunals of Missouri alone; and he concludes as follows:

Upon the whole, therefore, it is the judgment of this Court, 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.

Justice Wayne, of Georgia, concurred “entirely in the opinion of the Court, as written and read by the Chief Justice, without any qualification of its reasoning or its conclusions.”

Justice Nelson, of New York, concurred also in the conclusion of the Court, and favored an astonished world with the following sample of judicial logic:

If Congress possesses power, under the Constitution, to abolish Slavery in a territory, it must necessarily possess the like power to establish it. It cannot be a one-sided power, as may suit the convenience or particular views of the advocates. It is a power, if it exist at all, over the whole subject.

But the power against which Mr. Nelson is contending is a power to prohibit by legislation certain forms of injustice and immorality. If, then, according to his reasoning, Congress should, by law, prohibit adultery, theft, burglary, and murder, in the territories of the Union, it would thereby affirm and establish its right to reward and encourage those crimes.

Mr. Justice Grier, of Pennsylvania, emitted all the additional light he had power to shed on the subject in the following commendably brief, but not otherwise commendable, opinion:

I concur in the opinion delivered by Mr. Justice Nelson on the question discussed by him.

I also concur with the opinion of the Court, as delivered by the Chief Justice, that the act of Congress of 6th of March, 1820, is unconstitutional and void; and that, assuming the facts as stated in the opinion, the plaintiff cannot sue as a citizen of Missouri in the courts of the United States. But, that the record shows a prima facie case of jurisdiction, requiring the Court to decide all the questions properly arising in it; and as the decision of the pleas in bar shows that the plaintiff is a slave, and therefore not entitled to sue in a court of the United States, the form of the judgment is of little importance; for, whether the judgment be affirmed or dismissed for want of jurisdiction, it is justified by the decision of the Court, and is the same in effect between the parties to the suit.

Mr. Justice Daniel, of Virginia, in announcing his opinion, seemed appalled by the magnitude of the issues involved in the question before the Court. The tremor and awe with which he had approached the subject may have blunted his judicial acumen, since his exhibitions of it were mainly confined to such assertions as these:

Now, the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know — that the African negro race have never been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recognized by the inhabitants of other countries anything partaking of the character of nationality, or civil or political polity; that this race has been, by all the nations of Europe, regarded as subjects of capture or purchase, as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves — as property, in the strictest sense of the term.

He proceeded in this vein to deny [258] 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. Benton4 observes that the [259] opinion of the Court, as pronounced by Chief Justice Taney in this celebrated case, is, in essence, but an amplification of certain resolves submitted by Mr. Calhoun to the United States Senate, in February, 1847, in the following language:

Resolved, That the Territories of the United States belong to the several States composing this Union, and are held by them as their joint and common property.

Resolved, That Congress, as the joint agent and representative of the States of the Union, has no right to make any law, or do any act whatever, that shall directly, or by its effects, make any discrimination between the States of this Union, by which any one of them shall be deprived of its full and equal rights in the territory of the United States, acquired or to be acquired.

Resolved, That the enactment of any law which would directly, or by its effects, deprive the citizens of any of the States of this Union from emigrating, with their property, into any of the Territories of the United States, would make such a discrimination; and would, therefore, be a violation of the Constitution, and the rights of the States from which such citizens emigrated, and in derogation of that perfect equality which belongs to them as members of this Union, and would tend directly to subvert the Union itself.

The resolve submitted to the Democratic National Convention of 1848, by Mr. William L. Yancey, and unceremoniously rejected by it, 216 to 36, as will have been seen5--sets forth the same doctrine more concisely and abruptly.

Col. Benton, himself a life-long slaveholder and upholder of Slavery, thus forcibly refutes,6 from a conservative and legal standpoint, the Calhoun-Yancey dogma:

The prohibition of Slavery in a territory is assumed to work an inequality in the States, allowing one part to carry its property with it — the other, not. This is a mistake — a great error of fact — the source of great errors of deduction. The citizens of all the States, free and slave, are precisely equal in their capacity to carry their property with them into territories. Each may carry whatever is property by the laws of nature: neither can carry that which is only property by statute law; and the reason is, because he cannot carry with him the law which makes it property. Either may carry the thing which is the subject of this local property; but neither can carry the law which makes it so. The Virginian may carry his man-slave; but he cannot carry the Virginian law which makes him a slave. The citizen of Massachusetts may carry the pile of money which, under a State law, constitutes a bank; but he cannot carry the law or charter which makes it a bank: and his treasure is only a pile of money; and, besides being impossible, it would be absurd, and confusion confounded, to be otherwise. For, if the citizen of one State may carry his Slave State law with him into a territory, the citizens of every other Slave State might do the same; and then what Babylonish confusion, not merely of tongues, but of laws, would be found there! Fifteen different codes, as the Slave States now number, and more to come. For every Slave State has a servile code of its own, differing from others in some respects — and in some, radically: as much so as land, in the eye of the law, differs from cattle. Thus, in some States, as in Virginia and others, slaves are only chattels: in others, as in Kentucky and Louisiana, they are real estate. How would all these codes work together in a territory under the wing of the Constitution, protecting all equally; no law of Congress there, or of the territory, to reconcile and harmonize them by forming them into one; no law to put the protecting power of the Constitution into action; but of itself, by its own proper vigor, it is to give general and equal protection to all slaveholders in the enjoyment of their property — each, according to the law of the State from which he came! For, there being no power in Congress, or the Territorial Legislature, to legislate upon Slavery, the whole subject is left to the Constitution and the State law! that law which cannot cross the State line! and that Constitution which gives protection to slave property but in one instance, and that only in States, not in Territories — the single instance of recovering runaways. The Constitution protect slave property in a territory! when, by that instrument, a runaway from the territory or into the territory cannot be reclaimed! Beautiful constitutional protection that! only one clause under it to protect slave property; and that limited, in express words, to fugitives between State and State! and but one clause in it to protect the master against his slaves, and that limited to States! and but one clause in it [260] to tax slaves as property, and that limited to States! and but one clause in it to give a qualified representation to Congress, and that limited to States. No; the thing is impossible. The owner cannot carry his Slave State law with him into the Territory; nor can he carry it into another Slave State, but must take the law which he finds there, and have his property governed by it; and, in some instances, wholly changed by it, and rights lost, or acquired, by the change.

To the same effect, Mr. Webster, when resisting, in 1848, the attempt, on a bill organizing the Territory of Oregon, to fasten a “rider” extending the Slave line of 36° 30′ to the Pacific, refuted this doctrine as follows:

The Southern Senators say we deprive them of the right to go into these newly acquired territories with their property. We certainly do not prevent them from going into those territories with what is, in general law, called property. But these States have, by their local laws, created a property in persons; and they cannot carry these local laws with them. Slavery is created and exists by a local law, which is limited to a certain section; and it is asked that Congress shall establish a local law in other territories to enable Southern Senators to carry their particular law with them. No man can be held as a slave unless the local law accompany him.

Justice McLean, of Ohio, in his opinion dissenting from that of the Court in this case of Dred Scott, says:

Will it be said that the slave is taken as property, the same as other property which the master may own? To this I answer, that colored persons are made property by the law of the State, and no such power has been given to Congress. Does the master carry with him the law of the State from which he removes into the territory? and does that enable him to coerce his slave in the territory? Let us test this theory: If this may be done by a master from one Slave State, it may be done by a master from every other Slave State. This right is supposed to be connected with the person of the master, by virtue of the local law. Is it transferable? May it be negotiated as a promissory note or bill of exchange? If it be assigned to a man from a Free State, may he coerce the slave by virtue of it? What shall this thing be denominated? Is it personal or real property? Or is it an indefinable fragment of sovereignty, which every person carries with him from his late domicile? One thing is certain, that its origin has been very recent, and it is unknown to the laws of any civilized country. It is said that the territories are the common property of the States, and that every man has a right to go there with his property. This is not controverted. But the Court say, a slave is not property beyond the operation of the local law which makes him such. Never was a truth more authoritatively and justly uttered by man. Suppose a master of a slave in a British island owned a million of property in England; would that authorize him to take his slaves with him to England? The Constitution, in express terms, recognizes the status of Slavery as founded on the municipal law: “No person held to service or labor in one State, under the laws thereof, escaping to another, shall,” etc. Now, unless the fugitive escape from a place where, by the municipal law, he is held to labor, this provision affords no remedy to the master. What can be more conclusive than this? Suppose a slave escape from a territory where Slavery is not authorized by law, can he be reclaimed? In this case, a majority of the Court have said that a slave may be taken by his master into a territory of the United States, the same as a horse, or any other kind of property. It is true, this was said by the Court, as also many other things, which are of no authority. Nothing that has been said by them, which has not a direct bearing on the jurisdiction of the Court, against which they decided, can be considered as authority. I shall certainly not regard it as such. The question of jurisdiction, being before the Court, was decided by them authoritatively, but nothing beyond that question. A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and lie is destined to an endless existence.

To the same effect, Justice Curtis, of Massachusetts, in his dissenting opinion, thus traverses the judgment of the Court:

Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regulations which were essential to the existence of Slavery? Is it not more rational to conclude that they who framed and adopted the Constitution [261] were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws; and that they must cease to be available as property when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of Slavery exist?

Moreover, if the right exists, what are its limits, and what are its conditions? If citizens of the United States have a right to take their slaves to a Territory, and hold them there as slaves, without regard to the laws of the Territory, I suppose this right is not to be restricted to the citizens of slaveholding States. A citizen of a State which does not tolerate Slavery can hardly be denied the power of doing the same thing. And what law of Slavery does either take with him to the Territory? If it be said to be those laws respecting Slavery which existed in the particular State from which each slave last came, what an anomaly is this! Where else can we find, under the laws of any civilized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in Slavery?

Justice Curtis is an ultra conservative of the State-street (Boston) school--a life-long follower of Mr. Webster, especially in his later and more lamentable days — and yet his opinion delivered in this case evinces considerably more freedom and boldness than that of Judge McLean. Though couched in judicial and respectful language, it constantly, and pretty clearly, intimates not merely that the judgment of the Court is contrary both to law and to fact, but that its authors well know such to be the case. In reply to Chief Justice Taney's disquisition as to the opinions and views of our Revolutionary statesmen, Mr. Curtis bluntly says:

To determine whether any free persons, descended from Africans held in Slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.

Of this, there can be no doubt. At the time of the ratification of the Articles of Confederation, all free, native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.

He proceeds to cite, in support of this averment, the judgment of the Supreme Court of North Carolina in the case of the State against Manuel, wherein William Gaston — by far the most eminent jurist of whom that State could ever boast — pronounced the opinion of the Court in the following terms;

According to the laws of this State, all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects — those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British Colonies. Slaves were not, in legal parlance, persons, but property. The moment the incapacity, the disqualification of Slavery was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British king. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European king to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen; and therefore, if born within North Carolina, are citizens of North Carolina; and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised [262] the franchise, until it was taken from free men of color a few years since, by our amended Constitution.

Continuing his review of the Chief Justice's assumptions, Judge Curtis says:

It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that, in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its open declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. And, as free colored persons were then citizens of at least five States, and so, in every sense, part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.

Judge Curtis is not content with refuting the logic of the Chief Justice. He seizes the weapons of his antagonist and turns them against him with decided effect. Witness the following:

I do not deem it necessary to review at length the legislation of Congress having more or less bearing upon the citizenship of colored persons. It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of the Government that no such persons are citizens of the United States. Undoubtedly, they have been debarred from the exercise of particular rights or privileges extended to white persons, but, I believe, always in terms which, by implication, admit that they may be citizens. Thus, the act of May 17, 1792, for the organization of the militia, directs the enrollment of every “ free, able-bodied, white male citizen.” An assumption that none but white persons are citizens, would be as inconsistent with the just import of this language, as that all citizens are able-bodied, or males.

So the act of February 28, 1803 (2 Stat. at Large, 205), to prevent the importation of certain persons into States, when, by the laws thereof, their admission is prohibited, in its first section forbids all masters of vessels to import or bring “ any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States,” etc., etc.

The acts of March 3, 1813, § 1 (2 Stat. at Large, 809), and March 1, 1817, § 3 (3 Stat. at Large, 351), concerning seamen, certainly imply that there may be persons of color, natives of the United States, who are not citizens of the United States. This implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizenship of persons of color in others of the States, nor with their being citizens of the United States.

Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to the subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification for citizenship. It would be strange, if laws were found on our statute-book to that effect, when, by solemn treaties, large bodies of Mexican and North American Indians, as well as free colored persons of Louisiana, have been admitted to citizenship of the United States.

Mr. Curtis cites with effect the action of Congress in 1821 on the admission of Missouri, whereby that State was constrained to abandon and repudiate her attempt to prohibit the settlement of free negroes and mulattoes within her borders ;7 whereof he says:

It is true, that neither this legislative declaration, nor anything in the Constitution or laws of Missouri, could confer or take away any privilege or immunity granted by the Constitution. But it is also true that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States.

He sums up his conclusions as to [263] 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 [264] wherein it proclaims itself devoid of jurisdiction, and denies the validity of such legislation. The people are treated as inclining to usurp the power of excluding human bondage from their territorial possessions; so the Court decides that they have no rights in the premises, no power to act on the question. If twenty millions of freemen were unanimously and earnestly to insist that Freedom should be the law of their common territories, while but one slaveholder should claim the privilege of taking his slaves to and holding them in said territories, the claim of this one slaveholder, according to the Court, would override and defeat, conclusively, the earnest demands of those twenty millions of freemen. The war upon the Missouri Restriction, and against Slavery Inhibition in the Territories generally, had been commenced and prosecuted under the banner of “Popular Sovereignty;” and it was to this complexion it had come at last; and it was of this judgment, just about to be proclaimed to an astounded people, that Mr. Buchanan, in his Inaugural aforesaid, says:

The whole territorial question being thus settled upon the principle of Popular Sovereignty — a principle as ancient as free government itself — everything of a practical nature has been decided. No other question remains for adjustment; because all agree that, under the Constitution, Slavery in the States is beyond the reach of any human power, except that of the respective States themselves wherein it exists. May we not, then, hope that the long agitation on this subject is approaching its end, and that the geographical parties to which it has given birth, so much dreaded by the father of his country, will speedily become extinct?

1 March 4th, 1857.

2 See pages 51-2, 107-8, etc., etc.

3 See, in refutation of this, the views of Henry Laurens, Dr. Hopkins, La Fayette. Washington, Jefferson, etc., as quoted in the earlier chapters of this work.

4 In his “Historical and Legal Examination of that part of the Decision of the Supreme Court, in the Dred Scott case, which declares the unconstitutionality of the Missouri Compromise.”

5 See page 192.

6 In his “Examination,” aforesaid.

7 See page 80 of this work.

Creative Commons License
This work is licensed under a Creative Commons Attribution-ShareAlike 3.0 United States License.

An XML version of this text is available for download, with the additional restriction that you offer Perseus any modifications you make. Perseus provides credit for all accepted changes, storing new additions in a versioning system.

hide Dates (automatically extracted)
hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: