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CASE OF DRED SCOTT.

537

been brought from Missouri. Two children were born to them in Wisconsin. In 1850 Dr. Emerson was again living in Missouri whither he had brought Scott and his family. The negro brought suit for the freedom of himself and family because he had lived in Illinois and Wisconsin which, by various legislative acts, were free soil.1 The local court in St. Louis, following Lord Mansfield's decision in the case of Somerset,2 and on the principle that the American States were to each other as foreign nations, decided that Scott and his family were free persons. Emerson promptly appealed the case to the Supreme Court of the State, which, in 1852, even more promptly reversed the lower court, declared that Missouri would recognize the laws of other States as it thought best, and would be guided by the policy of its own institutions. But there was a dissenting opinion by Judge Gamble, that Dr. Emerson, or any other person, who, knowing that slavery was prohibited in another State, took his slaves there, by his own act emancipated them. Soon after this decision, Scott and his family were sold to a citizen of New York, named Sandford, and Scott again brought suit for their freedom, this time in the United States Circuit Court at St. Louis. The decision of this court, in May, 1854, pronounced them the property of Sandford. They then appealed to the Supreme Court of the United States. The case was twice argued before the Court, once in the spring of 1856, when it scarcely attracted atten

1 The ordinance of 1787 and act of 1789. Acts of May 7, 1800, for Indiana Territory; February 3, 1809 for Illinois Territory. Acts of March 4, 1814, for Indiana Territory, and its enabling act of April 19, 1816. Constitution of Indiana, 1816, Art. VIII. Enabling act for Illinois, April 18, 1818; Constitution of 1818, Art. VI. 2 15 Missouri, 581, et seq.: The Negro Case, 11 Harg. S. T., 340; Somerset vs. Stewart, Lofft, 1.

3 November 2, 1853; Nicolay and Hay's Lincoln, II, 63, note.

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CASE OF DRED SCOTT.

tion, and when, on account of the approaching Presidential election, the opinion of the Court was withheld. In December following, it was again argued, four successive days, and the counsel, enlarging the issue before them, argued the greater question whether the Constitution empowered Congress to exclude slavery from the Territories. This of course raised the constitutionality of the Ordinance of 1787, re-enacted in 1789; of the Missouri Compromise, and of all acts of Congress resting upon them.

The Court consisted at this time of nine justices, of whom four were from free and five from slave States.1 Seven were Democrats. The long and bitter agitation of the slavery question had at last reached the Supreme judicial power, which straightway proceeded to show, by a body of individual opinions, as well as by the decision in the case, that it was the creature of politics as well as the expounder of the Constitution and the laws. That the decision of the Circuit Court of the United States, in Missouri, should be sustained, was agreed to by the majority of the judges, and Justice Nelson was directed to write the opinion. Following the practice of federal Courts in these decisions, that the decisions of State Courts of last resort shall, as far as possible be recognized as final, he decided that the decision in the Supreme Court of Missouri should stand, as the case had arisen in Missouri. Scott and his family were therefore slaves. But this brief decision and quiet conclusion of the case did

1 Roger B. Taney, C. J., Maryland, 1836-1864; John McLean, Ohio, 1829-1861; James M. Wayne, Georgia, 1835-1867; John Catron, Tennessee, 1837-1865; Peter V. Daniel, Virginia, 1841-1860; Samuel Nelson, New York, 1845-1872; Robert C. Grier, Pennsylvania, 1846-1869; *Ben. R. Curtis, Massachusetts, 1851-1857; *Jas. A. Campbell, Alabama, 1853-1861.

*Resigned.

OPINION OF THE COURT.

539

not satisfy all the judges. The questions involved went to the root of our institutions: could Congress constitutionally prohibit slavery in the territories? Why should not the Court settle the question forever? Why not give peace to the country? Why not put an end to party disputes? Not less fateful than the decision of the Court itself was this determination of its members to give an opinion on the political issues involved. Justice Nelson's brief disposition of the case was not enough. The ChiefJustice should hand down an opinion covering all the issues. Each justice wrote an individual opinion also. Thus there were as many opinions as members of the Court. But in the decision of Taney, that the Court had no jurisdiction in the case, though for different reasons, Campbell, Catron, Daniel, Grier, Nelson and Wayne mainly agreed; but Curtis and McLean differed wholly, and gave dissenting opinions.

While the judges were writing their opinions, the inauguration of Buchanan occurred, and in his address, the President stirred public interest, already great, in the case, by reference to the approaching decision. Kansas, said he, should be admitted into the Union, with or without slavery as its constitution might prescribe. "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, whatever this may be." Two days later

1 Messages and Papers of the Presidents, V, 431. (Buchanan's inaugural address.)

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EFFECT OF THE DECISION.

the decision was given. Slaves were property; they were not, in contemplation of law, citizens at the time of the Declaration of Independence and the formation of the Constitution. To the security of this form of property the government of the United States was pledged. Therefore all laws of Congress prohibiting slavery were unconstitutional. The Ordinance of 1787, re-enacted in 1789, was unconstitutional. The enabling acts for Ohio, Indi

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ana and Illinois; the Missouri Compromise, the enabling acts for Michigan, Iowa, Oregon and Wisconsin and much of the Compromise of 1850, were unconstitutional. The Constitution gave Congress power to protect and to extend slavery, but not to limit or to prohibit it. Though a domestic institution, its boundaries were those of the whole country. The Chief-Justice did not use the word Nation, for he held that "the United States were not for all pur

DISSENT BY CURTIS AND M'LEAN.

541

poses a nation." The States were sovereign. Thus the Circuit Court of the United States, in Missouri, had no jurisdiction in the case. Dred Scott was property, not a person. He could not bring suit in any federal court. The State court of Missouri had decided against him: that ended the case. In one of the longest opinions in our reports, the Chief-Justice recited his interpretation of the earlier laws, constitution and decisions, and excluded the African race from all right to participate in the privileges of freemen. They were forever doomed to bondage, degradation and hopeless inferiority.

Curtis and McLean wholly dissented from this. "In five of the thirteen original States, colored persons," said Curtis, "then (that is in 1787) possessed the elective franchise,1 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 opening 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." Taney had argued that the Declaration of Independence applied only to the white race. Curtis declared that it would not be just to its authors "nor true in itself, to allege that they

1 New Hampshire, Massachusetts, New York, New Jersey, North Carolina. See my Constitutional History of the American People, 1776-1850. Index, "Free Negroes."

2 19 Howard, 582.

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