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A Constitutional History of the United States
Chapter XL - The Dred Scott Case
by McLaughlin, Andrew C.

James Buchanan took the oath of office March 4, 1857. His inaugural address deserves brief attention. In studying those times one gets used to indirection or evasion — most of it, perhaps, not intentional. Possibly in Buchanan's case there was no conscious purpose to cover his remarks with a cloak of mist or to mislead his hearers; perhaps his mind worked more easily in a haze; but there is required more than ordinary attention, aided by good will, to find logic and consistency in his discussion of the territorial problem. But the nature of his wanderings need not now trouble us, though the address makes plain the prevailing confusion and the opportunity for ceaseless misunderstanding of vital issues. Just when the people of a territory should decide the slavery question was, Buchanan declared, "a matter of but little practical importance." And yet the question of territorial condition was the actual issue. "Besides," he went on to say, "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.... 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."

The case which Buchanan had in mind was Dred Scott v. Sandford,[1] the details of which we shall consider in a moment. The decision was given two days after the inauguration. How did the President know the judges would pass upon the question of slavery in the territories? The case had been long before the Court, for it had first been argued in February, 1856, and again in December; but these hearings and arguments gave no conclusive evidence of the Court's intention to take up the fateful question of congressional authority. Buchanan's foreknowledge appeared to indicate some kind of underground intrigue and collusion.[2] Before the decision was rendered, however, other persons also were confident that the case would settle the slavery problem.[3] Furthermore, as we now know, there had been communications between two of the justices and the President-elect. Justice Catron (February 19, 1857) actually wrote Buchanan a suggestion of what he might say in his inaugural address; and he asked Buchanan to write to Justice Grier and tell him "how necessary it is — & how good the opportunity is, to settle the agitation by an affirmative decision of the Supreme Court, the one way or the other." [4] Justice Grier (February 23, 1857), acknowledging a letter from Buchanan, wrote a reply giving much information and said: "There will therefore be six if not seven (perhaps Nelson will remain neutral) who will decide the compromise law of 1820 to be of non-effect." [5] This correspondence, at least by present standards, appears highly improper; but it tends, when fully examined and studied in connection with other facts, to disprove the charge that the Dred Scott case was the final step in a conspiracy beginning with the repeal of the Compromise three years before.

Dred Scott, a negro slave, had been taken by his master, a Dr. Emerson, in 1834, from Missouri into the state of Illinois. Two years later, Emerson, taking Dred with him, removed to Fort Snelling, which was within the region from which slavery was excluded by the terms of the Missouri Compromise. In 1838 Emerson returned to Missouri, carrying with him Dred, a woman Dred had married at Fort Snelling, and a child born of this marriage. Some years later Emerson sold his slave to John F. A. Sandford of New York, who did not, however, remove Dred from Missouri.[6]

A suit for Dred's freedom, resulting in his favor, was started in a lower Missouri court, but when carried for review to the state supreme court the judgment was reversed, the court holding that when the negro was brought back to Missouri he was a slave, no matter what might have been the effect of his sojourn in a free state and a free territory. The case was remanded to the lower court, where it was still pending when an action for assault and battery — trespass vi et armis — was begun against Sandford in the federal circuit court for the district of Missouri. If Dred was a citizen of Missouri, the federal court would have jurisdiction, because Sandford was a citizen of New York.

The defendant, Sandford, pleaded that Dred was not a citizen of Missouri because he was a negro of African descent. This was a plea to the jurisdiction of the court, called a plea in abatement. To this plea the plaintiff demurred; in other words, granting the fact alleged, namely, that Dred was a negro, it did not follow that he was not a citizen. The court sustained the demurrer and then, upon the facts of the case, instructed the jury that the law was with the defendant. Judgment was rendered in Sandford's favor. The case was thereupon carried by Dred's attorney to the Supreme Court of the United States.

As we have seen, the case was twice argued and had been before the Court several months before the final decision. The members of the Court differed among themselves on the question of the course to be followed; in their earlier discussions the point chiefly at issue was whether the plea in abatement which had been passed upon by the circuit court should be reŽxamined; and there was no unanimity in the end.[7] Even as late as the middle of February, however, the justices in conference reached the determination not to raise or decide the question of jurisdiction. The majority were seemingly willing, to decide the case simply on the ground that the status of Dred in Missouri had been determined by the Missouri court. If this course were followed, the Court would not discuss at all the problem of slavery in the territories and the competence of Congress. Two of the justices, McLean and Curtis, were prepared, however, to enter upon the whole question of Dred's freedom, and to examine, therefore, the validity and effect of the famous Compromise. This intention may have furnished [8] the other justices with reason and excuse for taking the same course and presenting at length opinions concerning the authority of Congress to exclude slavery from the territories.

So the stage was finally set for a long and inharmonious discussion of the Missouri Compromise. Justice Nelson alone believed the Court should confine its attention to the effect of the Missouri court's decision, which in his judgment fixed Dred's status in Missouri. There were nine justices. The Chief Justice read what may be called the opinion of the Court and rendered the decision. Dred was a slave. With that decision six of the other justices agreed, but each of the nine gave a separate opinion and as a rule followed his own line of reasoning. Grier's opinion was short and did not disclose his reasons. Nelson, as we have seen, confined his attention to a single point. On the vital question McLean and Curtis totally disagreed with the reasoning of the others and with the decision of the Court.

We shall have to content ourselves with a consideration of only two of the opinions, those of Chief Justice Taney and Justice Curtis, as they best disclose the situation. The Chief Justice was a citizen of Maryland, a slave state. No one now would question his learning, ability, and substantial character. Curtis was a citizen of Massachusetts, a state filled with strong antislavery sentiment. The number of opinions and the variety of arguments, as well as the whole history of the case, were bewildering to the average citizen, and this diversity helped to cast disrepute upon the decision and upon the Court.[9] The lowering of the Court's prestige was one of the most lamentable results of the whole affair.

The Chief Justice, after discussing the propriety of taking up the plea in abatement, declared Dred Scott was not a citizen of Missouri within the meaning of the Constitution, and was, therefore, not entitled to sue in the federal courts; the judgment of the circuit court on the plea in abatement was erroneous. The reasoning leading him to these conclusions is simple enough in some respects: the Constitution was made by and for white men; when it was adopted, negroes had for more than a century "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...." This opinion was regarded "as an axiom in morals as well as in politics...." [10] It was inconceivable, therefore, that the framers of the Constitution should have intended to include black men as citizens. He elaborately denied that a state could make a citizen. The fact that Dred was a negro was sufficient to dispose of his right to bring suit.

But the Chief Justice was not content to rest there. He asserted the duty of the Court to correct every error made by the lower court. His argument was this: the lower court had given judgment in favor of the defendant, although the question of the jurisdiction of the court had been plainly presented, as shown by the plaintiff's own bill of exception; Dred had admitted that he and his wife were born slaves, and he had endeavored to show that he became free by being taken to certain places where slavery did not exist; if his sojourn in those regions did not make him free, then he continued to be a slave and, hence, not a citizen; the case ought to have been dismissed (irrespective of the plea in abatement) for want of jurisdiction, and no judgment ought to have been rendered.[11] The Court, therefore, was called upon to consider whether Dred did become free by his stay in the Missouri Compromise territory north of thirty-six thirty.

When the Chief Justice proceeded to inquire whether Dred was a slave or not, and, therefore, whether or not the circuit court acted without jurisdiction, the first thing to be determined, one would naturally suppose, was whether Dred was a slave by the law of Missouri upon his return to that state. If he was a slave, that disposed of the case. But the Chief Justice postponed discussion of that point; he took it up only at the end of his opinion when he briefly decided that the circuit court had no jurisdiction because by the law of Missouri the plaintiff was a slave and not a citizen.[12] The Chief Justice was not quite fair-minded in treating that topic last and after he had treated the constitutionality of the Compromise. Plainly, if he had treated it earlier, he would have found it difficult to enter upon a consideration of congressional authority over the territories. It is a principle of judicial action now, and was presumably effective then, that a court will not declare a statute void unless it is necessary to the determination of the cause before it. And that Taney, with his history on the bench and his general attitude toward the duties of the courts, should have gone out of his way to declare an act void, is an especially noticeable fact.

The constitutionality of the Compromise was raised in an attempt to determine whether Dred had become free by his sojourn at Fort Snelling. Obviously, if one doubted congressional authority to exclude slavery from the territories, one was confronted by some fairly difficult obstacles, among them the Ordinance of 1787. The Chief Justice disposed of that obstacle by declaring that the Ordinance was a compact entered into by sovereign states, but it was of no binding effect after the states had surrendered "a portion of their independent sovereignty to a new Government...." [13] The constitutional provision giving Congress the power to make all needful rules and regulations respecting the territory or other public property, he said, "applied only to the property which the States held in common at that time [1787], and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire." [14] Did Congress, then, have no authority over the territories? Such authority Taney admitted; but, he contended, it did not flow from the clause just mentioned, but from the right to acquire territory.

All territory so acquired must be held for the benefit of the people of the several states who created the government;[15] this is a crucial point in the opinion because it leads to the basis of the final fatal decision concerning the power to exclude slavery from the territories. The power of Congress over the territories, Taney declared, is plainly limited by the Constitution; it cannot be a mere discretionary power; the amendments of the Constitution distinctly restrict such authority, and one of them expressly protects property; furthermore, property in slaves is "distinctly" affirmed by the Constitution,[16] and slave property, like other property, is protected by the due process of law announced in the fifth amendment — an interpretation of due process at that time almost unknown. It is therefore "the opinion of the court", he said, "that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void...." Thus the Missouri Compromise, in effect for a generation — accepted and on the whole believed in by men who had no doubt of its validity — , was declared to be a mere usurpation of authority.

Taney's contention that the Constitution was made for white men and that blacks could not be citizens was ably controverted by Curtis, who asserted, first, that all persons who were citizens when the Constitution was adopted must reasonably be considered citizens in purview of that document; second, that at the time of adoption in some of the states negroes were citizens, even having the right to vote. Consequently, mere declaration that a person was a negro was not sufficient to establish want of citizenship;[17] the Court therefore had no right to reverse the decision of the lower court on that ground, and it had no right to deny, on that ground, the possession of jurisdiction by the lower court or its own jurisdiction.

Curtis devoted some attention to the question whether the decision of the state court was conclusive and binding, and whether, therefore, Dred, on returning to Missouri, was by the law of that state a slave. He declared, "The rules of international law respecting the emancipation of slaves, by the rightful operation of the laws of another State or country upon the status of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State." He quoted with approval the dissenting opinion of Chief Justice Gamble of Missouri, delivered in the case already referred to (Scott v. Emerson, 15 Missouri Reports 576), in which the Chief Justice said: "In this State, it has been recognised from the beginning of the Government as a correct position in law, that the master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emancipates his slave." [18] Curtis admitted that a state could "refuse to recognise a change, wrought by the law of a foreign State, on the status of a person, while within such foreign State," but he declared that the judiciary had no authority or power to alter the established law of the state.[19]

Having thus disposed of the decision of the Missouri court, and having decided that it was not conclusive, Curtis proceeded to consider the merits of the controversy and the critical and all-important issue: did Dred become free by being taken into territory covered by the Missouri Compromise? Had Congress constitutional authority to exclude slavery from the public domain?

He took up the constitutional clause so much discussed. When Congress is given authority to make "all needful rules and regulations", it means all. Nothing in the language restricts the operation of these words to territory held by the United States in 1787. Why, he asked, should the Court ignore this express grant of power and found the right to govern on the right to acquire, which was only an implied or inferred power? The purpose of this clause — and here we find his most cogent assertion and argument — being to grant Congress the power to provide for a body of municipal law for the government of settlers, the allowance or prohibition of slavery must be within the scope of the granted power, because, when the Constitution was adopted, such allowance or prohibition was a recognized subject of municipal legislation. On this phase of the matter Curtis had history to fortify his argument; he was able to show that Congress almost from the beginning had exercised the power in question; it had recognized slavery and it had excluded slavery.[20] He denied that the prohibition to carry slaves into a territory deprived anyone of his property without due process of law. His denial was strongly buttressed by references to historical evidences. We have already noticed, in a previous chapter discussing the development of law during Taney's time, the fact of his use of the due process clause of the fifth amendment. In his opinion in the case he paid attention to that clause. "And an act of Congress", he said, "which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."

Curtis's discussion of the essentially local character of slavery was naturally incontrovertible; it could be denied only by finding in the Constitution some positive provision to the contrary. Both McLean and Curtis pointed to the Court's decision in Prigg v. Pennsylvania where it was said: "The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws." [21] Possibly the weakest point in the whole opinion of the Chief Justice was his declaration that to prevent a man from taking a slave into a territory and holding him there as a slave was to deprive the owner of his property, when the owner must be supposed to know that the moment the slave passed from the limits of a slaveholding state the law of that state ceased to have effect.[22]

The Court's decision and the varying opinions made a tremendous impression on the people-at-large. Men could find able argument for the beliefs they already held. But one thing was plain: the highest judicial authority had declared slavery to be a national institution. Slavery followed the flag — not because the public domain belonged to thirteen sovereign states, as Calhoun had contended, but because this was a white man's country and the Constitution specifically recognized property in slaves.

We can dismiss with a word the charge that the Court was "packed", and that to get a proslavery decision a conspiracy to "pack" it had been silently carried on for years. Historians are now not ready to accept this indictment as true. Of the nine justices, five were from slaveholding states. The southern states were overrepresented in the Court, if one takes into consideration the population of the respective sections and the amount of litigation brought to the attention of the circuit courts.[23] This disproportion may not have been caused by the anxiety of the southerners to have a Court friendly to slaveholding interests; presumably it was not so caused; but such a condition aroused suspicion and gave ground for attack upon the Court's decision. The justices were obviously affected by their sympathies; they were influenced by the sentiments and emotions to which human beings are normally subject; they were not demigods, but men with like passions as ourselves. By being lifted to the Supreme Court, they were not translated into a region where only abstract and dehumanized reasonings appealed to them. The majority were sincerely anxious to solve the slavery question and were led into a discussion and a decision by a false hope that they could accomplish the impossible. The case augmented rather than decreased agitation and unrest.

The decision was most vehemently denounced by orators and newspaper-writers disagreeing with the reasoning and the conclusion of the Court. The declaration that the Missouri Compromise was unconstitutional was denounced as a mere presumptuous dictum, for, after deciding that Scott could not be considered a citizen and had therefore no standing in the Court, why should the Court proceed to pass upon the merits of the controversy? Even the wisest critics appear not to have taken seriously Taney's method of treatment. To many thousands of northern people one fact appeared plain: the Court after denying its own jurisdiction had proceeded to exercise it. For the niceties of constitutional law the ordinary man has no great patience and no great training. And in this particular instance the turning-point in the case was likely to appeal only to the practiced technician — if to anyone.[24]

[1] 19 Howard 393 (1857). Important recent discussions of the case are: E. S. Corwin, "The Dred Scott Decision," Am. Hist. Rev., XVII, p. 52 ff.; F. H. Hodder, "Some Phases of the Dred Scott Case," Miss. Valley Hist. Rev., XVI, p. 3 ff.

[2] See Lincoln's speech of June 16, 1858: "Why", he asked, "was the court decision held up? ... Why the delay of a reargument? Why the incoming President's advance exhortation in favor of the decision? These things look like the cautious patting and petting of a spirited horse preparatory to mounting him, when it is dreaded that he may give the rider a fall." He spoke of the framed timbers prepared by Stephen, Franklin, Roger, and James.

[3] Alexander H. Stephens wrote in January, 1857: "The decision will be a marked epoch in our history. I feel a deep solicitude as to how it will be.... The restriction of 1820 will be held to be unconstitutional." Quoted in R. M. Johnston and W. H. Browne, Life of Alexander H. Stephens, p. 318. See also, B. C. Steiner, Life of Roger Brooke Taney, pp. 335-336.

[4] James Buchanan, Works (J. B. Moore, ed.), X, p. 106, note 1.

[5] Ibid., X, pp. 106-108 note.

[6] The facts above given are those agreed upon by the attorneys in the case, and they form the basis of the Court's decision. J. W. Burgess in his Middle Period (p. 449 ff.) has an account differing in some particulars. He relies on statements made to him by A. C. Crane, a clerk in the law office of the attorney who espoused Dred's case. The differences in detail are not important, but it is important to get through this channel evidence to show that the suit was not fictitious, but a genuine effort on the part of antislavery men to obtain freedom for a negro unlawfully, as they believed, held in bondage.

[7] The grounds of disagreement on this matter are seen in the opinions finally rendered. For example, the Chief Justice said, "The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ of error always brings up to the superior court the whole record of the proceedings in the court below." Justice Catron said, "The judgment of the Circuit Court upon the plea in abatement is not open, in my opinion, to examination in this court upon the plaintiff's writ. The judgment was given for him conformably to the prayer of his demurrer. He cannot assign an error in such a judgment." Justice Curtis was not willing to accept the principle "that the defendant, by pleading over, after the plea to the jurisdiction was adjudged insufficient, finally waived all benefit of that plea."

[8] Instead of asserting that the dissentients caused the others to enter upon the merits of the controversy, I say "may have furnished", because there seems no doubt that the justices desiring to settle the question were under pressure. Justice Wayne in particular was anxious to have a decision. Hodder ("Some Phases of the Dred Scott Case," loc. cit., p. 11) says, "The opinion of Nelson, which but for the dissent of McLean and Curtis would have been the opinion of the Court, held that when a slave returns to a slave state his status is determinable by the courts of that state." In so saying he may be right, but I cannot help believing, in light of all the evidence, that this statement underestimates the influence brought to bear upon the justices to announce a decision on the whole matter. Attention is called to the correspondence of Catron, Grier and Buchanan referred to on a previous page. See also Steiner, op. cit., pp. 336-337. Justice Catron said that the Court had been forced to pass upon the constitutionality of the Missouri Compromise by the determination of the two dissentients. See Hodder, "Some Phases of the Dred Scott Case," loc. cit., p. 10 and p. 11, note 20, referring to P. G. Auchampaugh, "James Buchanan, the Court and the Dred Scott Case," Tennessee Historical Magazine, X, pp. 234-238, giving a letter written on February 19, 1857. To this it may be said, first, that if the justices believed that the question of the Compromise, Was not before them or properly to be considered, their determination ought not to have been influenced by what the dissentients did, and, we may surmise, they would not have been so influenced in any case not appealing to their emotions or their desire to place a quietus on the slavery controversy; second, that the two dissentients, as they viewed the case, were logically carried on to a consideration of the Compromise and its validity. The others were not.

[9] "When, as in this case, the student finds six judges arriving at precisely the same result by three distinct processes of reasoning, he is naturally disposed to surmise that the result may possibly have induced the processes rather than that the processes compelled the result, though of course such surmise is not necessarily sound...." But on an examination of the opinions, Corwin says that one's "suspicion becomes conviction." Corwin, "The Dred Scott Decision," loc. cit., p. 68.

[10] 19 Howard 393, 407.

[11] Note the following statements from the opinion: "... but if that plea [the plea in abatement] is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial.... Now, if the removal of which he [Dred] speaks did not give them their freedom, then by his own admission he is still a slave; and whatever opinions may be entertained in favor of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States." Ibid., 427. "... and if, upon the showing of Scott himself, it appeared that he was still a slave, the case ought to have been dismissed, and the judgment against him and in favor of the defendant for costs, is, like that on the plea in abatement, erroneous, and the suit ought to have been dismissed by the Circuit Court for want of jurisdiction...." Ibid. "The correction of one error in the court below does not deprive the appellate court of the power of examining further into the record, and correcting any other material errors which may have been committed by the inferior court. Ibid., 428. "We are at a loss to understand ... by what process of reasoning it can be made out, that the error of an inferior court in actually pronouncing judgment for one of the parties, in a case in which it had no jurisdiction, cannot be looked into or corrected by this court, because we have decided a similar question presented in the pleadings." Ibid., 429.

[12] The Chief Justice and others made reference to Strader et al. v. Graham, 10 Howard 82 (1850). In that case the Court had held that the status of negroes, held as slaves, when returning from Ohio to Kentucky depended upon the laws of the latter state.

[13] That Taney's views were not those of the state sovereignty protagonists is shown by various statements and positions, and notably when he said, "They [the states in 1787] were about to dissolve this federative Union, and to surrender a portion of their independent sovereignty to a new Government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States...." 19 Howard 393, 435. "... when the present United States came into existence under the new Government, it was a new political body, a new nation...." Ibid., 441. See also Ibid., 447-448.

[14] Taney's argument through here is unusually obscure, but he holds that as the Ordinance of 1787 was within the competence of sovereign states, the Congress under the Constitution, after the states ceased to be entirely sovereign, regarded the form of government and the principles of jurisprudence which were to be applicable to the region as already determined by the sovereign states. Ibid., 438-439

[15] Ibid., 448.

[16] "But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself." Ibid., 449. "The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them." Ibid., 450. "Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution." Ibid., 451. Taney's argument on this point is especially labored; and the word "distinctly" is plainly inappropriate, because it is untrue to fact. Regarding this use of due process, see the chapter on Chief Justice Taney and the Supreme Court and the chapter on the fourteenth amendment in this work.

[17] Taney and Curtis differed radically concerning the source of citizenship. The assertion of the Chief Justice that the framers intended to exclude all negroes from citizenship, Curtis rejected, and his reasons seem conclusive, even when we admit that the right to vote does not necessarily establish citizenship of the possessor of the right. But in Taney's view, citizenship sprang from the nation and from national authority. Concerning the power granted to Congress to establish a rule of naturalization, Taney said it was "by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class." 19 Howard 393, 417. In Curtis's view, citizenship was, or might be, the gift of the state. We are inclined to say that probably both were in some respects wrong. Every person born in the United States and subject to its jurisdiction is a citizen of the United States and of the state in which he resides. This was announced by the fourteenth amendment eleven years after the Dred Scott case. But the amendment in that particular added nothing new. In the case of United States v. Wong Kim Ark, 169 U. S. 649, 658 (1898), the Court said: "It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador ... or of an alien enemy in hostile occupation of the place where the child was born.... The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established." If this position is correct, Taney's position was in some respects wrong, unless we assume with him that such principles do not apply under a white man's Constitution. If the statement of the Court in this later case was always the law, then it would appear that, if a free negro should come to America, his child born here would be a citizen of the United States. The mere fact that the child was black would not prevent his being a citizen. Curtis's position was wrong in declaring that anyone recognized by a state as a citizen was a citizen — in other words, that citizenship sprang from the state, though the United States could make aliens citizens by naturalization: "The Constitution has left to the States the determination what persons, born within their respective limits, shall acquire by birth citizenship of the United States; it has not left to them [the states] any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress." Dred Scott v. Sandford, 19 Howard, 393, 582.

[18] Cf. G. W. Biddle, "Constitutional Development in the United States as Influenced by Chief-Justice Taney," Constitutional History of the United States as Seen in the Development of American Law. "... the courts of Missouri had no right to disregard the law, and to reverse their original decisions, nor was the Federal Supreme Court bound to follow the last decision of the highest court of this State under the circumstances presented." p. 180. Less than one year before the Dred Scott case was decided, Justice Grier had delivered an opinion of the Court in the course of which he said, "When the decisions of the state court are not consistent, we do not feel bound to follow the last, if it is contrary to our own convictions, — and much more is this the case, where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines, subversive of former safe precedent." Pease v. Peck, 18 Howard 595, 599 (1856).

[19] The opinion of Chief Justice Gamble, if read in connection with the opinion of the other two justices, seems to demonstrate that under the stress of resentment against antislavery agitation the other two justices were changing the law of the state. Scott v. Emerson, 15 Missouri Reports 576, 590 (1852).

[20] Besides the act of Congress of 1789, giving effect to the Ordinance of 1787 under the new government, Curtis gave a series of instances in which Congress recognized and others in which it excluded slavery. Under the latter head were laws for the government of the territories — Indiana, Michigan, Illinois, Wisconsin, Iowa, Oregon, and of course the Missouri Compromise of 1820.

Seemingly few persons, if any, seriously doubted, twenty years before the Dred Scott case, the power to exclude slavery. "It will not be questioned", said Curtis, "that, when the Constitution of the United States was framed and adopted, the allowance and the prohibition of negro slavery were recognised subjects of municipal legislation; every State had in some measure acted thereon; and the only legislative act concerning the territory — the ordinance of 1787, which had then so recently been passed — contained a prohibition of slavery. The purpose and object of the clause being to enable Congress to provide a body of municipal law for the government of the settlers, the allowance or the prohibition of slavery comes within the known and recognised scope of that purpose and object." Dred Scott v. Sandford, 19 Howard 393, 616.

[21] 16 Peters 539, 611 (1842).

[22] Taney, as we have seen, held that the Constitution explicitly recognized "property" in slaves. But, as we have also seen, the fugitive slave clause itself speaks of persons held to service in one state "under the laws thereof...." If property in slaves was like other property — sheep, horses, or oxen — , there would have been no need of this special provision in the Constitution. The contention that the Constitution not only protected property but clearly protected slave property as such has been considered on earlier pages. This doctrine had been plainly announced by Jefferson Davis some years before. The only thing to say is that the Constitution recognized slavery as far as it did recognize slavery. Constitution, Art. I, sec. 2, para. 3; Art. I, sec. 9, para. 1 and para. 4; Art. IV, sec. 2, para. 3.

[23] See the speech of J. M. Ashley in the House (1860), Congressional Globe, 36 Cong., 1 sess., appendix, p. 365 ff., where it is asserted that the court of one northern circuit — Ohio, Indiana, Illinois, and Michigan — had in 1856 more cases on the docket than the aggregate on the dockets of the five southern circuit courts. Note also the speech of Benjamin Stanton of Ohio in the House (1857), Congressional Globe, 34 Cong., 3 sess., p. 300. See in addition Charles Warren, The Supreme Court in United States History, III, p. 11, and H. von Holst, The Constitutional ... History of the United States, VI, p. 20 and note 2.

[24] Among the most vehement denunciations of the decision of the Chief Justice was Seward's speech in the Senate, March 3, 1858. He charged Taney and the President with entering into a dishonorable intrigue. The Court, he said, after deciding it had no jurisdiction, "proceeded with amusing solemnity to pronounce the opinion that, if they had had such jurisdiction, still the unfortunate negro would have had to remain in bondage, unrelieved, because the Missouri prohibition violates rights of general property involved in slavery, paramount to the authority of Congress." "The Supreme Court," he further said, "also, can reverse its spurious judgment.... Let the Court recede. Whether it recede or not, we shall reorganize the Court, and thus reform its political sentiments and practices, and bring them into harmony with the Constitution and with the laws of nature." Frederic Bancroft, The Life of William H. Seward, I, p. 446 ff.


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