THE DRED SCOTT DECISION
[Sidenote] 1854.
[Sidenote] March 6, 1857.
Deep and widespread as hitherto had been the slavery agitation created
by the repeal of the Missouri Compromise and by the consequent civil
war in Kansas, an event entirely unexpected to the public at large
suddenly doubled its intensity. This was the announcement, two days
after Buchanan's inauguration, of the decision of the Supreme Court of
the United States in the Dred Scott case. This celebrated case had
arisen as follows:
Two or three years before the Nebraska bill was thought of, a suit was
begun by a negro named Dred Scott, in a local court in St. Louis,
Missouri, to recover the freedom of himself and his family from
slavery. He alleged that his master, one Dr. Emerson, an army surgeon,
living in Missouri, had taken him as his slave to the military post at
Rock Island, in the State of Illinois, and afterwards to Fort
Snelling, situated in what was originally Upper Louisiana, but was at
that time part of Wisconsin Territory, and now forms part of
Minnesota. While at this latter post Dred Scott, with his master's
consent, married a colored woman, also brought as a slave from
Missouri, and of this marriage two children were born. All this
happened between the years 1834 and 1838. Afterwards Dr. Emerson
brought Dred Scott and his family back to Missouri. In this suit they
now claimed freedom, because during the time of residence with their
master at these military posts slavery was there prohibited by
positive law; namely, at Bock Island by the ordinance of 1787, and
later by the Constitution of Illinois; at Fort Snelling by the
Missouri Compromise acts of 1820, and other acts of Congress relating
to Wisconsin Territory.
The local court in St. Louis before which this action was brought
appears to have made short work of the case. It had become settled
legal doctrine by Lord Mansfield's decision in the Somersett case,
rendered four years before our Declaration of Independence, that "the
state of slavery is of such a nature that it is incapable of being
introduced on any reasons, moral or political, but only positive
law.... It is so odious that nothing can be suffered to support it but
positive law." The learned chief-justice therefore ordered that
Somersett, being claimed as a Virginia slave brought by his master
into England, when it was attempted to carry him away against his
will, should be discharged from custody or restraint, because there
was no positive law in England to support slavery. The doctrine was
subsequently modified by another English chief-justice, Lord Stowell,
in 1827, to the effect that absence of positive law to support slavery
in England only operates to suspend the master's authority, which is
revived if the slave voluntarily returns into an English colony where
slavery does exist by positive law.
The States of the Union naturally inherited and retained the common
law of England, and the principles and maxims of English jurisprudence
not necessarily abrogated by the change of government, and among
others this doctrine of Lord Mansfield. Unlike England, however, where
there was no slavery and no law for or against it, some of the
American States had positive laws establishing slavery, others
positive laws prohibiting it. Lord Mansfield's doctrine, therefore,
enlarged and strengthened by American statutes and decisions, had come
to be substantially this: Slavery, being contrary to natural right,
exists only by virtue of local law; if the master takes his slave for
permanent residence into a jurisdiction where slavery is prohibited,
the slave thereby acquires a right to his freedom everywhere. On the
other hand, Lord Stowell's doctrine was similarly enlarged and
strengthened so as to allow the master right of transit and temporary
sojourn in free-States and Territories without suspension or
forfeiture of his authority over his slave. Under the complex American
system of government, in which the Federal Union and the several
States each claim sovereignty and independent action within certain
limitations, it became the theory and practice that towards each other
the several States occupied the attitude of foreign nations, which
relation was governed by international law, and that the principle of
comity alone controlled the recognition and enforcement by any State
of the law of any other State. Under this theory, the courts of slave
States had generally accorded freedom to slaves, even when acquired by
the laws of a free-State, and reciprocally the courts of free-States
had enforced the master's right to his slave where that right depended
on the laws of a slave-State. In this spirit, and conforming to this
established usage, the local court of Missouri declared Dred Scott and
his family free.
The claimant, loath to lose these four human "chattels," carried the
case to the Supreme Court of the State of Missouri, where at its March
term, 1852, it was reversed, and a decree rendered that these negroes
were not entitled to freedom. Three judges formed the court, and two
of them joined in an opinion bearing internal evidence that it was
prompted, not by considerations of law and justice, but by a spirit of
retaliation growing out of the ineradicable antagonism of freedom and
slavery.
[Sidenote] Scott, J., 15 Mo. Reports, pp. 582-6.
Every State [says the opinion] has the right of determining how
far, in a spirit of comity, it will respect the laws of other
States. Those laws have no intrinsic right to be enforced beyond
the limits of the State for which they were enacted. The respect
allowed them will depend altogether on their conformity to the
policy of our institutions. No State is bound to carry into effect
enactments conceived in a spirit hostile to that which pervades
her own laws.... It is a humiliating spectacle to see the courts
of a State confiscating the property of her own citizens by the
command of a foreign law.... Times now are not as they were when
the former decisions on this subject were made. Since then not
only individuals but States have been possessed with a dark and
fell spirit in relation to slavery, whose gratification is sought
in the pursuit of measures whose inevitable consequence must be
the overthrow and destruction of our Government. Under such
circumstances it does not behoove the State of Missouri to show
the least countenance to any measure which might gratify this
spirit. She is willing to assume her full responsibility for the
existence slavery within her limits, nor does she seek to share or
divide it with others.
To this partisan bravado the third judge replied with a dignified
rebuke; in his dissenting opinion he said:
[Sidenote] Gamble, J., 15 Mo. Reports, pp. 589-92.
As citizens of a slave-holding State, we have no right to complain
of our neighbors of Illinois, because they introduce into their
State Constitution a prohibition of slavery; nor has any citizen
of Missouri who removes with his slave to Illinois a right to
complain that the fundamental law of the State to which he
removes, and in which he makes his residence, dissolves the
relation between him and his slave. It is as much his own
voluntary act as if he had executed a deed of emancipation....
There is with me nothing in the law relating to slavery which
distinguishes it from the law on any other subject, or allows any
more accommodation to the temporary public excitements which are
gathered around it.... In this State it has been recognized from
the beginning of the government, as a correct position in law,
that a master who takes his slave to reside in a State or Territory
where slavery is prohibited thereby emancipates his slave. [Citing
cases.] ... But the Supreme Court of Missouri, so far from
standing alone on this question, is supported by the decisions of
other slave-States, including those in which it may be supposed
there was the least disposition to favor emancipation. [Citing
cases.] ... Times may have changed, public feeling may have
changed, but principles have not and do not change; and in my
judgment there can be no safe basis for judicial decision but in
those principles which are immutable.
These utterances, it must be remembered, occurred in the year 1852,
when all slavery agitation was supposed to have been forever settled.
They show conclusively that the calm was superficial and delusive, and
that this deep-reaching contest was still, as before the adjustment of
1850, actually transforming the various institutions of society.
Gradually, and as yet unnoticed by the public, the motives disclosed
in these opinions were beginning to control courts of justice, and
popular discussion and excitement were not only shaping legislation,
but changing the tenor of legal decisions throughout the country.
Not long after the judgment by the Supreme Court of Missouri, Dred
Scott and his family were sold to a man named Sandford, who was a
citizen of New York. This circumstance afforded a ground for bringing
a similar action in a Federal tribunal, and accordingly Dred Scott
once more sued for freedom, in the United States Circuit Court at St.
Louis.[1] The case was tried in May, 1854, and a decree rendered that
they "were negro slaves, the lawful property" of Sandford. As a final
effort to obtain justice, they appealed by writ of error to the
Supreme Court of the United States, the highest judicial tribunal of
the nation.
Before this court of last resort the case was argued a first time in
the spring of 1856. The country had been for two years in a blaze of
political excitement. Civil war was raging in Kansas; Congress was in
a turmoil of partisan discussion; a Presidential election was
impending, and the whole people were anxiously noting the varying
phases of party politics. Few persons knew there was such a thing as
the Dred Scott case on the docket of the Supreme Court; but those few
appreciated the importance of the points it involved, and several
distinguished lawyers volunteered to take part in the argument.[2] Two
questions were presented to the court: First, Is Dred Scott a citizen
entitled to sue? Secondly, Did his residence at Rock Island and at
Fort Snelling, under the various prohibitions of slavery existing
there, work his freedom?
The Supreme Court was composed of nine justices; namely, Chief-Justice
Taney and Associate Justices McLean, Wayne, Catron, Daniel, Nelson,
Grier, Curtis, and Campbell. There was at once manifested among the
judges not only a lively interest in the questions presented, but a
wide difference of views as to the manner of treating them.
Consultations of the Supreme Court are always shrouded in inviolable
secrecy, but the opinions afterwards published indicate that the
political aspects of slavery, which were then convulsing the country,
from the very first found a certain sympathy and reflection in these
grave judicial deliberations. The discussions yet turned upon certain
merely technical rules to be applied to the pleadings under review;
and ostensibly to give time for further examination, the case was
postponed and a re-argument ordered for the next term. It may,
however, be suspected that the nearness of the Presidential election
had more to do with this postponement than did the exigencies of the
law.[3]
[Illustration: ROGER B. TANEY.]
The Presidential election came, and Mr. Buchanan was chosen. Soon
after, the court met to begin its long winter term; and about the
middle of December, 1856, the Dred Scott case was once more
elaborately argued. Again occupying the attention of the court for
four successive days, as it had also done in the first hearing, the
eminent counsel, after passing lightly over mere technical subtleties,
discussed very fully what was acknowledged to be the leading point in
the controversy; namely, whether Congress had power under the
Constitution to prohibit slavery in the Federal Territories, as it had
done by the Missouri Compromise act and various other laws. It was
precisely the policy, or impolicy, of this and similar prohibitions
which formed the subject of contention in party politics. The question
of their constitutional validity was certain to take even a higher
rank in public interest.
When after the second argument the judges took up the case in
conference for decision, the majority held that the judgment of the
Missouri Federal tribunal should simply be affirmed on its merits. In
conformity to this view, Justice Nelson was instructed to prepare an
opinion to be read as the judgment of the Supreme Court of the United
States. Such a paper was thereupon duly written by him, of the
following import: It was a question, he thought, whether a temporary
residence in a free-State or Territory could work the emancipation of
a slave. It was the exclusive province of each State, by its
Legislature or courts of justice, to determine this question for
itself. This determined, the Federal courts were bound to follow the
State's decision. The Supreme Court of Missouri had decided Dred Scott
to be a slave. In two cases tried since, the same judgment had been
given. Though former decisions had been otherwise, this must now be
admitted as "the settled law of the State," which, he said, "is
conclusive of the case in this court."
This very narrow treatment of the points at issue, having to do with
the mere lifeless machinery of the law, was strikingly criticised in
the dissenting opinion afterwards read by Justice McLean, a part of
which, by way of anticipation, may properly be quoted here. He denied
that it was exclusively a Missouri question.
[Sidenote] 19 Howard, pp. 555-64.
It involves a right claimed under an act of Congress and the
Constitution of Illinois, and which cannot be decided without the
consideration and construction of those laws.... Rights sanctioned
for twenty-eight years ought not and cannot be repudiated, with any
semblance of justice, by one or two decisions, influenced, as
declared, by a determination to counteract the excitement against
slavery in the free-States.... Having the same rights of
sovereignty as the State of Missouri in adopting a constitution, I
can perceive no reason why the institutions of Illinois should not
receive the same consideration as those of Missouri.... The
Missouri court disregards the express provisions of an act of
Congress and the Constitution of a sovereign State, both of which
laws for twenty-eight years it had not only regarded, but carried
into effect. If a State court may do this, on a question involving
the liberty of a human being, what protection do the laws afford?
[Sidenote] Campbell to Tyler, Samuel Tyler. "Life of Taney," pp.
383-4.
Had the majority of the judges carried out their original intention,
and announced their decision in the form in which Justice Nelson,
under their instruction, wrote it, the case of Dred Scott would, after
a passing notice, have gone to a quiet sleep under the dust of the law
libraries. A far different fate was in store for it. The nation was
then being stirred to its very foundation by the slavery agitation.
The party of pro-slavery reaction was for the moment in the ascendant;
and as by an irresistible impulse, the Supreme Court of the United
States was swept from its hitherto impartial judicial moorings into
the dangerous seas of polities.
[Sidenote] Campbell to Tyler, Tyler, p. 384.
Before Judge Nelson's opinion was submitted to the judges in
conference for final adoption as the judgment of the court a movement
seems to have taken place among the members, not only to change the
ground of the decision, but also greatly to enlarge the field of
inquiry. It is stated by one of the participants in that memorable
transaction (Justice Campbell) that this occurred "upon a motion of
Mr. Justice Wayne, who stated that the case had created public
interest and expectation, that it had been twice argued, and that an
impression existed that the questions argued would be considered in
the opinion of the court." He further says that "the apprehension had
been expressed by others of the court, that the court would not
fulfill public expectation or discharge its duties by maintaining
silence upon these questions; and my impression is, that several
opinions had already been begun among the members of the court, in
which a full discussion of the case was made, before Justice Wayne
made this proposal."
The exact time when this movement was begun cannot now be ascertained.
The motives which prompted it can be inferred by recalling
contemporaneous political events. A great controversy divided public
opinion, whether slavery might be extended or should be restricted.
The Missouri Compromise had been repealed to make such an extension
possible. The terms of that repeal were purposely couched in ambiguous
language. Kansas and Nebraska were left "perfectly free to form and
regulate their domestic institutions in their own way, subject only to
the Constitution of the United States." Whether under the Constitution
slavery could be excluded from the Federal Territories was affirmed by
Northern and denied by Southern Democrats. Northern and Southern
Democrats, acting together in the Cincinnati National Convention, had
ingeniously avoided any solution of this difference.
A twofold interpretation had enabled that party to elect Mr. Buchanan,
not by its own popular strength, but by the division of its opponents.
Notwithstanding its momentary success, unless it could develop new
sources of strength the party had only a precarious hold upon power.
Its majority in the Senate was waning. In Kansas free-State emigration
was outstripping the South in numbers and checkmating her in border
strife. According to the existing relative growth in sectional
representation and sectional sentiment, the balance of power was
slowly but steadily passing to the North.
Out of this doubt and difficulty there was one pathway that seemed
easy and certain. All the individual utterances from the Democratic
party agreed that the meaning of the words "subject to the
Constitution" was a question for the courts. This was the original
compact between Northern and Southern Democrats in caucus when Douglas
consented to repeal. Douglas, shorn of his prestige by his defeat for
the Presidential nomination, must accept conditions from his
successful rival. The Dred Scott case afforded the occasion for a
decision. Of the nine judges on the Supreme Bench seven were
Democrats, and of these five were appointed from slave-States. A
better opportunity for the South to obtain a favorable dictum could
never be expected to arise. A declaration by the Supreme Court of the
United States that under the Constitution Congress possessed no power
to prohibit slavery in the Federal Territories would by a single
breath end the old and begin a new political era. Congress was in
session and the political leaders were assembled at Washington.
Political topics excluded all other conversation or thought. Politics
reddened the plains of Kansas; politics had recently desecrated the
Senate chamber with a murderous personal assault; politics contended
greedily for the spoils of a new administration: politics nursed a
tacit conspiracy to nationalize slavery. The slavery sentiment ruled
society, ruled the Senate, ruled the Executive Mansion. It is not
surprising that this universal influence flowed in at the open door of
the national hall of justice--that it filtered through the very walls
which surrounded the consulting-room of the Supreme Court.
[Sidenote] Wayne, J., Opinion in the Dred Scott case, 19 Howard,
pp. 454-5.
The judges were, after all, but men. They dined, they talked, they
exchanged daily personal and social courtesies with the political
world. Curiosity, friendship, patriotism, led them to the floors of
Congress to listen to the great debates. Official ceremony called
them into the presence of the President, of legislators, of diplomats.
They were feasted, flattered, questioned, reminded of their great
opportunity, tempted with the suggestion of their supreme authority.[4]
They could render their names illustrious. They could honor their
States. They could do justice to the South. They could perpetuate
their party. They could settle the slavery question. They could end
sectional hatred, extinguish civil war, preserve the Union, save their
country. Advanced age, physical feebleness, party bias, the political
ardor of the youngest and the satiety of the eldest, all conspired to
draw them under the insidious influence of such considerations. One of
the judges in official language frankly avowed the motive and object
of the majority of the court. "The case," he wrote, "involves private
rights of value, and constitutional principles of the highest
importance, about which there had become such a difference of opinion
that the peace and harmony of the country required the settlement of
them by judicial decision." This language betrays the confusion of
ideas and misconception of authority which tempted the judges beyond
their proper duty. Required only to decide a question of private
rights, they thrust themselves forward to sit as umpires in a quarrel
of parties and factions.
[Sidenote] Campbell to Tyler, Tyler, p. 384.
[Sidenote] Nelson to Tyler, Tyler, p. 385.
In an evil hour they yielded to the demands of "public interest," and
resolved to "fulfill public expectation." Justice Wayne "proposed that
the Chief-Justice should write an opinion on all of the questions as
the opinion of the court. This was assented to, some reserving to
themselves to qualify their assent as the opinion might require.
Others of the court proposed to have no question, save one, discussed."
The extraordinary proceeding was calculated to touch the pride of
Justice Nelson. He appears to have given it a kind of sullen
acquiescence. "I was not present," he wrote, "when the majority
decided to change the ground of the decision, and assigned the
preparation of the opinion to the Chief-Justice; and when advised of
the change I simply gave notice that I should read the opinion I had
prepared as my own, and which is the one on file." From this time the
pens of other judges were busy, and in the inner political circles of
Washington the case of Dred Scott gradually became a shadowy and
portentous _cause célèbre_.
The first intimation which the public at large had of the coming new
dictum was given in Mr. Buchanan's inaugural. The fact that he did
not contemplate such an announcement until after his arrival in
Washington[5] leads to the inference that it was prompted from high
quarters. In Congressional and popular discussions the question of the
moment was at what period in the growth of a Territory its voters
might exclude or establish slavery. Referring to this Mr. Buchanan
said: "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."
The popular acquiescence being thus invoked by the Presidential voice
and example, the court announced its decision two days afterwards--March
6, 1857. The essential character of the transaction impressed itself
upon the very form of the judgment, if indeed it may be called at all
by that name. Chief-Justice Taney read the opinion of the court.
Justices Nelson, Wayne, Daniel, Grier, Catron, and Campbell each read a
separate and individual opinion, agreeing with the Chief-Justice on
some points, and omitting or disagreeing on others, or arriving at the
same result by different reasoning, and in the same manner differing
one from another. The two remaining associate justices, McLean and
Curtis, read emphatic dissenting opinions. Thus the collective
utterance of the bench resembled the speeches of a town meeting rather
than the decision of a court, and employed 240 printed pages of learned
legal disquisition to order the simple dismissal of a suit. The opinion
read by Chief-Justice Taney was long and elaborate, and the following
were among its leading conclusions:
That the Declaration of Independence and the Constitution of the
United States do not include nor refer to negroes otherwise than as
property; that they cannot become citizens of the United States nor
sue in the Federal courts. That Dred Scott's claim to freedom by
reason of his residence in Illinois was a Missouri question, which
Missouri law had decided against him. That the Constitution of the
United States recognizes slaves as property, and pledges the Federal
Government to protect it; and that the Missouri Compromise act and
like prohibitory laws are unconstitutional. That the Circuit Court of
the United States had no jurisdiction in the case and could give no
judgment in it, and must be directed to dismiss the suit.
This remarkable decision challenged the attention of the whole people
to a degree never before excited by any act of their courts of law.
Multiplied editions were at once printed,[6] scattered broadcast over
the land, read with the greatest avidity, and earnestly criticised.
The public sentiment regarding it immediately divided, generally on
existing party lines--the South and the Democrats accepting and
commending, the North and the Republicans spurning and condemning it.
The great anti-slavery public was not slow in making a practical
application of its dogmas: that a sweeping and revolutionary
exposition of the Constitution had been attempted when confessedly
the case and question had no right to be in court; that an evident
partisan dictum of national judges had been built on an avowed
partisan decision of State judges; that both the legislative and
judicial authority of the nation had been trifled with; that the
settler's "sovereignty" in Kansas consisted only of a Southern
planter's right to bring his slaves there; and that if under the
"property" theory the Constitution carries slavery to the Territories,
it would by the same inevitable logic carry it into free-States.
But much more offensive to the Northern mind than his conclusions of
law were the language and historical assertions by which Chief-Justice
Taney strove to justify them.
[Sidenote] 19 Howard, p. 407.
In the opinion of the court [said he] the legislation and
histories 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 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.
Quoting the provisions of several early slave codes, he continued:
[Sidenote] Ibid., p. 409.
They show that a perpetual and impassable barrier was intended to
be erected between the white race and the one which they had
reduced to slavery and governed as subjects with absolute and
despotic power, and which they then looked upon as so far below
them in the scale of created beings that intermarriages between
white persons and negroes or mulattoes were regarded as unnatural
and immoral, and punished as crimes, not only in the parties, but
in the person who joined them in marriage. And no distinction in
this respect was made between the free negro or mulatto and the
slave, but this stigma, of the deepest degradation, was fixed upon
the whole race.
Referring to the phrase in the Declaration of Independence, which
asserts that all men are created equal, he remarked:
[Sidenote] 19 Howard, p. 410.
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 for 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.
He then applied the facts thus assumed as follows:
[Sidenote] Ibid., pp. 425-6.
The only two provisions which point to them and include them treat
them as property, and make it the duty of the Government to
protect it; no other power in relation to this race is to be found
in the Constitution.... No one, we presume, supposes that any
change in public opinion or feeling in relation to this
unfortunate race, in the civilized nations of Europe or in this
country, should induce the court to give to the words of the
Constitution a more liberal construction in their favor than
they were intended to bear when the instrument was framed and
adopted.... It is not only the same in words, but the same in
meaning, and delegates the same powers to the Government, and
reserves and secures the same rights and privileges to the
citizen; and as long as it continues to exist in its present form,
it speaks not only in the same words but with the same meaning and
intent with which it spoke when it came from the hands of its
framers and was voted on and adopted by the people of the United
States.
This cold and pitiless historical delineation of the bondage,
ignorance, and degradation of the unfortunate kidnaped Africans and
their descendants in a by-gone century, as an immutable basis of
constitutional interpretation, was met by loud and indignant protest
from the North. The people and press of that section seized upon the
salient phrase of the statement, and applying it in the present tense,
accused the Chief-Justice with saying that "a negro has no rights
which a white man is bound to respect." This was certainly a
distortion of his exact words and meaning; yet the exaggeration was
more than half excusable, in view of the literal and unbending rigor
with which he proclaimed the constitutional disability of the entire
African race in the United States, and denied their birthright in the
Declaration of Independence. His unmerciful logic made the black
before the law less than a slave; it reduced him to the status of a
horse or dog, a bale of dry-goods or a block of stone. Against such a
debasement of any living image of the Divine Maker the resentment of
the public conscience of the North was quick and unsparing.
Had Chief-Justice Taney's delineation been historically correct, it
would have been nevertheless unwise and unchristian to embody it in
the form of a disqualifying legal sentence and an indelible political
brand. But its manifest untruth was clearly shown by Justice Curtis in
his dissenting opinion. He reminded the Chief-Justice that at the
adoption of the Constitution:
[Sidenote] 19 Howard, p. 582.
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 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.
Elsewhere in the same opinion he said:
[Sidenote] Ibid., pp. 574-5.
I shall not enter into an examination of the existing opinions of
that period respecting the African race, nor into any discussion
concerning the meaning of those who asserted in the Declaration of
Independence that all men are created equal; that they are endowed
by their Creator with certain inalienable rights; that among these
are life, liberty, and the pursuit of happiness. My own opinion
is, that a calm comparison of these assertions of universal
abstract truths, and of their own individual opinions and acts,
would not leave these men under any reproach of inconsistency;
that the great truths they asserted on that solemn occasion they
were ready and anxious to make effectual; wherever a necessary
regard to circumstances, which no statesman can disregard without
producing more evil than good, would allow; and that it would not
be just to them, nor true in itself, to allege that they intended
to say that the Creator of all men had endowed the white race
exclusively with the great natural rights which the Declaration of
Independence asserts.
Justice McLean, in his dissenting opinion, completed the outline of
the true historical picture in accurate language:
[Sidenote] 19 Howard, pp. 537-8.
I prefer the lights of Madison, Hamilton, and Jay, as a means of
construing the Constitution in all its bearings, rather than to
look behind that period into a traffic which is now declared to be
piracy, and punished with death by Christian nations. I do not
like to draw the sources of our domestic relations from so dark a
ground. Our independence was a great epoch in the history of
freedom; and while I admit the Government was not made especially
for the colored race, yet many of them were citizens of the New
England States, and exercised the rights of suffrage when the
Constitution was adopted, and it was not doubted by any
intelligent person that its tendencies would greatly ameliorate
their condition.
Many of the States on the adoption of the Constitution, or shortly
afterwards, took measures to abolish slavery within their
respective jurisdictions; and it is a well-known fact that a
belief was cherished by the leading men, South as well as North,
that the institution of slavery would gradually decline until it
would become extinct. The increased value of slave labor, in the
culture of cotton and sugar, prevented the realization of this
expectation. Like all other communities and States, the South were
influenced by what they considered to be their own interests. But
if we are to turn our attention to the dark ages of the world, why
confine our view to colored slavery? On the same principles white
men were made slaves. All slavery has its origin in power and is
against right.
To the constitutional theory advanced by the Chief-Justice, that
Congress cannot exercise sovereign powers over Federal Territories,
and hence cannot exclude slave property from them, Justices McLean and
Curtis also opposed a vigorous and exhaustive argument, which the most
eminent lawyers and statesmen of that day deemed conclusive. The
historical precedents alone ought to have determined the issue. "The
judicial mind of this country, State and Federal," said McLean, "has
agreed on no subject within its legitimate action with equal unanimity
as on the power of Congress to establish Territorial governments. No
court, State or Federal, no judge or statesman, is known to have had
any doubts on this question for nearly sixty years after the power was
exercised."
[Sidenote] 19 Howard, p. 619.
And Curtis added: "Here are eight distinct instances, beginning with
the first Congress, and coming down to the year 1848, in which
Congress has excluded slavery from the territory of the United States;
and six distinct instances in which Congress organized governments of
Territories by which slavery was recognized and continued, beginning
also with the first Congress, and coming down to the year 1822. These
acts were severally signed by seven Presidents of the United States,
beginning with General Washington, and coming regularly down as far as
Mr. John Quincy Adams, thus including all who were in public life when
the Constitution was adopted. If the practical construction of the
Constitution, contemporaneously with its going into effect, by men
intimately acquainted with its history from their personal
participation in framing and adopting it, and continued by them
through a long series of acts of the gravest importance, be entitled
to weight in the judicial mind on a question of construction, it would
seem to be difficult to resist the force of the acts above adverted
to."
[Illustration: SAMUEL NELSON.]
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[1] The declaration in the case of Dred Scott vs. John F.A. Sandford
was filed in the clerk's office of the Circuit Court of the United
States for the district of Missouri on the second day of November,
1853. The trespass complained of is alleged to have occurred on the
first day of January, 1853.--Manuscript Records of the Supreme Court
of the United States.
[2] At the first hearing Montgomery Blair argued the case for Dred
Scott, and Senator Geyer, of Missouri, and ex-Attorney-General Reverdy
Johnson, of Maryland, for the claimant. At the second hearing Mr.
Blair and George Ticknor Curtis, of Boston, argued the case on behalf
of Dred Scott, and Mr. Greyer and Mr. Johnson again made the argument
for the claimant. All of them performed the service without
compensation.
[3] "The court will not decide the question of the Missouri Compromise
line--a majority of the judges being of opinion that it is not
necessary to do so. (This is confidential.) The one engrossing subject
in both Houses of Congress and with all the members is the Presidency;
and upon this everything done and omitted, except the most ordinary
necessities of the country, depends."--[Letter of Justice Curtis to
Mr. Ticknor, April 8, 1856. G.T. Curtis, "Life of B.R. Curtis," Vol.
I., p. 180.]
[4] A striking example may be found in the utterance of Attorney-General
Caleb Cushing, of the retiring Pierce Administration, in a little
parting address to the Supreme Court, March 4, 1857:
"Yours is not the gauntleted hand of the soldier, nor yours the
voice which commands armies, rules cabinets, or leads senates; but
though you are none of these, yet you are backed by all of them.
Theirs is the external power which sustains your moral authority;
you are the incarnate mind of the political body of the nation. In
the complex institutions of our country you are the pivot point
upon which the rights and liberties of all, government and people
alike, turn; or, rather, you are the central light of constitutional
wisdom around which they perpetually revolve. Long may this court
retain the confidence of our country as the great conservators,
not of the private peace only, but of the sanctity and integrity
of the Constitution."--"National Intelligencer," March 5, 1857.
[5] "Mr. Buchanan was also preparing his inaugural address with his
usual care and painstaking, and I copied his drafts and recopied them
until he had prepared it to his satisfaction. It underwent no alteration
after he went to the National Hotel in Washington, except that he there
inserted a clause in regard to the question then pending in the Supreme
Court, as one that would dispose of a vexed and dangerous topic by the
highest judicial authority of the land."--Statement of James Buchanan
Henry (President Buchanan's private secretary) in the "Life of James
Buchanan," by George Ticknor Curtis, Vol. II., p. 187.
[6] "It may not be improper for me here to add that so great an
interest did I take in that decision, and in its principles being
sustained and understood in the Commonwealth of Kentucky, that I took
the trouble at my own cost to print or have printed a large edition of
that decision to scatter it over the State; and unless the mails have
miscarried, there is scarcely a member elected to the Legislature who
has not received a copy with my frank."--Vice-president Breckinridge,
Frankfort Speech, December, 1859.