CHIEF JUSTICE ROGER B. TANEY 
 
Legal and Historical Status 
 
 of the 
 
 Dred Scott Decision 
 
 A History of the Case and an Examination of 
 
 the Opinion Delivered by the Supreme 
 
 Court of the United States, 
 
 March 6, 1857. 
 
 By 
 
 ELBERT WILLIAM R. WING, LL. B., 
 
 Attorney and Counsellor of the Supreme Court of the United States; 
 Author of Northern Rebellion and Southern Secession," etc. 
 
 A bargain cannot be broken on one side and 
 still bind the other. I am for the Constitution, 
 and the whole Constitution. Daniel Webster 
 of Massachusetts, speech in 1851. 
 
 Qui statuit aliquid parte inaudita altera, 
 Aequum licet statuerit, haud aequus fuit. 
 
 Seneca. 
 
 Washington, D. C. 
 
 Cobden Publishing Company 
 
 1909. 
 
COPYRIGHT, 1908, 
 
 BY 
 E. W. R. EWING. 
 
 All rights reserved. 
 
 PRINTED BY 
 
 THE EDDY PRESS CORPORATION 
 WINCHESTER, VA. 
 
CONTENTS 
 
 ERRATA 
 
 PAGE 
 
 LINE 
 
 
 
 5 
 
 19: 
 
 Brice should 
 
 be Bryce. 
 
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 8: 
 
 unauthorative " 
 
 " unauthoritative 
 
 ii 
 
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 purturbations 
 
 " perturbations. 
 
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 Brice 
 
 " Bryce. 
 
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 ships 
 
 " shops. 
 
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 Missouri " 
 
 " Mississippi. 
 
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 accured 
 
 " accused. 
 
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 heel 
 
 " had. 
 
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 after "treated" interline "him." 
 
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 a obiter should 
 
 be an obiter. 
 
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 eight 
 
 " eighth. 
 
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 Is so 
 
 " Ifso. 
 
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 mullatoes " 
 
 " mulattoes. 
 
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 u: 
 
 Pickney 
 
 Pinckney. 
 
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 Garfield " 
 
 " Hayes. 
 
 183 
 
 8: 
 
 was " 
 
 " were. 
 
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 in " 
 
 " is. 
 
 191 
 
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 two-thirds 
 
 " three-fourths. 
 
 191 
 
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 two-thirds " 
 
 " three-fourths. 
 
 193 
 
 i: 
 
 omit "the" before its 
 
 . 
 
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 7- 
 
 stranger should 
 
 be stronger. 
 
 198 
 
 32: 
 
 convert " 
 
 " covert. 
 
 201 
 
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 ebolutions 
 
 " ebullitions. 
 
 221 
 
 n: 
 
 Pickney " 
 
 " Pinckney. 
 
 Nullification in the South 
 Tndex 
 
 .206 
 225 
 
 982258 
 
-t - 
 
 PRINTED BY 
 
 THE EDDY PRESS CORPORATION 
 WINCHESTER, VA. 
 
CONTENTS 
 
 PAGE 
 The Objects of this Work 5 
 
 Chapter I. 
 American Courts 9 
 
 Chapter II. 
 History of the Case 18 
 
 Chapter III. 
 
 The Opinion read by Chief Justice Taney the Judicial Opinion of 
 the Court 32 
 
 Chapter IV. 
 
 Citizenship of Negroes 50 
 
 Chapter V. 
 Scott a Slave by Illinois Law 75 
 
 Chapter VI. 
 Obiter Dicta and the Opinion 91 
 
 Chapter VII. 
 
 Congress and Territorial Legislation 117 
 
 Chapter VIII. 
 
 The Missouri Compromise the only Anti-Slavery Territorial 
 Attempt by Congress after the Constitution 139 
 
 Chapter IX. 
 Due Process of Law 155 
 
 Chapter X. 
 
 Slave Property under the Constitution and outside of a State 166 
 
 Chapter XI. 
 
 Northern Nullification and Southern Secession 187 
 
 Chapter XII. 
 
 Nullification in the South 206 
 
 Index , 225 
 
 982258 
 
FOUNDATION PRECEDENTS. 
 
 In 1782 Judge Wythe of the supreme court of Virginia, 
 with reference to the constitution of that State, speaking for 
 the court said : 
 
 "Nay more, if the whole legislature, an event to be dep 
 recated, should attempt to overlap the bounds prescribed to 
 them by the people, I, in administering the public justice of 
 the country, will meet the united powers at my seat in this 
 tribunal; and, pointing to the constitution, will say to them, 
 here is the limit of your authority, and hither shall you go, 
 but no further." 
 
 This is the first reported case in the United States where 
 the nullity of an unconstitutional law was discussed before a 
 judicial tribunal. It is the first great American precedent. 
 See 4 Call s Virginia Reports, page 5. 
 
 In 1803 the Supreme Court of the United States held that, 
 "The powers of the legislature (Congress) are defined and 
 limited; and, that those limits might not be mistaken or for 
 gotten, the Constitution is written." 
 
 This is the first instance in which an act of Congress was 
 held unconstitutional, and the first in history wherein a court 
 called in question an act of a national legislature. See Mar- 
 bury vs. Madison, i Cranch, United States Reports, 162. 
 
 The American people have since believed that the prin 
 ciples thus announced and since followed are essential to their 
 rights and liberty. 
 
OBJECTS OF THIS WORK, _ Cj 
 
 The Dred Scott Case, decided by the Supreme Court of the 
 United States on March 6, 1857, involved JdifL_Jiio.sL_ funda 
 mental principles of government. These principles were the 
 issues : slavery was only one of many conditions some of which 
 sooner or later would have presented for adjudication these 
 questions. The principles involved, being applicable much be 
 yond, apart from, and outside and irrespective of that which 
 brought them into issue in this case,, survived ; slavery shortly 
 perished, just as in reasonable time it would have done without 
 the violerice"wliich accompanied its going. Because of the sur- 
 ^vival of these questions of government, a study of this case 
 is of great practical_yalue ; and aTEisfbry of the case and of its 
 times, a correct estimate of the opinion and decision of the 
 court, a truthful picture of the subsequent conditions, are in 
 dispensable to a correct understanding of the most crucial per 
 iod in American history. 
 
 As to the importance of the case and its world-famous de 
 cision eminent writers are agreed. For instance : Honorable 
 James Bnke, English diplomat, distinguished statesman, and 
 thorough" historian, declares that the decision "did much to 
 precipit.ate_the_Civil War." Doctor H. von Hoist, late profes 
 sor at Frieburg, Germany, widely accepted as an authority 
 upon American history, pronounces this case as of "eminent 
 historical importance;" and in his extensive political and con 
 stitutional history of this country he devotes twenty-four con 
 secutive pages to its study. Francis Newton Thorpe, in his 
 recent Constitutional History of the United States, says : "The 
 questions involved went to the root of our institutions." James 
 Ford Rhodes affirms : "The opinion of the court was a fact of 
 tremendous import." Alexander Johnston, long professor at 
 
6 LEGAL AND HISTORICAL STATUS 
 
 Princeton University, holds : "One of the most important 
 cases ever decided in the United States." The late Mr. Justice 
 Miller, while associate justice of the Supreme Court of the 
 United States, pronounced the Dred Scott Case and Prigg vs. 
 ^Pennsylvania "perhaps the two most important decisions of 
 the Supreme Court that have been delivered in many years," 
 adding, excepting the latter case : "The Dred Scott decision 
 overshadowed all others on the subject, in the importance of 
 the principles which it laid down, and in the immense influ 
 ence it had upon the history of the country." August 2, 1859, 
 Alexander H. Stephens wrote : "On the principles of the Dred 
 Scott decision depended . . . in all probability the destiny 
 of this country." 
 
 When the court, concurring in the opinion written by the 
 Chief Justice, as a fundamental premise upon which it rested 
 its decision, applied to Congress when legislating for the 
 Louisiana Purchase territory, a part of the United States and 
 at the time of the legislation yet in a territorial condition, the 
 restraints and limitations found in the Constitution of the 
 United States, holding that Congress in legislating for a Ter 
 ritory could exercise no power not conferred by that instru 
 ment, those who followed Webster and Benton, the surviving 
 enemies of the Calhoun school, broke forth in rage nothing 
 short of the nullification of Federal power. When in its 
 construction of the Constitution the opinion of the court, as 
 written by Chief Justice Taney of Maryland, adjudged the 
 Missouri Compromise law unconstitutional, indignation be 
 came open rebellion. The Republican party, the abolitionists, 
 and Northern States repudiated the decision, and declared 
 that they would not be bound by the principles it laid down, 
 and that in subsequent legislation Congress should and would 
 treat the decision as a nullity. 
 
 This repudiation professed to rest upon the ground that 
 the judgment of the court, at least as to the constitutionality 
 of the Missouri Compromise law, rested upon an obiter dictum, 
 and was therefore not law; and that the court in its judgment 
 
OF THE DRED SCOTT DECISION 
 
 as to the citizenship of Scott, which depended upon the mean 
 ing of the word citizen as used in that clause in the Constitu 
 tion conferring upon Federal courts jurisdiction over suits 
 between citizens of different States, though not dictum was 
 in vital error in its arguments and conclusions. Not a few 
 added to the popular error by going so far as to declare that 
 the opinion read by Taney was not the judicial opinion of the 
 court, but his individual and therefore unauthorative utterance. 
 \ In February, 1865, it was said in the Atlantic Monthly 
 that Taney "will most likely, after the traitor leaders, be held 
 in infamous remembrance;" and that he covered "the most 
 glorious pages of his country s history with infamy, and in 
 sulted the virtue and intelligence of the civilized world." 
 Sumner said that the decision "gave conspirators new confi 
 dence." On March 26, 1857, the New York Independent pro 
 nounced the opinion "a treasonable attempt" to alter the law. 
 The same spirit of rebellion and insubordination developed 
 widely throughout the North and West. In later days the 
 bitterness is scarcely less pronounced. For instance : Hamp 
 ton L. Carson, a distinguished member of the Philadelphia 
 bar and a well-known author, says that the decision "was a 
 blunder a blunder worse than a crime;" Henry W. Elson 
 declares: "The great body of the people of the North, how 
 ever, condemned this unjust decision of the court;" while 
 Albert Bushnell Hart believes that the "decision was so forced 
 and so contrary to historical facts that the Republican leaders 
 declared that they were not bound by it;" and James Ford 
 Rhodes says that Taney s argument is "inhuman" and "a 
 great piece of specious reasoning," "outraging precedent, his 
 tory and justice." With one accord these historians acclaim 
 the judgment to be resting upon an obiter dictum some say 
 dicta. 
 
 That these charges, found in one form or another in his 
 tories and encyclopaedias down to the latest, are without foun 
 dation in law or history ; that the decision of each question was 
 valid and binding law; that the repudiation became the most 
 
8 LEGAL AND HISTORICAL STATUS 
 
 pronounced nullification, more dangerous and more far-reach 
 ing than anything of the kind ever found in the South, leading 
 to conditions destructive of domestic peace, personal security 
 and happiness in the South, and because of the unpardonable 
 errors upon which it rested inexcusable, it is my purpose to 
 establish by the evidence I present in this work. 
 
 I have endeavored to present the facts and the law not in 
 the nature of a lawyer s brief but in such impartial and judicial 
 fulness as that the lawyer and the student generally may have 
 an authoritative source-book upon the history and the law 
 of this great case. Incidentally I have tried to make the dis 
 cussion of some practical value to the busy member of the bar. 
 More particularly is this true of the examination of the jur 
 isdiction of Federal courts, the rules of pleas in abatement 
 arising on writs of error, the nature of obiter dicta, due pro 
 cess of law, and the distinction between questions judicial 
 and political. In discussing the constitutionality of. the Mis 
 souri Compromise I have given what I believe to be both a 
 practical and timely consideration of the powers of Congress 
 to legislate for a Territory, involving the application of the 
 Constitution to acquired territory, such as Porto Rico or the 
 Philippines, which bring us questions not different from those 
 which the territory of the Louisiana Purchase presented. 
 
 Because both interesting and necessary a careful history 
 of the case and a survey of the fundamental axioms of law 
 and government upon which it rests, precede the examination 
 of the questions which the record presented to the court. 
 That the student might have a comprehensive survey of the 
 essentials both of the opinion of the court and of the dissent 
 ing opinions, together with the applicable law and the histor 
 ical facts, in a convenient compass, immense labor has been 
 necessary. However, in view of the universally recognized im 
 portance of the case and the indictment here brought against 
 history as now generally written, the seriousness of the exami 
 nation fully justifies the labor. 
 
I. 
 
 AMERICAN COURTS. 
 
 To comprehend the Dred Scott Case and the history 
 which centers about its famous decision, it is very important 
 that we keep before the mind the distinction between the courts 
 of a State and the courts of the United States. The peculiar 
 relations between the States and the Federal Government give 
 us a dual judicial system, each having its well-defined field of 
 jurisdiction. 
 
 At this time we need not enter the mooted question as to 
 how the Federal Government was created. What is the Fed 
 eral Government, the rules by which its powers are determined, 
 especially its legislative and judicial powers, and what 
 rights look to the Federal Government and what to the State 
 government for protection, are the questions that must be 
 settled in order that we may grasp the true bearing of the 
 Dred Scott decision upon the history of this country. 
 
 Whether the Federal Government is the creature of the 
 States in their independent and sovereign capacities or of "the 
 people acting as sovereigns of the whole country," it is certain 
 that the creators were competent to invest the general govern 
 ment with all the powers which "they might deem proper and 
 necessary; and to extend or restrain these powers according 
 to their own good pleasure/ as expressed by the Supreme 
 Court in I8I6. 1 Whether the Constitution be "neither wholly 
 National nor wholly Federal," as suggested by Madison in the 
 Federalist (No. 39), it is certain that the basal principle upon 
 which the government the American government with its 
 dual form, State and Federal has been preserved~ancf rriain- 
 
 1 Martin vs. Hunter, i Wheat. 324. 
 
IO LEGAL AND HISTORICAL STATUS 
 
 tained is "that there can be no loss of separate and independ 
 ent autonomy to the States, through their union under the 
 Constitution," and that "the preservation of the States t and 
 the maintenance of their governments are as much within the 
 design and care of the Constitution as the preservation of the 
 Union," as said by the same court in 1868, a time when but 
 for the sober poise of that arm of the government Union 
 would have overshadowed State. 2 
 
 The spheres of these respective governments are equally 
 well-defined and carefully preserved. 
 
 "The government of the United States is one of dele 
 gated powers alone. Its authority is defined and limited by the 
 Constitution. All powers not granted to it by that instru 
 ment are reserved to the States or the people. No rights can 
 be acquired under the Constitution or the laws of the United 
 States, except such as the government of the United States 
 has the authority to grant or secure. All that cannot be so 
 granted or secured are left under the protection of the States." 3 
 
 "The general government and the States, although both 
 exist within the same territorial limits, are separate and dis 
 tinct sovereignties, acting separately and independently of 
 each other, within their respective spheres. The former in its 
 appropriate sphere is supreme; but the States within the limit 
 of the powers not granted, or, in the language of the tenth 
 amendment, reserved are as independent of the general gov 
 ernment as that government within its sphere is independent 
 of the States. 4 
 
 "Within the sphere allotted to them, the co-ordinate 
 branches of the general government revolve, unobstructed 
 by any legitimate exercise of power by the State governments. 
 The powers exclusively given to the Federal Government are 
 limitations upon the State authorities. But, with the exception 
 
 2 Texas vs. White, 7 Wall. 724; also s ee Downes vs. Bidwell, (1901) 182 U. S. 
 351- 
 
 3 U. S. vs. Cruikshank, (1875) 92 U. S. 551; Kohl vs. U. S., gi U. S. 3/2; 
 McCulloch vs. Maryland, (1819) 4 Wheat. 406; Pacific Ins. Co. vs. Soule, (1868) 
 7 Wall. 444; Butterfield vs. Stranahan, (1904) 192 U. S. 492. 
 
 ^Collector vs. Day, (1870) n Wall. U. S. 124. 
 
OF THE DRED SCOTT DECISION II 
 
 of these limitations, the States are supreme; and their sover 
 eignty can be no more invaded by the action of the general 
 government than the action of the State governments can ar 
 rest or obstruct the course of the national power/ 5 
 
 All branches of the government recognize these definitions, 
 repeatedly announced by our Supreme Court, as clearly setting 
 forth our government, and from the earliest day to this the 
 courts, the legislature and the executive have based their ac 
 tions upon these principles. That the court has correctly de 
 nned the powers of the National Government as thus so long 
 followed, is not now questioned by any authority in this 
 country. Some purturbations occurred on the part of the exec 
 utive and legislative branches in the great upheaval of 1861 
 to 1865, but the judiciary and general common sense at length 
 steadied the movement and the great machine moved on none 
 the less strong for the strain. 
 
 With our two judicial systems it is readily seen that when 
 any party believes himself aggrieved and regards it necessary 
 to have a court interpose, he must find out in what court, 
 whether in a State court or before a United States tribunal, 
 he may proceed. Now and then such a party may have his 
 option, and may bring his cause of complaint before a certain 
 one of either of these, in which case the jurisdiction is said 
 to be concurrent Instances of concurrent jurisdiction are not 
 numerous. Having examined the Constitution and laws of 
 Congress pursuant thereto, if an aggrieved party finds he can 
 not sue in a Federal court, he may always do so in a State 
 court. No man, not even a slave, ever had a right to be pro 
 tected or an injury to redress but that he had some place in one 
 or the other of these American judicial systems where his 
 complaint would be heard and determined according to the 
 laws ordained by the people. 
 
 In his action Dred Scott, of course always by his attor 
 neys, asserted that he had certain rights. Therefore it be 
 came necessary for the court in which he sought to enforce 
 
 5 Worcester vs. Georgia, (1832) 6 Pet. (U. S.) 570. 
 
12 LEGAL AND HISTORICAL STATUS 
 
 his alleged rights to determine as to the correctness of his 
 claim of right to use the forum he sought to enter. Whether 
 he had such rights and whether they were "left under the 
 protection of the State" of Missouri, this being the State in 
 which he claimed his home and his citizenship, or whether 
 the alleged rights depended upon the protection of the Federal 
 Government, were questions which were of first and vital 
 inquiry in both the trial courts and the Supreme Court of 
 the United States, the latter having been reached by appeal. 
 
 Hence, with one or two more of the fundamental and bas 
 al principles of our government as beacon lights kept well to 
 view, we are prepared to follow the court in the solution of the 
 questions which this great case involved. 
 
 One of the most important of these great head-lights is 
 the truth -that the Constitution does not change; courts cannot 
 change it. In America courts interpret that great instrument 
 as it was meant to be when framed or amended and ratified 
 by the States. "Constitutional provisions do not change," 
 said our Supreme Court in In re Debs, in 1895, "but their 
 operation extends to new matters as the modes of business 
 and the habits and the life of the people vary with each suc 
 ceeding generation. The law of the common carrier is the 
 same today as when transportation on land was by coach 
 and by wagon, and on water by canal boat and sailing vessel, 
 yet in its actual operation it touches and regulates transporta 
 tion by modes then unknown, the railroad train and the steam 
 ship. Just so it is with the grant to the National Government 
 of power over interstate commerce. The Constitution has not 
 changed. The power is the same." 6 
 
 Again and again these truths have been repeated by our 
 courts and by those, who administer the affairs of government. 
 They have long been with us axiomatic. 1 In the unchangeable 
 nature of our government lies one of its sources of stability 
 In the fact that, where factions differ as to its power in a give 
 case, our Supreme Court, the arbiter, seeks to place itself i 
 nearly as possible in the condition of the men who frame 
 
 6 i58 U. S. 591. 
 
OF THE DRED SCOTT DECISION 13 
 
 the Constitution or any operative amendment thereof, and thus 
 finding its meaning then enforce it as understood when 
 adopted, lies our greatest security. In America the charter 
 of government as written is supreme, and remains the same 
 as when adopted ; the power to alter or amend reposes alone \ 
 with the people of the States. 
 
 In the fact that the people of three-fourths of the States, 
 having written a government guide, alone can change it from 
 time to time as conditions demand and that it is supreme until j 
 thus changed, lies the chief hope of popular rule. That we have 
 a written guide for all departments of our government, operat 
 ing within the sphere of the Nation and alike in that of the 
 State in so far as applicable, binding upon the executive, the 
 legislative, and the judicial branches, is one of the happiest 
 birthrights of the American people. 
 
 Repeating this great truth, our Supreme Court in decid 
 ing Muller vs. Oregon, Feb. 24, 1908, said: "Constitutional 
 questions, it is true, are not settled by even a consensus of 
 public opinion, for it is the peculiar value of a written consti 
 tution that it places in unchanging form limitations upon legis 
 lative action, and thus gives a permanence and stability to pop 
 ular government which otherwise would be lacking." 7 
 
 The next great truth which we must bear in mind in our 
 study of this case is, that the Supreme Court of the United 
 States is the sword of popular rule. It is the balance wheel 
 preserving the democracy of America from monarchy or plu 
 tocracy. Sovereign power is more nearly expressed and ex 
 ercised by our Supreme Court than by any other branch or 
 branches of our government. The distinguished Englishman, 
 Mr. James Brdjce, in his The American Commonwealth, has 
 said : "The Supreme Court is the voice of the Constitution ;" 
 and Mr. Justice Brewer but announced the settled rule when 
 he said: 
 
 "A tribunal which, standing back of legislative and exe 
 cutive officials, could declare what they attempted to do to be 
 of no effect, because in conflict with that organic instrument 
 
 7 2o8 U. S. 420. 
 
14 LEGAL AND HISTORICAL STATUS 
 
 [the Constitution], was soon recognized as a factor of supreme 
 importance in the nation. And that the Supreme Court was 
 given this power by the Constitution was so clearly shown by 
 Chief Justice Marshall in his opinion in Marbury vs. Madison, 
 i Cranch, 137, that no one since has seriously challenged it." 
 And again he said: "Is it too much to say that it is all-import 
 ant for the well-being of this Republic, that nothing should be 
 done to abridge its [the Supreme Court s] powers or hamper 
 its usefulness? In its stability and permanence is found assur 
 ance that popular government will not degenerate into govern 
 ment by the mob ; and while it continues an unimpaired factor 
 in our national life the Republic will live, a blessing to its 
 citizens and a light to the world." 
 
 Therefore, the interpretation of the Constitution by which 
 the court was guided in deciding the Dred Scott Case was the 
 final and binding law of the land. Final in its operation upon 
 Congress and the Executive; and final until therequisite number 
 of States saw best to amend the great charter, and give it some 
 other force. The States did not so amend, and thus the peo 
 ple ratified the decision, leaving those in opposition to the 
 court s view no recourse except submission, rebellion or, worse, 
 nullification. A great number of those who would not agree 
 with the court chose the dangerous expedient of nullification. 
 For this reason historians too often misrepresent the great 
 opinion and, only in milder terms than formerly, defame the 
 court. 
 
 The Supreme Court of the United States is now, as it was 
 when it rendered the Dred Scott decision, composed of nine 
 judges. These are appointed by the President of the United 
 States, and confirmed by the Senate. They serve for life or 
 during good behavior. This court sits in the capitol, in a 
 chamber formerly used by the Senate. One of its members is 
 made Chief Justice and the others are known as associate 
 justices. When the Dred Scott decision was handed down in 
 March, 1857, Roger B. Taney of Maryland was Chief Justice. 
 
OF THE DRED SCOTT DECISION 15 
 
 Taney inherited slaves, but early in life manumitted them, 
 providing for two who were old and infirm to the day of their 
 death. Always, when a practicing lawyer, he rendered profes 
 sional aid to slaves seeking the rights of freedom. Once he 
 defended a man charged with inciting slaves to insurrection, 
 and so intense was the feeling that his life was endangered; 
 and, Carson adds, "when pressed with the gravest business, 
 had been known to stop in the streets of Washington to help 
 a negro child home with a pail of water." 8 Neither of the 
 associate justices held slaves; and of the bench four were from 
 States where slavery had ceased more oj less to be recognized, 
 while five were from States recognizing the legality of slavery. 
 Of these Justices John McLean of Ohio was appointed in 1829 
 and served till he died in 1864; James M. Wayne of Georgia 
 served from 1833 to 1867; John Catron of Tennessee was on 
 the bench from 1837 to 1865; Peter V. Daniel of Virginia, 
 from 1841 to 1860, at which time he died; Samuel Nelson of 
 New York, from 1845 to l &7 2 > Robert C. Grier of Pennsyl 
 vania, from 1846 to 1869; Benj/R. Curtis of Massachusetts, 
 1851 to his resignation in 1857; and James A. Campbell of 
 Alabama, from 1853 to 1861, when he resigned. 9 
 
 Judge Campbell, having resigned, threw himself heartily 
 into the service of the Confederate States, serving with distinc 
 tion. All of the others, it is seen, Judge Daniel having died 
 before secession, remained loyal to the Union, and fought val- 
 iently to maintain inviolate the sacred principles of the Con 
 stitution during the strain of the war. Judge Curtis, who with 
 McLean dissented in the Dred Scott Case, administered to 
 Lincoln for his unconstitutional so-called emancipation pro 
 clamation, the most unanswerable rebuke. 
 
 A case having been submitted to the court, five or more 
 being agreed as to the judgment to render therein, one of the 
 number is selected to write out the decision. In doing this he 
 generally gives the reasons for the conclusion, referring to the 
 
 8 Hampton L. Carson, The History of the Supreme Court, vol. 2, 372; Tyler s 
 Memoirs of Taney, 664. 
 
 9 Thorpe, Const. Hist, of U. S., vol. 2, 538; and the many histories of the court. 
 
1 6 LEGAL AND HISTORICAL STATUS 
 
 Constitution, to previous decisions of that court, to the history 
 of the country; and now and then to decisions in England or 
 other countries in so far as they give light and show a com 
 mon understanding of a given question. This is called the 
 opinion of the court. Those of the court who do not agree in 
 a conclusion reached by the majority, may write an opinion 
 of their own and have it put upon record ; and if they do so it 
 is called a dissenting opinion. Dissenting opinions by a minor 
 ity do not affect the authority or the validity of the majority 
 opinion, the latter is always the opinion of the court. A 
 dissenting opinion is for the purpose of preserving the views 
 of the minority and of showing their good faith. 
 
 In the Dred Scott decision two of the nine judges dis 
 sented, and this is what Mr. Lincoln meant when he talked so 
 often of "a divided court." Each member wrote and had re 
 corded his reasons for dissent from or agreement with Judge 
 Taney. However, decisions where a minority of the court 
 dissents are numerous, some of our best law having been deter 
 mined by a division of four to five. 
 
 There is nothing strange and nothing derogatory to the 
 highest validity in that we find each judge giving some ex 
 pression as to the logical process by which he reached an 
 agreement with the majority opinion and judgment. Each 
 felt, as judges quite often do, that he could express himself 
 more clearly than could another for him. One of our most 
 reliable law authorities, speaking of judicial opinions in gen 
 eral, says : "While the opinion announces the decision of the 
 court, it does not follow that each member has arrived at 
 his conclusion by the same reasoning or bases it on the same 
 principles. 10 
 
 Our judicial reports abound in cases where members of 
 the court differed as to reasons or grounds, yet concurred in 
 conclusions and opinions. An instance is, Hawaii vs. Manki- 
 chi, 190 U. S., 218. Justice White, with whom Justice McKen- 
 na agreed, said : "I concur in the meaning of the act [of Con- 
 
 10 26 American and English Enc. Law, 2d ed., 170, and the cases there cite. . 
 
OF THE DRED SCOTT DECISION I/ 
 
 gress] as explained in the opinion of the court, and in the 
 main in the reasoning by which that interpretation is elucidated. 
 I prefer, however, to place my concurrence in the judgment 
 upon an additional ground which seems to be more funda 
 mental." And this assent of White and McKenna was nec 
 essary to a judicial decision, more so than was the assent of any 
 one of the court to the Chief Justice s opinion in the Scott 
 case, for in the Hawaiian case four of the nine dissented. Yet 
 no one has ever questioned the authority and binding force 
 of the latter decision. 
 
 In fact, great numbers of decisions and opinions in cases 
 that have settled far reaching and basal principles have been 
 determined by a divided court. In the last few years three 
 famous decisions under the Sherman law, the well-known In 
 sular Cases, the Income Tax Cases, and the Lottery Case, 
 have been decided by five to four. 11 ^-When Lincoln and a 
 furious North, for want of logic, derided the Dred Scott deci 
 sion, rendered judicial by 7 to 2, they forgot that the world 
 long before them quietly and without derision acquiesced in 
 decisions by divided courts; and today he would be esteemed 
 traitorous who would advocate the nullification of a decision 
 by our Supreme Court though made by the narrow margin 
 of frve to four. 12 
 
 n The Nat. Corporation Reporter, 1906, for a specific list. 
 
 ^Decisions of courts of last resort, both in the States and of Federal courts, 
 are reported in bound volumes . Such courts have an official reporter whose business 
 it is to prepare these reports under the supervision of the court. Benjamin C. 
 Howard was such reporter when the Dred Scott Case was decided. He published 
 the opinion in the nineteenth volume of his reports; and therefore lawyers refer 
 to it as "19 Howard." In more recent years the decisions of both State and Federal 
 courts are no longer indicated by the name of the reporter. They are now known 
 as United States reports, Virginia reports, New York Appellate reports, and so on 
 as the case may be. 
 
II. 
 
 HISTORY OF THE QASE. 
 
 In all history territorial expansion has been accompanied 
 by bitter contests. Bloodshed and cruelty, stratagem and 
 unmasked force, shameless diplomatic rascality and dark gov 
 ernmental intrigues cloud the titles to the greater number of 
 the world-political geographic divisions. As westward with 
 an ever widening angle the American people poured in cease 
 less streams across rivers, prairies and mountains, ma*h s more 
 savage nature burst forth into similar battle. The varied cli 
 mate of the States from the bleak hills of northern New Eng 
 land down to tropical Florida and Louisiana, and the variety 
 of natural resources, with intercommunication slow and ex 
 pensive, determined industries and labor systems, producing 
 antagonistic sectional interests. These natural conditions 
 evolved from a labor system once common to the Union, two 
 systems, and two more antagonistic it would be hard to im 
 agine. Conscience and philanthropy had as little to do with 
 the conversion of the slave system of the North into free- 
 labor, as they have in throttling today monopolistic predatory 
 invasions of vast wealth. Moving down from the North and 
 reaching out from the South, "in the days of our continental 
 expansion these antagonistic systems, fundamental and in 
 the vanguard of the two lines of march because of the basal 
 and preeminent nature of labor, disputed with each other for 
 supremacy in our new Territories. The grapple was relentless. 
 The bowie-knife and the Sharps rifle/the torch and the cut 
 lass left their deep, gore-stained .traces. 
 
 Having grown into manufacturing and shipping interests, 
 the North found not only that the negro slave had not the 
 
 18 
 
OF THE DRED SCOTT DECISION IQ 
 
 intelligence to do the work of the mills, but that the slave sys 
 tem in the South to which the mills looked for buyers, did 
 not furnish the markets essential to the highest prosperity. 
 The white laborer from the North, having found the mills and 
 ships overcrowded and agriculture unprofitable, shrank from 
 contact with the slave-labor system because it monopolized the 
 labor market and created for the white laborer a social odium. 
 Slave labor placed the white laborer at a serious disadvantage. 
 During its days of economic profit, the slave system, favored 
 by nature, made the South affluent as a section, gave time for 
 culture, the study of government, and the development of court 
 ly qualities inherent in the white race of the South. So the poli 
 tician of the North found in his southern competitor an able 
 and dangerous obstacle, one both ambitious and competent to 
 rule, and who in the administration of the affairs of govern 
 ment was opposed to government paternalism over the manu 
 facturing interests of the North. Truis^diejabor_system of the 
 South found opposition in the combined labor, capital and polit 
 ician of the North. In this opposition the fanatic and insane 
 ly conscientious found a fertile field. 
 
 The Constitution of the United States left to each State 
 the right and power to legalize and continue African slave la 
 bor." "^Having "been established" by the laws of a State, the 
 Federal Government by the Constitution was pledged to pro 
 tect and return fugitives from the system, such fugitives having 
 escaped beyond the_terr_itprial limits of the slave-labor State. 
 Hence the control of a Territory, which rapidly grew to State 
 hood with power to create or destroy domestic slavery, became 
 important to the slave owner who wished to seek his fortune 
 in the new West, and to the politician, to the white* laborer, 
 and to the manufacturer who coveted markets such only as 
 free-labor would open. Thus between the North and the South 1 
 antagonistic theories^of government became constantly more 
 pronounced. 
 
 The* admission of the State of Missouri in 1820 brought 
 to the front the most astute generals representing these differ- 
 
 \ 
 
2O LEGAL AND HISTORICAL STATUS 
 
 ent theories of government. Representatives from the North 
 refused to admit the Territory to be known as Missouri as a 
 State until she should by her constitution forbid domestic 
 slavery, notwithstanding her many thousands of slaves recog 
 nized by the Federal Government as valuable property. The 
 people of Missouri were clearly entitled to be recognized as 
 a State, and to avoid the injustice threatened by the obstruc 
 tionists, an adjustment was finally reached, known as the 
 Missouri Compromise, by which the State was admitted, and 
 a provision incorporated into the bill forbidding slavery in that 
 Territory of the Louisiana Purchase outside of Missouri and 
 north of thirty-six degrees and thirty minutes north latitude. 
 
 The divergent views of the nature of the Federal Gov 
 ernment and of the power of Congress over territory acquired 
 by the United States, differences that had begun to manifest 
 themselves in 1803 when Jefferson acquired the Louisiana Pur 
 chase, that became prominent in the dispute over the admission 
 of Missouri, became more pronounced as each further acquisi 
 tion of territory was made and each time Congress came to 
 discuss or legislate for such domain. 
 
 In general propositions from Southern statesmen were 
 charged with having the ulterior purpose of extending slavery 
 for slavery s sake. While, in fact, in the main the issues had in 
 trinsic value, and concerned the very life of the American 
 government, regardless of whether the maintenance of the 
 principles involved would favor either slavery or anti-slavery. 
 Writers of today, as did those who lived through the more 
 strenuous time of our history, too often make the mistake of 
 measuring the contentions of those days by the slavery stand 
 ard too exclusively. Had the views of those who, in the main, 
 were anti-slavery because of geography and climate, prevailed, 
 the most happy safeguard of what we call the American gov 
 ernment would long since have perished. 
 
 After the battle over Missouri with its resulting Mis 
 souri Compromise law, the request of President Polk in his 
 message of August 8, 1846, that Congress furnish money to 
 
OF THE DRED SCOTT DECISION 2} 
 
 adjust the boundary between Mexico and the United States 
 by the purchase of certain Mexican territories outside of Texas, 
 brought the antagonistic forces again to sharp issues. David 
 Wilmot, a Democrat from Pennsylvania, offered an amend 
 ment to the bill appropriating money for the purchase of the 
 country the proposed action would bring us. This is the 
 famous Wilmot Proviso, which prohibited slavery in the ter 
 ritory thus proposed to be purchased. As thus amended the 
 bill passed the House, but failed in the Senate; and in the 
 next year another bill with a similar provision passed the 
 House, but the amendment was omitted in the Senate. 
 
 It was this bill which gave the logic of John C. Calhoun 
 another opportunity. He insisted that the Constitution, ex 
 proprio vigore, extended to the Territories. This is what 
 Benton ironically called "the transmigration of the Constitu 
 tion." Bitterly and with all his powerful sarcasm Benton 
 opposed the doctrine, insisting that the Constitution was ap- 
 . plicable alone to the States. 1 
 
 In 1849 when Congress came to legislate for California 
 and New Mexico, territory lately acquired from Mexico, the 
 debate was renewed with great vigor, especially in the Senate. 
 Berrien of Georgia, Dayton of New Jersey, Webster and 
 Calhoun arose to their greatest heights. Said W r ebster : "Let 
 me say that in the general sense there is no such thing as 
 extending the Constitution. The Constitution is extended over 
 the United States and over nothing else. It cannot be ex 
 tended over anything except the old States and the new States 
 that shall come in hereafter when they do come in. There 
 is a want of accuracy of ideas in this respect that is quite re 
 markable among eminent gentlemen, and especially profession 
 al and judicial gentlemen. It seems to be taken for granted 
 that the right of trial by jury, the habeas corpus and every 
 principle designed to protect personal liberty, is extended by 
 force of the Constitution itself over new territory. That 
 proposition cannot be maintained at all. . . . Altogether im- 
 
 1 Benton, Thirty Years View, v. 2, 713. 
 
22 LEGAL AND HISTORICAL STATUS 
 
 practical," he concludes and "utterly impossible to extend the 
 Constitution of the United States to the Territories." 
 
 How far short in this doctrine the "Great Expounder" 
 fell, is well known to every constitutional lawyer. 
 
 In reply Calhoun said : "Well, then, the proposition that 
 the Constitution does not extend to the Territories is false to 
 that extent. How else does Congress obtain the legislative 
 power over the Territories? ... If the Constitution does not 
 extend there, you have no right to legislate or to do any act 
 in reference to the Territories. . . . [The Constitution] is 
 the supreme law, in obedience to which and in- conformity with 
 which all legislative enactments must be made." 
 
 Douglas, later to become famous for his relation to the 
 Kansas-Nebraska bill, explained that he did not believe that 
 the Constitution c.v proprio z igore extended to the Territories, 
 but that he believed that Congress had "the power to extend 
 it in all its parts, over that country ; and that such extension, 
 in his opinion, made the Territory a State, entitled to repre 
 sentation in Congress, in a quasi condition until it could elect 
 its representatives to Congress and organize its State govern 
 ment. "- 
 
 There was no decision of the Supreme Court, the arbiter 
 of last resort in such questions, by which it could be known 
 which contention was the correct one, so the great party lead 
 ers reargued their respective positions with each new occasion. 
 In the main the views of Calhoun and those who concurred 
 with him obtained, and the supremacy of the Constitution saved 
 us from degenerating from a democracy. Ever alert, the 
 school of Webster and Benton watched for opportunities to 
 sustain their contentions. So, Congress having refused to fol 
 low Webster, his forces turned to the courts as the last source 
 from which it might be possible to retake the lost field. 
 
 However, before noticing the specific instance by which 
 it was hoped to retrieve their losses, it is important to re 
 member that as territorial expansion went rapidly westward 
 
 2 Cong. Globe, 30 Cong., 2d sess., v. 20, 255 et seq. 
 
OF THE DRED SCOTT DECISION 23 
 
 with it developed on the part of the North, not an effort to) 
 destroy slavery because it was slavery, but a bitter antipathy to 
 the negro, the free negro quite as much as the slave; and hence 
 an antagonism to slavery because of the fact that it carried . 
 with it the negro. Nowhere was this feeling more implacable | 
 than in the newer Northwest States and in the Territories. 
 This opposition to the negro, regardless of his condition, gath 
 ered its strength into what came to be known as the Free- 
 Soil party. In 1848 this party nominated and supported 
 Martin Van Buren for President and Charles Francis Adams 
 for Vice-President. Later the anti-negro and anti-slavery 
 forces assumed the name of Free-State party, and in 1859, 
 furnished the bulk of the material for the Republican party 
 which elected Mr. Lincoln. Those affiliated with these various 
 parties proposed, as they had done in Kansas, and earlier in 
 Oregon, to build governments for great States for free white 
 men only;" and to so safeguard these local governments, as 
 they had done in Illinois and in Ohio, that free negroes would 
 have no part and under which they would have few rights 
 which the white man was bound to respect, and under which 
 a free negro had no legal right to live as a citizen. Thus by 
 local laws the free negro was debarred the right of imigration 
 and of residence as he might choose. 
 
 This fight against the negro, it was foreseen, would be 
 easier could the Federal Government be brought to protect 
 the Territory, and so by 1859 the Republicans had grown in 
 sistent that the government not only should prohibit slavery 
 in the Territories, but that under the Constitution the gov 
 ernment could not do otherwise. At the same time, little con 
 cerned for the slave as such, it was proposed existing slavery 
 be made express and irrevokable. 3 
 
 From the ranks of these parties came the means for the 
 prosecution and from their leadership came the men who 
 instituted and who conducted to its conclusion the Dred Scott 
 Case. 
 
 See platforms of 1856 and 1859. Stanwood, A Hist, of the Presidency, 293. 
 
24 LEGAL AND HISTORICAL STATUS 
 
 Dred Scott, of pure African descent, was born of slave 
 parents in Virginia the slave of Captain Peter Blow. His 
 master carried Dred to Missouri about 1827; and there, in 
 1834 or 1835, he was purchased as a slave by Dr. John Emer 
 son. Dr. Emerson was a native of Pennsylvania, and from 
 that State had been appointed as an assistant surgeon in the 
 regular United States army. He was honorably discharged 
 from the army in 1842, and died shortly thereafter. 4 But so 
 far as the courts knew, and as appeared by the record, Emer 
 son was a citizen of Missouri. 5 
 
 In July, 1847, * n the State circuit court for the county of 
 St. Louis, Missouri, an action was instituted in which it was 
 asked that Scott be adjudged a freeman. In this suit, brought 
 against Emerson s widow, the administrator, and his surety, 
 it was alleged that Emerson purchased Scott in 1835, and 
 that about 1836 or 1837 he had been carried by the purchaser 
 "from the State of Missouri to Fort Snelling, under the juris 
 diction of the United States and in the Territory formerly 
 known as Louisiana, and there held in slavery in violation of 
 the Missouri Compromise." 
 
 In November, 1847, an( l while the first action was yet 
 pending, a second suit in the same court and against the same 
 parties was instituted. This is what is known as a trespass ac 
 tion, and its technical name has misled some authors to state 
 that Scott had been whipped. 6 Nothing in any record any 
 where indicates that Scott or any of his family was ever struck. 
 In this later action it was alleged generally, being left to the 
 trial to give specific grounds, that Scott was "a free person, and 
 that the said defendants had held and still hold him in slavery, 
 and other wrongs to the said plaintiff then and there did 
 against the laws of the State of Missouri." In April, 1847, 
 this action was tried before a jury who rendered a verdict 
 
 *F. B. Heitman, Hist. Reg. and Dec. (1903); W. H. Powell, List of Officers 
 U. S. A., 1779 to 1900, 301. 
 
 3 19 How. 527. 
 
 6 Fiske, Hist. U. S. (school ed.), 360; Francis Curtis, The Republican Party, 
 vol. 2, 276; and many others. 
 
OF THE DRED SCOTT DECISION 25 
 
 against Scott. In December, 1847, this verdict was set aside 
 and a rehearing ordered. At this hearing Scott offered as his 
 evidence the facts of his original slavery, the purchase, and 
 that from Missouri he had been carried to Rock Island, a mili 
 tary fort, in the State of Illinois; and from there to Fort 
 Snelling, in a Territory of the United States (now Minnesota), 
 and at each place detained in servitude about two years, his 
 master being a sojourner and under orders from the govern 
 ment. Upon these facts the judge instructed the jury to 
 bring in a verdict for Scott. Thereupon the defendants ap- 
 pealed to the supreme court of the State. In 1852, the matter 
 resting purely upon questions of law, the case came up for hear 
 ing by the State supreme court. Of the three justices then com 
 posing the court, two concurred and one dissented. The ma 
 jority held that the circuit judge was in error as to the law. 
 Having been a slave under and pursuant to the laws of Mis 
 souri, having been temporarily out of Missouri, having been 
 held as a slave while away, having been returned as a slave and 
 having sued there, the higher court held that however valid 
 any anti-slavery laws out of Missouri might be, they were not 
 and could not be operative in Missouri, that they were penal 
 in their nature, and would not be enforced by a Missouri 
 court, because in conflict with her policy and laws. No one 
 claimed that either law the benefit of which Scott invoked had 
 any jurisdiction in Missouri^ The first claim was based upon 
 the old Ordinance of 1787, in so far as it was of force in 
 Illinois. Historians since however, have enlarged upon the 
 claims of the sojourn in Illinois. 7 Illinois was not, as has been 
 said by some 8 "doubly protected against slavery;" there was 
 no law whatever of that State under which Scott could have 
 been adjudged free even had he sued while there. Illinois 
 was protected against the free negro; and at no time did she 
 enact any law to enable a slave from any other State to assume 
 the status of a freeman. Repeatedly her highest courts held the 
 
 HThorpe, Const. Hist. U. S. (1901), 537- 
 
 \ X 
 
 8 Hill, Decisive Battles of the Law, 2jft . / 
 
 \\1 
 
26 LEGAL AND HISTORICAL STATUS 
 
 Ordinance of 1787 to be void and inoperative, upholding her 
 local slave laws. 9 So as a question of law, the Missouri State 
 trial court was in error, and therefore it was reversed and 
 the case sent back for a new trial pursuant to law as laid down 
 by the higher court. 10 
 
 In 1848 the first and original action had been dismissed, 
 and now it was agreed that the pending action should stand 
 upon the court docket until a hearing could be had in the 
 United States court in which Scott s lawyer said he wished 
 also to sue. Accordingly R. M. Field, a well-known St. 
 Louis attorney, representing Scott, in November, 1853, be 
 gan an action in the Federal circuit court for the district in 
 which St. Louis is located, -rln May, 1854, the catise 
 went before a jury, who found against Scott and his 
 family. Thereupon, a new trial having been refused, an 
 appeal based upon exceptions to the rulings of the trial 
 court, was taken to the Supreme Court of the United 
 States. The facts of the State action, the nature of its de 
 cisions, and its abeyance until the decision of the Federal 
 cause, were set out in the record which thus came before the 
 highest Federal court. 1 ^ When a final decision should have 
 been reached in the State courts, an appeal to the Supreme 
 Court of the L"nited States could have been taken, Federal 
 laws involved being ground of appeal. Such an appeal would 
 have brought up every question of merit of the case before the 
 highest court. But Field was a determined Free-Soiler, 12 
 and since Scott s cause was not to be benefitted by a new action 
 in a Federal court, Field must have had some political purpose 
 in his move/ especially since it was not probable the new ac 
 tion could be terminated more speedily than the action in the 
 State court. 
 
 Remember that the jurisdiction of Federal courts is lim- 
 
 8 Ewing, Nor. Reb. and So. Ses sion, chap, v and vi; and infra. , 
 
 10 i5 Mo. 582. 
 
 n Transcript of Records, 1856, U. S. Sup. Court Clerk s Office, vol. -*, No. 3, 
 p. 65 (ii). 
 
 12 Clesky s Pol. Text-Book, 1860, 207; Benjamin s Speech in U. S. Senate, March 
 3, 1858. 
 
OF THE DRED SCOTT DECISION 2.J 
 
 ited to cases defined by the Constitution. One such ground is 
 where litigants are citizens of different States. There being 
 no other ground for original Federal jurisdiction, itTwas "de 
 clared that Scott was a citizen of Missouri, that he had been 
 purchased and was being held in slavery by John F. A. Sand- 
 ford (Sanford, as the name is usually spelled), and that 
 Sandford was a citizen of the State of New York. This 
 was a pure fiction; but Sandford was the brother of Dr. 
 Emerson s widow, and all parties connived for the purpose 
 of reaching the court with all questions they wished decided. 
 Too long it has been believed that "as the wily chiefs 
 of Democracy were casting about for a feasible plan of ac 
 tion" in an alleged "effort to fasten slavery upon the Terri 
 tories," they instituted and prosecuted the Dred Scott Case. 
 Neither these "wily chiefs" nor any Southern leaders were 
 directly or indirectly responsible for this case. That they 
 were not and that the case was a political probe used by wily 
 Northerners, aggressive free-soilers and Republicans, is the 
 more clear when we remember that the collusion as to sale re 
 sorted to in order to reach the Federal court, was between 
 Scott s lawyers and Sandford, of New York, all anti-South 
 ern, Dr. Chaffee of Massachusetts, a Republican member of 
 Congress being a party to the agreement. If there had ever 
 been hope of recovering damages against Emerson s estate, in 
 confirmation of which the evidence is entirely lacking, some 
 times given as the early motive for the institution of the 
 suit, this hope was abandoned in the interest of the desire en 
 tertained by Northern leaders to obtain some advantage 
 against the South and the Democrats. Sandford could not 
 have been held liable for damages alleged to have accrued 
 prior to his purchase, and as no effort was made to show 
 ownership ior any time before the Federal action, nothing 
 more than nominal damages could have been obtained against 
 him. The claim that Scott had been by Sandford heavily 
 damaged, set up in the declaration, was, therefore, no more 
 than a blind to hide the real purpose of the politicians. 
 
28 LEGAL AND HISTORICAL STATUS 
 
 Of the questions involved in the case as presented to the 
 Federal courts, that of the constitutionality of the Missouri 
 Compromise was the greatest. Constantly stronger up to 
 the institution of this Federal action had grown the conviction, 
 North and South, that the prohibition imposed by the Missou 
 ri Compromise was contrary to both the letter and fair in- 
 tendment of the Constitution; and, for that reason, at the 
 very institution of the Federal suit, its -repeal trembled in 
 the balance. If the Supreme Court- of-- the United States 
 should declare such a measure warranted by the Constitution 
 as many especially in the North confidently believed it would, 
 then thfe great argument in favor of the repeal would be 
 swept from the Democrats. The next year, 1854, and shortly 
 after the institution of the Federal action, the Democrats hav 
 ing a majority in Congress, the Missouri Compromise was 
 actually repealed; but the North was^so determined on saving 
 the Territories for her emigrating white laborers, for free 
 white peopl^ only, that the next session of Congress found the 
 Democratic iriajority reduced to a minorityrand a crusade 
 for the restoration of the prohibition relentlessly begun. So 
 the power of Congress to enact such a prohibition remained a 
 vital issue in tie casefa case destined to, become one of the 
 most famous iii American history. < 
 
 The widow Emerson married Dr. C. C. Chaffee of Mas 
 sachusetts. About the time the case was disposed of by the 
 Supreme Court, Dr. Chaffee was representing his State in 
 Congress. He was a radical Republican a member of what 
 was known as the "Black Republican Party." In May fol 
 lowing the court s final decree, Dr. Chaffee conveyed Dred 
 and his family to Taylor Blow of St. Louis, on condition that 
 they be emancipated, and it is said that this was done on 
 May 26. 13 May 27 the St. Louis Republic said: "Old and 
 worn out" Scott "will have a hard time to make a living if he 
 is forced to depend upon the charities of Black Republicans 
 and abolitionists." 
 
 13 Boston Courier, quoted in Providence, R. I. Post, March 17, 1857; Washington 
 City Union, June 2, 1857. 
 
OF THE DRED SCOTT DECISION 2Q 
 
 As I write this I have before me a letter from the 
 circuit court clerk of the eighth judicial circuit, St Louis, saying 
 that "after diligent search" he is unable to find the deed 
 emancipating Scott. One evidently was made, since its men 
 tion is found in the index. But from all I am able to gather, 
 I am confident that no provision was ever made for Scott s 
 old age. His Massachusetts master and mistress simply turned 
 him loose to wander the streets of St. Louis, get odd jobs 
 when he could, and shift as circumstances permitted. 14 At 
 one time, there seems to be no doubt, Dred offered to buy his 
 freedom of Mrs. Emerson, tendering her his market value in 
 cash and good security, but she refused the offer. A great 
 anti-Southern party needed him, and he was not emancipated 
 until he had served their purpose and was no longer of any 
 personal or political value. The New Hampshire Patriot and 
 State Gazette gives the Springfield, 111., Argus the credit 
 for discovering Scott s Northern slave-master. Says the Ga 
 zette : "That paper first exposed to the world that a Black Re 
 publican freedom-shrieking member of Congress from Mas 
 sachusetts was the owner of that family of slaves, and that the 
 suit for their freedom was in fact opposed for his benefit." rj 
 In the New York Tribune for March 17, 1857, there is a letter 
 from Dr. Chaffee purporting to explain his relation to Dred. 
 The letter shows his evident embarrassment; Chaffee feebly 
 claims he did not own Scott, yet the doctor impeaches that 
 claim by immediately manumitting the negro. 
 
 Upon the trial in the Federal circuit court H. A. Garland 
 for Sandford and R. M. Field for Scott entered into a writ 
 ten statement which went to the court as "the facts of the 
 case." So, at all times the questions for the courts were 
 purely those of law arising upon the admitted facts. In the 
 lower court Field was assisted by Francis P. Blair, also an 
 eminent St. Louis lawyer, an active member of the Free-Soil 
 party, and later a stanch Republican. After the case had 
 
 ric* 
 
 14 St. Louis News, April 8, 1857, and N. Y. Tribune, April 10. 
 l5 See issue of June 3, 1857. 
 
3O LEGAL AND HISTORICAL STATUS 
 
 reached the Supreme Court of the United States, it was argued 
 from the standpoint of the party behind the case and that was 
 furnishing funds for its prosecution, by Montgomery Blair, 
 postmaster general under President Lincoln, a brother of 
 Francis P. Blair, and George T. Curtis, a brother of Mr. 
 Justice Curtis who delivered the stronger of the two dissenting 
 opinions. Reverdy Johnson, the distinguished Maryland law 
 yer, and Henry S. Geyer, Senator from Missouri, represented 
 the other side. Johnson volunteered out of consideration for 
 the court. 
 
 Taking the view of the law as announced by the State 
 supreme court, the trial Federal court held that upon the 
 merits of the case neither Scott nor any of his family had 
 become entitled to the status of a freeman. The facts of the 
 case were the same before all of the courts. 1 " These agreed 
 facts, being those which went to the Supreme Court of the 
 United States with the appeal from the result in the trial Fed 
 eral court are : 
 
 Dr. Emerson, in the regular service of the United States 
 army, purchased Scott in Missouri, where the latter was held 
 in slavery under laws recognized by the Constitution of the 
 United States as valid. In 1834, going from Missouri, and 
 under army orders, Emerson carried Scott to the military post 
 at Rock Island, Illinois, "and held him there as a slave until 
 the month of April or May, 1836. Under government or 
 ders the doctor then moved, taking Scott, to the military post 
 at Fort Snelling, "situated on the west bank of the Mis 
 souri river, in the Territory known as Upper Louisiana, ac 
 quired by the United States from France, and situated north 
 of the latitude thirty-six degrees and thirty minutes north, 
 and north of the State of Missouri." There Dr. Emerson 
 held Scott in slavery until 1838, when he removed the negro, 
 his wife and child back to Missouri. 
 
 In 1835 Major Taliaferro, also an army officer, owned a 
 negro girl, Harriet, whom he carried to Fort Snelling, going 
 
 Howard, 552. 
 
OF THE DRED SCOTT DECISION 3! 
 
 there in discharge of army duty. At Fort Snelling in 1836, 
 the major sold "Harriet and delivered her as a slave" 17 to 
 Dr. Emerson. There she was held in slavery by the doctor 
 until 1838, at which time she and Scott were returned to 
 Missouri with the Emersons. 
 
 In 1836 Harriet and Dred, with the consent of Dr. 
 Emerson, "who then claimed to be their master and owner, 
 intermarried, and took each for husband and wife." Of this 
 marriage there were two children, Eliza and Lizzie. The 
 former was "born on board the steamboat Gypsie, north of 
 the north line of the State of Missouri, and upon the river 
 Mississippi." Lizzie -was born at Jefferson Barracks in Mis 
 souri. 
 
 During the time Dr. Emerson and Major Taliaferro were 
 thus at Rock Island and Fort Snelling they were acting under 
 orders from the officials of the Federal army; they had not 
 gone either to Illinois or to Fort Snelling in what was at 
 the time Wisconsin for the purpose of remaining- perma 
 nently. As with all our army officers, they were liable to be 
 recalled and removed at any moment ; their stay w<as 
 temporary. 
 
 \Yhen the case at length, March 6, 1857, was decided by 
 the Supreme Court of the United States, the result was taken 
 to be a great victory for the principles of the Democratic party, 
 and there was much rejoicing throughout the ranks, espec 
 ially at the South. Democrats in Congress asked for the 
 publication of several thousand copies of the opinion, which 
 was ordered at a cost to the government of $6,500. The 
 appropriation for this expenditure had little opposition, though 
 Republican members were careful to explain that their assent 
 must not be taken to indicate approval of the court s de- 
 
 17 Original Record, p. 10, Clerk s Office U. S. Supreme Court. 
 
 At the time Dr. Emerson was on duty at Fort Snelling quite a number of slaves 
 of both sexes were held there by post officers . Taliaferro had several he had inherited 
 in the State of his birth, Harriet being one. Holcombe, (1908) Minn, in Three 
 Centuries, v. 2, 66. 
 
 18 Cong. Globe, 35 Cong., i sess., 1069-70; Ib. 36 Cong, i sess., Appendix, 293. 
 
III. 
 
 THE OPINION READ BY CHIEF JUSTICE TANEY 
 THE JUDICIAL OPINION OF THE COURT. 
 
 When an action is brought in a Federal court, not usually 
 required in a State court, the plaintiff s writing of com 
 plaint must set out a ground for the jurisdiction of the court. 
 In the Dred Scott Case the complaint known in law as the 
 declaration, filed by Scott s lawyer, as we observed in the pre 
 ceding chapter, averred the plaintiff Scott to be a citizen of 
 Missouri, and that Sandford, by whose authority it was al 
 leged Scott was being improperly and unlawfully held in 
 slavery, was a citizen of New York. Hence, upon this state 
 ment intended to show the Federal court a ground of juris 
 diction, it appeared that the suit was a controversy "between 
 citizens of different States." This statement, if true, furnishes 
 one of the grounds for original jurisdiction by a Federal 
 court as provided by section two of article three of the Con 
 stitution. Unless allegations showing jurisdiction are called 
 in question by special plea the court, unless it has reason to do 
 so upon its own motion, accepts the statement as true, and 
 hears the case. So Sandford s attorney replied to this affirma 
 tion of citizenship by what is known as a plea in abatement; 
 that is, he said that for reasons alleged in the plea Scott was 
 not a citizen of Missouri, and that therefore the Federal court 
 had no jurisdiction and that the suit should stop. The circuit 
 court overruled this plea, and then proceeded to hear the 
 case on its merits. 
 
 When a case goes up to a higher court on appeal, as 
 this did from the Federal circuit court to the United States 
 Supreme Court, a transcript of the proceedings in the trial 
 
 32 
 
OF THE DRED SCOTT DECISION 33 
 
 court is made, and this record, and it alone, is the basis of 
 the final action by the higher court. 
 
 Finding this plea in abatement in the record, to which 
 there had been a demurrer, and the judgment of the trial court 
 sustaining the demurrer and overruling the plea, Chief Jus 
 tice Taney s opinion held that these were properly before the 
 Supreme Court for review, because "a writ of error always 
 brings up to the superior court the whole record of the pro 
 ceedings below." 1 
 
 Overruling the judgment of the trial court upon its find 
 ing upon this plea and its admitted facts, the opinion of the f ; 
 Supreme Court holds that the trial court erred in exercising 
 jurisdiction further than to pass upon the questions raised 
 by this plea, because "persons whose ancestors were negroes 
 of the African race and imported into this country and sold 
 and held as slaves," were not citizens in the sense as meant 
 by the Constitution, just as Indians were, admittedly, not com 
 prehended by the term 2 and, hence, as citizens such persons 
 could not sue a citizen of another State in a Federal court, 
 relying upon diverse citizenship as a sole ground of juris 
 diction. 
 
 Then, passing on to the rest of the record, the opinion 
 discusses and decides the grounds upon which Scott alleged 
 that his once lawful slavery had been destroyed. Thus it 
 came about that the opinion held that the Missouri Compro 
 mise, that act of Congress which declared involuntary servi- ^y. r 
 tude within the Louisiana Purchase and outside of, Missouri 
 and north of thirty-six degrees thirty minutes, illegal, to have 
 been contrary to the Constitution, and so of no validity. 
 Hence, Scott s stay in Wisconsin, 3 within the Territory of 
 this law and while it was yet unrepealed and of full apparent 
 force, could not operate to destroy the previously existing 
 slave status. 
 
 *i9 Howard, 403. 
 
 2 Ib. 404. 
 
 3 Then a Territory which is now a part of Minnesota. 
 
34 LEGAL AND HISTORICAL STATUS 
 
 Now it is claimed that no judicial majority of the Su 
 preme Court of the United States concurred with the Chief 
 Justice in his treatment of the question raised by the plea in 
 abatement. Others admit that a majority did treat and dis 
 pose of the plea in abatement in concurrence with the Chief 
 Justice, but stoutly insist that there was no judicial authority 
 in concurrence with him in the decision that the Missouri 
 Compromise law was unconstitutional. While still other emi 
 nent writers (such as Dr. Thayer of Harvard University) 
 insist that the opinion as read by the Chief Justice was his 
 individual opinion, and that there was in no sense an opinion 
 and decision of the court. 4 
 
 \Ye must remember that where any court is composed of 
 more than two judges, a majority agreement is always, without 
 any question in the United States, accepted and respected as 
 the opinion and decision of the court. \Yere it otherwise 
 we should very seldom find such a court reaching a conclusion 
 or a determination of the questions in any given case before 
 it. In the Dred Scott Case each member of the court on 
 opinion day read a written statement; and Chief Justice Taney 
 claimed that his paper was the judicial opinion and decision 
 of the court. That is, he claimed that five or more of the 
 judges had concurred in his opinion and decision. 
 
 It will be helpful to remember as we investigate these 
 disputed questions that a judicial decision may be said to be 
 composed of three parts : ( i ) The reasoning, argumentative 
 illustrations, authorities, etc. (2) The opinion; that is, the 
 conclusion that asserted premises are true. (3) The judg 
 ment or decree. 
 
 ;;.-Mr. B. R. Curtis, a son of Justice Curtis, in collabora 
 tion with his uncle, Mr. G. T. Curtis, who was of counsel in 
 arguing this case before the Supreme Court, in their life 
 of Judge Curtis have given plausability to a widespread belief 
 that the question of citizenship as it was presented by the 
 facts contained in the plea in abatement, was the only point 
 
 4 Thayer, Cases on Constitutional Law, 493, note i. 
 
OF THE DRED SCOTT DECISION 35 
 
 which had a judicial majority, and so the only point decided. 
 They say that "there never was a judicial majority, speaking 
 correctly, formed upon the question of the power of Congress 
 to prohibit slavery in a Territory, and consequently a claim 
 that a decision adverse to the power had been made by the 
 Supreme Court was erroneous." 5 And on page 207 of the 
 same work, speaking of the opinion as read by the Chief Jus 
 tice, it is said that "no other judge, except Mr. Justice Wayne, 
 concurred in all its points, reasonings and conclusions." 
 
 The high source from which they emanate has given these 
 claims much force with many historians and encyclopedists. 
 But the questions thus raised are determined by the record ; and 
 the record, upon the point as to which it is challenged, is so 
 simple that no legal ability is needed to determine what it 
 proves. All that is necessary is to turn to the volume contain 
 ing the official report of the case and there read what the re 
 spective members of the court have to say. 
 
 The statements of Mr. Justice Daniel, which are unques 
 tioned by any member of the court, amply refute the claim of 
 the Curtis family concerning the decision of the court in 
 volving the validity of the Missouri Compromise. Speaking 
 with reference to the constitutionality of the Missouri Com- 
 promise, and as to what effect should be given in Missouri to 
 the law of Illinois, he said that "with respect to them the 
 opinions of a majority of the court, including my own, are 
 perfectly coincident:" He is overwhelmingly corroborated by 
 the facts as they appear on the record ; and that we may see 
 this, finding for ourselves that he could not have been mis 
 taken, let us first see the history of the case while actually be 
 fore the court, and, after that, go to the record and there see 
 what the respective judges say upon each question, and thus 
 find their attitude toward the opinion as read by the Chief 
 Justice. 
 
 Mr. Justice Curtis was succeeded upon the bench in 1858. 
 He retired to the State of Rhode Island, and at Newport, 
 
 5 Benj. R. Curtis, Jr., The Life of B. R. Curtis, v. i, p. 195. 
 
36 LEGAL AND HISTORICAL STATUS 
 
 September 15, 1874, died. At the next meeting of the 
 Supreme Court appropriate and touching services were held 
 in honor of his memory. Hon. J. A. Campbell, who was the 
 Mr. Justice Campbell when the Dred Scott Case was before 
 the court, had retired from the bench and was then at the 
 bar. In the course of his address on that occasion, referring 
 to the Dred Scott Case, he said : "There was nothing in the 
 deliberation of that case to distinguish it from any other." 
 
 Hence, each member of that court knew whether his as 
 sent to the opinion of the Chief Justice were needed to make 
 it the official and proper court document, the "judicial opinion 
 and decree of the court." Now, what Judge Campbell said, 
 speaking from memory after twenty years, concerning the 
 judicial opinion of the court as to the treatment of the plea- 
 in abatement, has been relied upon strongly by those who 
 claim that the court did not furnish a majority who agree 
 that the question "which presented the capacity of a person 
 of African descent to be a citizen," was open for the decision 
 of the Supreme Court. That is, the question raised by the 
 plea in abatement. Judge Campbell says that he, Justices Mc 
 Lean, Catron, Grier and Nelson, upon the reargument of 
 the case became a majority which held that the plea in abate 
 ment was not open. Mr. Justice Campbell adds : "Each of 
 these judges has recorded in his opinion that there was noth 
 ing in the plea in abatement before the court for review," 6 
 
 So I shall make an analysis of the record which I shall 
 submit proves that those who agree with the position taken 
 by the Curtis family and those who agree with what Air. 
 Justice Campbell says, are all mistaken in their respective 
 positions. The record does not sustain Judge Campbell, thus 
 showing that at his advanced age his memory must have been 
 somewhat at fault. 
 
 I am persuaded that one difficulty to see the majority 
 agreement has been that some of those who agree or concur 
 with the Chief Justice upon the grounds of one question differ 
 
 "Tyler s Memoir of Chief Justice Taney, 382-5. 
 
OF THE DRED SCOTT DECISION 37 
 
 from him upon the reasoning of another, while, those who dis 
 sented from him upon the first agreed with him upon the 
 second, and so on throughout, with the exception of Justices 
 Wayne and Daniel whose assent and concurrence met his 
 opinion upon each question, and the reasoning and conclusion 
 thereupon. These together with the Chief Justice constitute 
 three, and so we need only two more in concurrence with them 
 upon the opinion as read by the Chief Justice to constitute the 
 judicial power of the court. 
 
 Then, did a majority of the judges accept the opinion 
 and with it the judgment as read by Chief Justice Taney, 
 as that of the court? 
 
 That I am correct as to Judges Wayne and Daniel, let 
 me quote them. 
 
 Said Mr. Justice Wayne : "Concurring as I do entirely 
 in the opinion of the court, as it has been written and read 
 by the Chief Justice without any qualification of its reason 
 ing or conclusions I shall neither read nor file an opinion 
 of my own in this case, which I prepared when I supposed it 
 might be necessary and proper for me to do so." 
 
 "The opinion of the court," he continues, "meets fully 
 and decides every point which was made in the argument of 
 the case by the counsel on either side of it. Nothing belonging 
 to the case has been left undecided, nor has any point been 
 discussed and decided which was not called for by the record, 
 or which was not necessary for the judicial disposition of it, 
 in the way that it has been done, by more than a majority of 
 the court." 7 
 
 Judge Daniel, after pointing out, in harmony with the 
 Chief Justice that "the African race have never been acknowl 
 edged as belonging to the family of nations," said : 
 
 "In the plea in abatement, the character or capacity of citi 
 zen on the part of the plaintiff is denied, and the causes which 
 show the absense of that character or capacity are set forth by 
 averment. The verity of these causes, according to the set- 
 
 19 Howard, 454. 
 
38 LEGAL AND HISTORICAL STATUS 
 
 tied rules of pleading, being admitted by the demurrer, it only 
 remained for the circuit court to decide upon their legal suffi 
 ciency to abate the plaintiff s action. And now it becomes the 
 province of this court to determine whether the plaintiff below 
 (and plaintiff in error here), admitted to be a negro of African 
 descent, whose ancestors were of pure African blood, and who 
 were brought into this country and sold as negro slaves 
 such being his status, and such the circumstances surrounding 
 his position whether he can, by correct legal induction from 
 that status and those circumstances, be clothed with the char 
 acter and capacities of a citizen of the State of Missouri ? 
 
 . . . The correct conclusion upon the question here con 
 sidered would seem to be these : 
 
 "That in the establishment of the several communities now 
 the States of this Union, and in the formation of the Federal 
 Government, the African was not deemed politically a per 
 son. He was regarded and owned in every State ( in the 
 Union as property merely, and as such was not and could 
 not be a party or an actor, much less a peer in any compact 
 or form of government established by the States or the United- 
 States. . . . That so far as rights and immunities pertaining 
 to citizens have been defined and secured by the Constitution 
 and laws of the United States, the African race is not and 
 never was recognized either by the language or purposes of 
 the former; and it has been expressly excluded by every act 
 of Congress providing for the creation of citizens by 
 naturalisation, these laws, as has already been remarked, be 
 ing restricted to free i^ liite aliens exclusively." 8 
 
 Had he repeated the exact words of the Chief Justice he 
 could not more forcibly have expressed his concurrence in the 
 opinion that the plea, the demurrer, and the facts thus present 
 ed and admitted were before the Supreme Court, upon consid 
 eration whereof that the circuit court had improperly exercised 
 jurisdiction. 
 
 8 Ib . 475, 481-2. 
 
OF THE DRED SCOTT DECISION 39 
 
 Did Daniel concur with reference to the other decisions 
 and the judgment? His language is unmistakable: 
 
 "According to the view taken of the law, as applicable to 
 the demurrer to the plea in abatement in this case, the ques 
 tions subsequently raised upon the several pleas in bar [that 
 is, that Scott Avas free because of the law r s respectively in the 
 Territory and in Illinois] might be passed by, as requiring 
 neither a particluar examination, nor an adjudication upon 
 them. But as these questions are intrinsically of primary 
 interest and magnitude, and have been elaborately discussed 
 in argument, and as with respect to than the opinions of a 
 majority of the court, including my own, arc perfectly coin 
 cident, to me it seems proper that they should here be fully 
 considered, and, so far as it is practicable for this court to 
 accomplish such an end, finally put to rest." 9 
 
 Our concern at this point is to see whether there was a 
 majority concurrence; we shall see further on whether it was 
 an error, to decide the other questions after this disposition of 
 the plea in abatement. 
 
 Now, upon the question whether "the facts relied upon 
 by the plaintiff entitled him to his freedom/ 10 the opinion 
 as pronounced by the Chief Justice was : (i) That "the act 
 of Congress which prohibited a citizen from holding and own 
 ing property of this kind in the Territory of the United States 
 north of the line mentioned, is not warranted by the Consti 
 tution, and is therefore void; and that neither Dred Scott 
 himself, nor any of his family, were made free by being car 
 ried there by the owner, with the intention of becoming a per 
 manent resident." (2) u As Scott was a slave when taken 
 into the State of Illinois by his owner, and was there held as 
 such, and brought back in that character, his status, as free 
 or slave, depended on the laws of Missouri, and not of Illi 
 nois;" and that upon "a careful examination of all the cases 
 decided in the State courts of Missouri, referred to, it is now 
 
 Ib. 482. 
 111 Ib. 43"- 
 
4O LEGAL AND HISTORICAL STATUS 
 
 firmly settled by the decisions of the highest court in the 
 State, that Scott and his family upon their return were not 
 free, but were, by the laws of Missouri, the property of the 
 defendent ; and that the circuit court of the United States had 
 no jurisdiction, when, by the laws of the State, the plaintiff 
 was a slave, and not a citizen. " 1!L 
 
 And the judgment: "Upon the whole, 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 re 
 versed, and a mandate issued, directing the suit to be dismissed 
 for want of jurisdiction." 12 
 
 Now, compare the above words with those of Mr. Justice 
 Daniel in his plain arguments on pages 468 to 492, wherein 
 he maintains that the question belonged to Missouri rather 
 than Illinois, and that Congress had no power to enact the 
 Missouri Compromise; and with these read his conclusion on 
 the latter page : 
 
 "In conclusion, my Opinion is, that the decision of the 
 circuit court, upon the law arising upon the several pleas in 
 bar, is correct, but that it is erroneous in having sustained 
 the demurrer to the plea in abatement of the jurisdiction; 
 that for this error the decision of the circuit court should 
 be reversed, and the cause remanded to that court, with in 
 structions to abate the action, for the reason set forth and 
 pleaded in the plea in abatement." 
 
 Hence, we have two judges of that court who concur 
 with the opinion and judgment of the Chief Justice without 
 reservation as to either question. We must now look for the 
 necessary majority agreement of five or more justices upon 
 the questions taken separately, remembering that each gets 
 
 u lb. 452-3. 
 "Ib. 454- 
 
OF THE DRED SCOTT DECISION 4! 
 
 its validity from its own support, and that where each had 
 a majority assent, though as compared to each other that 
 majority may differ somewhat in its individual makeup, the 
 whole is as valid as though the same judges had agreed upon 
 each separate branch. 
 
 Mr. Justice Nelson discussed very fully and very con 
 vincingly both branches of the second question as given above ; 
 upon the second he was more elaborate than the Chief Justice, 
 but upon the questions which he discussed he concurred fully 
 and entirely with the Chief Justice. Notice his language: 
 "Our conclusion, therefore, is, upon this branch of the case, 
 that the question involved is one depending solely upon the 
 laws of Missouri, and that the Federal court sitting in the 
 State, and trying the case before us, was bound to follow it." 
 And on the next branch of the same question :" . . . turning 
 to the decisions in the courts of Missouri, it will be found that 
 there is no discrepancy between the earlier and the present 
 cases upon this subject. . . . Upon the whole, it must be ad 
 mitted that the current of authority, both in England and in 
 this country, is in accordance with the law as declared by 
 the courts of Missouri in the case before us, and we think 
 the court below [the Federal circuit court] was not only 
 right, but bound to follow it." 13 
 
 Mr. Justice Grier said: "I concur in the opinion delivered 
 by Mr. Justice Nelson on the questions discussed by him," 
 and as the questions which Mr. Justice Nelson discussed were 
 coincident with the opinion upon those points as read by the 
 Chief Justice, he necessarily concurred thus far with the 
 Chief Justice; and he meant us to so understand, since upon 
 those points the Chief Justice had announced a conclusion after 
 a brief discussion. It is very noticeable that Judge Grier takes 
 care to say that he agrees with Judge Nelson s discussion, that 
 it might be fully observed that he did not agree with what 
 Judge Nelson regarded as a proper judgment resulting from 
 his opinion; Judge Nelson held that the judgment of the cir- 
 
 13 Ib. 465 and 463. 
 
42 LEGAL AND HISTORICAL STATUS 
 
 cuit court should be affirmed, since it adjudged Scott, under the 
 Missouri law, a slave. 
 
 So upon the second question as decided in the opinion 
 as read by the Chief Justice, to wit : that Scott s status de 
 pended upon the laws of Missouri, and not of Illinois, and 
 that the highest court in Missouri had correctly and firmly 
 settled that after their return to Missouri Scott and his fami 
 ly were not free, but were, by the laws of Missouri, the 
 property of the defendant we have in concurrence Chief 
 Justice Taney, Justices \Yayne, Daniel, Nelson and Crier, a 
 numerical majority whose opinion thus became a judicial 
 decision. 
 
 Last, though first in chronological order, was the plea 
 in abatement, with its demurrer by Scott, which simply means 
 that the statements were admitted facts, raising the question, 
 "whether any person of African descent, whose ancestors were 
 sold as slaves in the United States, can be a citizen of the 
 United States" or of a State in the sense in which the Con 
 stitution had used the word, before the court? That it was 
 and should be considered, we have Chief Justice Taney, Jus 
 tices \Yayne, Daniel, Curtis, 14 Grier and Nelson, and in 
 part Campbell. On page 518 the last named says: "And so 
 far as the argument of the Chief Justice upon the plea in abate 
 ment has a reference to the plaintiff or his family, in any of 
 the conditions or circumstances of their lives, as presented in 
 the evidence, I concur (also) in that portion of his opinion." 
 So he did concur that the plea in abatement in some sense, at 
 least, was before the court ; and he did concur fully as to the 
 opinion concerning the citizenship which the facts set out in 
 the plea denied. 
 
 Justice Grier was willing that the judgment of the circuit 
 court be either affirmed or reversed; but in his assent that 
 the opinion and judgment as rendered by the Chief Justice 
 was the opinion and judgment of the court, he agreed that it 
 might be reversed ; and also thus concurred with the opinion 
 
 14 Ib. 565- 
 
OF THE DRED SCOTT DECISION 43 
 
 as to the treatment of the plea in abatement. His language 
 is : "I also concur with the opinion of the court as delivered 
 by the Chief Justice, that the act of Congress of March 6th, 
 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 requir 
 ing the court to decide all the questions properly arising in 
 it [the very first of which was the plea in abatement] ; 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." 15 
 
 Notice his words: "Justified by the decision of the court/ 
 To what did he refer? Plainly, to "the opinion of the court 
 as delivered by the Chief Justice," and to the "facts as stated 
 in the opinion." No language could be plainer than that he 
 recognized the opinion and judgment as announced by the 
 Chief Justice as the opinion and judgment of the court. He 
 does not dissent from it; and, even were his language less 
 clear and undoubted, sitting in the case and participating 
 judicially, his concurrence with what he calls the "opinion 
 of the court would be implied. So both expressly and tacitly 
 he concurred with the Chief Justice. 
 
 I am also firmly convinced that Judge Nelson should 
 likewise be counted with the majority in the treatment of the 
 plea in abatement. \Yhile he is not needed to help to a judi 
 cial majority upon that point, yet I fully believe he meant to 
 concur with the Chief Justice. I am of opinion that a careful 
 reading, in the light of the facts, of his opinion will bear out 
 this claim. It is true that he said in the outset of his state 
 ment that it would not be necessary to pass upon the question 
 of citizenship raised by the plea in abatement. But it is 
 
 ir lb. 469. 
 
44 LEGAL AND HISTORICAL STATUS 
 
 agreed by all who know the facts that the paper which he filed 
 was written after the first argument and at a time when it 
 was understood that he was writing the opinion of the court. 
 After the second argument all the judges understood that the 
 Chief Justice would write for the court its opinion; this 
 document had been read to the judges before it was read from 
 the bench ; each knew its contents, and, without rewriting in 
 full, Judge Nelson changed some of the wording of what 
 he had long before the final decision prepared. All that he 
 says is that "it will not be necessary to pass upon the ques 
 tion." He does not say that to pass upon it would be im 
 proper ; and, in fact, what he does say clearly leaves us to 
 understand that he does believe that the plea in abatement 
 is properly before the court; but that the same question is 
 raised by the pleas which came after it ; and that upon their 
 decision the judgment must be in effect the same as upon the 
 plea in abatement. He says that in Federal courts, "if the 
 facts appearing on the record show that the circuit court had 
 no jurisdiction, its judgment will be reversed in the appellate 
 court for that cause, and the case remanded with directions to 
 be dismissed." 16 This .was exactly the doctrine upon which 
 the Chief Justice proceeded. 17 We can justly say of Judge 
 Nelson in this respect that, while he does not, in his remarks, 
 take that plea into account, yet he nowhere says that he is un 
 willing that the Chief Justice do so on behalf of a majority 
 of the court; and a judge who sits in a case, I may repeat, 
 and who participates, always concurs with what is handed down 
 as the opinion of the court, unless he plainly gives us to un 
 derstand otherwise. 
 
 Hence, on all the points decided in the opinion as read by 
 the Chief Justice WQ have a concurrence of a judicial majority; 
 and as to the judgment which was based upon that opinion 
 as "a whole," we have the Chief Justice, and Justices Wayne, 
 
 16 Ib. 458. 
 17 Ib. 401. 
 
OF THE DEED SCOTT DECISION 45 
 
 Daniel, Grier and Campbell a judicial majority, and hence 
 the judgment of the court. 
 
 I have de.emed it important as well as interesting thus to 
 show analytically by whom and how each point or question de 
 cided in the opinion handed down by the Chief Justice became 
 the official, judicial action of the Supreme Court of the United 
 States. But aside from, or perhaps cumulative to, this, there 
 is what I regard as absolutely irrefutable evidence to support 
 my conclusions. That we may see its force the more clearly, 
 let me quote what Judge Campbell tells us as to the method used 
 by the Supreme Court in reaching a conclusion upon any 
 case. Being off the bench and at the bar, as will be remem 
 bered, in his memorial speech before the Supreme Court in 
 honor of Judge Curtis, among other things he said : 
 
 "The duties of the justices of the Supreme Court consist 
 in the hearing of cases ; the preparations for the consul 
 tations ; the consultations in the conference of the judges; the 
 decision of the cause there, and the preparation of the opinion 
 and the judgment of the court. Their most arduous and re 
 sponsible duty is in the conference. 
 
 "... The Chief Justke presided [speaking of the pro 
 cedure when the Dred Scott Case was before the court], the 
 deliberations were usually frank and candid. . . . There was 
 nothing of cabal, combination, or exorbitant desire to carry 
 questions or cases. Their aims were honorable and all the 
 arts employed to attain them were manly arts. The venerable 
 age of the Chief Justice, his gentleness, refinement, and 
 feminine sense of propriety, were felt and realized in the 
 privacy and confidence of these consultations. None felt them 
 more, none has described them so well as Justice Curtis has 
 done in his graceful tribute to our illustrious Chief Justice 
 since his death, in the circuit court of the United States, in 
 Boston, 
 
 "In these conferences, the Chief Justice usually called 
 the case. He stated the pleadings and facts that they pre 
 sented, the arguments and his conclusions in regard to 
 
46 LEGAL AND HISTORICAL STATUS 
 
 them, and invited discussion. The discussion was free and 
 open among the justices until all were satisfied. 
 
 The question was put, whether the judgment or decree 
 should be reversed, and each justice, according to his pre 
 cedence, commencing with the junior judge, was required to 
 give his judgment and his reasons for his conclusion. The 
 concurring opinions of the majority decided the case and 
 signified the matter of the opinion to be given. The Chief 
 Justice designated the judge to prepare it," or reserved that 
 task for himself, or took it sometimes when urged by the 
 justices. 18 
 
 Within a few sentences from this description, Judge 
 Campbell tells us, and there is nothing to contradict him, that 
 there was nothing in the treatment of the Dred Scott Case to 
 distinguish it from any other ; it was taken up by the routine 
 method and fully and quietly discussed, just as all other cases. 
 So that each judge had ample opportunity to know exactly 
 what was being done. This is the more clearly seen when we 
 remember that it had been several times discussed in confer 
 ence ; it had been twice argued at bar, and had been pending 
 in the court for nearly two years. 
 
 Now* in addition to the specific statements of the justices, 
 the Chief Justice read his paper as the opinion and decision 
 of the court. At no place in any of its pages does it purport 
 to be his individual opinion. That it was being announced as 
 the court s opinion, was understood by the bench and officers 
 of the court, and by all present. 19 The official reporj^r, the 
 sworn officer of the court, begins his report of that document 
 by saying, "Mr. Chief Justice Taney delivered the opinion of 
 the court." The language of the Chief Justice is that always 
 used by the judge who is formulating for the majority its 
 opinion and judgment; for instance: "We think they are be 
 fore us;" "we proceed to examine;" "the court think the af 
 firmative of these propositions cannot be maintained ;" "In 
 
 18 See 20 Wallace, x. 
 
 18 Boston Herald, March 7, 1857. 
 
OF THE DRED SCOTT DECISION 47 
 
 the opinion of the court, the legislation and histories of the 
 times," c; "And upon a full and careful consideration of the 
 subject, THE COURT IS OF OPINION, that upon the facts 
 stated in the plea in abatement, Dred Scott was not a citizen 
 of [Missouri within the meaning of the Constitution of the 
 United States, and not entitled as such to sue in its courts; 
 and, consequently, that the circuit court had no jurisdiction 
 of the case, and that the judgment on the plea in abatement 
 is erroneous;" "in the case before us WE HAVE already 
 decided that the circuit court erred in deciding that it had 
 jurisdiction upon the facts admitted in the pleadings;" "upon 
 these considerations, IT IS THE OPINION OF THE 
 COURT that the act of Congress which prohibited a citizen 
 from holding and owning property of this kind in the ter 
 ritory of the United States north of the line therein men 
 tioned, is riot warranted by the Constitution, and is therefore 
 void." "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." 
 
 After being told in conference what the Chief Justice was 
 doing, and after hearing him read this opinion and decree from 
 the bench, does anybody suppose for a moment that an honest 
 court, that intelligent sworn judges, would have stultified 
 themselves, would have perjured themselves, by allowing one 
 of their number to come before the world heralding that to 
 be their opinion which was not? All the members of the 
 court, including Justice Curtis, ascribe to the Chief Justice 
 the most scrupulous honesty, as well as the most exacting 
 business methods in his judicial work. Benj. R. Curtis him 
 self pronounced the Chief Justice "a man of incorruptible in- 
 
48 LEGAL AND HISTORICAL STATUS 
 
 tegrity." 20 The Chief Justice used no loose or uncertain 
 language. No honest and no exact man would have come be 
 fore the world with what he claimed to be the concurrent 
 opinions and judgment of the majority of the court over 
 which he presided with such brilliant distinction for so many 
 years u -itJi other than u r hat he claimed to bring. Then, look 
 at the language of the other members of the court. Not in 
 any instance does one of them use language purporting to be 
 the opinion of the court. All the judges participated; those 
 who dissented seem to have believed there was some judicial 
 opinion and decree somewhere; thy took pains to let the world 
 know that they were dissenting. Although other members of 
 the court use different arguments, add to the reasoning, or 
 discuss fewer points, yet only the two dissent. It is almost 
 laughably absurd to me to say that those nine learned men 
 came from various conferences and did not know that there 
 was a majority upon EACH question decided by the Chief 
 Justice. After the conference discussion, the first thing the 
 Chief Justice did was to tell them HIS decision, then he re 
 quired theirs. And this case was conducted like all others. 
 With this fact, notice, again but briefly, the language of the 
 other members of the court: Judge Wayne: "I concur in the 
 opinion of the court;" Grier : "I also concur in the opinion of 
 the court;" Daniel: ". . . the opinions of a majority of the 
 court, including my own, are perfectly coincident;" Catron : 
 "I concur with my brother judges, that Scott is a slave, and 
 was so when this suit was brought." Mr. Justice Curtis in 
 his dissenting opinion admits that the judgment was pro 
 nounced by a majority of the court, and in the last letter 
 written to Chief Justice Taney in conclusion of their con 
 troversy concerning the order issued to the clerk forbidding 
 copies of the opinion to be published prior to the official publi 
 cation, Judge Curtis, writing June 16, 1857, said: "I did not 
 then [in a former letter], nor have I at any time, considered 
 that I had a right to a voice on the question whether the 
 
 2Tyler s Taney, p. 309. 
 
OF THE DRED SCOTT DECISION 49 
 
 majority of the judges would allow THEIR OPINION to 
 be published otherwise than by the reporter." 21 He was 
 speaking- directly in reference to the opinion as written by 
 Judge Taney; and Judge Taney throughout their correspond 
 ence and elsewhere always spoke of his work as "the opinion 
 of the court delivered from the bench." 22 
 
 21 Curtis Life of Curtis, v. i, p. 222. 
 
 22 It is sometimes stated that Taney "discredited himself by the most unprofessional 
 act ever committed by a United States judge" by rewriting his opinion after 
 reading it from the bench. See, for instance, Encyclopaedia Americana, 1903, Dred 
 Scott Case. This statement is so absolutely without foundation, and is so unjust 
 to the Chief Justice, that it is merely necessary to call attention to the fact to refute 
 it. Having been thus 1 accused in his lifetime, Taney replied that there had been 
 "nothing altered," and no change whatever except the mere citation of further 
 authorities and proofs to maintain what he had announced, and which had not been 
 denied until after he read the opinion. His admitted integrity settles the matter; 
 but if it did not the fact that no member of the court who concurred with him 
 ever complained, would do so. Taney s action \vab entirely proper and in keeping 
 with what is done in judicial circles every day. 
 
IV. 
 CITIZENSHIP OF NEGROES. 
 
 As soon as the record before the Federal Supreme Court 
 was opened, the question of the jurisdiction of the trial court, 
 which had been raised by the defendant by a special plea, 
 naturally first presented itself. This plea, known in law as a 
 plea in abatement, presented statements as facts which, it 
 contended, showed want of jurisdiction in the trial court to 
 do more than pass upon their sufficiency. Scott demurred to 
 this plea; that is, he admitted the truth of its statements 
 and denied they were sufficient to defeat a hearing of his full 
 case. Entering upon a consideration of the issue thus joined, 
 the trial court, as a preliminary judgment, decided that the 
 facts of the plea did not defeat Federal jurisdiction. Finding 
 all this in the very first of the proceeding certified to it, the 
 first question which met the Supreme Court was : Shall this 
 appellate court pass upon this preliminary judgment of the 
 trial court, necessarily involving an examination of the ad 
 mitted facts of the plea ; or shall the higher court ignore the 
 plea and the judgment thereon, and pass only into the subse 
 quent questions? 
 
 As we have seen, the court answered by passing upon the 
 questions raised by the plea. To this action both Curtis and 
 McLean assented, differing from the majority only as to 
 the conclusion to be reached. That the plea and the question 
 of the correctness of the trial court s judgment thereon were 
 properly before the higher court there can be no doubt; and 
 that such is the settled rule of appellate procedure is generally 
 recognized. The battle was as to the conclusion that the court 
 
 50 
 
OF THE DRED SCOTT DECISION 51 
 
 should reach upon the question presented by the admitted 
 facts set out in the plea. Taney and the majority, Curtis and 
 McLean dissenting, held that upon the facts of that plea the 
 trial court had no jurisdiction to hear the case upon its merits, 
 because negroes descended from American slave ancestors 
 were not such persons as the word citizen means when the 
 Constitution gives Federal courts jurisdiction over suits be 
 tween citizens of different States. Was this correct? 
 
 To history the importance of the answer lies mainly in 
 the fact that the North was lashed into a fury in the belief en 
 gendered by the hypnotic power of the exacerbationists that 
 the opinion had announced for negroes whose parents had 
 been legal American slaves, a status unprecedented, unchrist 
 ian, and unwarranted by our la\vs; and that in arguing this 
 point Taney had declared that the "negro had no rights which 
 the white man was bound to respect." Some historians yet 
 adhere to this latter misrepresentation ; and by others even yet 
 the words of the Chief Justice are not fairly construed or 
 correctly quoted. 
 
 The plea to the jurisdiction says that the court should 
 not take cognizance of the action, "because said cause of ac 
 tion, and each and every one of them (if any such have ac 
 crued to the said Dred Scott) accrued to the said Dred Scott 
 out of the jurisdiction of this court, and exclusively within 
 the jurisdiction of the courts of Missouri, as alleged in his 
 declaration, because he is a negro of African descent ; his 
 ancestors were of pure African blood, and were brought into 
 this country and \vere sold as negro slaves, and this the said 
 Sanford is ready to verify." 
 
 Prior to the fourteenth amendment the Constitution no 
 where defined the meaning of the word citizen, either by ex 
 clusion or inclusion ; and therefore the necessity of inquiring 
 for the meaning of that word as indicated by the principles, 
 the local laws and history with which the framers of the 
 Constitution were familiar. It is generally admitted that the 
 purpose of the fourteenth amendment of the Constitution was 
 
i i 
 
 t 
 
 52 LEGAL AND HISTORICAL STATUS 
 
 to overrule the force of the Dred Scott decision and establish 
 for negroes born or naturalized in the United States, and sub 
 ject to the jurisdiction thereof, citizenship both of the United 
 States and of the State wherein they reside. 1 So in examining 
 the question of citizenship we must remember that it is to be 
 determined as it was before the amendments made since the 
 war between the States ; that is, we must find the sense in 
 which the word was used in the Constitution at the time of 
 the adoption of that instrument. 2 
 
 That this is the correct method, the only method in fact, 
 as we have seen elsewhere, the dissenting judges agreed, and 
 no one disputes. That this may be seen while at the same time 
 we get the grounds upon which the dissenting judges held 
 that negroes, even though descended from slave parents, were 
 citizens, let me quote Judge Curtis. His position is repre 
 sentative. He argued : 
 
 "Citizens of the United States at the time of the adoption 
 of the Constitution ctm have been no other than citizens of 
 the United States under the Confederation. By the articles 
 of Confederation, a government was organized, the style 
 whereof was, The United States of America . This govern 
 ment was in existence when the Constitution was framed and 
 proposed for adoption, and was to be superseded by the new 
 government of the United States of America, organized under 
 the Constitution. When, therefore, the Constitution speaks 
 of citizenship of the United States, existing at the time of the 
 adoption of the Constitution, it must necessarily refer to 
 citizenship under the government which existed prior to and 
 at the time of such adoption. 
 
 ". . . it may safely be said that the citizens of the several 
 States were citizens of the United States under the Confedera 
 tion. 
 
 "The government was simply a confederacy of the several 
 
 1 In re Look Ting Sing, (1884) 21 Fed. Rep. 909; Marshall vs. Donovan, (1874) 
 10 Bush. (Ky.) 687; Slaughter-house Cases, 16 Wallace (U. S.) 73; U. S. vs. 
 Wong Kim Ark, 169 U. S. 676. 
 
 2 For an interesting discussion of citizenship under the present Constitution, 
 see Minor vs. Happersett, (1874) 20 Wall. 162. 
 
OF THE DRED SCOTT DECISION 53 
 
 States, possessing a few defined powers over subjects of gen 
 eral concern, each State retaining every power, jurisdiction, 
 and right not expressly delegated to the United States in Con 
 gress assembled. And no power was thus delegated to the 
 government of the Confederation, to act on any question of 
 citizenship, or to make any rules in respect thereto. The whole 
 matter was left to stand on the action of the several States, 
 and to the natural consequences of such action, that the citi 
 zens of each State should be citizens of that Confederacy into 
 which that State had entered, the style whereof was the United 
 States of America . 
 
 "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 any 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-born 
 inhabitants of the States of Xew Hampshire, Massachusetts, 
 Xew York, Xew Jersey, and Xorth Carolina, though de 
 scended from African slaves, were not only citizens of those 
 States, but such of them as had the other necessary qualifica 
 tions possessed the franchise of electors, on equal terms with 
 other citizens." 3 
 
 Xow, as one follows Judge Curtis argument upon this 
 question, he cannot help being surprised at his conclusions. 
 He admits that the term citizen as used in the Constitution in 
 the clause in question, means citizens of the United States, and 
 argues that "as free colored persons born within some of the 
 States are citizens of those States, such persons are also citi 
 zens of the United States;" that such citizens, residing in any 
 State are the citizens meant by the Constitution and so may 
 sue and be sued in the Federal courts; and that the fact that 
 
 3 19 Howard, 572. 
 
54 LEGAL AND HISTORICAL STATUS 
 
 Scott was of African descent, and that his ancestors were sold 
 as slaves, shows nothing, therefore, inconsistent with his citi 
 zenship of the United States. 4 That is, the exact opposite of 
 the present law under the fourteenth amendment, "that there 
 was no such thing as a citizen of the United States, except as 
 that condition arose from citizenship of some State;" 5 and, 
 such being true, that the framers and adopters of the Con 
 stitution, in the use of the word citize-n in the Federal jurisdic 
 tion clause, imposed upon the eight States and all others there 
 after to be. admitted the standard of citizenship recognized by 
 the five. This is nothing short of the argument that because 
 a thing is true of a part it is true of the whole, a falacy requir 
 ing no astuteness to detect. For, as Judge Curtis tacitly ad 
 mits, if, under the Articles of Confederation and subsequently 
 at the adoption of the Constitution, of the thirteen colonies, 
 later States, eight recognized as the definition of a citizen such 
 marks as did not include free negroes; and five recognized 
 such as did include the free negro, the Constitution and the 
 parties adopting it being silent as to which standard measured 
 its word citizen, it is clear the court could not do otherwise 
 than adopt and apply one of the two. They were so absolutely 
 diametrical that there was no middle ground. 
 
 Now, it seems to me, aside from the internal evidence of 
 the Constitution in part relied upon by Chief Justice Taney, 
 that the history of the times, the laws of all the States both at 
 the adoption of the Constitution and subsequent thereto, aside 
 from the unreasonable proposition that the standard of the 
 minority had been adopted over that of the majority and that 
 without specific evidence, and the writings of eminent lawyers, 
 leave no room to doubt as to the correctness of these two propo 
 sitions. 
 
 As we take a survey of the field it is important to bear 
 in mind that the question of jurisdiction resting upon citi 
 zenship, as presented by the admitted facts of the plea, stood 
 
 * 19 Howard, 588. 
 
 6 U. S. vs. Anthony, n Blatchf. (U. S.) 200. 
 
OF THE DRED SCOTT DECISION 55 
 
 upon two propositions. Either was fatal to the jurisdiction 
 which Scott invoked. Than the one indicated the other was 
 that to be a negro was prima facie evidence of slave birth, 
 and that through life the presumption of slavery continued 
 to follow the negro. Admittedly such a person, that is one who 
 was a negro and born a slave and who did not counteract the 
 presumption that he continued a slave, was not the citizen 
 who could sue and be sued as authorized by the Constitution. 
 Now Scott, Taney and the majority contended, in admitting 
 the facts of the plea had admitted, in legal effect, that he was 
 born a slave. Since the dissenting judges based their argu 
 ment upon the position that only such negme_s__AS jwej"e Jr^ 
 native bgrn_w.er.e citizens of a State and therefore of the United 
 States and hence the citizens who could sue as provided in the 
 jurisdiction clause, the force of the position of the majority 
 could not be escaped. No one, therefore, questioned that 
 if Scott, in admitting the truth of the statement in the plea, 
 had admitted either literally or in legal effect that he was 
 born a slave, then the burden was upon him to establish 
 his citizenship in some other way than by birth. The dissent 
 ing judges sought to escape the result of the presumption 
 in such cases, by asserting that the plea did not either actually 
 or in legal effect allege that Scott had been born a slave. 6 
 But the majority of the court held firmly to the position that 
 Scott, being in a slave State at the time of suit brought, and 
 that, by admitting the statements of the plea, he admitted that 
 he was of pure African descent, and that his ancestors were 
 American slaves, thus admitted that he, too, had been born a 
 slave; and for the reason that to be a negro zvas to be pre 
 sumed a slave, and of course born a slave. 
 
 Now, if this was the existing and applicable presumption, 
 since Scott, upon the question of jurisdiction in the trial 
 court, made no effort to rebut or remove it, upon the facts of 
 the plea it appeared that the trial court was without jurisdic 
 tion. 
 
 6 19 Howard, McLean s argument, 532; Curtis 569. 
 
56 LEGAL AND HISTORICAL STATUS 
 
 There are many presumptions in our law, and we presume 
 many things in the business world. If I sell a horse I am 
 presumed to have the title to him ; every man is presumed to 
 be sane; at the creation of the Constitution all white persons 
 were presumed to have been born free; and many such. I 
 may not have had the title to my horse ; the man of whom 
 I bought my farm may have been mentally unbalanced, &c. 
 But, being in possession, if I sell a horse the burden is upon 
 him who alleges my want of title to overcome the presump 
 tion in my favor and to establish as a fact his charge. Until 
 he does so the court will protect me in quietly resting upon the 
 presumption. All. presumptions will be treated as conclusive 
 by courts //;//// the contrary is shown. So in the days of slav 
 ery all negroes were presumed to be born slaves, and a fortiori 
 when it was shown that there had been legal slavery in the 
 ancestral line. AYhen it was admitted that a person was a ne 
 gro and that he was of slave parents, even remotely in the 
 ancestral line, the burden was upon him to show that the slav 
 ery had been terminated. In denying this fact those who 
 agreed with Air. Justice Curtis committed a blunder which 
 vitiated the conclusions which they wished to establish. 
 
 The evidence upon this question of presumption may 
 be noticed first, because it is important light upon the word 
 citizen as used in the Constitution. 
 
 Judge McLean, concurring with Curtis in the contention 
 that Scott was presumed to have been born free," directs at 
 tention to the rules maintaining in the Southern States. In 
 doing this he furnishes evidence destructive of what he de 
 sired to establish. True, there was no source from which he 
 could have drawn support, and it is almost pathetic to watch 
 him pull down upon his own head the structure under which 
 he professed to find shelter. In referring specifically to the 
 law in Tennessee, he ignored the rule which his own court 
 had theretofore ratified. In 1834 the Supreme Court of the 
 United States decided : "It is admitted to be a settled rule in 
 
 19 Howard, 532. 
 
OF THE DRED SCOTT DECISION 57 
 
 the State of Tennessee that the issue of a female slave fol 
 lows the condition of the mother," pointing out that this 
 condition followed as "matter of course" and that a child 
 born of a mother who was a slave only for a term of years he- 
 came an absolute slave. As to each of these propositions Mc 
 Lean himself, participating in the decision in 1834, assented 
 along with such associates as Judge Story of Massachusetts. 
 
 A full examination of the Tennessee cases, beginning 
 with Abraham Vaughn vs. Phoebe, "a woman of color," de 
 cided by the supreme court of Tennessee in January, 1827, 
 down to Bennett vs. the State, decided by the same court in 
 March, 1852, not only refutes McLean but supports the prin 
 ciple upon which the majority acted. In 1815 that State had 
 provided a special tribunal which was given exclusive juris 
 diction over cases in which negro slaves were charged with 
 petit larceny and kindred offences. A few months before the 
 case reached the higher court, a person was indicted in the 
 proper court at Memphis, and was described as "a negro of 
 black complexion." The indictment was wholly silent as to 
 the negro s condition, as slave or free, and there w 7 as no proof, 
 and consequentlv nothing in the record, to show whether the 
 accured was a slave or a free negro, unless there were some 
 legal presumption growing out of the allegation that the ac 
 cused was a negro. So here the question of presumption was 
 directly in point, and was the only point. Said the supreme 
 court: "in a community where the almost universal condition 
 of the black man is that of slavery, and where his complexion 
 indicates his social position with almost as infallible certainty 
 as it does his race, his color is to be regarded, in the absence 
 of all other evidence, as prima facie proof of slavery. This 
 presumption is of general application, and in this, as in other 
 cases, is to stand until repelled by proof." 8 
 
 Previous to the Dred Scott Case, and before the ques 
 tions which it involved became so important to the Republican 
 and Free-State parties, no other judge in America stated 
 
 31 Term. Kepts. (Cooper s Edition) 41 
 
58 LEGAL AND HISTORICAL STATUS 
 
 more clearly or followed more consistently this rule presum 
 ing all negroes slaves especially when in slave territory, than 
 did Mr. Justice John McLean who so strangely forgot his own 
 rulings when he came to pass an opinion in the Scott case. 
 While out on his Federal circuit in December, 1842, in deliver 
 ing the opinion of the court in Jones vs. Vanzandt, 9 he said : 
 "In Kentucky, and in every other State where slavery is 
 sanctioned, every colored person is presumed to be a slave. 
 This presumption arises from the nature of their institutions, 
 and from the fact that, with few exceptions, all the colored 
 persons within those States are slaves." Again in 1853, in 
 Miller vs. McOuerry, 10 he re-iterated and enforced the same 
 law. In Menard vs. Aspasia, writing in 1831 the opinion of 
 the Supreme Court he said that, "beyond dispute, the principle 
 of the civil law" was that the "slavery of the mother of Aspasia 
 being established" "the offspring must follow the same condi 
 tion." 11 And so we find him consistently through his long 
 period of service down to the Dred Scott Case. There and 
 there only he overruled himself, broke all precedents, and 
 offered nothing substantial to justify his iconoclasm. In 
 1853, just a very short time before the Scott case, he an 
 nounced another plain and universal doctrine: "The Supreme 
 Court ha ^r-r since held that that court and its judges recog 
 nize, witiK. .1 proof, the laws of the several States and Terri 
 tories." Now, since he admitted that "there is no slave State, 
 where the existence of slavery is not recognized and main 
 tained by numerous statutes and judicial decisions," every 
 candid mind is bound to admit that he and the court were 
 unavoidably obligated to recognize and enforce all legal pre 
 sumptions growing out of those laws and recognized by those 
 decisions. Having sued in the slave State of Missouri and 
 admitting that he was a denizen thereof, having admitted his 
 ancestors to have been negro slaves, all the presumptions in- 
 
 9 2 McLean s Circuit Court Reports, 607. 
 1 5 McLean s- C. C. R. 484- 
 11 5 Peters, 513. 
 
OF THE DRED SCOTT DECISION 59 
 
 cident to slave conditions applied to Scott s case, were part of 
 the law and needed no proof before the Supreme Court of the 
 United States. 
 
 This was true especially in States where slave labor was 
 legal, and when we turn to those States upon which Mr. 
 Justice Curtis relied for establishing his contention as to citi 
 zenship we also find that it was not only true as to each of 
 them but that the fact that they afforded free negroes some 
 of the rights of citizens did not indicate that such negroes 
 were regarded as citizens in the sense which that word in the 
 Constitution undoubtedly was meant to convey. 
 
 At an early day New York provided in her election law: 
 "That whenever any black or mulatto person shall present 
 himself to vote at any election in this State, he shall produce 
 to the inspector or persons conducting such election, a certifi 
 cate of his freedom, under the hand and seal of any one of 
 the clerks of the counties of this State or under the hand of 
 any clerk of any town of this State." Before such person 
 could obtain such certificate, he must make proof of his claim 
 to freedom. When he presented such certificate and offered 
 to vote, he was not even presumed to be the person described 
 therein; the whites had the legal right to require him to 
 make oath that he was the person described in the certificate 
 which he offered. 12 
 
 March 26, 1783, Massachusetts passed a law forbidding 
 "an African or negro" to tarry within the Commonwealth 
 for a longer time than two months, unless such persons could 
 produce a certificate from the Secretary of the State of which 
 such persons claimed to be a citizen showing that he was such ; 
 and where such negro did not have the required certificate it 
 was further provided that "upon complaint made to any jus 
 tice of the peace of this Commonwealth, that any such person 
 has been within the same more than two months, the said jus 
 tice shall order the said person to depart out of the Common 
 wealth ; and in case that the said African or negro shall not 
 
 12 See Laws of New York in force in 1813, p. 205. 
 
60 LEGAL AND HISTORICAL STATUS 
 
 depart as aforesaid, shall commit the said person to any house 
 of correction within the said county, there to be kept at hard 
 labor agreeably to the rules and orders of the said house, 
 until the Sessions of the Peace, next to be holden within and 
 for the said county; and the master of the said house of correc 
 tion is hereby required and directed to transmit an attested 
 copy of the warrant of commitment to the said court on the 
 first day of their said session; and if, upon trial at the said 
 court, it shall be made to appear that the said person has thus 
 continued within this Commonwealth contrary to the tenor of 
 this Act, he or she shall be whipped not exceeding" ten stripes, 
 and ordered to depart out of this Commonwealth within ten 
 days; and if he or she shall not depart, the same process shall 
 be had and punishment inflicted," and so totics quoties. 13 
 
 This statute of Massachusetts is one of the strongest 
 proofs that homeless, friendless, free negroes from other States 
 in the American Union had no rights which the white man of 
 Massachusetts was bound to respect so far as citizen rights 
 are defined and protected by the Constitution. 
 
 Next as to New Jersey. In March, 1798, included in 
 her revised laws of 1821, she passed a law which provided: 
 "No free negro or mulatto, of or belonging to any other State 
 in the Union, shall be permitted to travel or reside in this 
 State, without a certificate from two justices of the peace 
 of such other State, that such negro or mulatto was set free, 
 or deemed and taken to be free in that State." With refer 
 ence to negroes or mulattoes of New Jersey the law imposed 
 a similar requirement before they were permitted to travel 
 outside of the county in which they resided. Along with this 
 law the act of March 17, 1798, recognized, legalized and con 
 tinued her existing slavery. 14 
 
 Nothing can be plainer than that notwithstanding New 
 Jersey gave free negroes a few of the privileges accorded 
 to citizens she recognized the burden resting upon them to 
 
 13 General Laws of Massachusetts to 1822, v. i, 324-5. 
 
 14 Revised laws of New Jersey, 1821, 369 to 377. 
 
OF THE DRED SCOTT DECISION 6l 
 
 remove the presumption arising against them solely on the 
 ground of color. And the fact that these laws, as did similar 
 laws in other Northern States, applied to free negroes in and 
 of the State, traveling from one county, sometimes district, 
 to another, shows that the law was made with no view to fugi 
 tive slaves from other States, as apologists for these anti- 
 negro laws have sometimes claimed. The question was simply 
 one between the white man of the North and the free negro, 
 regardless of the rights of citizens of the slave-labor States. 
 
 In North Carolina, from her earliest days, as her su 
 preme court decided in 1828, the presumption of slavery arises 
 from "a black African complexion." 15 There is nothing in 
 her early adjudications which indicates that native born free 
 negroes were citizens in the sense in which white people are 
 citizens in the Federal Constitution s use of the word citizen ; 
 and it was not until 1838 that her highest court decided that 
 free negroes were citizens of the State. 16 However little light 
 it furnishes upon the meaning of the word citizen as used in 
 the Federal Constitution, it is interesting that some of the 
 members of the North Carolina constitutional convention of 
 1835 believed that the free negro, as was pointed out had been 
 done in other States, should not be politically excommuni 
 cated and have an additional mark of degradation fixed upon 
 him, solely on account of his color." and that such persons 
 should be recognized "as a part of the body politic;" 17 and that 
 of the few States permitting free negroes to vote, but under 
 restrictions not imposed upon the whites, North Carolina was 
 the last, prior to the war between the States, to take from the 
 free negro the suffrage privilege. 
 
 One looks among the legislative provisions, other than 
 that under certain conditions free negroes had the privilege 
 of voting, and adjudications of New Hampshire in vain to 
 
 15 Scott vs. Williams. 15 X. C. 378. 
 
 16 State vs. Manuel, 20 X. C. 25. 
 
 17 Proceedings and Debates of the Convention O^aleigh, 1836), 80. 
 
62 LEGAL AND HISTORICAL STATUS 
 
 find confirmation of the theory advanced by the dissenting 
 justices. 
 
 Following emigration, the moulding influence of which 
 was dominated by the spirit of the North, as it moved out to 
 build new States, we get a most important practical construc 
 tion of the word citizen as used in the Constitution. 
 
 In her territorial (fays Indiana began to build upon the 
 doctrine that the negro was no part of the body politic, and 
 .therefore not a citizen. She maintained this position until 
 forced to abandon it by the present amendments of the Con 
 stitution, which have given us upon this point an entirely new 
 and materially different Constitution. In 1839 the supreme 
 court of the State decreed the constitutionality of her law 
 entitled : "An act concerning free negroes and mulattoes, and 
 slaves. This law required free negroes or mulattoes coining 
 into Indiana to give bond for their good behavior and not 
 to become a public charge as poor persons. Failing or re 
 fusing to give the required bond, the negro was to be sold into 
 slavery for a period of at least six months at a time "for the 
 best price in cash that can be had." 18 And so until he left or 
 spent a life of slavery or complied with the law. Nor was 
 his right to remain as any freeman to be determined by a 
 jury; a justice had jurisdiction of such offences ( !) against the 
 white man s superior rights; and the justice was fully em 
 powered and required, in the event the negro was not sold as 
 required by the law, to return such negro "to the State where 
 he was last legally settled." 19 In 1840, in Baptiste vs. The 
 State, an instance of an appeal from a sale into such slavery 
 as this law provided, came before the Indiana supreme court, 
 in which a "free man of color" sought to enforce his (!) 
 right to seek his own happiness in whatsoever State he might 
 elect, to enjoy the same privileges of home and protection as 
 the free citizens of the several States, and to receive the earn 
 ings of his own labor, but the court held that the white man who 
 
 18 5 Blackford s Ind. Repts. 285. 
 
 19 Ib. 283. 
 
OF THE DRED SCOTT DECISION 63 
 
 had purchased him at the sale pursuant to this law had the 
 legal and superior right to hold him and compel his service 
 just as slaves were held and compelled to serve in the regular 
 slave States of the South, except of course the possible expira 
 tion of the term of service after the negro had atoned for this 
 crime of attempting to live in Indiana ! Again in Hickland vs. 
 The State, and in 1847, the highest court of the State re 
 affirmed this law. 20 
 
 From her earliest days down to the Dred Scott decision 
 the anti-negro laws of Illinois rested upon the non-citizenship 
 of the negro and so even regardless of his ancestral slave 
 status. Many discriminations against free negroes from other 
 States who went to Illinois fill her statute books and find sup 
 port by her courts. Such persons were required to produce a 
 certificate of freedom issued by a court in the State from 
 which the negro emigrated, to give bond not to become a charge 
 as a poor person, &c., &c. 
 
 February 12, 1853, in revising her anti-negro laws Illinois 
 passed another act "to prevent the immigration of free negroes 
 into this State," so the caption informs us. November, 1855, 
 a negro having appealed from the judgment of the lower 
 court amercing him in a fine for violating this law, the su 
 preme court said : "The offence consists in coming into this 
 State and remaining ten days, with the evident intention of 
 residing in the same. " 21 
 
 In 1804 Ohio passed a law that "no black or mulatto 
 person shall be permitted to settle or reside in this State, un 
 less he or she shall produce a fair certificate from some court 
 within the United States, of his or her actual freedom;" 
 and under the law of 1807 bond, in addition to the proof of 
 freedom, was required before a free negro could lawfully re 
 main in the State. Her first constitution conferred the right 
 to vote upon whites only, which denied that a negro was even 
 a person in the sense in which that word is used in the Ordi- 
 
 20 8 Blackford, 365; see R. S. 1838, 418-19, for one of the statutes. 
 
 21 Torrey vs. The People, 17 111. Repts. 105. 
 
64 LEGAL AND HISTORICAL STATUS 
 
 nance of 1/87. Color, in Ohio, raised more than a presump 
 tion of slavery ; even when known to be free it was a badge 
 of isolation, a mark of exclusion from both privileges of citi 
 zenship and the primary and basal right of freedom, which 
 is change of residence at will. Under her law "color alone 
 is sufficient to indicate a negro s inability to testify against 
 a white man," said her supreme court in 183 1. 22 
 
 In December, 1842, Justice Read of that same court, 
 in Thacher vs. Hawk, said : "It has always been admitted, 
 that our political institutions embrace the white population 
 only. Persons of color were not recognized as having any po 
 litical existence. They had no agency in our political organiza 
 tions, and possessed no political rights under it. Two or three 
 of the States form exceptions. The constitutions of fourteen 
 expressly exclude persons of color by a provision similar to 
 our own ; and, in the balance of the States, they are excluded 
 on the ground that they were never recognized .as a part of 
 the body politic. . . . Indeed, it is a matter of history, that 
 the very object of introducing the word white into our consti 
 tution, by the convention framing that instrument, was to 
 put this question beyond all cavil or doubt, by, in express terms, 
 excluding all persons from the enjoyment of the elective fran 
 chise, except persons of pure white blood. 
 
 "During our Territorial organization, although the Ordi 
 nance and Territorial organic Act, designating the qualifica 
 tions of electors, employed the phraseology all free male 
 inhabitants, &c., yet no negro, or person of any degree of black 
 blood, was ever permitted to vote. The fact is familiar to the 
 old inhabitants, who resided here during the Territorial or 
 ganization. 
 
 "Judge Burnet, who is as familiar with the early history 
 of Ohio as any man in the State, and was engaged in the 
 practice of law in the Territory, and had been prominently 
 connected with the administration of its affairs, remarks, in 
 one of his historical letters, published in the transactions of 
 
 22 Calvin vs. Carter, 4 Hammond s O. R. 351. 
 
OF THE DRED SCOTT DECISION 65 
 
 the Historical and Philosophical Society of Ohio, vol. 1st, pt. 
 2<d, page in: 
 
 ". . . the result of those discussions in the constitu 
 tional convention, was an abandonment of all the propositions 
 which had been made, and a general conviction that a constitu 
 tion should be made for the free white population of the dis 
 trict, who, alone, were represented in the convention ; that its 
 phraseology should be so guarded as to show that people of 
 color were not considered as parties to the compact; and, 
 as they had no agency in its formation, so they should have 
 none in its administration. 
 
 ". . . Hence, we find, so early as 1804, followed up by 
 another act in 1807, statutes discouraging the emigration of 
 blacks into our State, and imposing upon those among us 
 such conditions and restrictions as would induce the vast 
 majority of them to quit the State. Thus, we have denied 
 them all constitutional right to remain even in the State.- . . . 
 
 "This exclusion of persons of color, or, of any degree of 
 colored blood, from all political rights, is not founded upon 
 a mere naked prejudice, but upon natural differences. The 
 two races are placed as wide apart by the hand of nature as 
 white from black, and, to break down the barriers, fixed, as 
 it were, by the Creator himself, in a political and social amal 
 gamation, shocks us, as something unnatural and wrong. It 
 strikes us as a violation of the laws of nature. It would be 
 productive of no good. It would degrade the white, if it could 
 be accomplished, without elevating the black. Indeed, if we 
 gather lessons of wisdom from the history of mankind walk 
 by the light of our experience, or consult the principles of 
 human nature, we shall be convinced that the two races never 
 can live together upon terms of equality and harmony." 2 * 
 These regulations were the work of men from the North. 24 
 
 Turn now to that splendid country covered by the pres 
 ent State of Oregon. Though not precedent, this action 
 
 23 1 1 Stanton s Ohio Rep. 384-5. 
 
 24 Ewing, Northern Rebellion and Southern Seces sion, 69 et seq. 
 
66 LEGAL AND HISTORICAL STATUS 
 
 of Oregon, being the result of Northern influence, is all the 
 more important. In the constitution which her people ratified 
 in 1857, art. i., sec. 35, we read: "No free negro or mulatto 
 not residing in this State at the adoption of this constitution, 
 shall come, reside, or be within this State, or hold any real 
 estate, or make any contracts, or maintain any suit therein; 
 and the legislative assembly shall provide by penal laws for the 
 removal by public officers of all such negroes and mulattoes, 
 and for their effectual exclusion from this State, and for the 
 punishment of persons who shall bring them into the State, 
 or employ or harbor them." 
 
 December 9, 1857, Governor Geo. L. Curry certified that 
 8,641 free white citizens of Oregon had voted in favor of this 
 provision, while only 1,081 opposed it. 25 And this constitu 
 tion was drafted by a convention of sixty members, one- 
 fourth of whom were lawyers! The members are said to 
 have been "men of talent, learning and experience, men of 
 great individuality, of character and strong common sense 
 men of high courage and strong convictions of duty." 26 
 
 As can readily be gathered from the decisions by the 
 supreme court of California, some of which are quoted in 
 another connection, that State assigned to the negro a status 
 based entirely upon his non-citizenship. 27 
 
 Just a few months before the Dred Scott decision the 
 Northern emigrants in Kansas drafted and ratified a consti 
 tution upon which they proposed to build a free State but for 
 free white people only. They held that a free negro, and 
 above all a slave, was not a citizen in the sense in which that 
 word is used in the Constitution of the United States, so 
 their constitution forbade the settlement of free persons of 
 color in the State. 28 And this provision was ratified by the 
 Northern element by popular vote of 2,223 to 453 29 No 
 
 25 Gen. Laws of Oregon, 1845-64, 129. 
 
 26 Gov. W. P. Lord, in Fortieth Anni. of Ore., 14. 
 
 27 Compiled Laws and Acts of Calif., 1850-53, 233. 
 2 a Von Hoist, 5 Const, and Pol. Hist. U. S. 168. 
 
 28 Chas. R. Little, New Cent. Hist. Kansas, 279. 
 
OF THE DRED SCOTT DECISION 67 
 
 wonder Gov. Walker, in May, 1857, exclaimed that if such 
 persons were citizens of the United States "they could not 
 be constitutionally excluded or exiled from Kansas." 30 Yet 
 State legislatures of the North and in great numbers leading 
 men of that section supported, aided, abetted or fought in Kan 
 sas open rebellion against the Federal troops to maintain that 
 principle. 31 
 
 Turning once more to the older States. 
 
 In 1833 Connecticut enacted a law forbidding the setting 
 up or establishment of any "school, academy, or literary insti 
 tution, for the instruction or education of colored persons, 
 who are not inhabitants of this State." The alleged grounds 
 of the law were that such institutions tended "to the great 
 increase of the colored population of the State, and thereby 
 to the injury of the people." In October of the same year a 
 case raising the question of the validity of this law came 
 before Hon. David Daggett, chief justice of the supreme 
 court of errors. The defendant insisted that the law was un 
 constitutional because in violation of Art. 4, sec. 2 of the Con 
 stitution of the United States, which provides that, "The citi 
 zens of each State shall be entitled to all privileges and im 
 munities of citizens in the several States." The case rested 
 upon this claim. The court instructed the jury: 
 
 "The Constitution of the United States is above all other 
 law, it is emphatically the supreme law of the land. . . . 
 does this [school law] . . . violate the Constitution of the 
 United States? . . . The law extends to all persons of color 
 not inhabitants of this State . . . The persons contemplated 
 in this act are not citizens within the obvious meaning of that 
 section of the Constitution of the United States which I have 
 just read. Let me begin by putting this plain question: Are 
 slaves citizens? At the adoption of the Constitution of the 
 United States, every State was a slave State. . . We all 
 know that slavery is recognized in that Constitution; it is 
 
 30 5 Kansas Hist. Col. 44. 
 
 31 Northern Rebellion and Southern Secession, 142 to 240. 
 
68 LEGAL AND HISTORICAL STATUS 
 
 the duty of this court to take that Constitution as it is, for we 
 have sworn to support it. ... Tjieji-^layes were not con 
 sidered citizens by the framers of the Constitution. ... 
 
 "Are fret blacks citizens? . . . To my mind it would be 
 a perversion of terms, and the well known rules of construc 
 tion, to say that slaves, free blacks, or Indians were citizens, 
 within the meaning of that term as used in the Constitution. 
 God forbid that I should add to the degradation of this race 
 of men ; but I am bound, by my duty, to say that they are not 
 citizens." 32 
 
 In the case of Hobbs vs. Fogg the State of Pennsylvania 
 furnished another strong precedent for the decision of the 
 Scott case. At the election in 1835 a negro offered to vote. 
 Solely on account of color, the judges of election refused the 
 privilege. The negro insisted that "as a freeman and citizen 
 of the State" the provisions contained in the State constitution 
 and laws entitled him to the right of suffrage. As Chief Jus 
 tice Taney indicated in September, 1858, this case is all the 
 more important because "of the just weight and authority of 
 the court by which the opinion was given;" and because "so 
 far as the condition of the African race in this country is 
 concerned, and the rule of interpretation which must be applied 
 to public instruments, it maintains precisely the same prin 
 ciples which this [United States Supreme] Court" sustained 
 in the Scott case. 
 
 The lower court, at which, strange to say, a judge by 
 the name of Scott presided, held that the judges of election 
 were liable in damages for refusing the negroes a vote. The 
 judges justified themselves upon the ground "that a free negro 
 or mulatto is not a citizen within the meaning of the Con 
 stitution and law of the United States, and of the State of 
 Pennsylvania, and, therefore, is not entitled to the right of 
 suffrage. . . . "This," said the court, "is the question . . . 
 which this suit was brought to settle." 33 At that time the 
 
 82 Crandall vs. The State, 10 Conn. Rep., 339, 340, 344, 345, 347. 
 33 6 Watts, 553, 554. 
 
OF THE DRED SCOTT DECISION 69 
 
 supreme court of Pennsylvania was composed of five judges. 
 The chief justice delivered the opinion, to which there was 
 unanimous assent. The student should read the full opinion. 
 The court said : "But in addition to interpretation from usage, 
 this antecedent legislation [which the court had just discussed] 
 declared that no colored race was party to our social com 
 pact. Our ancestors settled the province as a community of 
 white men ; and the blacks were introduced into it as a race 
 of slaves ; whence an unconquerable prejudice of caste, which 
 has come down to our day . . . Consistently with this preju 
 dice, is it to be credited that parity of rank would be allowed 
 to such a race? ... I have thought fair to treat the ques 
 tion as it s^a^ds affected by our own municipal regulations 
 without illustration from those of other States, where the 
 condition of the race has been still less favored. Yet it is 
 proper to say that the second section of the fourth article 
 of the Federal Constitution, presents an obstacle to the political 
 freedom of the negro, which seems to be insuperable." 
 
 Now then, in addition to the presumption that a negro of 
 pure African blood whose ancestors had been American slaves, 
 was presumed to have been born and to have continued a slave, 
 these laws show that all the States had given to the Federal 
 Constitution, from the days of its ratification down to the 
 Dred Scott decision, a practical interpretation agreeing unani 
 mously that a negro, though free and a native of a State, 
 was not such a person as the word citizen defines as that word 
 was used by the framers of the Constitution. For, as the 
 Supreme Court of the United States has said, "citizens of the 
 United States" must have "the right to pass and repass 
 through every part of it without interruption as freely as in 
 their own State. 34 Therefore, certainly, he is not a citizen 
 of the United States to whom this right of passing and re- 
 passing was denied for some hundred years and down to that 
 great volcanic upheaval which resulted in the present constitu- 
 
 34 Crandall vs. Nevada, 6 Wallis, 49. 
 
7O LEGAL AND HISTORICAL STATUS 
 
 tional definition of a citizen, thus by amendment making for 
 him a status not enjoyed under the original Constitution. 
 
 Now, there being nothing in the history of any Southern 
 States not mentioned in this discussion, and nothing to be 
 found in the North, even tending to show a different construc 
 tion of the Constitution, it is important to emphasize the fact 
 that this universal American definition of the negro s civil 
 status is of the greatest weight in finding the meaning of the 
 word citizen as used in the Constitution. There being, at 
 the time of the Dred Scott decision, no definition of the word 
 in the Constitution itself, this method of reaching the meaning 
 by historical evidence is approved by highest authority. Mr. 
 Justice Curtis, citing previous decisions of the Supreme Court, 
 said: "A practical construction, nearly contemporaneous with 
 the adoption of the Constitution, and continued by repeated 
 instances through a long series of years, may always in 
 fluence and in doubtful cases should determine the judicial 
 mind, on a question of the interpretation of the Constitution." 35 
 This method, followed since the earliest days, yet fully main 
 tains, and is regarded as of the most forcible nature. 36 The 
 reason of the method, too, should not be overlooked; and this 
 is that, as was emphasized in an earlier chapter, in interpret 
 ing the Constitution we are to place ourselves as nearly as 
 possible in the condition of the men who framed that in 
 strument. If the Constitution as interpreted by the court 
 was not what it should have been, the remedy lay not with the 
 court but with the people, and their remedy ivas by amend 
 ment. 
 
 It will be interesting to notice one instance of such a 
 contemporaneous and subsequent practical construction of the 
 Constitution furnished us in the history of Virginia. 
 
 January 2, 1776, in the secret instructions to General 
 Clark, preparatory to those memorable and glorious "cam- 
 
 35 19 Howard, 616. 
 
 38 McPherson vs. Blacker, 146 U. S. 27; Burrow-Giles Lith. Co. vs. Sarony, 
 (1884) in U. S. 57; The Laura, 114 U. S. 416; Fairbank vs. the U. S., (1901) 
 181 U. S. 307; Missouri vs. Illinois, (1901) 180 U. S. 219. 
 
OF THE DRED SCOTT DECISION Jl 
 
 paigns, 1776-9 and 1780, whereby he gained for the Colony 
 of Virginia a domain later known as the Territory of the 
 United States northwest of the river Ohio, and now known as 
 the States of Ohio, Indiana, Illinois, Michigan and Wisconsin," 
 issued by Governor Patrick Henry of Virginia, Clark was 
 ordered "to attack the British post at Kaskasky" reduce it 
 and take possession of both its military stores and the sur 
 rounding country. Then the governor instructed : "If the white 
 inhabitants of that post and the neighborhood will give un 
 doubted evidence of their attachment to this State (for it is 
 certain they live within its limits) by taking the test prescribed 
 by law, and by every other way and means within their power ; 
 let them be treated as fellow citizens, and their persons and 
 property duly secured; assistance and protection against all 
 enemies whatsoever shall be afforded them, and the Common 
 wealth of Virginia is pledged to accomplish it." 37 
 
 After many delays and numerous disappointments Clark 
 succeeded even beyond expectation, and shortly reported the 
 surrender of the country to Virginia. October, 1778, the 
 general assembly of that State passed an act establishing a 
 government for the new territory. Its citizens, fellow citizens 
 of Virginia, were defined to be white people. 38 
 
 In May, 1779, Air. Jefferson prepared for the considera 
 tion of the general assembly of Virginia a bill defining her 
 citizenship. It provided that "all white persons born within 
 the territory of this State," &c., and certain white foreigners, 
 only, could or should be her citizens; and "that the free white 
 inhabitants of all of the States, parties to the American con 
 federacy, paupers, vagabonds and fugitives from justLce ex- 
 cepted, shall be entitled to all rights, privileges and immunities 
 of free citizens in this commonwealth, and shall have free 
 egress and regress to and from the same, and shall enjoy there 
 in all the privileges of trade and commerce, subject to the same 
 
 37 Illinois Historical Collections, v. i, 192. 
 
 38 Ib. 203, 9 Henning, Statutes of Virginia, 552. 
 
72 LEGAL AND HISTORICAL STATUS 
 
 duties, impositions and restrictions as citizens of this Common 
 wealth. 1 39 
 
 At the time of the passage of this law, Jefferson, its au 
 thor, was just out of the National Congress, having resigned 
 his seat in that body to take one in the general assembly 
 of his own State. When the bill passed he had retired from 
 the latter body to take other positions of trust, and the bill 
 had gone through under the patronage of such men as George 
 Mason, who championed it warmly. No two men in America 
 were better able to know or more honest to declare who were 
 the citizen "parties to the American Confederacy." 40 
 
 Outside of the judiciary and legislatures, Northern states 
 men and lawyers heel for many years gone entirely as far as 
 did the opinion as Chief Justice Taney worded it. An instance 
 of this class of writing is furnished by. John F. Denny, of the 
 Chambersburg, Pennsylvania, bar. About 1834, he published 
 a pamphlet, "An Enquiry into the Political Grade of the free 
 Colored population under the Constitution of the United 
 States." Much as did Taney, he reviews the degraded con 
 dition of free negroes, points out that no State treated them 
 as the political equals of the whites and then says : "Can it be 
 that the Constitution binds so loathsome an excrescence to 
 the vitals of any State? If so, that charter has certainly failed 
 to secure some of the chief benefits for which it was formed 
 . . . The term citizen is nowhere defined in the Constitution; 
 it was employed by the convention as a word of known and 
 established meaning descriptive of all who are capable of citi 
 zenship in all of the States, with a due regard to the local 
 qualifications in each. They were viewed as an addition to the 
 property of the State, but never as an effective accession to its 
 numbers" 
 
 Now, from such legislation, in these judicial decisions, from 
 such official opinions, and from the writings of distinguished 
 jurists and statesmen, from practical constructions outside of 
 
 39 10 Henning, 131. 
 
 40 Washington s Jefferson s 1 Compl. Works, v. i, 40. See also Att y-Gen. Wirt s 
 opinion, i Opps. Att ys-Gen. U. S. 507. 
 
OF THE DRED SCOTT DECISION 73 
 
 the judiciary begun before the Constitution, contemporary 
 with it, and continued through the years down to the amend 
 ments of the Constitution since the war between the States, 
 we get the meaning of the word citizen. Nothing in our 
 history refutes this great volume of evidence; while even much 
 more, merely cumulative, might be adduced to prove that 
 Taney and the majority were correct in holding that negroes 
 of pure African blood, whose ancestors had been American 
 slaves, were not such citizens as were meant when our Con 
 stitution gives United States courts jurisdiction over suits 
 between citizens of different States. Too, this evidence proves 
 that he and the court were again right in holding that at 
 the time of Scott s suit his admission that his ancestors were 
 slaves, that he was a negro of pure African blood, and that 
 being in [Missouri, a slave State, raised against him the pre 
 sumption that he had been born and continued to be a slave. 
 That the majority of the court, concurring in the opinion 
 as written by Taney, in placing itself upon the legal pre 
 sumption stood upon the law, Mr. Justice Curtis himself had 
 furnished the clearest precedent. It is strange that he forgot 
 it when he came to decide this case. In 1851 while out on 
 his Federal circuit, sitting in Massachusetts, in the case of the 
 United States vs. Morris, involving the determination as to the 
 slavery of the person on trial, he said: "Suppose the govern 
 ment were to attempt to trace the pedigree of this man back 
 to 1/85. The first step would be to show, by persons who 
 knew them, that some person spoke of and treated as her son, 
 and that he spoke of and treated her as his mother, or that he 
 was reputed among those nearly connected to be her son, and 
 thus go back to some maternal ancestor in 1785; and, having 
 arrived at that point, the next step would be to prove that that 
 ancestor was a slave; and I suppose that it would hardly be 
 doubted that this last could be proved by showing that she had 
 marks of African descent, and was bought and sold as a slave, 
 and held as such all her lifetime. " 41 
 
 Curtis, C. C. R., 46. 
 
74 LEGAL AND HISTORICAL STATUS 
 
 The presumption which Judge Curtis admitted and en 
 forced when sitting in Massachusetts, he denied and refused to 
 enforce as to this case from Missouri, a slave State; and, be 
 ing a State where slave labor was recognized by law, a State 
 where the presumption was doubly applicable and in which 
 and as to which it had never been questioned until the principles 
 of the Republican party were being crushed into powder by 
 the logic of Taney. 
 
D R ED SC OTT 
 
 Original Oil Painting Owned by the 
 Missouri Historical Society 
 
V. 
 
 SCOTT A SLAVE BY ILLINOIS LAW. 
 
 
 
 \Yith the judgment that Scott was not such a citizen of 
 Missouri, upon the facts set out in the plea to the jurisdiction 
 of the trial court, as was entitled to sue in a Federal court, 
 the Northern free-soil or Free-State party could not have found 
 fault without the most complete stultification. That the negro, 
 the free negro regardless of ancestral conditions, was not a 
 citizen in the sense in which that word is used in the Consti 
 tution of the United States, had been the doctrine and practice 
 of the North since the earliest days. No matter what name 
 the anti-negro Northern movement assumed, that persist 
 ently practical construction of the Constitution was the center 
 about which all other questions were clustered. The Free-State 
 party rested upon it as chief corner stone. Men of means 
 and ability of the North led the ranks of that party and in 
 1855 to 1857 sent hordes of emigrants to settle Kansas with 
 white people only. Backed by the powerful capital of New 
 England, abetted by dangerous numbers of intelligent and in 
 fluential Northern men, these emigrants set up a "free State" 
 resting its chief claim upon the exclusion of the free negro, 
 though born free; and to maintain this construction of the 
 Federal Constitution, with guns supplied from the North, they 
 waged a literal bloody rebellion against the United States. 1 
 
 Experience in Kansas emphasized more than ever the 
 advantage the North would enjoy could the Federal Govern 
 ment be brought again, as it had done in the enactment of 
 the pro-Northern interdict of the Missouri Compromise 
 
 1 See Northern Rebellion and Southern Secession. 
 
 75 
 
y LEGAL AND HISTORICAL STATUS 
 
 law, to take the Northern emigrant under paternal guardian 
 ship. The advantage of this class legislation was pointed out 
 by Judge McLean in a confidential letter to a friend, written 
 November 2, 1855. In the same communication he mentioned 
 that the Dred Scott Case would be before the Supreme Court 
 "next winter," saying that that court had decided "that slav 
 ery exists by virtue of the municipal law, and is local. The 
 Constitution gives Congress no power to institute slavery; 
 then there can be no slavery in the Territories ; for there is no 
 power but Congress which can legislate for the Territories. 
 ... I write to you in confidence. ... It is better that my 
 opinions should find their way to the public from the bench." 5 
 McLean was perhaps as able a politician as he was a judge. 
 At the Republican national convention in Philadelphia, June 
 17, 1856, he received 196 votes for the Presidential nomination, 
 and Stanwood says that he was regarded as a strong candidate, 
 Fremont, who was nominated, having some difficulty to over 
 come the McLean influence. 3 Defeat seemed to indicate Mc 
 Lean s better politics ; and, abandoning the position "that the 
 Constitution confers upon Congress sovereign powers over 
 the Territories," the anti-Democrats took the new cue. Rallying 
 yet more strongly to the banner of the Republican party, by 
 1859, its standard in the hands of Lincoln, the anti-negro 
 North with which the fanatical abolitionists had largely affil 
 iated jeopardized its right to existence as a political power, 
 though expressly declaiming that slavery in the South by the 
 Federal Government should be made express and irrevocable, 
 by adopting as its cardinal doctrine the claim that the Consti 
 tution required the Federal Government to prohibit at all 
 times slavery in Territories. At the same time there was no 
 abandonment of the position that, as Judge McLean said in 
 his dissenting opinion : "If Congress should deem slaves or 
 free colored persons injurious to the population of a free 
 Territory, as conducing to lessen the value of public lands, 
 
 a Bibliotheca, Oct., 1899, 378-9. 
 
 3 Stanwood, A Hist, of the Presidency, 271. 
 
OF THE DRED SCOTT DECISION 77 
 
 or on any other ground connected with the public interest, 
 they have the power to prohibit them from becoming settlers 
 in it." 4 
 
 Hence when the court passed from the question of citizen 
 ship as that question was presented by the special plea, and 
 decided the other questions that were presented by the record 
 and which grew out of the facts upon which Scott relied for 
 sustaining his claim to freedom, the Republican party found 
 itself throttled by the greatest arm of the Federal Government; 
 and all factions of the anti-negro party saw their greatest hope 
 shattered by the very power that they had furnished the money 
 to reach in this case. So both the anti-free negro people and 
 the anti-slavery fanatics lost more in the decision of the court 
 upon the facts of Scott s case as admitted at the trial, and 
 certified in the record before the Supreme Court, than they 
 had gained in the decision upon the question of citizenship 
 as it was presented in the special plea. Smarting under the 
 sting of defeat, burning with the keenest disappointment, they 
 plunged madly and inconsistently into a repudiation of each 
 decision upon which the final judgment of the majority of the 
 court rested. Driven to the wall by the irrefutable logic of 
 Chief Justice Taney and the majority of the Supreme Court, 
 rebellion hissed throughout the North and sophistry and mis 
 representation were seized and weilded as the weapons with 
 which to kindle popular indignation and to divert historical 
 truths. 
 
 Scott, a legal slave under the Missouri law, was by his 
 master, Doctor Emerson, carried to Rock Island, a military 
 post in Illinois, and there held in slavery for about two years 
 and finally returned to Missouri as a slave. While in Illinois 
 the master was a sojourner, in the service of the Federal army, 
 and liable to recall at a moment s notice. Perhaps the belief 
 that Scott was on free-soil while thus in Illinois, has had as 
 much to do with fostering the feeling that the Supreme Court 
 lind done him and the free labor States an injustice and had 
 
 Howard, 543. 
 
78 LEGAL AND HISTORICAL STATUS 
 
 pronounced a principle that would respread slavery, as any 
 other one view of this great case. Some even yet assert that 
 at that time Illinois was "doubly protected against slavery." 5 
 Hence in the interest of history a review of the Illinois law 
 upon this question is here presented. 
 
 We : find no examination of the Illinois law upon this 
 point in the opinion of the court, because of the fact that the 
 Supreme Court affirmed the lower State and Federal courts in 
 the view that Scott, having been returned to Missouri as a 
 slave, could not in that State enforce any status which must 
 depend upon the law of another State. This was placed upon 
 the well recognized ground that any law of Illinois that sought 
 to destroy Scott s slave status existing under the laws of 
 Missouri, was penal in its nature, and that no State would 
 enforce penal laws of any other place in conflict with its own 
 laws. It is settled that this principle is applicable between the 
 States. 6 Too, as also pointed out by Judge Nelson in his 
 concurring remarks, it was an established principle that even 
 had Scott s status been that of a freeman while in Illinois, 
 having been returned to Missouri and having brought suit 
 there, slavery being recognized by her laws, the slave status 
 certainly redintegrated. Nelson sustains this latter ground 
 by showing that, contrary to the usual belief, a slave, though 
 regarded, under Lord Stowell s famous decision, as free while 
 in England, yet as Lord Mansfield of England held later in 
 the case of the slave Grace, "on his return to his own country, 
 the slave resumed his original character of slave." With 
 this view, undoubtedly the settled Federal law, 7 Nelson shows 
 Northern judges were in accord, quoting Story: "In my na 
 tive State (Massachusetts), the state of slavery is not legal; 
 and yet, if a slave should come hither, and afterwards return 
 to his own home, \ve would certainly think that the local law 
 
 \5.Hill, Decisive Battles of the Law, 247. 
 
 8 Wheaton s Int. Law (8th Ed.), sees. 113, 121; Wis. vs. Pelican Ins. Co., 
 127 U. S. 290. 
 
 7 The Antelope, 10 Wheaton, 120; 2 Dodson (England), 250. 
 
OF THE DRED SCOTT DECISION 79 
 
 attached upon him, and that his servile character would be 
 redintegrated." 8 Notwithstanding Judge McLean s claim, 9 the 
 Southern States sustained this doctrine in all cases such as 
 Scott s; and the cases cited by McLean rest upon facts in no 
 true sense analogous to those in Scott s case. 10 
 
 But as a question of history, was Scott really entitled to 
 his freedom under and by virtue of the laws of Illinois? Did 
 the Illinois laws impress upon him the condition and status 
 of a freeman? 
 
 September 17, 1807, the Territory of Indiana, of which 
 Illinois was then a constituent part, passed the indenture and 
 registration law creating absolute slavery except its termina 
 tion before the negro s old age. December, 13, 1812, Illinois 
 having been made an independent Territory, her legislature 
 continued the force and operation of the indenture and regis 
 tration slave law. There was no further legislation on the 
 matter while she remained a Territory; and in the constitu 
 tion of 1818, under which she was admitted a State, she and 
 Congress mutually confirmed the indenture law and the slav 
 ery then existing in conformity thereto and by virtue thereof. 
 That constitution apparently further provided that thereafter 
 there should never be involuntary servitude in that State 
 the indentured and registered slaves being intentionally un 
 touched by the prohibition. On its face this looks like Illinois 
 was preparing to encourage negro freedom, but watch ! 
 
 As a State Illinois began her anti-negro and pro-slavery 
 laws in 1819. On March 30 of that year an act of her legis 
 lature was approved and went into effect providing: "That 
 from and after the passage of this act no black or mulatto 
 person shall be permitted to settle or reside in this State, unless 
 he or she shall first produce a certificate signed by some judge 
 or some clerk of some court in the United States, of his or her 
 
 8 19 Howard, 467, citing Story, Confl. of Laws, 396 a; 2 Kent s Com. 258 n; 
 Chief Justice Shaw of Massachusetts in 18 Pick. 193; i Life of Story, 552, 558. 
 
 19 Howard, 558. 
 
 10 See Guillemette vs. Harper, (S. C. 1850); La. Acts, May 30, 1846; Scott 
 vs. Emerson, 15 Mo. 576; Com. vs. Pleasants, 10 Leigh, 732; Billy vs. Horton, 
 5 Leigh, 667. 
 
8O LEGAL AND HISTORICAL STATUS 
 
 actual freedom ; which certificate shall have the seal of such 
 court affixed to it." 
 
 And further : "That it shall not be lawful for any person 
 or persons to bring into this State, after the passage of this 
 act, any negro or mulatto, who shall be a slave or held to ser 
 vice at the time, for the purpose of emancipating or setting 
 at liberty such negro or mulatto," etc. 
 
 And again : All negroes, "slaves and persons held to 
 service excepted, residing in this State at the passage of this 
 act," were required to register themselves together with the 
 evidence of their freedom. 
 
 And the act further provided that no person could employ 
 or hire any negro or mulatto not having the required certifi 
 cate; and that slaves guilty of misconduct be punished by 
 stripes. Contracts between master and servant were declared 
 void ; and it was provided that in cases of penal laws where 
 free white persons were punishable by fine, slaves were to be 
 punished by whipping "after the rate of twenty lashes for 
 every $8." Negroes ten miles from the tenement of their 
 master were subject to stripes, not exceeding thirty-five, such 
 persons not having been sent by the master. Negro slaves be 
 ing on the plantation or in the tenement of another than the 
 master, not being sent on lawful business, were liable to re 
 ceive "ten lashes on his or her bare back." No person could 
 permit slaves to gather on his premises to the number of three 
 or more "for the purpose of dancing or reveling either by day 
 or night." Slaves so assembling were punishable by thirty- 
 nine stripes "on his or her bare back." 
 
 January 17, 1(829, this law was supplemented by an act 
 which provided that negroes or mulattoes coming into the 
 State and not having the required certificate of freedom should 
 be "deemed runaway slaves or servants," be apprehended and, 
 if not claimed by some owner, be hired out by the sheriff "for 
 the best price he can get" for a period of one year; and then, 
 if no owner claimed such negro, the sheriff should give a certi 
 ficate of the facts, and upon presentation of that certificate 
 
OF THE DRED SCOTT DECISION 8l 
 
 to the circuit court, that court could issue a certificate, where 
 upon such negro should be deemed a free person unless he 
 should "be lawfully claimed by the owner or owners there 
 after." This law further provided that no negro, "the proper 
 ty of any citizen of the United States, residing without the 
 State," could institute in the court of Illinois a suit for free 
 dom, and required the court to dismiss such action should it 
 discover one pending. 
 
 March i, 1833, an act of the legislature exempted persons 
 from the penalty imposed by that section in the law of 1819 
 which forbade the bringing of negroes or mulattoes to the 
 State for the purpose of emancipating or setting them free, 
 on condition that such persons having incurred the penalty 
 of that law should before judgment against them give the 
 bond required, etc., and pay the costs of suit. But as this was 
 specifically applied to the cases that had arisen under the law 
 of 1819, it did not affect the law of Feb. I, 1831, which pro 
 vided : "That hereafter no black or mulatto person shall be 
 permitted to come into and reside in this State, until such per 
 son" shall have presented his certificate of freedom and have 
 given bond with security as provided by the act of January 
 17, 1829. And further: "Any person who shall hereafter 
 bring into this State any black or mulatto person, in order to 
 free him or her from slavery, or shall directly or indirectly 
 bring into this State or aid and assist any person in bringing 
 such black or mulatto person to settle or reside therein, shall 
 be fined $100." This was the law, as well as the laws regulating 
 slaves, providing for stripes on their bare backs, etc., during 
 the time Scott was in Illinois, and, in fact, until long after 
 he had gone from the State. 11 
 
 Xow when we turn to the adjudications of the highest 
 court of Illinois for the purpose of ascertaining the con 
 struction put upon these various anti-negro regulations, we find 
 them not only sustained by the court but the admission that 
 
 11 Laws of 1833, 457 to 465; 496; Acts 1831, 101. 
 
 The next regulation upon the subject was the act of Feb. 19, 1841, which applied 
 
 only to negroes who were born in the State (Acts 1841, 189.), and provided no 
 
 mitigation of the hars h rules of the earlier laws. 
 
82 LEGAL AND HISTORICAL STATUS 
 
 the purpose of such laws "may have been, and most likely was, 
 to prevent the influx of that most unacceptable population," 
 as the court said in Eells vs. The People, in 1843; an d that, 
 as the court went on to point out, "it matters not what the 
 object was, the exercise of the power was within the legiti 
 mate scope of the Illinois authority." Too, we find that the 
 court sustained along with the local slavery and anti-negro 
 regulations the right of slave holders accompanied by their 
 slave from other States to hold them as property while in the 
 State with no intention of permanent residence, as Mr. Justice 
 Lockwood pointed out in the same case. 12 
 
 No\v put your finger upon the provision of the State 
 law as it was either in letter or spirit and as it was enforced 
 by the highest courts of Illinois, under which Scott caul d have 
 claimed freedom^ He could .not- hav-e..been._.sold,.fQr_pne year 
 for whatever price the sheriff who apprehended him might 
 have been able to have obtained, for he wa^flQJLaJugitive slave. 
 That section of the law providing for the sale of negroes not 
 having the required certificate was aimed at fugitives, and had 
 in view, so the State supreme court in Thornton s case in 1849 
 said, "a proper regard to the rights of the citizens of other 
 States" claiming property in such negroes. However, in the 
 same case, basing its decision on the action of the Supreme 
 Court of the United States in the famous case of Prigg vs. 
 Pennsylvania, the highest court of Illinois held that that one 
 section and provision of . the law was wheUy-ifloperati ve. S i nee 
 the Supreme Court of the United States, upon a question of 
 the construction of a State law, always follows the highest 
 court of the State, and since this decision of the State court 
 was based upon the action of the Supreme Court, ha^L -Scott., 
 undergone the penalty by. which alone a negro not having the 
 evidence of his freedom could purchase an uncertain right 
 to remain in the State, it could not have availed him, having 
 been decided inoperative. However, as Scott was not a fugi 
 tive; as no attempt had been made to apply that provision of 
 
 ia 4 Scammon, 513, 517. 
 
 
 
OF THE DRED SCOTT DECISION 83 
 
 the law; and as the section authorizing such sale of fugitives 
 and negroes not having the required certificate of freedom, was 
 wholly inoperative, was the situation altered because of the 
 fact that Scott was in the State by the will of the master who 
 had carried him there for the purpose of holding him in slav 
 ery while upon temporary business in connection with the 
 United States army, and with no intention of setting the negro 
 free? 
 
 The answer must depend upon whether or not the State 
 in order to punish the master in such a case could render inop 
 erative the law s provisions forbidding emancipation by mas 
 ters. That we may see the logic of the situation, notice again 
 the settled law as laid down by the supreme court of the 
 State in 1851 in the case of Owens vs. The People. 13 This 
 was an action instituted by the State to recover the penalty 
 of a bond given by a negro who had come from another State 
 for the purpose of residing in Illinois, "the conditions of which 
 were that he would behave himself in a decent manner, and 
 act as the law requires toward all people in this State, and 
 shall not become a county charge, then and in that case this 
 bond to be void; otherwise to remain in full force and virtue." 
 Hobbs, the negro, settled down, grew old and infirm, and the 
 county in which he lived found itself compelled to expend the 
 sum of thirty-seven dollars for his support, nursing and main 
 tenance. It was to reimburse itself for this outlay that suit 
 was brought against the negro and the woman who was the 
 security on the bond. The case, taken from the Marion cir 
 cuit court on a change of venue, was tried in the circuit court 
 of Williamson county, and judgment given against the negro 
 and the surety for the sum of one thousand dollars, the full 
 penalty of the bond. Thereupon the defendant appealed to the 
 supreme court of the State. Announcing the settled law that 
 court said : 
 
 "The statute in reference to negroes and mulattoes 14 
 
 13 13 Illinois 59. 
 
 " Rev. Stats, ch. 75. 
 
84 LEGAL AND HISTORICAL STATUS 
 
 was manifestly designed to discourage the settlement of ne 
 groes within this State. The eighth section of that act in 
 flicts a penalty on any person bringing a black or mulatto 
 person into the State, in % order to fre.Mm_frorri._.$lavery. The 
 fifth section provides for arresting, imprisoning and hiring 
 out any such person found in the State, not having a certifi 
 cate of his freedom; and, although this section has been held 
 to be invalid, in the case of Thornton, 1 1 Illinois, 332, by 
 reason of its conflict with the exclusive jurisdiction of Con 
 gress over the same subject, still it is proper to refer to it, 
 as indicating the design of the legislature in enacting the other 
 sections of the same law. The first section declares that no 
 black or mulatto person shall be permitted to reside in this 
 State, until such person shall produce to the county commis 
 sioners court, where he or she is desirous of settling, a cer 
 tificate of his or her freedom, -which certificate shall be duly 
 authenticated in the same manner that is required to be done 
 in cases arising under the acts and judicial proceedings- of other 
 States. And until such person shall have given bonds, with 
 sufficient security to the people of this State, for the use of 
 the proper county, in the penal sum of one thousand dollars, 
 conditioned that such person will not, at any time, become a 
 charge to said county, or any other .county of this State, as 
 a poor person, and that such person shall, at all times, demean 
 himself or herself in strict conformity with the laws of this 
 State. 
 
 "The legislature never intended this State," the court 
 goes on to say, "to become a rendezvous for negroes and mulat- 
 toes of every description, who could give the required bond, 
 but limited the privilege of residing here to such only as 
 could furnish the evidence of their freedom and then give 
 bond and security." 15 
 
 Now notice : If presence or residence in Illinois could have 
 imparted to a -...slave the status of a freeman, it would have 
 opened the most effective way for the evasion of the law for- 
 
 15 ib. 6 3 , 6 4 . 
 
OF THE DRED SCOTT DECISION 85 
 
 bidding a person to bring a negro to the State for the purpose 
 6f setting him free. "To have declared Scott free because 
 brought to Illinois and held in slavery, would have done for 
 him what the master could not do, and would have exempted 
 the master from liability to fine had he desired to free his 
 slave. The penalty of the Illinois law was directed against 
 emancipating a slave, and not against holding a negro in 
 slavery in that State. The people of Illinois stood aghast 
 !ibT~at the slave but at the free negro in their midst. Her 
 citizens owned indentured slaves. Hence, Scott could not have 
 been by ajgLll3ilLOJ3-Qii^ free by 
 
 reason of having been held in slavery in Illinois because such 
 would have contravened Jfe 
 
 Had it been held that Scott s master could not hold him there 
 in slavery, he must then, as the law read and as the courts 
 enforced it, have been ejected from the State on the ground 
 that he did not have a certificate of his freedom, "duly authen 
 ticated in the same manner as that required to be done in cases 
 arising under the acts and judicial proceedings of other 
 States," which would have been irrefutible proof that such a 
 negro was yet a slave under the laws of the other State. Too, 
 since it was unquestionable that Scott had no certificate, unless 
 tolerated merely as a slave he was a trespasser while in Illinois, 
 and to have allowed him any benefit as against his master on 
 account of that stay, would have been permitting him the 
 advantage of his own wrong, which is always abhorrent to all 
 law. In eliminating a negro Illinois repudiated in the most 
 emphatic manner his right to her protection, and gave express 
 acknowledgment that he was the subject of some other State. 
 Being the subject of some other power, and not permitted the 
 privilege of her jurisdiction, Illinois could not invest him 
 with a right. 
 
 Illinois did not permit the right of freedom as between the 
 negro and the State to add free negroes to her population. 
 Both the letter of the law and the presumptions upon which 
 the courts acted in its enforcement were in favor of the slav- 
 
86 LEGAL AND HISTORICAL STATUS 
 
 ery of every person of negro descent. However, there are 
 a few cases in her court reports that might mislead some, for 
 in them the obiter dictum that all men, even negroes, are 
 presumed to be free, is found. 
 
 One of the most peculiar of these decisions was rendered 
 by that court in November, 1857. Its obiter dicta, in the face 
 of the facts and the laws of the State, cannot fail to strike 
 even the casual reader. In this case a slave escaping from his 
 master, who held him under the Missouri law, was taken on 
 board the Illinois Central Railroad at Cairo and carried to 
 Chicago. Suit was instituted in the Illinois State circuit court 
 in 1855 to recover the value of the fugitive negro and also for 
 damages occasioned by the road in assisting his escape. Said 
 the court : "The constitution of this State prohibits negro 
 slavery, and, therefore, negroes within our jurisdiction are pre 
 sumed free." 10 But that declaration was to save the railroad 
 from damages, as no question between the State and the negro 
 was involved. 
 
 As authority for this the court cites, first, Hone vs. Am- 
 mons. 17 In that case a citizen and resident of Illinois exe- 
 cuted his note in purchase of a negro represented to be a slave, 
 and who was at the time in the State. Of the four judges only 
 two concurred in the opinion; the chief justice dissented in toto 
 from the other members of the court. The only point upon 
 which a majority of the court seem to have agreed was that 
 no judgment could be given upon "a contract made in Illinois, 
 for the sale of a person as a slave. . . . The contract sued 
 on was made in Illinois, and the presumption of law is, was 
 to be performed in Illinois. A part of this contract, the con 
 sideration of the note, was the sale of a negro in Illinois, as 
 a slave" in 1848 or 1849. So the question as to whether or 
 not the negro, the consideration of the note, was free or slave 
 did not become material in deciding the case, most clearly, as 
 Justice Trumbull showed. There was no proof that the negro 
 
 " 19 111. 44- 
 
 l? 14 111. 29. 
 
OF THE DRED SCOTT DECISION / 
 
 was not born in Illinois, or that he had ever been held in slavery 
 in a slave State, or that Hone, who claimed to sell him, or any 
 one else, had ever exercised "even the semblance of possession 
 or control" in Illinois or elsewhere. 
 
 Baily vs. Commonwealth 18 was the next case cited. This 
 case was heard in the lower court in September, 1839. Abra 
 ham Lincoln was the attorney for the appellant, and S. T. 
 Logan for the appellee. It, also, was an action to recover 
 the value of a note given in consideration of a negro girl 
 who was alleged to be an indentured slave under the laws of 
 Illinois; and the vendor promised to produce the papers of 
 indenture. No title papers were ever produced ; and, upon ex 
 amination, none could be found; and the court said that the 
 presumption was "she was free, and not the subject of sale." 
 
 In Kinney vs. Cook, 19 the court said the presumption is 
 that "every person is free, without regard to color," and this 
 the court in 1857 also cited. This was another action of debt. 
 A negro had sued for w r ages which he claimed to be due from 
 a citizen of Illinois for whom he worked. The negro proved 
 his services, "without having adduced any testimony whatever 
 of his freedom either by certificate or otherwise." The defend 
 ant relied upon this failure to prove freedom ; and the question 
 before the court turned upon whether or not, in such a case, 
 the law would presume the negro free. Both the lower and 
 the appellate court held that the plaintiff, the negro, for the 
 purpose of that suit, was under no necessity to prove his 
 freedom. 
 
 Now it will be observed that neither case arose from 
 the voluntary carrying a negro to the State by a master from 
 a slave State. .Sn^^henjjie Drerl Srott Case waA..hefnrp thf 
 ciilL--therp was not -^ ctnt^tp nr n fjpnViQn which was an. 
 authoritative precejdent_for Jioldingjihat a negro slave being 
 brpughTto the State as was Scott, would, in any event, or for 
 a n y "pi irpngf jj] fL been pr esjirnedjree ; on the contrary her bit- 
 
 19 3 Scammon, 71. 
 14 3 Scammon, 232. 
 
88 LEGAL AND HISTORICAL STATUS 
 
 ter and enforced statutes requiring evidence of freedom were 
 most conclusive that her law was against him. 
 
 HadJScott any right to freedom under the Ordinance of 
 1787-?- Curtis said that "the Congress of the Confederation 
 had no power to make such a compact nor to act at all upon 
 the subject." So far as the Articles of Confederation was 
 authority, this is undoubtedly true ; and whether or not it had 
 any validity on the ground of mutual consent of the States, 20 
 all agree it had none after the Constitution except as author 
 ized by that instrument. 21 August 7, 1789, Congress acting 
 under the Constitution, there being no other source of power 
 "capable of operating within that territory after the Consti 
 tution took effect," affirmed the provisions of the Ordinance 
 only in so far as Congress had power to legislate upon the 
 subjects regulated therein. 22 Hence, if the Constitution gave 
 Congress no power to destroy slave property in a Territory, 
 no part of the Ordinance of force after August 7, 1789, con 
 tained an attempt at such destruction, words in the Ordinance, 
 as originally drawn, to that effect being the merest surplus 
 age. Territories within the limits of the Ordinance, after 
 the Constitution, beginning with the slavery law of the Ter 
 ritory of Indiana in i8o7, 23 down through the adoption and 
 reenactment of this law by the Territory of Illinois, 24 treated 
 the anti-slavery wording of the Ordinance as a surplusage and 
 a nullity. These laws and this construction of the Ordinance 
 were ratified by Congress and specifically declared to be in 
 conformity with the principles of the Ordinance, when Con 
 gress sanctioned the constitution of Illinois, in i8i8. 25 
 
 The ordinance was a territorial regulation ; after the sev 
 eral Territories of the Old Northwest became States, they 
 
 20 19 Howard, 435. 
 
 21 19 Howard, 617. 
 
 22 i Stat. at Large, 50. 
 
 23 Acts Ter. Leg., 1807. 
 
 24 Hayes vs. Borders, (1844) i Gilmer (111.), 54. 
 38 Poore, Charters and Consts. 446. 
 
OF THE DRED SCOTT DECISION 89 
 
 altered or adopted even the theretofore valid provisions of the 
 Ordinance as suited the people. The validity of this action 
 was sustained by the Federal courts and by the highest court 
 of each State erected within the original Territory. To have 
 given the anti-slavery wording of the Ordinance full force in 
 Illinois while Scott was in that State, would have destroyed 
 her anti-negro laws. Such a force not only was not but would 
 not have been tolerated, and would have been entirely subver 
 sive of the reserved rights of Illinois as guaranteed by the 
 Constitution of the United States. Too, such an application 
 of the Ordinance would have destroyed the force of the in 
 denture slave law affirmed in the Illinois constitution and 
 ratified by Congress, and no law of that State has been more 
 zealously upheld than that slavery provision. 26 
 
 In full harmony with these decisions Judge McLean in 
 1838 announced the same principles. 27 In 1843 tne superior 
 court of Michigan decided: "The Ordinance of 1787, in my 
 opinion, is no part of the fundamental law of the State since 
 its admission into the Union. It was then superceded by the 
 State constitution, and such parts of it as are not to be found 
 in either the Federal or State constitutions, were annulled by 
 mutual consent. . . . The Ordinance must . . . have been 
 drawn with a view to the existing government under the 
 Articles of Confederation. If the Constitution had been in 
 operation at the time, it can hardly be supposed that the Ordi 
 nance would have been what it is; for a new, and in most re 
 spects, entirely different state of things existed under the 
 Constitution, from what existed under the Articles of Confed 
 eration." 28 This principle by which the Ordinance was held 
 inoperative after Illinois became a State, was sustained in 
 Menard vs. Aspasia, decided by the Supreme Court of the 
 United States in 1831, in an opinion written by Judge McLean 
 
 2ci McKinstry vs. Pennoyer, i Scammon (111.). 319; Bonn vs. Juliet, Ib., 258; 
 Sarah vs. Borders, 4 Scammon, 345, 348; Eells vs. The People, Ib. 507. 
 
 27 Spooner vs. McConnell, i McLean s Repts. 343. 
 
 28 Walker s Mich. Chancery Rep. 163. 
 
90 LEGAL AND HISTORICAL STATUS 
 
 himself. 29 In 1885 the same court again decided, the entire 
 court agreeing: "The Articles of Confederation ceased to ex 
 ist upon the adoption of the Federal Constitution ; and the 
 Ordinance of 1787, like all acts of Congress for the govern 
 ment of Territories, had no force in any State after its admis 
 sion into the Union under the Constitution." 30 From that day 
 to this the principle remains sustained. 
 
 Neither the Ordinance of July 13, 1787, nor any law of 
 the State of Illinois converted the slave status of Scott into 
 that of a freeman. There being no other possible source of 
 freedom, while in Illinois Scott remained a slave. 
 
 29 5 Peters, 516. 
 
 30 Van Brocklin vs. Tennessee, 117 U. S. 159; citing Permoli vs - . First Munic. 
 of N O., 3 Howard, 589, 610; Strader vs . Graham, 10 Howard, 82. 
 
VI. 
 OBITER DICTA AND THE OPINION. 
 
 That some part of the opinion of the court is an obiter 
 dictum, has been widely believed since the first effort to find 
 an excuse for repudiating the binding and conclusive force of 
 what the court had done. "Taney and the others went out of 
 their way to deliver a series of obiter dicta/ is a statement that 
 has long been the favorite .weapon with which the attempt is 
 made to defend the North for the great numbers therein of 
 the same mind make it proper to speak of it as a whole 
 against the nullification to which that section and the North 
 west largely surrendered when the court by its famous de 
 cision blasted the legal hopes of the movement for free Terri 
 tories for white people only. It is believed, as this representa 
 tive writer goes on to explain, that the obiter dicta consist 
 of "personal judgments not needed or relevant for the case in 
 hand, and therefore not law." Being told that the court had 
 rendered judgments not law, and that the judges wilfully had 
 gone out of their way to do so, the attack on the opinion had 
 the desired effect and "inflamed the public wrath immeasur 
 ably as a fresh aggression of the slave-power." 1 
 
 Perhaps very -few of those who came to believe that the 
 opinion rested upon so rotton a foundation, understood very 
 definitely why or wherein the dictum is said to lie. Some of 
 those who led the assault upon the court differed from each 
 other as to what was the dictum they professed to find, or as 
 to wherein the court had rendered an extra judicial judgment. 
 It will be important, therefore, first to find to what part of 
 
 1 Encyc. Americana, ed. 1903, Dred Scott Case. 
 
 91 
 
92 LEGAL AND HISTORICAL STATUS 
 
 the court s opinion it is claimed that the obiter dictum is said 
 to apply. 
 
 To what it cannot apply is essential first to be seen. Some 
 times the histories read as if the writers thought the use of 
 references to familiar history by Chief Justice Taney in writing 
 the court s opinion, constitutes obiter dictum. However, it 
 must be remembered that scholars and lawyers do. not complain 
 that his historical illustrations and references to legal maxims 
 are dicta. Writers often misquote or misinterpret the language 
 of. the opinion in dealing with these materials; but, as they 
 are of minor importance, no notice will be made here of such 
 abuses. It is important, however, to observe that Taney s 
 method of supporting his conclusions was not new to courts 
 then, and that it is yet an effective and important factor of 
 judicial argumentation. An interesting and recent illustration 
 of this is afforded in the case of Wilson vs. Shaw, decided by 
 the Supreme Court of the United States January 7, 1907. In 
 that case, among other requests, it was asked that the Secre 
 tary of the United States Treasury be restrained from paying 
 $40,000,000 to the Panama Canal Company, and $10,000,000 
 to the Republic of Panama, and from paying out money for 
 the construction of the canal, and from borrowing money for 
 that purpose and issuing bonds of the United States therefor. 
 In deciding the case Mr. Justice Brewer, speaking for the 
 court, said : 
 
 "In other words the plaintiff invokes the aid of the courts 
 to stop the government of the United States from carrying 
 into execution its declared purpose of constructing the Pana 
 ma Canal. The magnitude of the plaintiff s demand is some 
 what startling. ... A company chartered under the laws ot 
 France undertook the construction of a canal at Panama. This 
 was done under the supervision and guidance of the famous 
 Ferdinand de Lesseps, to whom the world owes the Suez 
 Canal. To tell the story of all that was done in the construction 
 of this canal, prior to the active intervention of the United 
 
OF THE DRED SCOTT DECISION 93 
 
 States, would take volumes. It is enough to say that the efforts 
 of De Lesseps failed." 2 
 
 Whether or not the court were startled was not an ele 
 ment or an essential of the court s decision; that De Lesseps 
 "failed" was not required to be decided, and was a question 
 upon which others might hold a different view. Whether the 
 world owes to him the Suez Canal had nothing whatever to do 
 with the court s opinion or judgment. Yet all courts indulge 
 more or less in such statements, and properly; every judicial 
 argument needs its background, its lines of perspective, its 
 shades and shadows, and courts generally paint them. How 
 ever, there is nothing of the superfluous or irrelevant in the 
 opinion in the Scott case. Such uses of history and illustra 
 tions drawn from standard writers do not constitute obiter 
 dicta; and they do not in the least impair the court s opinion 
 or judgment. 
 
 Waiving a discussion of the question as to when or how 
 far or whether any substantial part of the people may assume 
 to nullify the actual legal force of a decision of the highest 
 court ; without discussing whether or not the legislative branch 
 of the government may proceed to re-enact laws based upon 
 an authority declared by the highest court to be beyond the 
 legislature, let us observe in the outset that it will not be 
 authoritatively disputed that obiter dictum applies to the es 
 sential decision or decisions upon which the court rests its 
 judgment. In the opinion of the court in this case these de 
 cisions upon which the court, deciding the case as a whole, 
 rested its judgment, which was that the tmJ^_court_had no 
 jurisdiction^ re three: (i) that Scot^_was...npt .a citizen of 
 Missouri, in the sense in which the word citizen is used in the 
 Constitution of the United States; (2) that Missouri, under the 
 circumstances of the case, properly refused to inquire for or to 
 enforce any extraterritorial law said to have destroyed property 
 rights already vested in. Scott, the destruction being contrary 
 to the laws and polity of Missouri; (3) that being within 
 
 204 U. S. 30. 
 
94 LEGAL AND HISTORICAL STATUS 
 
 the jurisdiction of the Missouri Compromise anti-slavery law 
 had not established for any of the parties before the court the 
 status and condition of a free person, because the law was 
 contrary to the Constitution and void. 
 
 Keep the court proceeding s in mind together with the 
 grounds of jurisdiction, and the kind of jurisdiction exercised 
 in this case by the Supreme Court of the United States. The 
 importance of a clear distinction will warrant a little repeti 
 tion. Federal courts, including the jurisdiction of the cir 
 cuit court in which this case was tried, being limited in jur 
 isdiction in the sense that they have no jurisdiction than that 
 conferred by the Constitution and laws of the United States, 
 require one suing in them to show upon the face of his de 
 claration of complaint or in some affirmative manner by the 
 pleadings the ground upon which he asks the court to exercise 
 jurisdiction. In Robertson vs. Cease the Supreme Court, re 
 peating the settled rule, said that "when the jurisdiction de 
 pends upon the citizenship of the parties, such citizenship, 
 or the facts which in legal intendment constitute it, should 
 be distinctly and positively averred in the pleadings, or they 
 should appear affirmatively and in equal distinctness in other 
 parts of the record. 3 In obedience to this requirement Scott, 
 we remember, rested alone upon the ground of diverse citizen 
 ship ; that is, that he, a citizen of Missouri, was suing Sand- 
 ford, a citizenship of New York. On the trial Sandford filed 
 what we call a plea in abatement ; that is, he said that the suit 
 should stop for want of jurisdiction in the trial court. His 
 reason for saying that the court had no jurisdiction for hearing 
 the case was that Dred Scott "is not a citizen of the State 
 of Missouri as alleged in his declaration, because he is a 
 negro of African descent; his ancestors were of pure African 
 blood, and were brought into this country and sold as negro 
 slaves." To this there was what is known in law as a de 
 murrer ; that is, the facts of the plea were admitted while it 
 was denied that their effect was sufficient to destroy jurisdic- 
 
 3 97 U. S. 646, citing the earlier leading cases. 
 
OF THE DRED SCOTT DECISION 95 
 
 tion. This plea and the demurrer having been argued, it al 
 ways being absolutely necessary that the question of jurisdic 
 tion of a trial court be first determined, the lower or trial 
 court by judgment sustained the demurrer, holding that it had 
 jurisdiction, whereupon the case was heard upon its merits 
 and as a result of that hearing another judgment entered. 
 
 Now notice what the Supreme Court did : It found all 
 these facts in the record. That it had some degree of appellate 
 jurisdiction over the work of the trial court, there is no ques 
 tion ; and no one attempted to dispute this appellate power. 
 Opening the record the court found the plea in abatement, 
 the demurrer thereto, and the trial court s judgment there 
 on a judgment preliminary to what followed. Now, the 
 question is not, had the Supreme Court appellate jurisdiction? 
 But, it is how far, according to the recognized rules of appel 
 late practice, should the Supreme Court go in its examination 
 of the record; and what questions should it decide or omit? 
 Should it omit any notice of the trial court s judgment of the 
 facts of the plea, and pass into the record and examine the 
 judgment rendered by the trial court on the questions of 
 merit? Or should it examine and decide the questions raised 
 at each stage of the case as it progressed in the trial court? 
 Curtis agreed with the majority that the questions raised by the 
 plea were before the court, and that the preliminay judgment 
 of the trial court thereon should be affirmed or reversed, 
 as might be determined proper. That this was the correct prac 
 tice is certain. As to the conclusion to be reached upon that 
 plea and the judgment of the trial court thereon, the first 
 difference between the majority and the dissenting judges 
 appeared. 
 
 The majority held that the judgment of the trial court 
 upon the facts of the plea was erroneous ; that the facts there 
 in, admitted by Scott to be true, showed a lack of jurisdiction 
 in the trial court to hear and determine the merits of the 
 case, because those facts "disqualified the plaintiff from be 
 coming a citizen, in the sense in which that word is used in 
 
90 LEGAL AND HISTORICAL STATUS 
 
 the Constitution of the United States." 4 So, having based 
 his right to sue upon the assertion that he was a citizen of 
 Missouri, and that he sued a citizen of New York, the trial 
 court had erred in trying the case on its merits. The two 
 dissenting judges held that the trial court was correct in 
 deciding that upon the facts of the plea it had jurisdiction, and 
 insisted that only in this view could an examination of the 
 other questions be justified. 
 
 Now, aside from whether or not the majority was correct 
 in this conclusion as to the legal weight of the facts set out in 
 the plea, having decided that the trial court had no jurisdic 
 tion as shown by those facts, should the majority have stopped 
 at finding want of jurisdiction in the trial court on a considera 
 tion of the plea? There* was yet the judgment on the merits, 
 what should the appellate court have done with it ? Should it 
 have reversed that judgment? Should it have affirmed that 
 judgment of the trial court on the merits? Should that judg 
 ment have been ignored? That the Supreme Court, in exer 
 cising this appellate jurisdiction, must have done something 
 with the judgment of the trial court reached on a hearing 
 of the merits, no one questioned and no lawyer will now ques 
 tion. Having said that the lower court on the facts of the 
 plea had no jurisdiction, the appellate court was obliged to 
 look at the judgment of the trial court on the merits to see 
 whether or not it should be reversed or affirmed. Anyone 
 can understand this. As the California court correctly said, 
 the appellate court "must look into the whole record, and 
 see if there be any errors in the final decree rendered" by the 
 trial court. 5 As a matter of fact it might have appeared on 
 the trial that, entirely apart from the facts of the plea, the trial 
 court had jurisdiction. For, on the trial the facts of the plea 
 had nothing in the world to do with the matter; that plea was 
 a preliminary step; and, having been passed and the court 
 actually having assumed and exercised jurisdiction, Scott was 
 
 * 19 Howard, 400. 
 
 5 Still vs. Saunders, 8 Calif. 281. 
 
OF THE DRED SCOTT DECISION 97 
 
 not bound by any admissions made by his demurrer to that plea. 
 Suppose he had shown by evidence that his ancestors had been 
 Indians then the judgment on the plea would not have been 
 relevant, for it related to negroes of pure African blood. Sup 
 pose that he had shown that at some stage his ancestors, being 
 Indians, had become civilized and had actually become citi 
 zens of Missouri? Certainly it would then have appeared 
 upon the facts at the trial that Scott had been born of ancestors 
 who were citizens and that, therefore, the court had jurisdic 
 tion. Had such facts been shown, the trial court having 
 exercised jurisdiction, does anyone doubt that the Supreme 
 Court, as appellate tribunal, would have sustained the juris 
 diction thus exercised by the trial court? 
 
 In this case the Supreme Court did no more than follow 
 the record to see if there were any facts shown at the trial 
 which rendered Scott a citizen of Missouri ; that is, whether 
 upon the whole record there was anything to show whether 
 the lower court had jurisdiction. Looking at the questions 
 of merit that had arisen at the trial the appellate court found 
 that they bore directly upon the jurisdiction of the trial court. 
 Because of this relation of the questions of merit to the juris 
 diction of the trial court the Supreme Court justified the 
 decision of them. The court entered all the questions of 
 merit to show that even were the majority mistaken in the 
 view it took of the questions raised by the plea, in no view of 
 the case had the trial court jurisdiction to enter a judgment 
 upon the merits, and that even after hearing the case the lower 
 court should have dismissed it for want of jurisdiction. The 
 judgment of the Supreme Court rests, then, upon two views 
 looking directly at the trial court s jurisdiction. 
 
 It is plain to see that had the case been such that the 
 facts at the trial had shown jurisdiction, and had the Supreme 
 Court refused or neglected to have examined that phase of the 
 case, the denunciation that would have followed certainly 
 would have been, // possible, even more bitter than it was and 
 is. Had the court stopped at the facts of the plea, the par- 
 
98 LEGAL AND HISTORICAL STATUS 
 
 ties thus sent from its bar would have retorted that the court 
 had not the courage to decide all the questions presented by 
 them. 
 
 The questions of merit that arose at the trial and which 
 were certified to the Supreme Court, were those growing out 
 of the temporary sojourn in the two places as alleged by 
 Scott. He admitted that he was, before his removals from 
 Missouri, and before being in these two places, "a negro slave 
 the lawful property of the defendant." 6 These removals from 
 Missouri were, as we have seen, first to Illinois and from 
 there to Minnesota, the latter a Territory within the juris 
 diction of the Missouri Compromise. Here was an admis 
 sion made at the trial that Scott himself was a legal slave at 
 least at one time quite different from that in the plea, and it 
 was plain that if the facts of being for the times and under the 
 circumstances as admitted in Illinois and in Minnesota had 
 not changed the slave status, then Scott was still a slave ; and 
 if a slave admittedly not a citizen of Missouri ; and not being, 
 therefore, such a citizen as is meant by the Constitution, the 
 Federal trial court upon the ground of diverse citizenship 
 had no jurisdiction of the case. 
 
 So the charge that the court uttered obiter dictum lies 
 against the judgment upon the effect of the removals. Espec 
 ially this complaint is lodged against the decision upon the 
 effect of being within the jurisdiction of the Missouri Com 
 promise. The statement of \Yooclrow Wilson is representative 
 of the position of history when he declares that in pronouncing 
 the Missouri Compromise prohibition unconstitutional "the 
 court left the proper field of the case, and therefore uttered 
 obiter dicta/ 7 
 
 Let us measure this action of Taney and those who con 
 curred making what he wrote the opinion of the court, with the 
 established, well recognized and long settled rules for deter- 
 
 19 Howard, 397. 
 
 7 History of the American People, vol. 5, 177; James Brice, The American Com., 
 3rd ed., 1905, vol. i, 263; Guy C. Lee. The True Hist. Civil War, 127; H. W. Elson, 
 Hist. U. S., vol. 4, 47; Carson, The Hist. Sup. Court U. S., vol. 2, 371. 
 
OF THE DRED SCOTT DECISION 99 
 
 mining obiter dictum, and which define the limits within which 
 a court may decide a case. From the many cases in which 
 we find the applicable rules I select such as are representative 
 and which announce the settled law. 
 
 The old English definition of obiter dictum is more rigid 
 than the doctrine in America. Bouvier, an early legal lexi 
 cographer, defines the more rigid rule "as an expression of 
 opinion, however deliberate, upon a question, however fully 
 argued, if not essential to the disposition that was made of 
 the case." But this rule, unreasonable and if adhered to often 
 injurious, is not recognized as the doctrine with us. On the 
 contrary, it is well settled in this country that a court may 
 decide any number of questions raised in the case and grow 
 ing out of the record, having been duly considered, which show 
 reasons for the disposition made of that case. "Besides," as 
 the court in Buchner vs. Chicago, etc., pointed out. "mere 
 obiter is not always reprehensible. On the contrary, some of 
 the most sacred cannons of the common law had their origin 
 in the dicta of some wise judge." 8 
 
 In the State of Nevada, etc., vs. Clarke 9 the court says: 
 "Dictum is defined to be an opinion expressed by a judge on a 
 point not necessarily arising in the case. The reason assigned 
 for dicta not being entitled to weight is that usually they are 
 upon some point not discussed at bar something to which the 
 attention of the court has not been particularly called and 
 something on which the judge uttering them may not have 
 reflected a moment before expressing his opinion." 
 
 Says a New York Court: "Dicta are opinions of a judge 
 which do not embody the resolution or determination of the 
 court, and are made without argument, or full consideration 
 of the point, are not the professed deliberate determination 
 of the judge himself; obiter dicta are such opinions uttered 
 by the way, not upon the point or question pending as if turn- 
 
 8 60 Wisconsin, 264. 
 3 Nev. Rep. 572. 
 
IOO LEGAL AND HISTORICAL STATUS 
 
 ing aside for the time from the main topic of the case to 
 collateral subjects." 10 
 
 In 1893 Justice McCabe of the supreme court of Indiana, 
 dissenting upon another question, had occasion to lay down the 
 rule thus : 
 
 "I concede that a question decided that is not before the 
 court, and not involved in the case, is obiter dictum and not 
 binding authority. But when the court decides incidental 
 questions essential to the support of the conclusion reached and 
 happens to decide two such questions when one would have 
 been sufficient to support the conclusion, one of such inci 
 dental decisions is as binding a decision, and as authoritative 
 as the other. ... It cannot be any less so because another 
 reason is given in support of the conclusion reached, because 
 another incidental question is decided as an additional ground 
 on which to rest the conclusion reached." 11 
 
 In 1880 the Supreme Court of the United States stated 
 the rule in similar words : "It cannot be said that a case is not 
 authority on one point because, although that point was prop 
 erly presented and decided in the regular course of the con 
 sideration of the case, something else w^as found in the end 
 which disposed of the whole matter." 3 
 
 Gathering the rule for the determination of obiter dictum 
 from the decisions of the American courts, the American and 
 EnglisJi Encyclopedia of La-iv, a work of highest authority, 
 says: 
 
 "Where the record presents two or more points, and one 
 of which, if sustained, would determine the case, and the court 
 decides them all, the decision upon any one of the points can 
 not be regarded as obiter. Nor can it be said that a case is 
 not authority on a point because, though that point was prop 
 erly presented and decided in the regular course of the con 
 sideration of the case, another point was found in the end 
 
 10 Rohrback vs. Germania Fire Ins. Co., 62 N. Y. Rep. 58. 
 " 136 Ind. R. 533-4- 
 "103 U. S. 143- 
 
OF THE DRED SCOTT DECISION Ipl . 
 
 which disposed of the whole matter. The decision on such 
 a question is as much a part of the judgment of the court as 
 is that on any other of the matters on which the case as a whole 
 depends. The fact that the decision might have been placed 
 upon a different ground existing in the case does not render a 
 question expressly decided by the court a dictum." 
 
 Let me give a very clear illustration of this rule : 
 
 In Ward vs. Maryland, 13 decided in 1870, Mr. Justice 
 Bradley delivered the following dissenting opinion : 
 
 4 T concur in the opinion of the court, that the act of the 
 legislature of Maryland, complained of in this case, discrimi 
 nates in favor of residents and against non-residents of the 
 State, and consequently is a violation of the fourth article of 
 the Constitution of the United States, and therefore, pro tanto, 
 void. But I am further of opinion that the act is in violation 
 of the commercial clause of the Constitution, which confers 
 upon Congress the power to regulate commerce among the 
 several States; and it would be so, although it imposed upon 
 residents the same burden for selling goods by sample as is 
 impo.sed on non-residents. Such a law would effectually pre 
 vent the manufacturers of manufacturing States from selling 
 their goods in other States unless they established commercial 
 houses therein, or sold to resident merchants who chose to send 
 them orders. It is, in fact, a duty upon importation from one 
 State to another, under the name of a tax. I therefore dissent 
 from any expression in the opinion of the court which, in any 
 way, implies that such a burden, whether in the shape of a tax 
 or a penalty, if made equally upon residents and non-residents, 
 would be Constitutional." 
 
 The two things emphasized in this short and clear dis 
 senting opinion, are, (i) a judge may concur in part and 
 dissent in part, and in so far as he does concur, he helps to 
 a judicial decision by the court; (2) any number of questions, 
 raised in the record and argued by counsel and considered 
 by the court, which go to decide the case, or answer the 
 
 13 12 Wallace, 432. 
 
IO2 LEGAL AND HISTORICAL STATUS 
 
 question upon which the judgment rests, may be passed upon, 
 and become a valid part of the opinion. Here Judge Bradley 
 gives tivo decisions, either one of which disposes of the case 
 before the court. In that case the question was : Is a certain 
 State law prohibited by the Federal Constitution? It is un 
 constitutional, the court said, because it violates the fourth 
 article of the Constitution. It is unconstitutional says Judge 
 Bradley, because it violates the fourth article of the Constitu 
 tion ; but he is further of opinion that it violates the commer 
 cial clause of the Constitution. In the first case the law is 
 void; in the second case it is void; either one disposed of the 
 case. But both questions went to answer the question : Is the 
 law Constitutional? and thus both although either settled 
 the case might be and were decided. 
 
 In the Dred Scott Case, each question decided in the 
 opinion went to answer the question : Had the circuit court 
 jurisdiction as shown upon the whole record? That is: Is 
 Scott a citizen of Missouri in the sense in which the word 
 citizen is used in the Constitution? And the answer: He is 
 not such a citizen because none of his race descend from Amer 
 ican slaves can be citizens unless the Constitution of the 
 United States be amended; and further, he is not a citizen 
 because, the Missouri Compromise being unconstitutional, hav 
 ing relied upon it to change his admitted slave condition, he 
 is a slave; and upon the whole he cannot sue in a Federal 
 Court as a citizen of the United States." 
 
 Railroad Companies vs. Schutte was an appeal from a 
 decree rendered by the supreme court of Florida, in a case 
 in which that court had passed upon the merits involving the 
 constitutionality of certain bond issues between the State and 
 the Florida Central Railway Company. The trial court held 
 that the company was authorized to issue the bonds that had 
 been given the State in exchange for its bonds and that thereby 
 a lien had been created on the railway company in favor of 
 bona fide holders; but, as there was no proof that there were 
 bona fide holders, a fact necessary to the jurisdiction of the 
 
OF THE DRED SCOTT DECISION 103 
 
 trial court, that for that reason the court had no jurisdiction 
 and dismissed the case for want of jurisdiction. On the review 
 of this action of the trial court by the Supreme Court of the 
 United States it was insisted that the decision of the trial court 
 as to the validity of the bonds and the nature of the lien 
 created thereby, was a obiter dictum, because the validity of 
 the bonds and the nature of the lien that had been created were 
 questions of merit, and the court had dismissed the case for 
 want of jurisdiction shown on another question. Here we 
 have a case directly analogous to that under our consideration. 
 The trial court had decided certain questions of merit, and 
 then upon another ground dismissed the case because it said 
 that it had no jurisdiction to try it. \Yhat the Supreme Court 
 said upon this action of the Florida court shows clearly whether 
 or not a court may decide the merits of a case and yet dismiss 
 the case for want of jurisdiction. If a lower court may do so, 
 no one will question that the Supreme Court may exercise the 
 same power. Passing directly upon this action of the trial 
 court said Chief Justice Waite, delivering the unanimous opin 
 ion of the Supreme Court of the United States : 
 
 "As to the first question, we deem it sufficient to say 
 that the supreme court of Florida has distinctly decided that 
 in the case of this company, as well as the other, the statutory 
 authority was complete. The point was directly made by the 
 pleadings and as directly passed on by the court. Although 
 the bill in the case w r as finally dismissed because it was not 
 proved that any of the State bonds had been sold, the decision 
 was in no sense dictum. It cannot be said that a case is not 
 authority on one point because, although that point was prop 
 erly presented and decided in the regular course, something 
 else was found in the end which disposed of the whole matter. 
 Here the precise question was properly presented, fully argued, 
 and elaborately considered in the opinion. The decision on 
 this question \vas as much a part of the judgment of the 
 
IO4 LEGAL AND HISTORICAL STATUS 
 
 court as was that on any other of the several matters on which 
 the case as a whole depended." 14 
 
 Now if a court may ever decide questions of merit while 
 at the same time it dismisses the case for want of jurisdiction, 
 certainly it may with greater reason do so when those ques 
 tions of merit themselves show the want of jurisdiction. 
 "Where the record presents two or more points, any one of 
 which, if sustained, would determine the case, and the court 
 decides them all, the decision upon any one of the points can 
 not be regarded as obiter. . . . The fact that the decision 
 might have been placed upon a different ground existing in the 
 case does not render a question expressly decided by the 
 court a dictum." That is, if the Supreme Court in exercising 
 its appellate jurisdiction decides that the lower court was with 
 out jurisdiction, it may decide a thousand questions if pre 
 sented in the record giving the reason for this judgment. In the 
 record of the Dred Scott Case each question decided in the 
 opinion of the Supreme Court as written by Taney was "di 
 rectly made by the pleadings and as directly passed on by the 
 court." "The decision on each was as much a part of the judg 
 ment of the court as was that on any other of the several 
 matters, on which the case as a whole depended." Measured 
 by these recognized and long established rules the decision of 
 each question in the Scott case was in no just sense obiter 
 dictum. 
 
 In the case of Grace vs. The American Century Insur 
 ance Company, 15 decided November 19, 1883, the Supreme 
 Court of the United States decided the questions of merit, 
 notwithstanding they held that the record did not show juris 
 diction in the circuit court. This case embodies the true Amer 
 ican doctrine. It was a case, too, in which jurisdiction de 
 pended upon the diverse citizenship of the parties. It came 
 to the Supreme Court by writ of error from a Federal circuit 
 court, just exactly as did the Scott case. Mr. Justice Harlan 
 
 14 Railroad Companies vs. Schutte, 103 U. S., 118, 143. Mr. Justice Field was not 
 present at the argument and did not participate in the decision. 
 
 15 109 U. S., 278. 
 
OF THE DRED SCOTT DECISION 1 05 
 
 delivered the unanimous opinion of the court. After discussing 
 and deciding the fnerits of the questions raised at the trial, 
 and which did not even bear remotely upon the jurisdiction 
 of the trial court, the Supreme Court said : 
 
 "As the judgment must be reversed and a new trial had, 
 we have felt it to be our duty, notwithstanding the record, as 
 presented to us, fails to disclose a case of which the court below 
 could take cognizance, to indicate for the benefit of parties 
 at another trial, the conclusion reached by us on the merits." 16 
 Then, just as did the opinion in the Scott case, the court pro 
 ceeded to reverse the judgment of the lower court. There was 
 not a dissent! The Supreme Court did not know whether 
 when after the lower court had set aside its judgment in obe 
 dience to the mandate of the appellate court the parties could 
 show jurisdiction. The mandate of the Supreme Court was 
 that the lower court "set aside the judgment and for such 
 further proceedings as may not be inconsistent with this opin 
 ion/ and that opinion decided elaborately, at the same time 
 passing upon the merits, that the trial court had no jurisdic 
 tion. Hence in effect the trial court was ordered to dismiss 
 the case because of the lack of jurisdiction. This action of 
 the Supreme Court shows conclusively that an appellate 
 court may decide the merits of all the questions which are 
 presented in the records, even when the lower court has no 
 jurisdiction, where it, as in the Scott case, had entered a 
 judgment upon the merits. The Scott case was far stronger 
 for the operation of the rule than is that of Grace vs. American 
 Insurance Company. All the questions involved in the Scott 
 case showed that in no view did the circuit court have jur 
 isdiction. 
 
 These established rules justify the action of the majority 
 of the court, but there were other reasons which must have 
 acted even more powerfully upon the judicial mind and which 
 rendered it imperative that the court take the course pursued 
 especially in deciding that the prohibition of the Missouri Com- 
 
 16 109 U. S. 288. 
 
IO6 LEGAL AND HISTORICAL STATUS 
 
 promise law was unconstitutional. As between Illinois and 
 Missouri the court confirmed the action of the lower court, 
 which had followed the decision of the State court when this 
 case was pending against Emerson s estate, in the decision that, 
 having been a slave in Missouri, having been carried to Illi 
 nois and then having been returned to Missouri and having 
 sued in the courts of Missouri, her courts would not enforce 
 any anti-slavery law of Illinois. Such laws were as to Mis 
 souri clearly extraterritorial, penal, and in conflict with the 
 laws and polity of the State in which Scott sued. The Su 
 preme Court of the United States had before the Scott case 
 recognized this course as the correct one, and the principle 
 upon which it rests cannot be successfully refuted. Recogniz 
 ing this basal truth, some sought to defeat the force of the 
 decision in this case upon the Missouri Compromise law, by 
 insisting that the same rule applied as between it and Mis 
 souri, that, being extraterritorial and penal, the courts of 
 Missouri need not have enforced it, and that the appellate 
 court went out of its way to pass upon what was unenforceable 
 in Missouri. 
 
 The most eminent contemporary writers who championed 
 this argument are John Lowell and Horace Gray. In their 
 A Legal Review of the Dred Scott Case, published in June, 
 1857, they argue: The "decision, so far as the residence in 
 Illinois is concerned, is put distinctly upon the ground that 
 the laws of Illinois could not operate on the plaintiff after his 
 return to Missouri. This decision disposes equally of his 
 residence in the Territory, for his stay in each place was for 
 an equal time, and for similar purposes. The whole case being 
 thus disposed of, the opinion on the Missouri Compromise 
 act was clearly extrajudicial." 17 Of course this contention dis 
 regards the settled American rule that " where the record pre 
 sents two or more points, any one of which, if sustained, would 
 determine the case, and the court decides them all, the decision 
 upon any one of the points cannot be regarded as obiter." 
 
 17 Law Reporter, Boston, June, 1857. 
 
OF THE DRED SCOTT DECISION 
 
 However, were this not true, the question raised by Blair 
 as to the right by birth of Scott s older child, places the 
 courts of Missouri in an entirely different attitude toward the 
 Missouri Compromise to what they enjoyed with reference to 
 Illinois. No one questions that the entire Scott family was 
 before the court in the Federal case. Blair both in his brief 
 and in his argument laid great emphasis on this aspect of the 
 case, saying one question for the Supreme Court was "whether 
 the facts stated in the agreed case entitled the plaintiff and 
 his family, or either of them to freedom." 18 He called atten 
 tion to the fact that the older girl was "born on board the 
 steamboat Gypsie, north of the north line of the State of 
 Missouri and upon the river Mississippi." 19 Therefore, as 
 he went on to state, she was either born within the jurisdiction 
 of Illinois or within that of the Missouri Compromise. Illi 
 nois, after the river reaches her northern boundary, extends to 
 the middle of the stream. At that time, then, upon the one 
 side of the middle of the river was the law of the Territory 
 while upon the other was the law of Illinois. At one time 
 Blair said that this girl, Eliza, would be presumed to have 
 been born in the State "if such presumption is, for any reason, 
 more favorable to her freedom than the supposition that she 
 was born in the Territory." 20 However, he did not make 
 any attempt to show that birth in Illinois would be more 
 favorable to her freedom, but insisted most strongly that the 
 peculiar facts before the court rendered it imperative that the 
 validity of the Missouri Compromise should be determined. 
 In this he was correct, for there is absolutely nothing to favor 
 the one presumption or the other as to the place of her birth. 
 Counsel, the court and the dissenting judges all agreed that 
 the few facts that were shown concerning the place of her 
 birth presented the inquiry for the laws under which she was 
 born, and of course the validity of the Missouri Compromise. 
 
 " Blair s Brief, S. C. Clerk s Office, 2. 
 
 19 19 Howard, 431. 
 
 20 Brief, 16 
 
IO8 LEGAL AND HISTORICAL STATUS 
 
 In either possible place of her birth, was there a valid anti- 
 slavery law in force at the time? 
 
 At the time of the decision of this case as well as at the 
 time the suit was brought Minnesota, in which Fort Snelling is 
 located, was yet a Federal Territory. It so remained until 
 1858. This girl could have sued directly in its courts, and 
 had she done so the validity of the Missouri Compromise must 
 have been determined. She was a party before the court with 
 a right of future action. In such action the validity of the 
 law that had been most fully argued in this case must have 
 been decided by the trial court, and from that decision there 
 lay an appeal to the Supreme Court of the United States. 
 She had a right of action independent of the citizenship of her 
 father. Of course the court did not know that she would 
 ever prosecute this action, neither did the court know that the 
 parties would prosecute a "future" action in the case of Grace 
 vs. American Insurance Company. But courts act upon the pre 
 sumption that parties will use every right to which they are 
 entitled, and in as far as possible the prevention of litigation 
 when no advantage could accrue in a future action is an es 
 tablished rule of appellate review. So just as did the unani 
 mous court in this recent case the court in the Scott case 
 held : "As the judgment must be reversed and a new trial had, 
 we have felt it to be our duty, notwithstanding the record, as 
 presented to us, fails to disclose a case of which the court be 
 low could take cognizance, to indicate for the benefit of par 
 ties at another trial, the conclusions reached by us on the 
 merits." And the more properly so, because, as the court said 
 of the questions decided in Railroad Companies vs. Schutte, 
 so in the Dred Scott Case the Missouri Compromise was 
 properly presented, fully argued, and elaborately considered ; 
 and again the more so because the dicision as to prohibita- 
 tive measure was to give another reason for holding that the 
 trial court had no jurisdiction. A fortiori, to yet follow the 
 language of the court in the Florida case : "The decision on 
 this question was as much a part of the judgment of the court 
 
OF THE DRED SCOTT DECISION ICX) 
 
 as was that on any other of the several matters on which 
 the case as a whole depended." 
 
 Yet this is not all. Aside from any right of the girl 
 to sue in a Federal court, apart from any probability that 
 she would thus sue, the Missouri Compromise law \vas before 
 the Supreme Court in the action actually under review. That 
 we may more clearly see this, let me again call attention to the 
 kinds of court jurisdiction. There is, as has been said, an 
 important distinction between the original jurisdiction of the 
 Supreme Court and its appellate jurisdiction. Those who 
 complain of the judgment upon the act of Congress purporting 
 to prohibit slavery in the Territory, overlook this distinc 
 tion and its applicability to the facts of this case. If the Su 
 preme Court had been trying a case which had been com 
 menced in it, and had been sitting as a trial court, it might have 
 omitted some of the questions decided. When the record 
 in a case reaches the Supreme Court, having been appealed 
 from a lower court, generally brought up on writ of error as it 
 is called in the language of the law, its first concern is as 
 to whether it has appellate jurisdiction over that case. Even 
 then it must look at the questions presented in the record, and 
 from the record determine : unless it be plain that there is no 
 appellate jurisdiction, in which case no writ of error issues 
 to the lower court. For instance, of the many cases that 
 might be cited, in Menard vs. Aspasia, in which Judge Mc 
 Lean wrote the opinion in 1831, it was determined that the 
 Supreme Court had no jurisdiction to entertain the appeal 
 from the judgment of the trial court. 21 The court decided all 
 the questions which showed that it had no appellate jurisdic 
 tion ; but, except in so far as they bore upon the question of the 
 appellate jurisdiction of the Supreme Court, the court did not 
 decide the questions of merit. But in the Dred Scott Case no 
 one questioned the right and power of the Supreme Court to 
 exercise appellate jurisdiction. 
 
 5 Peterri, 505. 
 
I IO LEGAL AND HISTORICAL STATUS 
 
 Now, the Supreme Court not only had appellate juris 
 diction over the proceedings and judgment in the trial court, 
 but it had appellate jurisdiction over this same case that was 
 pending in the State court, and which had been continued to 
 await the decision of the Supreme Court in the action brought 
 in the Federal circuit court. Of this fact the court was specifi 
 cally informed by the record. In the State action there was no 
 question of citizenship involved, and the State trial court s 
 jurisdiction was not disputed. From the final decision of the 
 highest court of Missouri in that action there lay an appeal 
 to the Supreme Court of the United States on the ground that 
 there was drawn in question the validity of an act of Con 
 gress : the Missouri Compromise. 
 
 This act of Congress was involved in the State action 
 because of the question of its effect upon Scott and his wife; 
 and in a more important sense because of the question as to 
 its effect upon the rights of the older girl by reason of her 
 birth within that laic s jurisdiction. This w r as as true of any 
 future action that the girl had a right to bring in the State 
 court of Missouri as it was of the pending action. Blair 
 argued : "The freedom of Harriet and her daughter Lizzie 
 depends on the validity of the eighth section of the Missouri 
 Compromise" the section prohibiting slavery. Then he urged : 
 "The validity of this section is denied, on the ground 
 that Congress possesses no power to prohibit slavery in the 
 Territories. This is a question of more importance, perhaps, 
 than any which was ever submitted to this court; and the 
 decision of the court is looked for with a degree of interest 
 by the country which seldom attends its proceedings. ... It 
 is in form here a question on the construction of a few words 
 in our fundamental law." 22 Then reaching out for every 
 available foothold in favor of the girl he urged upon the court 
 the necessity of deciding the validity of that law because, if 
 it were valid as he insisted, the girl was born free. He called 
 the attention of the court to the decisions of the Southern States 
 
 22 Blair s Argument, 26. 
 
OF THE DRED SCOTT DECISION III 
 
 upon this point, among them that it was "decided by the 
 court of appeals of Virginia, in the case of Spotts vs. Gilles- 
 pie, 23 that a child born in the State of Pennsylvania after 
 the act of 1780 abolishing slavery, was free, although born 
 of a slave mother, and was free in Virginia as well as in 
 Pennsylvania." And a yet stronger case to which he pointed 
 \vas the decision that a child born of a fugitive slave within 
 the limits of an anti-slavery law, was born free. That is, the 
 law within the actual jurisdiction of which a child was born, 
 determined its status. 
 
 This was, too, the settled and undisputed law of Missouri. 
 It had long before this case been determined by the highest 
 court of Missouri that a child, though of a slave mother, born 
 within the jurisdiction of a valid anti-slavery law was born 
 free. 24 
 
 That Blair was right in this position no one .questioned. 
 It was the universal law in this country that the law in force 
 at the place and time of birth, the parents being negroes of 
 African descent and legal slaves themselves, determined 
 whether or not the property rights of the owner of the mother 
 should attach to the child. Being a negro of African descent, 
 the presumption, of course, was that the girl was born a slave ; 
 but she sought to destroy the presumption, just what Scott 
 did not attempt to do as to that raised by the plea in abatement, 
 by taking refuge under the prohibitive act of Congress. This 
 as to her was ample were it valid and in force. As between 
 the State of Missouri and the Territory, just as between the 
 two States, as to Scott the question was whether or not the 
 property right that had attached under the Missouri law would 
 be recognized as destroyed by an extraterritorial law ; but as 
 between Missouri and the girl the question was as to whether 
 the property right as to her attached at birth. It was by birth 
 only after 1808 that a negro could become slave property in 
 
 2:1 6 Randolph, 572. 
 
 24 Merry vs. Tiffin, i Mo. 725; Theoteste vs. Chouteau, 2 Mo. 144; Menard vs. 
 Aspasia, 5 Peters, 503. This latter, decided by the Supreme Court of the United 
 States in 1831, being an appeal from the Missouri court upon this question sustains 
 the State. 
 
112 LEGAL AND HISTORICAL STATUS 
 
 the United States ; and after that date that property right had 
 its origin by birth within the geographical limits of some law 
 which either created or fostered and preserved slave property 
 and the source of its origin. The distinction lay between 
 whether or not property rights had vested and whether or not 
 they could vest. If there was a law prohibiting the attachment 
 of slave property rights, in this country it was held to take 
 effect as to those born after its enactment. Upon this prin 
 ciple slavery was gradually driven from all the Northern States. 
 Their anti-slavery laws did not destroy vested property inter 
 ests, even when not specifically so stated, existing as to slaves 
 that were slaves at the enactment of the laws. Those who 
 claim the validity of the anti-slavery provision in the Ordi 
 nance of 1787 admit that as to the slaves within its jurisdiction 
 at its enactment no rights were changed. Congress recognized 
 this principle when it bought and liberated the slave property 
 in the District of Columbia. Such was the law in America 
 up to the unwarranted and vindictive attempt of President 
 Lincoln to emancipate slave property, an attempt which suc 
 ceeded because of the helpless condition of the States affected 
 and because acquiescence was the cheapest price for what ex 
 hausted strength could not achieve. 
 
 Hence, involving the validity of the Missouri Compro 
 mise there was not only a right of a future action subject to 
 appeal to the Supreme Court of the United States, but the ap 
 peal actually before the court was in effect an appeal from 
 both the Federal circuit court and the State court, for the 
 State court suspended its action to await the determination 
 of the questions by the Supreme Court. Therefore it is not 
 correct to say that the decision as to the effect of the stay in 
 Illinois disposes equally of the questions as to the Territory. 
 The most potent question as to the girl s birth had no connec 
 tion with or relevancy whatever to the stay of her father 
 in Illinois. Taney and the court saw this, and because of the 
 fact that as between Missouri and Illinois the question de 
 pended entirely upon the willingness of Missouri to enforce 
 
OF THE DRED SCOTT DECISION 113 
 
 the penal laws of Illinois (if as against slavery there had been 
 any), the Illinois laws were not examined. The court went 
 not one step beyond what was necessary to determine the 
 rights, in the view that it took of the law, of all the parties 
 to the case before it. The court might have shrunk from the 
 grave duty which the decision of the Missouri Compromise 
 imposed ; but to have thus shirked would have been to have 
 omitted not alone what was proper to be done but to have 
 spurned the insistent prayers of those who bore that ques 
 tion to the bar of the court, and who incorporated it in every 
 possible phase in the record made by collusion between schem 
 ing Republicans for no other purpose than to have it decided 
 by that highest tribunal. Thus raised by the record, care 
 fully argued by counsel, examined by the mind of the court, 
 the legality and validity of the Missouri Compromise, the pow 
 er of Congress either to destroy or prevent slave property 
 in a Territory, in the words of the court in Kane vs. McCowan, 
 "though its decision might have been avoided, the opion was 
 not therefore an obiter dictum. It frequently happens that a 
 single point in a case will determine the affirmance or reversal 
 of a judgment in that case, but it does not follow that the court 
 may not proceed to examine and decide other points which 
 the record presents ; and indeed the latter course is most sat 
 isfactory to all parties concerned, and saves the necessity of 
 again resorting to another trial." 25 
 
 These rules for determining obiter dictum lay down the 
 settled doctrine in America. In fact, the rules as announced 
 by these leading cases are not authoritatively questioned. Sum 
 ming them up Taylor says : 
 
 "When the Supreme Court has decided against the jur 
 isdiction of the circuit court on a plea in abatement, it has still 
 the right to examine any question presented by exception [and 
 it was by exception, as the language of the law expresses it, 
 that the Missouri Compromise was presented], and may re- 
 
 23 55 Mo. 181, 189. 
 
114 LEGAL AND HISTORICAL STATUS 
 
 verse the judgment for error committed, and remand the case 
 to the circuit court for it to dismiss for want of jurisdiction." 26 
 
 This was what the opinion as written by Taney and as 
 concurred in by the majority did, the conclusion being: 
 
 "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 jurisdic 
 tion in the case, and could give no judgment in it. Its judg 
 ment for the defendant must, consequently, be reversed, and 
 a mandate issued directing the suit to be dismissed for want 
 of jurisdiction." 27 
 
 It is interesting to remember in connection with the fact 
 that Scott was sent from the Federal court because he was 
 held not to be a citizen, in the sense in which that word is 
 used in the Constitution, that as early as 1816 our Supreme 
 Court decided that one who was a citizen of a Territory could 
 not sue in a Federal court as a citizen as the word is used 
 in the same clause of the Constitution upon which Scott s at 
 torney relied. The same court has decided that a "citizen of 
 the District of Columbia could not maintain a suit in the cir 
 cuit court of the United States," on the ground of citizenship 
 as provided in the jurisdiction clause of the Constitution. 27 
 These decisions rest upon the fact that neither the District 
 of Columbia nor a Territory is a State in the sense in which 
 that word is used in the Constitution. So that we see that 
 the court did not apply to Scott any peculiar or discriminating 
 rule, or use any method of construction and interpretation that 
 had not been and that was not yet actually applied to all per 
 sons, white or black, invoking the jurisdiction of Federal 
 courts. Neither did the decision deny to negroes the Federal 
 
 20 Jurisdic. and Procedure of the Supreme Court U. S. (1905), 651. 
 
 27 19 Howard, 454. 
 
 An instance of an obiter dictum is in DeLima vs. Bidwell, 152 U. S. i, one of 
 the famous insular cases. See U. S. vs. Heinszen, c., 206 U. S. 370. 
 
 28 i Wheat. 93: Curtis (the judge who dissented in the Scott case), Jurid. of U. .S. 
 Courts, 2nd ed., 138; Hepburn vs. Ellzy, 2 Cranch, 445. 
 
OF THE DRED SCOTT DECISION 115 
 
 courts, as I have before said. Any slave had the right to sue 
 for his freedom in the courts of any State, and the courts, 
 especially of the Southern States, not only heard his complaint, 
 but afforded him protection and opportunity for the hearing. 
 In all cases where a final judgment or decree in any suit in 
 the highest court of a State in which a decision in the suit 
 could be had, where there is drawn in question the validity of 
 a treaty or statute of, or any authority exercised under, the 
 United States, and the decision is against their validity; or 
 where there is drawn in question the validity of a statute of, 
 or an authority exercised under a State, on the ground of 
 their being repugnant to the Constitution, treaties, or laws 
 of the United States, and the decision is in favor of their 
 validity; or where any title, right, privilege, or immunity is 
 claimed under the Constitution, or any treaty or statute of, 
 or commission held or authority exercised under, the United 
 States, and the decision is against the title, right, privilege, 
 or immunity specially set up or claimed by either party, under 
 such Constitution, treaty, statute, commission or authority," 
 an appeal lies to the Supreme Court of the United States, 
 which as an appellate court has the power to re-examine and 
 reverse or affirm. 29 From the earliest days clown to the Dred 
 Scott decision this was true ; and often suits in State courts 
 by negro slaves seeking freedom were appealed to the Su 
 preme Court of the United States, and there finally determined, 
 as can be seen by inspecting the reports. 
 
 Naturally one asks why, in this view 7 of the Dred Scott 
 decision, the now prevalent error has so long remained. Pos 
 sibly one explanation lies in the fact that writers and teachers 
 have too long largely accepted what was said of the opinion 
 while yet the sting of defeat warped the judgment. How 
 ever, Wooclrow Wilson, with no reference to this case, once 
 uttered a truth timely and applicable. He said : "\Ye write 
 nowadays a great deal with our eyes circumspectly upon the 
 tastes of our neighbors, but very little with our attention bent 
 
 29 27 Am. F.ng. Enc. Law, 640; Desty s Fed. Proced. 766; and any standard legal 
 work upon this subject. 
 
Il6 LEGAL AND HISTORICAL STATUS 
 
 upon our own natural selfspeaking thoughts and the very 
 truth of the matter whereof we are discoursing." Too, a yet 
 no-less unpardonable cause for historic untruth is that "the 
 truth of history is a very complex and a very occult matter. 
 . . . The thing is infinitely difficult. ... So historians take 
 another way, which is easier : they tell part of the truth, 
 and obtain readers to their liking among those of similar tastes 
 and talents to their own." 30 
 
 Mere Literature and Other Essays, 54, 162. 
 
VII. 
 CONGRESS AND TERRITORIAL LEGISLATION. 
 
 Some acts of government are not subject to review or 
 question by our courts. Such acts are called political, and be 
 long absolutely and exclusively to the legislative and executive 
 branches of our government; and in reference to such powers 
 these branches are also called political. It was contended 
 by some that such questions as the control of domestic slavery 
 in a Territory belonged exclusively to the political department 
 of the Federal Government ; and that, therefore, the courts 
 could not review such legislation. Others insisted that the 
 courts had jurisdiction to review to find if any specific prohi 
 bition of the Constitution had been violated, contending that 
 Congress had plenary power to enact for the people of a Ter 
 ritory any law it deemed needful so that it be not 
 an ex post facto law or bill of attainder, or law impairing the 
 obligation of contracts; 1 or in disregard of any express prohi 
 bition contained in the Constitution. 2 All agreed that the 
 anti-slavery provisions of the Missouri Compromise measure 
 certainly did not come under any one of these " express prohi 
 bitions on Congress not to do certain things" contained in 
 the Constitution. Hence arose the questions : Do the provisions 
 of the Constitution apply to Congress in legislating for a Ter 
 ritory? If so, what is the measure of power when legislating 
 over persons and property? Or, in legislating for a Territory 
 a part of the United States, does the sovereignty of the Fed 
 eral Government recognize in any respect the limitations im- 
 
 1 Art. i, sees . 9 & 10, Const. 
 
 a See Judge Curtis argument, 19 Howard, 614. 
 
 117 
 
Il8 LEGAL AND HISTORICAL STATUS 
 
 posed upon Congress by the Constitution? That is, were 
 such measures as the Missouri Compromise within legislative 
 power, and if within legislative power, were they political? 
 Judges Curtis and McLean, the two dissenting judges, 
 took a ground in part in common with the majority, and held 
 that the Constitution was operative upon Congress in such 
 cases, but that the terms of that instrument conferred upon 
 Congress plenary authority. Others of influence in the councils 
 of the nation, and who were not on the bench, took the ground 
 that in legislating for territory such as was the Louisiana Pur 
 chase at the time of the Missouri Compromise, Congress exer 
 cised the legislative functions of the untrammeled sovereignty 
 of a nation, and therefore rested under none of the restraints 
 of the Constitution. 
 
 The majority of the court, in the words of Chief Justice 
 Taney upon this question held and decided : 
 
 "The power to acquire [territory] necessarily carries with 
 it the power to preserve and apply to the purposes for which 
 it was acquired. The form of government to be established 
 necessarily rested in the discretion of Congress. 3 . . . 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 the privileges of the citizens are regulated and 
 plainly defined by the Constitution itself. And when the Ter 
 ritory becomes a part of the United States, the Federal Govern 
 ment enters into possession in the character impressed upon it 
 by those who created it. It enters upon it with its powers 
 over the citizen strictly defined, and limited by the Constitu 
 tion, from which it derives its own existence, and by virtue of 
 which alone it continues to exist and act as a government and 
 sovereignty. It has no power of any kind beyond it; and it 
 cannot, when it enters a Territory of the United States, put 
 
 3 The younger student must not permit confusion between the form of govern 
 ment and the power over persons who are to be governed and whatever rights they 
 have. The form simply means the machinery by which the laws shall be administered; 
 as , for instance, by a governor appointed by the President and a commission of other 
 officers appointed by Congress. 
 
OF THE DRED SCOTT DECISION 119 
 
 off its character, and assume discretionary or despotic powers 
 which the Constitution has denied to it. ... The Territory be 
 ing a part of the United States, the government and citizen 
 both enter it under the authority of the Constitution, with their 
 respective rights defined and marked out; and the Federal Gov 
 ernment can exercise no power over his person or property, be 
 yond what that instrument confers, nor lawfully deny any right 
 which it has reserved/ 4 
 
 If this doctrine, that the Constitution controlled Con 
 gress in legislating for a Territory, should be accepted Web 
 ster and Benton had taught in vain. Such men do not die 
 easily, so Benton marshalled the old forces around the now 
 perishing" doctrine and struggled desperately. Benton was 
 Missouri s distinguished Senator for a number of years, an 
 anti-slavery Democrat, but opposed to abolition methods in 
 vogue in the North and Northwest. Largely because a Dem 
 ocrat Benton s influence has done much to keep history in error 
 regarding the political nature of the Missouri Compromise 
 law, and as to the source of the power and right of Congress 
 to legislate for Territories. 
 
 Benton s arguments are published in his "Legal and His 
 torical Examination of the Dred Scott Case," which came 
 from the press in i85/. 5 In common with the arguments 
 made earlier by Webster he insisted that Congress should 
 govern the Territories independently of the Constitution. He 
 would have the Constitution in its limitations on Congress 
 confined to the geographical boundaries of the States. His 
 fundamental premise was that the "fundamental error of the 
 court, "father to all political errors," was the proposition that 
 "the Constitution extends to the Territories." 6 Not, only in 
 his debate in Congress with Calhoun, but in the courts Web 
 ster clung to his theory. In the case of American Insurance 
 Company vs. Canter, 7 involving the relation of Florida as a 
 
 4 19 Howard, 449, 450. 
 
 3 Extracts from Benton s work are given in volume four of Hart s History as 
 Told by Contemporaries, p. 123. The complete work may be found in large libraries. 
 
 6 Benton s Examination, 31. 
 
I2O LEGAL AND HISTORICAL STATUS 
 
 Territory to the United States, Webster argued before the 
 Supreme Court of the United States that "Florida was to be 
 governed by Congress as she thought proper" regardless of any 
 power conferred or withheld by the Constitution. 
 
 However, the doctrine of Calhoun had won its way even 
 into the ranks of the Republican party. Rejecting the teach 
 ing of Webster and Benton, of those actively engaged in this 
 case, eminent representatives of their parties, we find Curtis 
 and McLean of the United States Supreme Court, Blair of 
 counsel for Scott, and G. T. Curtis, Mr. Justice Curtis brother. 
 Shoulder to shoulder with them were now the Republicans. 
 They had gone into the court in this case standing upon the 
 position that Congress could not terminate property rights ad 
 hering in slaves or any other objects of property unless the 
 Constitution gave Congress that power. They differed from 
 the Chief Justice and the majority merely upon the construction 
 of the Constitution. 
 
 Mr. Justice Curtis argument is regarded by some his 
 torians as most conclusive, and his views are yet widely ac 
 cepted. Certainly they are representative. His position was 
 this : 
 
 "Congress possesses the power of governing" territory 
 "acquired either by conquest or treaty," "when acquired, not 
 by resorting to supposititious powers, nowhere found described 
 in the Constitution, but expressly granted in the authority to 
 make all needful rules and regulations respecting the terri 
 tory of the United States. ... I construe this clause, there 
 fore, as if it had read, Congress shall have power to make all 
 needful rules and regulations respecting those tracts of coun 
 try, out of the limits of the several States, which the United 
 States have acquired or may hereafter acquire . . . this is a 
 grant of power to Congress it is therefore necessarily a grant 
 of power to legislate. . . . What are the limits of that power ? 
 To this I answer, that, in common with all other legislative 
 powers of Congress, it finds its limits in the express prohibi 
 tions on Congress not to do certain things; that, in the exer- 
 
 7 i Peters, 538. 
 
OF THE DRED SCOTT DECISION 121 
 
 cise of the legislative power, Congress cannot pass an ex post 
 facto law or bill of attainder; and so in respect to each of the 
 other prohibitions contained in the Constitution. 
 
 "Besides this, the rules and regulations must be needful. 
 But undoubtedly the question whether a particular rule or regu 
 lation be needful must be finally determined by Congress itself. 
 Whether a law be needful, is a legislative or political, not a 
 judicial, question. Whatever Congress deems needful is so, 
 under the grant of power. . . . 
 
 . . I cannot doubt that this is power to govern the 
 inhabitants of the territory, by such laws as Congress deems 
 needful, until they obtain admission as States. . . . 
 
 "It will not be questioned that, when the Constitution of 
 the United States was framed and adopted, the allowance 
 and prohibition of negro slavery were recognized subjects of 
 municipal legislation : every State had in some measure acted 
 thereon ; . . . The purpose and object of the clause empower 
 ing Congress to make all needful rules and regulations respect 
 ing territory being to enable Congress to provide a body of 
 municipal law for the government of the settlers, the allowance 
 or prohibition of slavery comes within the known and rec 
 ognized scope of that purpose and object. "* 
 
 In this argument of Curtis we have the antithesis of the 
 position taken by the Chief Justice with whom the majority 
 of the court agreed, in construing the words of the Consti 
 tution. How do the two positions stand as measured by rules 
 determined by recent and settled constructions? Too, what has 
 become of the theory of Webster and the teaching of Benton ? 
 
 Questions identical in principle to that which the con 
 stitutionality of the Missouri Compromise presented have 
 arisen concerning other Territories; and questions not less 
 difficult and important come to us from Alaska, Porto Rico, 
 and the more distant Philippines. Fortunately for the stu 
 dents of ante-bellum history no change in our Constitution 
 has altered the principles or the provisions by which Congres- 
 
 8 19 Howard, 614-15-16. 
 
122 LEGAL AND HISTORICAL STATUS 
 
 sional power in such cases is to be measured. From the many 
 cases I shall quote representative ones ; so that the now settled 
 doctrine may be seen, at least as to Territory such as was that 
 affected by the Missouri Compromise. 
 
 As early as 1850 the power of Congress to enact law 
 for a Territory was considered by the Supreme Court of the 
 United States in Webster vs. Reid. 9 The case turned upon the 
 \alidity of a statute of the Territory of Iowa, which provided 
 for trial without a jury and by the judge of a certain class 
 of actions at law, growing out of contests over property rights. 
 Judge McLean, who dissented in the Scott case, delivered the 
 opinion of the court. The court held that the seventh amend 
 ment of the Constitution, preserving the right of trial by jury 
 in certain suits, was applicable to the Territories, and binding 
 upon Congress in providing the organic law under which the 
 territorial legislature acted, and that the act in question, be 
 ing in violation of the amendment, was void. 
 
 From that day on clown to the present the principles upon 
 which the Dred Scott decision rests have more and more been 
 recognized as the distinctive features of our Government. The 
 Supreme Court of the United States in Reynolds vs. the 
 United States, in i878, 10 treated the sixth amendment of the 
 Constitution as applicable to Congress in legislating for the 
 Territory of Utah ; and a similar application was made in 
 Springville vs. Thomas, i896, 1L and in the American Publish 
 ing Company vs. Fisher. 12 In Thompson vs. Utah, decided 
 the same year, 13 Judge Harlan, speaking for the court, pointed 
 out that it was then "no longer an open question" that the 
 provisions of the "National Constitution relating to the rights 
 of trial by jury in suits at common law" and "to trial by jury 
 for crimes and for criminal prosecutions," applied to the Terri 
 tories of the United States. 
 
 9 n Howard, 437. 
 i 9 8 U. S. 145- 
 
 11 166 U. S. 707. 
 
 12 Ib. 464. 
 
 170 U. S. 343- 
 
OF THE DRED SCOTT DECISION 123 
 
 The seventh amendment preserves the right of trial by 
 jury in certain civil actions. There is no express provision in 
 this article that "trial by jury" shall mean the unanimity of 
 the common law rule, but in Springville vs. Thomas, where "it 
 was contended that the Territorial legislature of Utah was 
 empowered by Congress, in the organic act of the Territory, 
 to dispense with unanimity of jurors in rendering a verdict 
 in criminal cases," the court said : "In our opinion the seventh 
 amendment secured unanimity in finding a verdict as an es 
 sential feature of trial by jury in common law cases and the 
 act of Congress could not impart the power to change the 
 Constitutional rule, and could not be treated as attempting to 
 do so." 
 
 In the case of the Monongahela Navigation Co. vs. the 
 United States, the court said : "But like other powers granted 
 to Congress by the Constitution the power to regulate com 
 merce is subject to all the limitations imposed by that instru 
 ment, and among them is that of the fifth amendment." Then 
 proceeding to construe the latter clause of that amendment the 
 court continued: If "Congress. . . . deem it necessary to take 
 private property, then it must proceed subject to the limita 
 tions imposed by the fifth amendment, and can take only on 
 payment of just compensation." Quoting this in 1892, Justice 
 Brewer said: "And if that be true of the powers expressly 
 granted, it must as certainly be true of those that are only 
 granted by implication." 14 
 
 Still further the court repeats the settled rule in the 
 case of the Monongahela Navigation Company vs. the United 
 States : 
 
 "The language used in the fifth amendment in respect 
 to this matter is happily chosen. The entire amendment is a 
 series of negations, denials, of right or power in the Govern 
 ment. . . . 
 
 "Congress seems to have assumed the right to determine 
 
 what shall be the measure of compensation. But this is ju- 
 
 % 
 
 14 149 U. S. 736. 
 
124 LEGAL AND HISTORICAL STATUS 
 
 dicial, not a legislative question. The legislature may deter 
 mine what private property is needed for public purposes 
 that is a question of a political and legislative character; but 
 when the taking has been ordered, then the question of compen 
 sation is judicial. It does not rest with the public taking the 
 property, through Congress or the legislature, its representa 
 tives, to say what compensation shall be paid, or even what 
 shall be the rule of compensation. The Constitution has de 
 clared that just compensation shall be paid, and the ascertain 
 ment of that is a judicial inquiry. 15 
 
 That the protections of the Constitution over property, 
 as thus so long settled with us, apply to property in Territory, 
 there can be no question. In Yick \\ o vs. Hophins 1 " Mr. 
 Justice Field reiterated the rule long recognized when he 
 observed that the provisions of the fourteenth amendment to 
 secure life, liberty, and property "are universal in their appli 
 cation to all persons within the Territorial jurisdiction;" and, 
 confirming this, Air. Justice Shiras, in Wong Wing vs. the 
 United States, 17 said : "Applying this reasoning to the fifth 
 and sixth amendments, it must be concluded that all persons 
 within the territory of the United States are entitled to the 
 protection guaranteed by those amendments." 
 
 When cases growing out of our insular possession began 
 to come up for decision, some differences between opinions of 
 members of the court developed. In Do\vns vs. Bidwell and 
 DeLima vs. Bidwell 18 it was decided that the plaintiff therein 
 was not entitled to recover the amount of duties he had paid 
 under protest upon importation into the city of New York 
 of oranges from San Juan, Porto Rico, in November, 1900, 
 after the passage of the Foraker act. But there was no con 
 currence of a majority of the court as to the grounds of the 
 judgment. A difference developed among members of the 
 court as to whether Congress in legislating for territory not 
 
 15 148 U. S. 327- 
 
 16 118 U. S. 300. 
 
 17 163 U. S. 228. 
 
 18 182 U. S. 244. 
 
OF THE DRED SCOTT DECISION 125 
 
 made a part of the United States was under all the restrictions 
 of the Constitution applicable when legislating for territory 
 theretofore incorporated into the United States. 
 
 Following this judgment, without a decision as to its 
 grounds, came Hawaii vs. Mankichi 19 in which the right to 
 jury trial in outlying territory of the United States was the 
 main question. The court decided, over the protest of some 
 of the judges, that the provisions of the Federal Constitution 
 as to grand and petit juries relate to mere method of pro 
 cedure and are not fundamental in their nature, and therefore 
 that as to such matters of method in legislating for such ter 
 ritory not yet a part of the United States, Congress was not 
 under all the restraints and limitations of the Constitution 
 which would be binding when legislating for territory a part 
 of the United States, and so that Congress might provide 
 for jury trial other than that preserved by the Constitution, 
 when legislating for outlying and unannexed country. Judge 
 Marian s dissent in this case is especially valuable for his de 
 fence of the applicability of those fundamental rights under 
 all conditions of territory. 
 
 In Dorr vs. the United States, 20 decided May, 1904, the 
 question "whether in the absence of a statute expressly con 
 ferring the right, trial by jury is a necessary incident to ju 
 dicial procedure in the Philippine Islands, where demand for 
 trial by that method has been made by the accused and denied 
 by the courts established in the islands," the court in its de 
 cision said : "It may be regarded as settled that the Constitu 
 tion of the United States is the only source of power authoriz 
 ing action by any branch of the Federal Government. The 
 government of the United States was born of the Constitution, 
 and all powers which if enjoys or may exercise must be either 
 derived expressly or by implication from that instrument." 
 Then the court pointed out that the islands at the time of the 
 suit were not incorporated into the United States, 21 and held 
 
 19 190 U. S. 197. 
 2 " 195 U. S., 153. 
 
 21 Ib. 143. 
 
126 LEGAL AND HISTORICAL STATUS 
 
 that the Constitution does not require Congress to enact for 
 ceded territory, not made a part of the United States by the 
 political department of the Government, a system of laws 
 which shall include the right of trial by jury. 22 
 
 However, as to territory incorporated into the United 
 States, the principles have remained clear and undisturbed. 
 
 A representative case comes from the Territory of Alas 
 ka. Article three of the treaty concerning Alaska 23 has been 
 held by the Supreme Court to have incorporated that Ter 
 ritory into and to have made it a part of the United States, 
 just as was the Louisiana Territory a part of the United States 
 at the time of the enactment of the Missouri Compromise. 
 In enacting a code for Alaska Congress 24 provided : "That 
 hereafter in trials for misdemeanors six persons shall consti 
 tute a legal jury." 
 
 Now, just as in the other cases, there was a rule for a 
 Territory, and one which Congress deemed needful. It was 
 one which did not come, most clearly, within the express pro 
 hibitions of the Constitution to which alone Mr. Justice Curtis 
 insisted Congress must look for what it could not do. This 
 Alaskan law was one which met every condition that, he laid 
 down. It was not "within the express prohibitions on Con 
 gress not to do certain things;" 25 it was a municipal regula 
 tion made for the government of territory outside of the orig 
 inal States or of any State. It was a rule or regulation which 
 Congress had determined to be "needful." It was for a Ter 
 ritory a part of the United States. It was a personal regula 
 tion,- a law for the government of persons and the determina 
 tion of their rights. It gave rise to a case parallel with the 
 Dred Scott Case upon the constitutionality of the Missouri 
 Compromise. Having gone there from a local" court in the 
 regular way, this case involving the Alaska law reached the 
 Supreme Court of the United States, and on April 10, 1905, 
 
 22 Ib. 153- 
 
 23 15 Stats, at Large, 542. 
 
 24 31 Stats, at Large, 358, ch. 7: 
 88 19 Howard 614. 
 
OF THE DRED SCOTT DECISION 
 
 Mr. Justice White delivered the opinion of the court therein. 
 The question at issue was whether Congress had the power to 
 provide such a law for a Territory. It was alleged that no 
 such power rested in Congress either upon the ground of 
 supreme national sovereignty, under the "rules and regula 
 tions" clause 26 relied upon by Curtis, or on any ground what 
 ever, and that particularly the law was in violation of the 
 sixth amendment of the Constitution. This amendment says : 
 "In all criminal prosecutions, the accused shall enjoy the right 
 to a speedy and public trial, by an impartial jury of the State 
 or district wherein the crime shall have been committed, which 
 district shall have been previously ascertained by law," etc. 
 Whether it shall be a jury of six, seven (as we have in many 
 States under State law) or twelve the Constitution does not 
 expressly say. 
 
 "As it conclusively results from the foregoing considera 
 tions that the sixth amendment to the Constitution was appli 
 cable to Alaska, and as of course, being applicable, it was con 
 trolling upon Congress in legislating for Alaska, it follows that 
 the provision of the act of Congress under consideration, de 
 priving- persons accused of misdemeanors in Alaska of a right 
 to trial by common law jury [of twelve men], was repugnant 
 to the Constitution and void," the court decided. 27 
 
 That this territorial law which Congress had assumed 
 to enact and which it declared needful was void, because un 
 constitutional, was the unanimous decision of the full court. 
 The restraints of the Constitution are not only, therefore, 
 applicable, but that instrument is to be now applied as meant 
 when adopted or amended. At the time of the adoption and 
 the amendment it was understood that a jury meant twelve 
 men. So of all the powers or limitation of Congress ; in the 
 meaning in which they were incorporated are they enforced 
 until changed by the people. 
 
 Therefore, as can readily be seen, it is no\v the settled 
 
 28 Art. IV., sec. 3, par. 2. 
 
 27 Frerl Rasmussen vs. the U. S., 25 S. C. Rept. 514, 518, 197 U. S; 518. 
 
128 LEGAL AND HISTORICAL STATUS 
 
 doctrine in America that in legislating for a Territory, most 
 certainly when it is a part of the United States as was the 
 Louisiana Purchase when the Missouri Compromise was en 
 acted, both the express prohibitions and "those fundamental 
 limitations in favor of personal rights which are formulated 
 in the Constitution and its amendments," are binding upon 
 Congress. 28 As Judge McLean even when dissenting ad 
 mitted : "No powers can be exercised which are prohibited 
 by the Constitution or which are contrary to its spirit." 29 
 There can, in the face of the admitted constitutional law and 
 practice of to-day, be no question that Taney was right in con 
 tending that the Constitution must govern and that in its pro 
 visions alone could Congress find authority for legislating for 
 the Louisiana Territory. There was no "unwritten Constitu 
 tion" to which Congress could appeal ; there was no "higher 
 law." Webster and Benton were wrong, and any reasoning 
 with their position as a premise will lead to error. Curtis 
 great premise, "whatsoever rules Congress deems needful 
 are needful," was a great blunder. From the latest session of 
 our Supreme Court, from our famous insular cases back to the 
 Dred Scott Case, legislation by Congress for a Territory has 
 often been pronounced unconstitutional, and suppressed by 
 the court. 
 
 Curtis made another fatal blunder, and now and then 
 other judges before and since him seem to have fallen into 
 the same pit. Curtis argued that Congress might do concern 
 ing any subject in a Territory what a State within its juris 
 diction might do by legislation over the same subject. Here 
 and there through the decisions upon Congressional power 
 are dicta to the same effect. In the American Insurance Com 
 pany vs. Canter 30 Chief Justice Marshall seems to have said 
 that acquired territory is subject to absolute control by Con- 
 
 28 In Downs vs. Bidwell, 182 U. S. 237, Mr. Justice White gives an elaborate 
 history of the way in which the Louisiana Purchase became a part of the United 
 States. On territorial power s ee also Mormon Church Case, 136 U. S. i; Burns vs. 
 U. S., (1904) 194 U. S. 491; Callan vs. Wilson, (1888) 127 U. S. 550; Reynolds 
 vs. U. S., (1878) 98 U. S. 145; Laschi vs. Territory, (1857) i W r ash. Ter. 13. 
 
 29 19 Howard, 542. 
 
 30 i Peters, 541. 
 
OF THE DRED SCOTT DECISION 
 
 gress "on such terms as the new master shall impose;" and 
 in the Mormon Church case, 31 Judge Bradley declared: "The 
 power of Congress over the Territories of the United States 
 is general and plenary, arising from and incidental to the 
 right to acquire the territory itself, and from the powers given 
 by the Constitution to make all needful rules and regulations 
 respecting the territory or other property belonging to the 
 United States." And in a comparatively recent case involving 
 the validity of a divorce, the language of the court in decid 
 ing another divorce case, Barber vs. Barber, 32 is quoted with 
 apparent approbation : "Having entire dominion and sover 
 eignty over Territories Congress has full legislative power 
 over all subjects upon which the legislature of the State might 
 legislate within the State; and may, at its discretion, entrust 
 that power to the legislative assembly of a Territory." 33 
 
 But, as we have seen, such statements as these are now 
 indisputably overruled by the settled doctrine as we have seen 
 it announced in the leading and representative decisions. The 
 error of the apparent view here and there thus interjected into 
 the cases and as expressed by Mr. Justice Curtis is also unde 
 niably seen when we remember that it is universally admitted 
 that several of the restrictions of the Constitution, among them 
 being those of the fifth amendment upon which Chief Justice 
 Taney and the majority relied, are not prohibitions on State 
 action, but are limitations exclusively on the power of Con 
 gress. For instance, at the time of the Dred Scott Case and 
 before the fourteenth amendment which became operative in 
 1868, what was not "due process of law" for Congress was 
 not necessarily so for a State. 34 So following the admitted 
 rule and applying to Congress the limitations of the Constitu 
 tion in legislating for a Territory, it is seen that what would 
 not have been due process of law in destroying vested rights 
 
 3 i 136 U. S. 42. 
 M 21 Howard, 582. 
 
 33 201 U. S. 308, citing Cope vs. Cope, 137 U. S. 686. To the same effect is 
 Simms vs. Simms (1899), 175 U. S. 162, 168, also a divorce case, citing 
 Shively vs. Bowlby, 152 U. S. 26, and cases cited, and Utter vs. Franklin, 172 U. S. 423. 
 
 34 See chapter, "Due Process of Law." 
 
I3O LEGAL AND HISTORICAL STATUS 
 
 in slave property in a Territory, would have been due process 
 of law, so far as the Constitution was concerned, in a State, 
 for the very simple reason that that provision of the Constitu 
 tion was not then a prohibition upon the State and was a limi 
 tation exclusively upon Congress. 
 
 Then, the Constitution of the United States being applica 
 ble and the sole guide, what did that great charter say as to 
 the power of Congress over property in a Territory: specifi 
 cally, in the Louisiana Territory and over slave property? 
 What was the letter and "spirit" of the Constitution concern 
 ing slave property? How should Taney have interpreted the 
 Constitution in determining the power of Congress over slave 
 property in a Territory? Should he have construed it as he 
 perhaps felt it ought to have been, or as moralists felt it ought 
 to have been, or as its FRAMERS MEANT IT TO BE AT ITS CREA 
 TION. 
 
 Taney and with him the court, applying to Congress the 
 limitations of the Constitution, gave that great charter the 
 force which they believed its framers intended and which it 
 was meant to have when adopted by the people of the several 
 States. In that method he has been steadily followed, as was 
 shown in chapter one, as he followed the earlier precedents. 
 One of the later of these instances is found in the case of 
 South Carolina vs. the United States, decided on December 4, 
 1905. Mr. Justice Brewer, delivering the opinion of the 
 court in that case and speaking for the court says : "The 
 Constitution is a written instrument. As such its meaning 
 does not alter. That which it meant when adopted it means 
 now ... as said by Mr. Chief Justice Taney in Dred Scott 
 vs. Sanford, 19 Howard 393, 426: 
 
 "It is not only the same in words, but the same in mean 
 ing, and delegates the same powers to the government, and 
 reserves and secures the same rights and privileges to the 
 citizens ; and as long as it continues to exist in its present 
 form, it speaks not only in the same words, but with tht same 
 meaning and intent with which it spoke when it came from 
 
OF THE DRED SCOTT DECISION 
 
 the hands of its framers, and was voted on and adopted by 
 the people of the United States. Any other rule of con 
 struction would abrogate the judicial character of this court, 
 and make it the mere reflex of the popular opinion or passion 
 of the day. " 35 
 
 \Yith this rule in mind, a rule often approved by 
 all departments of our governments, let us follow briefly 
 the reasoning of the court as Taney applies the Constitution 
 to Congress in determining its power to legislate over rights 
 of slave property in a Territory. Says the Chief Justice speak 
 ing for the court upon this point : 
 
 "The principle upon which our governments rest, and 
 upon which alone they continue to exist, is the union of States, 
 sovereign and independent within their own limits in their 
 internal and domestic concerns, and bound together as one 
 people by a general government, possessing certain enumer 
 ated and restricted powers, delegated to it by the people of 
 the several States, and exercising supreme authority within 
 the scope of the power granted to it, throughout the dominion 
 of the United States. . . . Whatever it acquires, it acquires 
 for the benefit of the people of the several States who created 
 it ... and when a Territory becomes a part of the United 
 States, the Federal Government enters into possession in the 
 character impressed upon it by those who created it. ... 
 The Territory being a part of the United States, the govern 
 ment and the citizen both enter it under the authority of the 
 Constitution, with their respective rights defined and marked 
 out ; and the Federal Government can exercise no power over 
 his person or property, beyond what that instrument confers 
 nor lawfully deny any right which it has reserved. . . . For 
 example, no one, we presume, will contend that Congress can 
 make any law in a Territory . . . abridging the freedom 
 of speech or of the press, or the right of the people of the 
 Territory peaceably to assemble, and to petition the govern 
 ment for the redress of grievances. Nor can Congress deny 
 
 33 199 U. S. 448-9-50. See also p. 472. 
 
I3 2 LEGAL AND HISTORICAL STATUS 
 
 to the people the right to keep and bear arms, nor the right to 
 trial by jury, nor compel any one to be a witness against 
 himself in a criminal proceeding. 
 
 "These powers, and others, in relation to rights of per 
 son, which it is not necessary here to enumerate, are, in ex 
 press and positive terms,, denied to the general government; 
 and the rights of private property have been guarded with 
 equal care. Thus the rights of property are united with the 
 rights of person, and placed on the same ground by the fifth 
 amendment of the Constitution, which provides that no person 
 shall be deprived of life, liberty, and property, without due pro 
 cess of law. And an act of Congress \vhich deprives a citizen 
 of the United States of his liberty or property, merely because 
 he came himself or brought his property into a particular Ter 
 ritory of the United States, and who had committed no offense 
 against the laws, could hardly be dignified with the name of 
 due process of law. 
 
 "So, too, it will hardly be contended that Congress could 
 by law quarter a soldier in a house in a Territory without 
 consent of the owner, in time of peace; nor in time of war, 
 but in a manner prescribed by law. Nor could they by law 
 forfeit the property of a citizen in a Territory who was con 
 victed of treason, for a longer period than the life of the person 
 convicted ; nor take private property for- public use without 
 just compensation. 
 
 "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. And 
 this prohibition is not confined to the States, but the words 
 are general, and extend to the whole territory over which the 
 Constitution gives it power to legislate, including those por 
 tions of it remaining under territorial government, as well 
 as that covered by States. It is a total absence of power every 
 where within the domain of the United States, and places the 
 citizens of a Territory, so far as those rights are concerned, 
 on the same footing with citizens of the States and guards 
 
OF THE DRED SCOTT DECISION 133 
 
 them as firmly and plainly against any inroads which the 
 general government might attempt, under the plea of im 
 plied or incidental powers. . . . 
 
 "It seems, however, to be supposed, that there is a differ 
 ence between property in a slave and other property, and 
 that different rules may be applied to it in expounding the Con 
 stitution of the United States. And the laws and usages of 
 nations, and the writings of eminent jurists upon the relation 
 of master and slave and their mutual rights and duties, and the 
 powers which governments may exercise over it, have been 
 dwelt upon in the argument. 
 
 "But in considering the question before us, it must be 
 borne in mind that there is no law of nations standing between 
 the people of the United States and their government, and 
 interfering with their relation to each other. The powers of 
 the government, and the rights of the citizen under it, are pos 
 itive and practical regulations plainly written down. The 
 people of the United States have delegated to its certain enum 
 erated powers, and forbidden it to exercise others. It has no 
 power over the person or property of a citizen but what 
 the citizens of the United States have granted. And no laws 
 or usages of other nations, or reasoning of statesmen or 
 jurists upon the relations of master and slave, can enlarge the 
 powers of the government or take from the citizens the rights 
 they have reserved. . . . 
 
 "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. 
 The right to traffic in it, like an ordinary article of merchan 
 dise and property, was guaranteed to the citizens of the United 
 States, in every State that might desire it, for twenty years. 
 And the government in express terms is pledged tc protect 
 it in all future time, if the slave escapes from his owner. 
 This is done in plain words too plain to be misunderstood. 
 And no word can be found in the Constitution which gives 
 Congress a greater power over slave property, or which en- 
 
134 LEGAl, AND HISTORICAL STATUS 
 
 titles property of this kind to less protection than property of 
 any other description. The only power conferred is the power 
 coupled with the duty of guarding and protecting the owner 
 in his right. 
 
 "Upon these considerations, it is the opinion of the 
 court that the act of Congress which prohibited a citizen 
 from holding and owning property of this kind in territory 
 of the United States north of the line therein mentioned, is 
 not warranted by the Constitution, and 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." 36 
 
 Therefore we see that in its opinion the court applied to 
 Emerson who had carried Scott into the Louisiana Purchase 
 Territory the same principles that the courts have applied to 
 citizens in Alaska, in Utah and in all the Territories incorpor 
 ated into the United States ; for such questions as the rights 
 of the citizen and his rights to property are defined by the 
 Constitution and protected by the judicial department of the 
 government. They are not political in the sense that they 
 belong exclusively, not subject to final determination by the 
 courts, to Congress. The distinction between political and 
 judicial questions is clear and not difficult to see. The politi 
 cal department of government determines when and to what 
 country the jurisdiction of the government applies. But the 
 Territory having become a part of the United States, the 
 judicial branch has the power finally to determine the nature 
 of that jurisdiction that is to be exercised. The Constitution 
 applies to Congress in whatsoever Territory it may legislate 
 touching the personal and property rights of those within 
 that country. But the judicial department is charged with the 
 duty of determining the extent of the legislative power, con 
 fining the legislature to such powers as are given it by the 
 Constitution. For instance: In 1839 the question arose in our 
 
 30 19 Howard, 447 to 452. 
 
OF THE DRED SCOTT DECISION 135 
 
 Supreme Court as to the jurisdiction of Buenos Ayres over 
 the Falkland islands, and Judge McLean for the court decided 
 that that was a political question. 37 In the same year Chief 
 Justice [Marshall said : "In a controversy between two nations 
 concerning national boundary, it is scarcely possible that the 
 courts of either should refuse to abide by the measures adopted 
 by its own government." 38 Cooley cites others: the restora 
 tion of peace ; 39 the de facto or rightful government of another 
 country; 40 the authority of foreign ambassadors and min 
 isters ; 41 the admission of a State to the Union. 42 Such ques 
 tions belong to the political department of government. So 
 we see that the line had been plainly drawn before the Dred 
 Scott decision. Since then the same marks of distinction have 
 been carefully preserved; as, for example among the many 
 cases, Mr. Justice Gray, delivering the opinion of the court 
 in Jones vs. the United States, said: "Who is the sovereign 
 de jure or de facto is not a judicial, but a political question, 
 the determination of which by the legislative and executive 
 departments of any government conclusively binds the judges, 
 as well as all other officers, citizens and subjects of that gov 
 ernment/ 43 
 
 Benton talked about the court having "no right to pass 
 from the private rights of an individual to the public rights of 
 the whole body of the people." 44 Now and then we read simi 
 lar statements in other writings. "But the Supreme Court 
 has jurisdiction only for the purpose of determining the rights 
 of individuals," says a recent writer. The trouble with such 
 statements is that they are too narrow. In determining the 
 rights of an individual, the first question is to determine the 
 
 37 13 Peters, 420. 
 
 38 Foster vs. Neilson, 12 Peters, 313. 
 
 39 U. S. vs. Anderson, 9 Wall. 56. 
 
 40 The Hornet, 2 Abb (U. S.) 35; Gelston vs. Hoyt, 2 Wfteaton, 246. 
 
 41 Foster vs. Neilson, 2 Peters, 253. 
 
 42 Luther vs. Borden, 7 Howard, 42; Marsh vs. Borroughs, i Woods, 463. 
 
 43 137 U. S. 212. See also Madison s Works, \ oi. 4 ; 144; Polit. Sci. Qt., vol. S, 
 255- 
 
 44 Hart s Hist. Told by Cont., vol. 4, 132. 
 
136 LEGAL AND HISTORICAL STATUS 
 
 power of the legislature over him, and how far and with refer 
 ence to what and in what way that power must be exercised. 
 "The public rights of the whole body of the people" are such 
 only as are defined in the Constitution ; and they must be de 
 termined and clearly defined before the "private rights of an 
 individual" can be preserved and protected. Benton and those 
 who follow him in this doctrine are trying to find powers in 
 the Federal Government not limited by the Constitution, not 
 defined by that instrument, and which exist outside of and be 
 yond it in some such sense as the English talk of their con 
 stitution, a system of government where the courts can deter 
 mine no act of Parliament an unconstitutional measure, "the 
 Constitution of the American Empire," as one writer recently 
 endeavored to find. Such doctrine is entirely out of harmony 
 with both the letter and spirit of the American government; 
 and badly out of line with the principles long since with us 
 settled and become axiomatic. In this abnormal view of our 
 government and of the functions of our Constitution, political 
 questions would be quite different to what they are in the light 
 of settled principles, and by the latter alone courts are guid 
 ed. When changes be needed in the American government 
 the Constitution is amended by written declarations made by 
 the people. 
 
 When in the Dred Scott opinion the court decided the 
 Missouri Compromise void because Congress had no power to 
 enact such a measure, it passed not into the realm of political 
 questions; and, more than that, it established the first great 
 precedent for measuring and for determining the power of 
 Congress over property rights of an individual in a Territory. 
 Upon and in harmony with this precedent has grown the 
 now recognized American doctrine. The correctness and 
 wisdom of the rule thus formulated is now a distinct feature 
 of our government. Taney and the concurring majority 
 showed not alone a clear grasp of the fundamentals of our 
 government, but they evinced as well a high order of moral 
 
OF THE DRED SCOTT DECISION 137 
 
 courage in thus stepping boldly to the front against popular 
 feeling throughout the northern section of the United States. 
 
 The orthodox method of interpreting the Constitution 
 should be guarded with zealous care by the American people. 
 Here and there in high places are a few who yet advocate 
 the amendment of the Constitution by judicial construction. 
 Such a condition would put the people at the mercy of the 
 courts ; it would be not only utterly subversive of popular gov 
 ernment, but it would be destructive of a definite guide by 
 which to order individual conduct. In the Political Science 
 Quarterly, Oct., 1908, Professor John W. Burgess of Colum 
 bia University, recently Roosevelt Exchange Professor in the 
 University of Berlin, declares : "The question is not that of a 
 consolidation in principle of all governmental power in the 
 hands of the central government, but a liberal interpretation 
 of the powers already granted by the Constitution to the cen 
 tral government, so that the law will be made to harmonize 
 with the already existing conditions in the world of fact. 
 There is now a disharmony between the law and the fact. . . . 
 The central government should regulate and control all com 
 merce and intercourse except only such incidents thereto as 
 naturally belong to the local police organization. It should 
 create the code of commercial law, fix the law of marriage 
 and divorce, and establish the general principles of criminal 
 law. ... At least so much, if not more, belongs to its natur 
 al domain." 
 
 In total disregard of the long settled rules of constitu 
 tional construction, oblivious of the American doctrine of the 
 fundamental principles of popular government, this distin 
 guished American writer and teacher would get what he wants 
 by pure force of liberal interpretation by the courts. He is 
 forced to this position in part, at least, because "conditions in 
 the world of fact" are such that he could not incorporate his 
 views of the "natural domain" of the Federal Government into 
 the Constitution by the prescribed method of amendment. The 
 American people differ from him in his view of many ques- 
 
138 LEGAL AND HISTORICAL STATUS 
 
 tions of government, as well as upon his method of attaining 
 a practical application of his views ; and were the Supreme 
 Court to adopt such methods as he advocates and then take 
 radical views of the sphere of the central government we would 
 have "a disharmony between the law" and the people, the very 
 strongest possible argument for leaving fundamental changes 
 to the people and not to "a liberal interpretation" by the 
 courts. 
 
 There is no doubt of the fact that as conditions in the 
 world of fact change, changes of the Constitution will be 
 needed. But it is to be devoutly hoped that the American peo 
 ple will preserve the now generally accepted and orthodox 
 method, and themselves make the needed changes. The liber 
 ties, rights, and privileges of our people have been and are 
 nobly preserved by the Supreme Court of the United States 
 from the earliest days down to the present ; and it behooves us 
 so to guard that sacred forum as that no man shall be ele 
 vated to it whose influence may be lent to an insideous under 
 mining of the American Government. 
 
 Therefore, the Presidency of the United States and com 
 position of the Senate, the appointive power to that highest 
 judicial office, should be the most weighty matter with the 
 American voter. A President at most likely will serve but 
 eight years; Senators are directly under the control of the 
 people of the several States; and in many respects the acts 
 of each are subject to final review by the Supreme Court ; but 
 the members of that court have life tenures, and compose the 
 forum of last resort over matters involving both public and 
 private rights of the people. 
 
VIII. 
 
 THE MISSOURI COMPROMISE THE ONLY ANTI- 
 SLAVERY TERRITORIAL ATTEMPT 
 BY CONGRESS AFTER THE 
 CONSTITUTION. 
 
 Although no one claims that a construction of the Con 
 stitution by Congress, by which it assumes to exercise certain 
 rights of legislation, no matter when begun or how long con- 
 tinned, is to be taken as conclusive of the existence of the 
 right to thus legislate, yet such a practical construction, "if 
 nearly contemporaneous with the adoption of the Constitution, 
 and continued by repeated instances through a long series of 
 years/ is of important weight. Such a construction should 
 be taken into consideration by courts when passing upon the 
 validity of that legislation. That is, of course, in doubtful 
 cases or where the intention of the trainers and ratifiers of 
 the Constitution must be gathered from the history of the 
 times and from the fundamental principles of the law in force 
 and generally recognized at the time of the adoption. In cases 
 where no light is needed to see what the Constitution means, 
 for instance should Congress very early have enacted an ex 
 post facto law, the exercise of the power could not override 
 the Constitution. But there are many parts of the Constitu 
 tion which cannot be understood except in the light of the his 
 tory of the time and the law at the formation, amendment, 
 or adoption. So just as we went to the legislation and adju 
 dications of the States for light upon the word citizen as used 
 in the Constitution, Mr. Justice Curtis, applying the same 
 method of interpretation, finds what he holds to be "eight 
 distinct instances, beginning with the first Congress, and com 
 ing down to the year 1848, in which Congress has excluded 
 
I4O LEGAL AND HISTORICAL STATUS 
 
 slavery from the territory of the United States; and six dis 
 tinct instances in which Congress organized governments of 
 Territories by which slavery was recognized and continued." 
 
 Taking these instances in the reverse order in which he 
 gives them, we find that those in which he declares "Con 
 gress refused to interfere with slavery already existing under 
 the municipal law of France or Spain, and established govern 
 ments by which slavery was recognized and allowed," are, 
 the acts establishing the government for the North Carolina 
 cession, now r Tennessee, 1790; that establishing Louisiana in 
 1804; that establishing the Territory of Orleans, 1805; that 
 organizing the Missouri Territory in 1812; and that estab 
 lishing the Territory of Florida in I822. 1 Certainly no one 
 will contend that these acts of themselves are of important 
 value, even were they what Judge Curtis claimed for them. 
 Their testimony is of a purely negative nature, and their per 
 suasive force depends upon the correctness of the conten 
 tion as to the positive instances upon which the dissenting 
 members of the court rested. If Congress had no authority 
 to prohibit slavery in these Southern Territories where the 
 Constitution found it already recognized by law, when those 
 countries came under the jurisdiction of the United States, its 
 non-interference was no more than it must do, and does not 
 argue that it might have done what it did not try to do. 
 Southern owners of slave property were minutely cautious to 
 avoid Congressional interference with their property. While 
 they, as a class, desired to be rid of slavery, yet they pre 
 ferred that question left entirely within local control, as is 
 well-known. So unless we have other important evidence, 
 any language implying non-interference with property rights 
 in slaves, can be taken as no more than done out of abundance 
 of caution growing out of suspicion of Federal pow r er and a 
 fear of bad faith often entertained between the sections and on 
 the part of each in the earlier days. 
 
 Turning, then, to what Judge Curtis regards as the 
 
 19 Howard, 619. 
 
OF THE DRED SCOTT DECISION 14! 
 
 distinct, positive acts of practical construction of the Consti 
 tution by Congress and by the Presidents who signed the regu 
 lations, we find that he begins with the act of August 7, 1789, 
 giving life to what without it all admit would have been 
 the void and inoperative Ordinance of July 13, 1787, and 
 includes the acts establishing the governments of Indiana 
 Territory in 1800; the provision for the government of Michi 
 gan Territory in 1805; for the government of Illinois Terri 
 tory in 1809; for the government of the Territory of Wiscon 
 sin in 1836; for the government of the Territory of Iowa in 
 1838; and that of 1848 for the government of the Territory 
 of Oregon. These he regards as positive anti-slavery acts, 
 in addition to the Missouri Compromise enacted for all of the 
 Louisiana Purchase outside of Missouri and north of her 
 north boundary, passed in 1822. 
 
 Curtis says that the act of August 7, 1789, was "that the 
 Ordinance of 1787, one article of which prohibited slavery, 
 should continue to have full effect. " That is not the wording 
 of the act. It is not the proper legal construction of the 
 act. Such a construction is not borne out by the practical opera 
 tion of the Ordinance as administered and enforced under 
 the Constitution both locally and by Congress. As we all 
 know, the Ordinance had been passed before the Constitu 
 tion, and, as Curtis and practically all American scholars ad 
 mit, without authority so far as any power to provide such 
 a measure lay with the Congress of the Confederation. It was 
 a suggestion by the representatives of the States in the Con 
 gress, and purported to be no more than "articles of com 
 pact between the original States and the people and States in 
 said territory," and even then "alterable by common con 
 sent." 2 As forcibly shown by some of the judges concurring 
 in the opinion in the Scott case, no one questions that the 
 States had ample power to make any agreement upon this 
 subject they saw proper; and whatever authority the Ordi 
 nance had before the ratification of the Constitution grew 
 
 2 Poore, Charters and Consts. ; Van Broclin vs. Tenn., 117 U. S. 159. 
 
142 LEGAL AND HISTORICAL STATUS 
 
 out of the mutual consent of the States. After the ratifica 
 tion of the Constitution the act which gave it life, gave it no 
 power which could not have been conferred by Congress had 
 an absolutely new provision in words all its own been en 
 acted. At any rate what the Congress under the Confederation 
 could do is no light upon what Congress under the Constitu 
 tion can do. On and after the adoption of the Constitution 
 Congress evidently regarded the Northwest Territory, for the 
 government of which the Ordinance had been made by the 
 mutual consent of the States, as without a government, because 
 the caption of the act of August 7 says : "An act to provide 
 for the government of the territory northwest of the river 
 Ohio." Congress knew it could do no more than adapt the 
 Ordinance "to the present Constitution of the United States," 
 and in this same preamble it plainly said so. It will be ad 
 mitted that any provision, regulation, or prohibition of the 
 Ordinance that Congress by the Constitution was not given 
 power to enforce necessarily remained inert and harmless. 
 I believe it further will be admitted that Congress \vas given 
 no power to enforce any thing in the Northwest Territory 
 that it could not enforce in any Territory. The verbal provis 
 ions of the Ordinance depended upon the power of Congress; 
 and the power of Congress depends entirely upon the Constitu 
 tion. No intimation in the Constitution or in any of its contem 
 porary history is made either in favor or against any right or 
 power peculiarly in relation to the Territory over which the 
 Ordinance as originally proposed w r as to have had jurisdiction. 
 Even if by the Constitution no new government was estab 
 lished, and even if it were possible for an agreement or en 
 actment or whatever we may regard it to remain "forever un 
 alterable" regardless of future changes of the government 
 or future enactments, as a few have thought concerning the 
 Ordinance, misguided to a narrow view by the meaningless 
 word "forever," it is certain that any agreement between the 
 States, or any enactment by the legislature of a nation or of 
 the States, be that as it may, must fail unless the Constitu- 
 
OF THE DRED SCOTT DECISION 143 
 
 tion provided some instrument for its preservation and en 
 forcement. Therefore the situation resolves itself to the 
 one question : Did the Constitution give Congress any power 
 over property rights attaching to slaves in a Territory; and if 
 so,, what is it and in what part of the Constitution found ? 
 
 Important light is furnished on this question by the 
 preamble to the articles of the Ordinance. Having provided 
 for the temporary government of the country, the document 
 recites : 
 
 "And for extending the fundamental principles of civil 
 and religious liberty, which form the basis whereon these 
 republics, their laws, and constitutions, are erected; to fix 
 and establish those principles as the basis of all laws, constitu 
 tions, and governments which forever hereafter shall be formed 
 in the said territory; to provide, also for the establishment 
 of States, and permanent government therein, and for their 
 admission to a share in the Federal councils on an equal foot 
 ing with the original States, at as early periods as may be 
 consistent with the general interest : 
 
 "It is hereby ordained and declared, by the authority 
 aforesaid, That the following articles shall be considered as 
 articles of compact between the original States and the people 
 and States in the said territory, and forever remain unalter 
 able, unless by common consent." 
 
 It is patent, if the English language had the same mean 
 ing then it has now, that the framers of that instrument did 
 not think they were wielding the sovereign power of a nation, 
 for they called the States "these republics;" and they regarded 
 the Ordinance as a "compact" between republics, sovereign, in 
 dependent and distinct nationalities. But be that as it may. 
 What I wish to emphasize here is that this Ordinance specifical 
 ly declares that it was to provide for the establishment of 
 States, and that the articles, the sixth and last of which was the 
 prohibition against involuntary servitude, "shall be consid 
 ered as articles of compact between the original States and 
 people and States in the said territory." It purported to bind 
 
144 LEGAL AND HISTORICAL STATUS 
 
 the future States to be carved out of that country, just as 
 much as it did to bind the Territories that were to precede 
 the States. But, as we have seen, the highest courts of all 
 the States once a part of that great Territory, the Supreme 
 Court of the United States, and all important American au 
 thority, have decided that the Ordinance or any part thereof is 
 not obligatory or binding upon any of those States. And 
 this is true for the reason that, whether the Constitution es 
 tablished a new government -or not, after the ratification of 
 the Constitution such a government existed as that the States 
 were absolutely independent and sovereign as to all things 
 not within the peculiar jurisdiction of the Federal Govern 
 ment as denned by the Constitution. So that, after all, the 
 whole question in all of its phases depends upon what powers 
 the Constitution has conferred upon Congress. Finding it 
 does not bind the States as its words purport to do, we need 
 not expect a literal interpretation or application. 
 
 Hence, clearly, it is not by the words of the Ordinance 
 that we must be guided, no more than did it verbally author 
 ize the States of that territory to enact e.v post facto laws, 
 pass bills of attainder, or provide laws impairing the obli 
 gations of contracts. Had that Ordinance authorized a Ter 
 ritory for which it provided, to determine questions in trials 
 of all common law causes by a jury of six, it is very clear 
 that under the Constitution as interpreted by us, such a pro 
 vision would have been the most inert surplusage. The Con 
 stitution has superseded all other authority, enactment, com 
 pact or agreement, as these patent instances readily show us. 
 
 Then, was the practical construction given the verbal anti- 
 slavery article of the Ordinance such as indicated a belief that 
 Congress had the power under the Constitution to preserve, 
 continue, give life to and enforce the anti-slavery article? 
 Mr. Justice Curtis answered in the affirmative. He has an ex 
 tensive following, 3 and if there were no other reason, that 
 w T ould be sufficient to command our careful attention. In our 
 
 8 For instance, see Burgess, The Civil War and the Constitution. 
 
OF THE DRED SCOTT DECISION 145 
 
 examination of the several instances upon which this reliance 
 has been placed, it will assist us to get before the mind the 
 exact wording of the several acts of Congress in establishing 
 these various territorial governments furnishing what are 
 regarded as the positive slavery prohibitions. 
 
 The first is the act establishing the government of the 
 Indiana Territory, May, 7, 1800. Section two of that bill 
 declares : "That there shall be established within the said Terri 
 tory a government in all respects similar to that provided 
 by" the Ordinance of July 13, 1787, for the government of 
 the Northwest Territory; "and the inhabitants thereof shall 
 be entitled to enjoy all and singular the rights, privileges and 
 advantages granted and secured to the people by the said 
 Ordinance." 4 The second is the act of January n, 1805, 
 establishing the territorial government of Michigan out of 
 territory severed from Indiana. The same language is used, 
 arid in addition thereto is mentioned the act of August 7, 
 1789,- which was the act of Congress giving validity to the 
 Ordinance "as adapted to the present Constitution of the 
 United States." 5 As the third we have the act establishing 
 the territorial government for Illinois, again dividing In 
 diana, which follows the same words used in the act. of Jan 
 uary n, 1805, establishing the Michigan Territory. 6 The 
 fourth is the establishment of the government of the Terri 
 tory of Wisconsin. Section twelve refers to the Ordinance 
 in words used in the earlier acts, and declares the inhabitants 
 entitled to "enjoy all and singular the rights, privileges, and 
 advantages" conferred by, "and to be subject to all con 
 ditions and restrictions and prohibitions" imposed upon, 
 the people of the Northwest Territory by the Ordinance. 7 
 We find the fifth in the act establishing the government of 
 Iowa, June 12, 1838, dividing Wisconsin. Section twelve 
 conferred upon the inhabitants "all rights, privileges and im- 
 
 4 2 Stats, at Large, 59. 
 
 5 Ib. 309. 
 
 6 See sec. two, 2 Stats, at Large, 515. 
 
 7 5 Ib. 15- 
 
146 LEGAL AND HISTORICAL STATUS 
 
 munities heretofore granted and secured to the Territory of 
 Wisconsin and to its inhabitants. 8 In the sixth, the bill provid 
 ing a government for the Territory of Oregon, August 14, 
 1848, we find the same language used in the other acts, apply 
 ing the rights, benefits, immunities, and restrictions imposed 
 upon the people of the Northwest by the Ordinance. 9 With the 
 Ordinance, Judge Curtis and those who concur with him, find 
 what they regard as the eight positive prohibition of slave 
 property in a Territory in the Missouri Compromise, which 
 is found in the eighth section of the bill authorizing the peo 
 ple of the Missouri Territory to form a constitution and State 
 government, and for the admission of such State into the 
 Union. As we know the slavery prohibition was specifically 
 applicable to the territory acquired from France, being north 
 of Missouri, and north of thirty-six degrees thirty minutes 
 north latitude. 10 
 
 Reading the Missouri Compromise act, we are most forci 
 bly struck with the departure from the wording of the other 
 acts, both prior and subsequent thereto. Neither before it 
 nor subsequent to it in establishing the government of any 
 Territory did Congress find the courage to use the same lan 
 guage. One sees in a moment that to find the legal force of all 
 the other acts we must go back to the Ordinance, and not only 
 back to its wording but we must find its restrictions and im 
 munities as applied to and enjoyed by the people of the original 
 Territory, to find the "rights, privileges and advantages 
 granted and secured to the people" of either of the other Ter 
 ritories. "The restrictions, conditions, and prohibitions im 
 posed upon the people" of the various new Territories were 
 such only as had been imposed under the Constitution upon the 
 people in the Northwest Territory. But the Missouri bill 
 left nothing to be determined from the practical operation of 
 the Ordinance under the Constitution. It says : "That in all 
 
 Ib. 239- 
 
 9 9 Ib. 548. 
 
 10 3 Ib. 548. 
 
OF THE DRED SCOTT DECISION 147 
 
 that Territory ceded by France to the United States,, under the 
 name of Louisiana, which lies north of thirty-six degrees thir 
 ty minutes north latitude, not included within the limits of the 
 State contemplated by this act, slavery and involuntary servi 
 tude other than in the punishment of crimes, whereof the party 
 shall have been duly convicted, shall be and is hereby forever 
 prohibited: Provided always, That any person escaping into 
 the same from whom labor or service is lawfully claimed, in 
 any State or Territory of the United States, such fugitive may 
 be lawfully reclaimed." 
 
 Congress, evidently, saw that after the Constitution there 
 was some question as to its authority to destroy slave property 
 in a Territory or to forbid its presence there. It evidently 
 did not mean to put itself in the position of determining the 
 force of the Ordinance as adapted to the Constitution, and 
 so each time, the Missouri bill being the one exception, it ap 
 plied to the new Territory the restriction imposed upon or 
 the privilege enjoyed by the people under the earlier act 
 or acts. Congress simply appropriated whatever of the Ordi 
 nance was of force after the Constitution, leaving it to the 
 people to make the application and to the courts to pass upon 
 the force of that practical construction. Did, then, the verbal 
 prohibition against slaA ery as found in the last of the arti 
 cles of the Ordinance impose upon the people of the North 
 west a restriction? How was it enforced by the territorial 
 governments? Did the Territories affected by the Ordinance 
 legalize and enjoy slave property? I^ so, was its legal and 
 property nature maintained by the courts? \Ye must answer 
 these questions to find whether there were any anti-slavery 
 regulations in any of the other acts, except the Missouri bill, 
 upon which Judge Curtis relied. Other than the mere ap 
 plication to the new Territories as formed from time to time, 
 of the restrictions enforced under the earlier governments, 
 there is no intimation in any of the other acts as to slavery. 
 
 Prior to any division of the Northwest Territory there 
 was no adjudication concerning the Ordinance involving the 
 
148 LEGAL AND HISTORICAL STATUS 
 
 property rights in slaves existing at its promulgation. "The 
 sixth article of the compact, the slavery article, is imperfectly 
 understood," wrote Dane in 183 I. 11 True as late as 1831 it 
 was much truer in the earlier years. Some of the anti-slavery 
 people argued that that article destroyed existing slavery as 
 well as made future slavery impossible. On the other hand the 
 pro-slavery people and some of the most learned anti-slavery 
 people took the opposite view. On its face it looked to some 
 of the numerous slaveholders, as many of whom were from 
 New England as were from the South, then in the North 
 west, that they were about to be deprived of their lawful 
 property without compensation or an opportunity to be heard. 
 So from time to time petitions went up to Congress and 
 to the authorities of the Territory asking, the one side that 
 the apparent restriction of the Ordinance be removed; the 
 other that it remain and be enforced. Under the treaty with 
 France the theretofore French subjects, then holding as law 
 ful property many negro slaves, and under the treaty known 
 as Jay s by which the British vacated that part of the country, 
 property of every kind, including slaves, was guaranteed to 
 the people. As Hinsdale correctly says, these guaranteed to 
 "settlers their property of every kind and protection therein, 
 which applied to slaves as well as other property." 12 Article 
 II. of the Ordinance declared that the inhabitants were to 
 have "judicial proceedings according to the course of the 
 common law. No man shall be deprived of his liberty or 
 property but by the judgment of his peers, or the law of 
 the land, and should the public exigencies make it necessary, 
 for the common protection, to take any person s property . . . 
 full compensation shall be made for the same." So it is not 
 strange that we find the best legal ability of that section quiet 
 ing the fears of the people by assuring them that the existing 
 slave property was not and should not be touched. Property 
 in slaves was just as much legal property as other property, 
 
 u i Indiana Hist. Soc. Pubs., 75. 
 
 12 Old Northwest, 3395 Dunn, Hist. Ind. 252; Winsor, The Western Movement, 
 288; Burnet, Notes (Cincinnati, 1847), 282, n. et seq. ; Parkman, The Old Regime in 
 Canada, 254. 
 
OF THE DRED SCOTT DECISION 149 
 
 and to have destroyed it without compensation and by compact 
 would certainly have been a deprivation of property without 
 the judgment of the owner s peers and contrary to the course 
 of the common law. Construing each article of the Ordinance 
 in the light of the others and looking at it as a whole, it is plain 
 to see that when St. Clair, the governor from the North, and 
 Harrison, the governor from the South, assured the people 
 that no vested property rights had been affected, they were for 
 tified behind the Ordinance as it appeared in the light of the 
 most approved rules of construction. At any rate, at no time 
 were the property rights in such slaves as were in the Terri- 
 tory at its formation ever disturbed. 
 
 When the legislature of the Territory met in 1790 it was 
 importuned by petition from citizens to provide some pro- 
 slavery law, legalizing the admission of slaves from outside 
 the Territory, thus removing any doubt upon the question, 
 quieting the fears of those holding slaves, and at the same 
 time furnishing a source of much needed labor. At first the 
 legislature declined to enterta.ii! the prayer; but in November 
 of this same year this body, a majority of whom were North 
 ern men, relented and appointed a committee, directing it 
 to prepare a bill "declaring the admission of persons of color 
 by indenture." 13 This meant nothing less than the most com 
 plete slavery, the indenture being no more than a farce as to 
 the negro and a formality of registration as to the master. 
 Appointed late in the session, the committee, though acting in 
 all good faith, did not get its report filed before the close of 
 the session. The ablest lawyers of the Territory and among 
 the ablest men in the legislature did not doubt the power of that 
 body to provide a pro-slavery law; and, as Dunn says, "the 
 appointment of the committee indicates a willingness on the 
 part of the legislature to permit the introduction of negroes 
 in a servile condition until some other consideration inter 
 vened." 14 
 
 April 30, 1802, Congress divided the original Territory, 
 
 13 St. Clair Papers, vol. 2, 448; Dunn, Hist. Ind. 
 
 14 Hist. Ind., 293. 
 
15 LEGAL AND HISTORICAL STATUS 
 
 authorizing the people in the eastern part to form the State 
 of Ohio. Thus as to the Ohio part the territorial period 
 ended with no further light as to that section concerning prop 
 erty rights in slaves during the Territory. But not so as to 
 the remaining part of the Territory, thereafter for a time 
 known as Indiana. For the first few years of the Indiana 
 Territory the governor and judges of the court constituted the 
 legislative body. To these the people now turned with the 
 result that Sept. 22, 1803, a law was enacted declaring slaves 
 from the States and other Territories "under contract to serve 
 another in any trade or occupation shall be compelled to per 
 form such contract specifically during the term thereof." Pen 
 alties by lashes were provided to prevent trading with slaves, 
 and negroes were forbidden to purchase servants other than 
 their own color. 15 Petitions both pro and con were sent to 
 Congress, but that arm of the Federal Government, referring 
 the petitions to committees, retained a respectful acquiescense, 
 while the legal nature of the slave property under the pro 
 tection of the Territory steadily strengthened. 
 
 In 1803 the first elective legislature of the Territory of 
 Indiana met. It lost no time in legalizing the acquisition and 
 holding of slave property, passing the famous indenture law 
 which, as we have seen, was ratified by the fundamental law 
 of Illinois. This law differed in no essential from any pro- 
 slavery law in so far as it legalized the property rights exist 
 ing in the slaves affected thereby or coming thereunder. Under 
 it any - person owning slaves in any State or Territory, or 
 any person purchasing negroes or mullatoes, might, such 
 slaves being over fifteen years old, bring them into the Terri 
 tory : provided, the owner or master within thirty days should 
 take them before the clerk and have an indenture between the 
 slave and his owner entered upon record specifying the term 
 that the slave was to serve his master. . . . The period of the 
 indenture was usually ninety-nine years." Children born of 
 these slaves were born slaves, but the law provided they should 
 
 13 Dunn, Hist. Ind. 315. 
 
OF THE DRED SCOTT DECISION 15! 
 
 be emancipated after a term of years, a period long enough 
 to give the master an opportunity to conceal the actual age 
 until the best years of life had been spent in bondage; after 
 which, of course, most masters did not object to be rid of the 
 liability for support. Long after the Territory of Indiana had 
 been divided into and had become the States of Indiana, Mich 
 igan and Illinois, slaves were held in each as property under 
 and by virtue of this law of the Territory. The pretence of 
 the negro s consent was the merest farce; while as to slaves 
 under fifteen years owners and masters were not required to 
 resort to the pretence of consent! It is notorious that the law 
 was supported and upheld as within the power of the Terri 
 tory by both its courts and the courts of the States. This is 
 particularly true of Illinois. Slaves were being held under this 
 law in Michigan as late as i84/. irj The people demanded the 
 law, for at that time the majority were pro-slavery. 17 Dunn 
 says : "This act at the time was satisfactory to the majority of 
 the people." 18 
 
 In 1806 the territorial legislature made the property 
 nature of slaves held under this law doubly sure, declaring 
 them property subject to execution and sale thereunder just 
 as any other personal property; and at the same time provided 
 a slave code similar to those found in other slave-labor com 
 munities. 
 
 From time to time the attention of Congress was called 
 to this law and to the fact that slaves were being introduced 
 into the Territory and held pursuant thereto, but Congress 
 wilfully acquiesced. It not only acquiesced but actually rati 
 fied the power of the Territory and sanctioned the legal nature 
 of the slave property existing under this law and the slave 
 code protecting it when it admitted the State of Illinois into 
 the Union. Having been detached, Illinois continued the in 
 denture law and slave regulations, adding thereto some strin- 
 
 16 Hinsdale, The Old Northwest, 341; Edwards, Hist. 111.; Campbell, Polit. Hist. 
 Mich. 246. 
 
 17 E. A. Snively, Slavery in 111., (1901) 111. Hist. Lit. Pubs ., No. 6, 52. 
 
 18 Hist. Ind. 330. 
 
152 LEGAL AND HISTORICAL STATUS 
 
 gent anti-negro laws. Quite a number of negroes were being 
 held in slavery under these laws at the time that section applied 
 for permission to form a constitution under which to be ad 
 mitted into the Union. Congress knew this fact. Congress 
 knew that for years the verbal anti-slavery article of the Or 
 dinance had been void in practical operation ; in fact, had been 
 nullified by both the legislature and the courts. April 18, 
 1818, Congress granted Illinois permission to form a consti 
 tution, prescribing that such constitution and the State govern 
 ment so formed should be "republican and not repugnant to 
 the Ordinance." The people formed their constitution, and 
 in article six thereof it was specified that "neither slavery nor 
 involuntary servitude shall hereafter be introduced into this 
 State;" recognizing the legality of the slave property then 
 being held under the laws of the Territory, and of course the 
 validity of those laws. The existing slavery was untouched, 
 beyond all question as is admitted and as has been decided by 
 the highest court of the State. 19 Children born of the slaves 
 held under the law of the Territory either during the territor 
 ial period or after were born slaves, though bound to serve 
 for only a term of years. 20 Standing upon this ratification, 
 recognition, and continuance of the legal effect of the law of 
 the Territory, the people applied to Congress for admission 
 as a State. On December 3, 1818, Congress declared this 
 "constitution, and State government, so formed, is republican, 
 and in conformity to the principles of the Ordinance," and 
 thereupon the slave State of Illinois became ore of the United 
 States. We are not surprised to hear Snively in 1901 say: 
 "We can scarcely realize that our own State once tolerated 
 slavery; that for more than a quarter of a century Illinois 
 was as absolutely a slave State as was Mississippi. " 21 
 
 Now, was slave property repugnant to the Ordinance? 
 If so a recognition of the legal nature of the slave property 
 
 18 Phoebe vs. Jay, Beecher s Breese, 268; Chaisser vs. Hargrove, (1836) i Scar 
 mon, 317; William vs. Jarot, (1844) i Gil. 120. 
 
 20 Boone vs. Juliet, i Scammon, 258. 
 
 21 Slavery in 111., 111. Hist. Lit. Pubs., (1901) No. 6, 52. 
 
OF THE DRED SCOTT DECISION 153 
 
 existing under the law of the Territory, would, unquestionably, 
 have been repugnant to the Ordinance. But Congress declared 
 that this recognition of the vested property rights made legal 
 by the law of the Territory, was "in conformity to the princi 
 ples of the articles" of the Ordinance. This certainly means 
 the principles of the Ordinance that survived after the Consti 
 tution : that Congress had no power to enforce the verbal 
 anti-slavery article of the Ordinance; that slaves in a Terri 
 tory were legal property, and that such property in a Terri 
 tory by Congress could not be destroyed without just compen 
 sation to be determined before some tribunal or court where 
 the affected party could be heard. 
 
 But just now the most significant fact is that within the 
 jurisdiction of the Ordinance, in the Old Northwest Terri 
 tory, before the formation of the States, the people enjoyed 
 the property in slaves being held by them at the promulgation 
 of the Ordinance ; they brought slaves into the Territory from 
 other places and held them during life; and the children of 
 these imported slaves were born into slavery, and the property 
 therein was a privilege and an enjoyment and a right permitted 
 to the people by the local laws and sanctioned by Congress. 
 This acquiescence by Congress is all the more significant when 
 we remember that "the laws enacted by the territorial legisla 
 tures are alike subject to modification or repeal by the action 
 of Congress." 2 This has been recognized so often as funda 
 mental since the earliest time down to the present that it 
 will not be disputed. Till disapproved the laws of the terri 
 torial legislature are valid and operative. 23 The slave property 
 enjoyed by the people of the Northwest Territory was legal 
 property held under valid laws. Now, Congress said in the 
 establishment of the Territory of Michigan that the people 
 should enjoy all and singular the rights, privileges and advan 
 tages granted and secured to the people of the territory of 
 the United States northwest of the river Ohio. So in establish- 
 
 22 Ter. vs. Lee, 2 Mont. 132. 
 
 2;J Miner s Bank of Iowa, (1851) 12 Howard, i; Brunswick First Nat. Bk. vs. 
 Yankton County, (1879) 101 U. S. 133; U. S. vs 1 . McMillan, (1897) 165 U. S. 510; 
 Cope vs. Cope, (1891); 137 U. S. 686, are a few of the many leading cases. 
 
154 LEGAL AND HISTORICAL STATUS 
 
 ing the other territorial governments, upon which acts Judge 
 Curtis relied, we find Congress granting to them no more 
 and no less than had been granted and secured and enjoyed 
 by the people under the preceding acts. There is not an in 
 stance where Congress enforced against the people of any 
 section of the Old Northwest the anti-slavery article of the 
 Ordinance; but as we have seen she did ratify its complete 
 abrogation, rendering it as null and void as though it had never 
 been penned. Congress declared that abrogation of the anti- 
 slavery article of the Ordinance not repugnant to its princi 
 ples. Congress has thus given the most emphatic practical 
 construction of the Constitution to the effect that under it 
 the Federal Government had no power to forbid or destroy 
 property rights in slaves. 
 
 Hence, upon this point my contention is that when we 
 take into consideration the peculiar wording of all the acts 
 other than the Missouri Compromise, the actual violations of 
 the verbal prohibition of the Ordinance, their support by the 
 local courts, the acquiescence of Congress and its final explicit 
 declaration that the principles of the Ordinance had not been 
 violated, at least such doubt on the part of Congress is shown 
 as that the various acts upon which Judge Curtis and others 
 relied are not entitled to weight as positive practical anti- 
 slavery laws enacted by Congress. This conclusion must fol 
 low, it is clear to me, whatever may have been the actual value 
 of the Ordinance; for whether Congress had the power to en 
 force the anti-slavery article of that compact is not shown by 
 any attempt at such enforcement ; and certainly one important 
 opportunity at enforcement was missed when Congress failed 
 to take notice of the pro-slavery laws of the Indiana Territory. 
 
IX. 
 DUE PROCESS OF LAW. 
 
 "The Territory, being a part of the United States, the 
 government and the citizen enter it under the authority of the 
 Constitution, with their respective rights defined and marked 
 out ; and the Federal Government can exercise no power over 
 his person or property, beyond what that instrument confers, 
 nor lawfully deny any right which it has reserved. 
 
 "Thus the rights of property are united with the rights 
 of person, and are placed on the same ground by the fifth 
 amendment to the Constitution, which provides that no person 
 shall be deprived of life, liberty, or property without due pro 
 cess of laiv. And an act of Congress 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 Ter 
 ritory of the United States, and who had committed no offense 
 against the laws, could hardly be dignified with the name of 
 due process of law." 1 
 
 In answer to this Mr. Justice Curtis replied : "Therefore, 
 if the prohibition on all persons, citizens as well as others, 
 to bring slaves into Territory, and a declaration that if brought 
 they shall be free, deprives citizens of their property without 
 due process of law, what shall we say of the legislation of 
 many of the slave-holding States which have enacted the 
 same prohibition?" 
 
 One feels painfully surprised that Judge Curtis should 
 have used this argument. Certainly many of those not law 
 yers were misled thereby, to say the least of it. (_It was an 
 argument that made splendid ammunition for the politicians 
 
 1 19 Howard, 449-50, The Italics are mine. 
 
 155 
 
156 LEGAL AND HISTORICAL STATUS 
 
 and which the unscrupulous among them used to iricite popu 
 lar disloyalty.^ 
 
 It is all too easy to lose sight of the fact that the court 
 had in this case under consideration the field and limitations 
 of Federal power. What was true of a State government was 
 not necessarily true of the United States Government. Those 
 who framed and the people w r ho ratified the Constitution were 
 afraid of too much Federal power, and so they hedged the 
 general government about with limitations many of which did 
 not maintain in the States in respect to the State governments. 
 In fact, as set out in the preamble of the joint resolution, 
 adopted September 25, 1789, proposing the first ten amend 
 ments, The conventions of a number of the States having 
 at the time of their adopting the Constitution expressed a de 
 sire, in order to prevent misconstruction or abuse of its powers, 
 that further declaratory and restrictive clauses should be 
 added" to the Constitution, Congress proposed the amend 
 ments "restrictive" as to Federal power only. Of the amend 
 ments, "declaratory and restrictive," the fifth, providing for 
 due process of law, was one. This amendment with others was 
 shortly adopted after its proposal. That it is not a limitation 
 on the powers of the State, is universally conceded. In 1833 
 Chief Justice Marshall said that the Constitution was not es 
 tablished "for the government of the individual States." 2 
 That this is true, and that the due process of law 
 that is meant in the fifth amendment is a limitation 
 on the powers of Congress, and not on the powers of 
 the States, are most firmly and unquestionably established 
 in this country. 3 This fundamental truth was clearly known 
 to both Curtis and McLean, and each alone as well as in con 
 nection with the Supreme Court, had repeatedly acted upon 
 and applied it. 4 
 
 2 Barren vs. Baltimore, 7 Peters, 247. 
 
 z Ohio vs. Dollison, (1904) 194 U. S. 447; McFaddin vs. Evans. Snider Buel 
 Co. (1902) 185 U. S. 509; Howard vs. Kentucky, 200 U. S. 164; 10 Amer. & Eng. 
 Ency. of Law, 2nd ed., 288, and the unbroken line of decisions there cited. 
 
 4 Fox vs. Ohio, (1847) 5 Howard, 410; Livingston vs. Moore, (1833) 7 Peters , 
 551; U. S. vs. Keen, (1839) i McLean (U. S.), 429; and the other decisions cited 
 in 9 Federal Stats. Anno., 256. 
 
OF THE DRED SCOTT DECISION 157 
 
 Since the fourteenth amendment not even pictured in 
 the wildest dreams of the most vindictive at the time of the 
 Dred Scott decision there is in the Constitution a provision 
 with reference to the States similar to that of the fifth in refer 
 ence to the United States ; but, since the fourteenth amendment 
 has no bearing on the case before us, its consideration has 
 no place in this examination. We refer to it merely to em 
 phasize the fact that it has been made a part of the Constitu 
 tion long since the decision of this case. 5 Hence, Mr. Justice 
 Curtis argument, however he may have meant it, being abso 
 lutely without foundation in its application to the Federal 
 Government, for the powers of which alone the court was en 
 quiring, served no purpose other than to mislead those not 
 having a clear conception of the nature of American gov 
 ernment. There was entire lack of the analogy suggested by 
 Curtis. His argument merely served the purpose of strength 
 ening the groundless impression that the opinion of the court 
 in practical results would respread slavery. Undoubtedly, 
 upon this point a State could do many things Congress could 
 not; for the State legislated entirely free from the due process 
 restraint of the Constitution. 
 
 The court s application of the due process restriction and 
 declaration to Congress, the legislative branch of the Govern 
 ment, it is settled, was entirely proper. That Congress cannot 
 make any process due process of law, has been long the settled 
 law of this country, and this principle had been reaffirmed by 
 the Supreme Court in i855, 6 at the very time the Scott case 
 was being heard; and the principle is not questioned. 7 A 
 statute may be anything other than due process of law, as Dan 
 iel Webster so forcibly argued in 1819 in the famous Dart 
 mouth College Case. 8 Said he: "The meaning is, that every 
 
 5 A construction of the fourteenth amendment may be seen in Hurtado c vs. Call. 
 no U. S. 328; Maxwell vs. Dow, 176 U. S. 581; French vs. Barber, (1901) 181 
 U S: 324; Hibben vs: Smith, 191 U. S. 325; John S. Wise, Citizenship; and 
 McGehee, Due Process of Law, 35 et seq. 
 
 Maury vs . Hoboken Land Co., 18 Howard, -277. 
 
 Chicago, etc., vs 
 . 409- 
 
 4 Wheaton, 581. 
 
 7 Chicago, etc., vs. Chicago, 166 U. S. 226, 235, 240; Harvey vs. Elliott; 167 
 U. S. 409. 
 
158 LEGAL AND HISTORICAL STATUS 
 
 citizen shall hold his life, liberty, property and immunities un 
 der the protection of the general rules which govern society. 
 Everything which may pass under the form of an enactment, 
 is not, therefore, to he considered the law of the land. If this 
 were so," he illustrates, "acts reversing judgments, and acts 
 directly transferring one man s property to another," and all 
 such, "in all possible forms, would be the law of the land. 
 Such a strange construction would render constitutional provis 
 ions of the highest importance completely inoperative and 
 void. It would tend directly to establish the union of all 
 powers in the legislature. There would be no general perma 
 nent law for courts to administer, or for men to live under." 9 
 In re Kennedy the Supreme Court of the United States 
 held that "due process of law in the fifth amendment referred 
 to that law of the land which derives its authority from the 
 legislative powers conferred on Congress by the Constitution 
 of the United States, exercised within the limits therein pre 
 scribed, and interpreted according to the principles of the com 
 mon law." 10 What were the applicable principles of the 
 common law by which we are to be thus guided in finding due 
 process? McGehee gives a definition, following the settled 
 construction, embodying two of the most important of these 
 principles. He says "due process implies the administration 
 of equal laws according to established rules, not violative of the 
 fundamental principles of private right, by a competent tribunal 
 having jurisdiction of the case and proceeding upon notice and 
 hearing." 11 There must be a competent tribunal having jur 
 isdiction of the case, and proceeding upon notice and hear 
 ing. 12 The Missouri Compromise provided no tribunal, no 
 court of justice, for depriving the owner of his property; he 
 was given no opportunity to be heard. "Law in its regular 
 
 8 "Due process of law" and "law of the land," are in legal phraseology synono- 
 mous tefms. McGehee, Due Process of Law. See Webster s argument before the 
 Supreme Court of the United States in Kennedy s Life of Wirt, n. 82, and Webster s 
 Works. Farrar, Report of Dart. College Case; J. M. Dillon, Marshall s Decisions, 
 299 et seq. 
 
 10 136 U. S. 436. 
 
 11 Due Process of Law, (1906) 49; Wise, Citizenship, 250. 
 
 12 Gilpin vs. Page, 18 Wall. 350; Harvey vs. Elliott, 167 U. S. 409. 
 
OF THE DRED SCOTT DECISION 159 
 
 administration through courts of justice is due process of 
 law," said the Supreme Court in Calclwell vs. Texas. 13 Cer 
 tainly it is settled in this country that there must be a tri 
 bunal of some kind where a party can be heard before his 
 property be taken. 14 Even laws providing for and requiring 
 taxes, it is settled, must afford a tribunal and an opportunity 
 where the party liable can be heard; or otherwise that small 
 part of one s property necessary for the support of government 
 cannot be taken; because if taken without opportunity to each 
 individual to be heard, it would be lacking in due process of 
 law. 15 
 
 The Missouri Compromise was not a general rule of 
 society; it affected and injured a class only. Said the Supreme 
 Court in Ex parte Virginia, neither the government, nor the 
 officers or agents by whom its powers are exerted, "shall 
 deny to any persons within its jurisdiction the equal pro 
 tection of the laws." 16 The Missouri Compromise rendered 
 unequal the protection of the Federal Government. All the 
 property rights created by the laws of Massachusetts, in prop 
 erty carried to the Territory affected by the compromise law, 
 received full protection. Some of the property rights created 
 by Virginia, just as much property by the Virginia law as the 
 property of Massachusetts was such by her law, in property 
 carried to the same Territory, were extinguished, not only 
 without a hearing but without an opportunity to be heard, and 
 utterly destroyed without compensation. The Virginian did 
 not have the equal protection with his Northern brother. 
 To the Southerner there was lacking the enjoyment of "that 
 fundamental maxim of distributive justice, suum cuique tri- 
 bitere/ 17 There is no due process unless the laws "operate 
 on all alike." 18 
 
 137 U. S. 692. 
 
 14 McMillan vs. Anderson, 95 U. S. 41; Clearing House vs. Coyne, 194 U. S. 
 508, Hayer vs: Reclamation, etc., in U. S. 701. 
 
 13 Longyear vs. Toolan, (1908) 209 U. S. 414; Security Trust Co. vs. Lexington, 
 (1906) 203 U. S. 323. 
 
 10 100 U. S. 339. 
 
 "Hurtado vs. Calif., no U. S. 516. 
 
 15 Giozza vs. Tiernan, 148 U. S. 662. 
 
160 LEGAL AND HISTORICAL STATUS 
 
 No one can read the proceedings of the constitutional con 
 vention and in the various State conventions which ratified 
 the Constitution, without being impressed with the fact that 
 the framers of that instrument certainly had assured the slave- 
 holding States that the Federal Government should be given 
 no power to jeopardize slaves recognized as property by local 
 laws ; and that the framers of the Constitution recognized 
 the property nature of slaves as differing in no respect what 
 ever from other property. When the constitutional conven 
 tion was selecting a committee to draft the new form of gov 
 ernment, General Pickney of South Carolina "reminded the 
 convention that if the committee should fail to insert some 
 security to the Southern States against an emancipation of 
 slaves," he should be bound by duty to his State to vote 
 against their report. 19 Rutledge of the same State, when the 
 convention had the articles relating to slave property under 
 consideration, said, that "he never would agree to give a power 
 by which the articles relating to slaves might be altered by 
 the States not interested in that property" 2 When the con 
 vention had under advisement some just method of raising 
 revenue for the general government, Samuel Chase "observed 
 that negroes are property, and as such cannot be distinguished 
 from lands or personalties held in those States where there 
 are few slaves. 21 As the clause of the Constitution author 
 izing a duty on imports first stood, slave property was not 
 included. W r ilson declared that as it thus stood it was "in 
 fact a bounty on that article." 22 Notice, the said article. King 
 declared that "whilst every other import was subject to the" 
 proposed tariff, the omission of slave property was "an in 
 equality that could not fail to strike the commercial sagacity 
 of the Northern and Middle States." 23 Sherman of Connecti- 
 
 18 2 Madison s Debates, 1187. 
 
 20 Ib. 1536. 
 
 21 Ib. 28. 
 
 22 Ib. 1394. 
 
 23 Ib . 1395- 
 
OF THE DRED SCOTT DECISION l6l 
 
 cut opposed the tax on slave-importations because it implied 
 that they were property." 24 
 
 In fact just as the Northern States were uneasy for their 
 manufacturers and as their interests were watched at every 
 step during the constitutional convention, 25 so the States where 
 slave labor was legal property, guarded its property nature at 
 every point, and with the knowledge and help of all the 
 States. 
 
 That this is true and that had it been otherwise the 
 slave labor Stales would not have ratified the Constitution, is 
 incontrovertibly shown by the debates in the various ratifying 
 conventions, North and South. In the debates of the Virginia 
 convention which ratified the Constitution and while it was 
 being discussed, Patrick Henry said : "Slavery is detested. 
 \Ve feel its fatal effects we deplore it with all the pity of 
 humanity." Then he expressed the fear that Congress by the 
 Constitution had been given power over the subject of slave 
 property, concluding: "This is a local matter, and I can see 
 no propriety in submitting it to Congress." But Governor 
 Randolph, who had been a delegate to the convention that 
 drew the Constitution, at once replied to Henry, declaring that 
 the delegates in the convention believed and meant that the 
 terms of the Constitution should and had amply secured prop 
 erty in slaves against any control, regulation, or interference 
 by the Federal Government. 20 When the people of North 
 Carolina met in convention to consider the proposed Constitu 
 tion, there was considerable debate over the three-fifths clause. 
 Oavie, who had represented his people in the constitutional 
 convention, said : "The Eastern States had great jealousies 
 on this subject [of taxation and representation]. They in 
 sisted that their cows and horses were equally entitled to repre 
 sentation ; that the one was property as well as the other." 
 That is, the slaves comprehended in the "three-fifths of all 
 other persons" were property in the legal sense in which cows 
 
 24 lb. 1396. 
 
 25 Ib. 1446. 
 
 20 3 Elliot s Debates, 590, 599. 
 
1 62 LEGAL AND HISTORICAL STATUS 
 
 and horses are property. He then explained that the Northern 
 States finally compromised, omitted from the basis of taxation 
 and representation their cows and horses, because of the small- 
 ness of the population of the Southern States. 27 If the slave 
 ever were "reduced to the level of the horse, it was by meas 
 ures incorporated into the Constitution by the cooperation of 
 the Northern States, provisions the Supreme Court must 
 enforce and which it could not change. 
 
 Discussing this same provision before the New York 
 ratifying convention, Hamilton, who had been very active in 
 the constitutional convention and who was ultra-Federal in 
 construing the powers of the government, explained: "It is 
 the unfortunate situation of the Southern States to have a great 
 part of their population as well as property in blacks. The 
 regulation complained of was one result of the spirit of ac 
 commodation which governed the convention ; and without 
 this indulgence no union could possibly have been formed. 
 . . . But the justice of this plan will appear in another view. 
 The best writers on government have held that representation 
 should be compounded of persons and property." 2 
 
 There can, therefore, in the light of the history of the 
 Constitution, get it from what source we may, be no suc 
 cessful question of the fact that purposely the legal nature 
 of slave property had the same recognition in the Constitu 
 tion as did the legal nature of other property. Were further 
 evidence needed to strengthen this, it would be found in the 
 fact that before the Constitution when the American authori 
 ties came to arrange terms of peace with England slave proper 
 ty was put upon the same ground as other property; and that 
 after the Constitution, Congress, as elsewhere said, followed 
 up this by requiring England to pay a property value long 
 after this property had been beyond the jurisdiction of Ameri 
 can authority. 
 
 There being, then, no distinction as to the property na 
 ture of slaves, that property being affirmed in and guaranteed 
 
 27 4 Elliot, 31. 
 
 28 2 Elliot, 237. 
 
OF THE DRED SCOTT DECISION 163 
 
 by the terms of the Constitution at the time of its adoption, 
 it is the more certain that after the incorporation of the 
 fifth amendment, made after adoption to quiet the fears of 
 those who doubted the original provisions, made the property 
 rights existing in slaves as secure from Federal destruction as 
 legal language could express, for that amendment was a re 
 striction upon the Federal Government exclusively. 
 
 Similar principles to those which show the unfairness 
 of Mr. Justic Curtis argument with reference to due process 
 in its application to the States, also expose the error of his 
 argument wherein he insists : "A citizen of the United States 
 owns slaves in Cuba, and brings them to the United States, 
 where they are set free by the legislation of Congress. Does 
 this legislation deprive him of his property without due process 
 of law? If so, what becomes of the law prohibiting the slave 
 trade? If not, how can a similar regulation respecting a Ter 
 ritory violate the fifth amendment of the Constitution?" 29 
 
 Any intelligent person will readily agree that what is 
 property and what may become property are questions that 
 any people may regulate in establishing the government under 
 which they are to live. It is a most fundamental truth that 
 that is property between the citizen or subject and his gov 
 ernment which those who exercise the sovereignty in establish 
 ing the government have said shall be property. It was pro 
 vided in the Constitution that property rights might attach to 
 negro slaves in two ways : to "such persons as any of the 
 States now existing shall think proper to admit" 30 being ne 
 groes, until 1808 by importation; and by birth of a slave 
 mother in any State the laws of which legalized slave proper 
 ty. During the time slaves might become property by im 
 portation, it was regarded as fair to the Federal Govern 
 ment that it be permitted to tax or impose a tariff upon that 
 property as a reward for the right of ownership. Too, it was 
 regarded as fair to all .States so long as they wished to continue 
 to recognize this class of property, that it be protected by the 
 
 - y 19 Howard, 627. 
 30 Art. i, Sec. 9. 
 
164 LEGAL AND HISTORICAL STATUS 
 
 Federal Government from escape, and to this end the fugitive 
 slave provision was written in the Constitution. 31 After 1808 
 Congress was given the power to limit the States to one source 
 of slave property: birth within the State and under the jur 
 isdiction of its slave property lazvs. Thus the Federal Gov 
 ernment was given power not to destroy slave property after 
 the property right had vested, but to limit the source of its 
 becoming property. And Congress, we remember, has no 
 power not given it by the Constitution ; and that instrument is 
 always interpreted as understood when adopted. 
 
 The fifth amendment was for the protection of that as 
 property which the Constitution had left to the States or any 
 one of them to recognize as property. It could not protect that 
 which the very instrument of which it was a part had provided 
 should not become legal. Slaves in Cuba could not become 
 property in any one of the United States or anywhere within 
 the jurisdiction of the Federal Government, because of the 
 specific limitation of the Constitution upon the source of that 
 property right, and also because in the several States there 
 were regulations which confined the attaching of the prop 
 erty right to such negroes as were born of slave mothers 
 within the jurisdiction of the State law. Having attached 
 by the method prescribed by the Constitution, the Federal 
 Government was given no power to destroy and was required 
 to prevent any State from impairing the right as to a fugitive. 
 
 Chief Justice Taney and the majority of the court legally 
 and historically are sustained. The Constitution was applica 
 ble to the Territory for which the Missouri Compromise was 
 enacted; Congress could pass no law prohibiting slavery in 
 that Territory unless authorized by the Constitution ; no such 
 authority was given Congress by the Constitution, because by 
 specific provision the legality of slave property existing by vir 
 tue of State law was recognized; and, outside of the import 
 question, no power was conferred except the duty of guarding 
 and protecting the right created by the State. The Missouri 
 
 31 Art. IV, Sec. 2. 
 
OF THE DRED SCOTT DECISION 165 
 
 Compromise prohibition was not political ; Congress is not the 
 final judge of what laws defining property rights are needful 
 for a Territory. Had it even had power over slave property 
 in a Territory Congress could not have destroyed those prop 
 erty rights without just compensation, and the measure of such 
 compensation being unquestionably judicial, such questions 
 must have been left to some tribunal where the party affected 
 could have been heard. 
 
X. 
 
 SLAVE PROPERTY UNDER THE CONSTITUTION 
 AND OUTSIDE OF A STATE. 
 
 , That Chief Justice Taney was correct in applying" to 
 Congress when legislating for a Territory the restrictions, 
 limitations, and powers as defined by the Constitution, is now 
 the settled doctrine in America. The recognition that this 
 doctrine now receives is most gratifying. The correctness, 
 weight, and judicial force of the court s judgment as to the 
 power of Congress over property in general in a Territory, 
 is no longer seriously disputed; but some yet insist that as 
 to slave property the principles were not applicable because it 
 is said that that class of property was an exception. Of course 
 no one pretends to point to any specific words or provisions 
 of the Constitution in support of this claim. There are none. 
 They rest their argument, again following Benton, upon the 
 contention that property in a slave could exist only while the 
 slave remained within the geographical limits of the State 
 the laws of which legalized this property, and that having 
 passed beyond the State it ceased to be property. It is per 
 haps no presumption in me to say that I cannot see how any 
 mind with legal training can hold this view after following 
 the powerful logic of Taney, especially after admitting, as is 
 now done, that he was correct unless the Constitution itself 
 recognized slave property as the single "and wholly exception 
 al class." As we have just seen, the history of the formation 
 and of the ratification of the Constitution proves that that in 
 strument knows no distinction. But the fact that an eminent 
 lawyer, without attempting to cite any authority for his claim, 
 recently reasserted the theory that slave property was a wholly 
 
 1 66 
 
OF THE DRED SCOTT DECISION 167 
 
 exceptional class, makes it proper to give a more detailed study 
 of the meaning of the word property as used in the Constitution 
 in its applicability to slave property outside of a State the laws 
 of which recognized it as property . 
 
 In 1901 Mr. Justice Brown, in "announcing the conclu 
 sion and judgment" of the Supreme Court of the United States 
 in Downs vs. Bidwell, 1 said: "The difficulty with the Dred 
 Scott Case was that the court refused to make a distinction 
 between property in general, and a wholly exceptional class 
 of property. Air. Benton tersely stated the distinction by say 
 ing that the Virginian might carry his slave into the Territor 
 ies, but he could not carry with him the Virginia law which 
 made him a slave."- That is, a slave was property by the law 
 of the State merely and only while within the geographical 
 limits of the States by the laws of which the slavery was legal. 
 
 It is interesting to observe that Air. Justice Brown admits 
 that if we grant that the Constitution knew no difference be 
 tween slave property and property in general, as to its property 
 nature, then the dic-ision that the Missouri Compromise was 
 unconstitutional furnishes one of the strongest authoritative 
 precedents for measuring*the power of Congress in legislating 
 for a Territory; in fact he says it settles the matter if we 
 are to grant the court s argument as to the nature of slave 
 property. 
 
 Under the laws of States where slave property was 
 recognized, the property right to the labor of the slave was 
 just as absolute, as no one has ever questioned, as was the 
 right attaching to any legal property. Moving outside of the 
 geographical limits of the State, and into a Territory, the 
 owner of any property did not carry with him the law of the 
 State. His gun, for instance, in the Territory was property 
 because in all the States at the adoption of the Constitution 
 the word property comprehended guns, and so in the Consti 
 tution the w T ord property comprehends guns and, by its terms, 
 
 182 U. S. 224. 
 Ib. 275. 
 
1 68 LEGAL AND HISTORICAL STATUS 
 
 it preserves and protects in the emigrant s gun what the State 
 law created. Thus, by the terms of the Federal Constitution 
 as to all similar property, it is admitted by all, the right while 
 the object is in a Territory continues to be a property right. 
 Now, that the word property was practically universally un 
 derstood to comprehend slave property as yet property after 
 the object had been carried beyond the geographical limits 
 of the State law creating or recognizing it, even if the due pro 
 cess provision had not been added to the Constitution, there 
 is the most abundant proof. There is not only abundant evi 
 dence of this fact, but there is nothing of consequence in the 
 history of this country to show that the word property as 
 used in the Constitution, for instance in the fifth amendment, 
 was meant to have any other meaning than that so generally 
 ascribed to it; that is, that it comprehended any object having 
 once been property by virtue of a State law 7 , unless the owner 
 voluntarily surrendered his property right. For instance a wild 
 lion in the mountains of Africa was not private property. 
 Captured and brought to Massachusetts the State law at once 
 invested the owner with a property right. Carried into terri 
 tory of the Louisiana Purchase in 1819, for instance, the 
 Constitution protected and preserved the property right, al 
 though admittedly the State law was not carried to the Ter 
 ritory; and, unless turned into the jungles by the owner, the 
 property right in that lion continued solely and alone because 
 protected by the Constitution because the word property there 
 in comprehended such objects. Similarly and for similar rea 
 sons of the private domestic property rights existing in a negro 
 slave. 
 
 Now we see, again, the great importance of the emphasis 
 1 given in a previous chapter to the truth that the meaning 
 a word or provision of the Constitution was understood to 
 have when incorporated into that instrument, is retained 
 and enforced until changed by amendment. Hence the value 
 of early instances in which the property rights existing in 
 slaves were given authoritative recognition after the slave 
 
OF THE DRED SCOTT DECISION 169 
 
 had been carried beyond the positive law creating and recogniz 
 ing the right as property. Of such, and of judicial recogni 
 tion of such rights, I can give only representative instances, 
 none of which are given in the opinion in the Dred Scott Case; 
 but I believe them ample to sustain the court in its construc 
 tion of the word property as used in the Constitution; and in 
 it application to slave property carried to a Territory; and 
 more than ample to show the error of McLean, Benton, and 
 later Mr. Justice Brown. 
 
 Many instances might be cited to show that before the 
 American Revolution, it was universally understood that the 
 property in a slave remained property no matter where the 
 negro should go or be carried. I can here give only two 
 such illustrations, representative and of peculiar historic 
 interest. 
 
 July 1 6, 1/50, M. de la Joquiere, the French governor 
 of New France, writing from Quebec to M. de Rouelle concern 
 ing an exchange of prisoners between the English authorities 
 in America and himself and his military staff, said : "In regard 
 to the negro, in the possession of Sieur de la Corne St. Luc, 
 I thought proper not to send him back, every negro being a 
 slave wherever he be, as I have observed in the procesverbal. 
 Besides, herein I only do what the English themselves did in 
 1747. Ensign de Malbronne, on board Le Scrieu.r, had a ne 
 gro servant who was at first taken from him ; I took pains to 
 reclaim him, the English refused to surrender him on the same 
 ground, that every negro is a slave, wherever he happens to 
 be." 
 
 Xor was this an e.r partc proceeding; it had the official 
 sanction of the British American authorities. In the minutes 
 concerning the exchange of prisoners between the late bellig 
 erents, a war between England and France just having been 
 terminated, we see that the court was composed of the govern 
 or of Xew France and his civil and military officers of the 
 proper rank, and Sloddert, lieutenant of the Xew York infan 
 try, Antony van Scheick, captain of Xew York militia, and 
 
I7O LEGAL AND HISTORICAL STATUS 
 
 others. Their written minutes say : "And in regard to Sam 
 uel Fremont, a negro, in the service of Sieur de la Corne St. 
 Luc, Lieutenant of Infantry, we have ordered that he remain 
 in the Colony, all negroes being slaves in whatsoever country 
 they reside." This agreement was signed by both the English 
 and American officials. 3 
 
 July 1 8, 1/64, Articles of Peace, Friendship and Alli 
 ance" were concluded between Sir William Johnson, "His 
 Majesty s Sole Agent and Superintendent of Indian Affairs, 
 for the Northern District of North America," on behalf of his 
 Britanic majesty, and "the Huron Indians of Detroit." In 
 article second the Hurons agreed : "That any English who may 
 be prisoners, or deserters, and any Negroes, Panis, or other 
 slaves among the Hurons, who are British property, shall be 
 delivered up, within one month, to the Commandant of the 
 Detroit, and that the Hurons use all possible endeavors to get 
 those who are in the hands of the neighboring Nations; engag 
 ing never to entertain any deserters, fugitives, or slaves ; but 
 should any such fly to them for protection, they are to deliver 
 them up to the next commanding officer." 
 
 In article five it was stipulated on the part of Great 
 Britain, "that said Indians shall enjoy all their original rights 
 and privileges." This solemn and mutual compact was regular 
 ly signed and sealed by all the high contracting powers. After 
 each chief s name was his tribal seal, "the whole being first 
 duly explained to them." 4 
 
 It will be observed that this treaty, per se, acknowledged 
 the independence and sovereignty of these Nations; and it 
 pledged the faith of the English Government to maintain them 
 inviolate. By treating with these Nations she acknowledged 
 them to be entirely beyond the jurisdiction of her laws. Prop 
 erty in slaves existed by virtue of her local provincial American 
 laws ; and in this treaty she claimed that the status of the slave 
 
 3 Trans, in Documents relating to Colonial N. Y., gathered abroad by their com 
 piler, vol. x., 210. 
 
 * The seals of thes e four Huron tribes are gotesque, yet they indicate the rude 
 origin of the nation and its solemn emblem of power. 
 
OF THE DRED SCOTT DECISION I/I 
 
 as imposed by virtue of those laws followed the slave and ad 
 hered to him after he passed beyond their jurisdiction and 
 power; in other words, "once a slave always a slave." 
 
 As I have pointed out in another monograph, 5 the legal 
 ity of slave property, even when carried beyond the territorial 
 limits of the United States, and of course thus outside of the 
 municipal law which created it, was fully recognized under 
 the Confederation. Both the legislative and the executive 
 treated such property as an article of merchandise differing as 
 to its property nature from no other valuable article. "Negroes 
 and other property of American inhabitants" were put upon 
 the same footing in the treaty of 1783 with Great Britain. 6 
 So in the treaty of Ghent in 1814" we claimed confiscated 
 slaves and those that had gone to the enemy, as the property 
 of American citizens ; and finally, after arbitration, these 
 slaves, long after they were beyond the limits of the slave 
 States and beyond the geographical limits of the United States, 
 were adjudged to be valuable legal property, and England, 
 in 1827, paid one million two hundred and sixty dollars for 
 this slave property. 8 Other conspicuous instances where 
 in the executive and political departments of this government 
 enforced the rights of slave property beyond the municipal reg 
 ulations of *a slave State, are the incidents of the Comet, 1833, 
 and the Ecomium in 1834. These were slave ships engaged 
 in carrying slaves from the District of Columbia to a Southern 
 port, and that were driven beyond the jurisdiction of the 
 United States by stress of weather, and whose slaves were 
 landed upon British territory. The local British authorities 
 insisted on declaring the slaves free and on maintaining them 
 in that freedom. But Congress by resolution practically un 
 opposed declared that the rights of property still adhered to 
 these negroes, and the executive compelled the British Govern- 
 
 3 Northern Rebellion and Southern Secession, p. 4. 
 
 11 American State Papers: Foreign Relations, vol. i, p. 190; John Q. Adams, 
 Works. (Boston, 1850) v. 3, 336 v. 9. 632. 
 
 ~ Amer. St. Papers : F. R., v. 4, 106. 
 
 8 Ib. v. 3, 750; vol. 4, 106, 363, 402, 645: Benton s Thirty Years View, v. i; 90-1. 
 
I7 2 LEGAL AND HISTORICAL STATUS 
 
 ment to make compensation for this property, which, having 
 been scattered, it could not restore specifically, and full "value 
 of the slaves was paid to the United States to be paid to their 
 owners." 1 Northern men led the negotiations in these cases. 
 Under what municipal law did the property rights in these 
 slaves originate and exist or find sanction? By virtue of the 
 Constitution of the United States alone, for many of these 
 slaves were from the District of Columbia, and the District 
 was then as now under the exclusive and plenary control of the 
 Federal Government. Congress often recognized the property 
 rights adhering in slaves, and those other than runaways, too, 
 when the slaves had been carried beyond the limits of the btate 
 the laws of which created the slave property. 10 Congress, in 
 April, 1862, voted a payment of one million dollars for the 
 slaves belonging to the citizens of the District of Columbia, 
 and which were held by virtue of the Constitution of the 
 United States. 11 This legislation was by Northern Republi 
 cans, and was a measure that had been proposed by Lincoln 
 himself while a member of Congress. 12 
 
 That the Constitution of the United States recognized 
 the property in a slave, and protected the master s right while 
 that property remained in a Territory, had received important 
 judicial recognition before the decision of the Dred "Scott Case. 
 Both the political and judicial branches of this government 
 had recognized the slave-property-protecting nature of the 
 Federal Constitution when the two came together in a Terri 
 tory, thus giving the weightiest precedents for the Dred Scott 
 decision upon this branch of the case. 
 
 In the first constitution of the State of California, and 
 in her early laws pursuant thereto, provision was made for 
 prohibiting slavery under State rule; but at the same time 
 
 9 Benton, v. 2, 182-3. 
 
 10 For instance, see Repts., Com. 36, Cong, ist sess., No. 471. p. 1-15; Cong. 
 Glob, April, 1862. 
 
 11 For an interesting examination of the laws of the District regulating slaves, 
 authorizing the sale of slaves, etc., pursuant to Federal authority, see William Jay, 
 "A View of the Action of the Federal Government in Behalf of Slavery" (1833). 
 
 12 Bell, Letters and Addresses of Lincoln, 360. 
 
OF THE DEED SCOTT DECISION 
 
 the legality of the slave property brought to her territory prior 
 to her admission as a State, was recognized and provision for 
 the preservation of such property rights was made. In Octo 
 ber, 1852, some negroes who had been carried from a slave 
 State to California during her territorial existence, were ar 
 rested for removal. For several months prior to the arrest 
 these negroes had been in business for themselves. Their case 
 came before the supreme court of the State on a writ of habeas 
 corpus. There was nothing to embarrass the questions in 
 volved. Did the Constitution of the United States extend to 
 the Territory of California during its territorial existence; 
 and if so, did it preserve and protect property in slaves? 
 
 Concurring with the opinion of the court, which remanded 
 the negroes to their former slavery, Mr. Justice Alexander 
 Anderson said : 
 
 "The institution of slavery in the United States is both 
 political and municipal. . . . Slaves were recognized by the 
 Constitution of the United States as property, and protected; 
 ... It is appropriate to repeat, that the political character of 
 the institution of slavery goes with the extent of the national 
 territory wherever that is ; and the constitutional rights and 
 eminency of the Republic prevail at the moment of the acces 
 sion of new territory. Congress may modify the forms in 
 which it shall be exercised, and regarded; but this must be 
 sub modo pursuant to that instrument itself. . . The prop 
 erty here brought into question is that of slaves. The Con 
 stitution of the United States was in full force here. 13 Slaves 
 were as much recognized by that as property, as any other 
 objects whatever. . . . 
 
 "When the United States acquired the Territory of Cali 
 fornia, it became the common property of all the people of all 
 the States, and the right of emigration of every species of 
 property belonging to the citizen was inherent with its use and 
 possession. By the fifth article of the amendments of the Con- 
 
 1848 
 Cal 
 
 13 See in Richardson s Messages and Papers Buchanan, Secretary of State, Oct. 7, 
 8, to Voories, a Government official, saying the Constitution was extended over 
 ifornia May 30, 1848, on the day of the treaty with Mexico. 
 
174 LEGAL AND HISTORICAL STATUS 
 
 stitution, it is expressly provided that no person shall be de 
 prived of his property without due process of law. . . . ; these 
 negroes, therefore, being property as before shown when 
 brought into California [which was before she became a State] 
 so remained. . . . 
 
 "It was the vast and unexampled discovery of gold which 
 brought together an excited population. The man of the 
 North came with his capital in the shape of bales ot goods 
 he of the South sometimes with his slaves. The course of the 
 argument now made finds equal authority and protection for 
 both, under the broad shield of the common Constitution; 
 and that the property of neither can be taken by a surprise, 
 or a strategy, nor without just compensation, and that both 
 had equal rights to come to this golden and sunny land." 14 
 
 The most interesting of the cases relied upon by the Cali 
 fornia court is that of the United States vs. the Armistad, 15 
 where, again, Mr. Justice Story, that uncompromising foe 
 to slavery, delivered the opinion of the court. 
 
 The Spanish schooner, Armistad, in June, 1831, Avas carry 
 ing negroes recently kidnapped from Africa, from one port in 
 Cuba, a Spanish possession, to another port in the same coun 
 try. The slaves rose in revolt, slew the captain, and spared 
 the lives of the two other Spaniards, who claimed to be their 
 masters, on condition that they would navigate the ship 
 the negroes being entirely ignorant of navigation to Africa 
 or some other country where slavery was not legal. But the 
 Spaniards, Ruiz and Montez, deceived the negroes and sailed 
 for the United States, landing off the coast of New York. 
 United States officers, perceiving the vessel w T as in distress, 
 being in the power of a dangerous and insurrectionary number 
 of negroes, took possession of her and the negroes, and landed 
 them. Proceedings were instituted in the United States courts, 
 the officers claiming pay for assisting the vessel in its need, 
 and the Spaniards claiming as slave the negroes, asking that 
 
 14 In re Perkins , 2 Hepburn s Calif. R. 452, 455, 459. 
 
 15 15 Peters, 590-3. 
 
OF THE DRED SCOTT DECISION 175 
 
 they be delivered to them as their property ; while the negroes 
 asserted a right to freedom, claiming to have been free-born 
 men recently kidnapped from Africa. 
 
 Under our treaty provisions with Spain, we were under 
 obligations to protect Spanish property, without special men 
 tion of slave property, which temporarily and with no intent 
 to violate our laws came within our jurisdiction. Said Mr. 
 Justice Story, delivering the opinion of the court : "If these 
 negroes were, at the time, lawfully held as slaves under the 
 laws of Spain, and recognized by the laws as property capable 
 of being lawfully bought and sold ; we see no reason why they 
 may not justly be deemed within the intent of the treaty, to 
 be included under the denomination of merchandise, and, as 
 such, ought to be restored to the claimants ; for, upon that 
 point, the laws of Spain would seem to furnish the proper 
 rule of interpretation." 
 
 The court then gives judgment that the negroes be re 
 manded to their Spanish owners, to be carried out of the United 
 States because the word property comprehended negro slaves 
 just as any other "denomination of merchandise," the Spanish 
 slave law following to the "free" State. 
 
 After the free laws of Pennsylvania had become operative 
 Major Sevier, a son of the historic General Sevier, carried to 
 Philadelphia from his home in a Territory, that section which 
 is now the State of Tennessee, some negro slaves, and retained 
 them in Pennsylvania for a number of years. These slaves 
 were property by virtue of the laws of the Southwest Terri 
 tory. Unless they were property by virtue of the Constitution 
 of the United States, since a Territory derives all of its legis 
 lative authority from that instrument, plainly they were not 
 property. Sevier, having exercised ownership over the negroes 
 while in Pennsylvania just as had Emerson over Scott while 
 outside of Missouri, proposed to carry this property back to 
 his home. The negroes refused to go and appealed to the 
 courts, insisting that the Pennsylvania anti-slavery law had 
 destroyed the property right. The questions which presented 
 
176 LEGAL AND HISTORICAL STATUS 
 
 themselves to the court were patent : Were these negroes prop 
 erty under and by virtue of the laws of the Territory? If so, 
 did that property right follow them to Pennsylvania and adhere 
 to them while they remained there? The case finally reached 
 the supreme court of the State, and in 1795 the court adjudged 
 the slaves to be property, and remanded them to their master 
 who returned them to his home in the Southwest Territory. 16 
 
 "Being property when brought into" the Territory sought 
 to be affected by the Missouri Compromise, "Dred Scott and 
 his family so remained," said the Supreme Court of the United 
 States, because, as the California and the Pennsylvania courts 
 held, slaves were as much recognized by the Federal Constitu 
 tion as property as "any other objects whatsoever." 
 
 During our war with the Seminoles in Florida, in 1837 
 and 1838, a large number of those Indians were emigrated west 
 of the Mississippi river. They carried with them a "consider 
 able number of negroes, who had been claimed and lawfully 
 held as slaves by Indians of the tribe," the attorney-general 
 for the United States tells us. At its expense the government 
 moved both the Indians and their "property of great intrinsic 
 value," and settled the tribe in the \Yestern Territory. There 
 the negroes continued "in the possession and service of their 
 Indian masters" until 1846. A large number then went into 
 the Federal fort pursuant to an offer of qualified freedom made 
 by an officer in command of Federal troops. In June 1848 
 J. Y. Mason, former attorney-general and then attorney-gener 
 al ad interim, having under consideration this case and the 
 case of slaves that had been captured in that war both by our 
 troops and by Indians acting as our allies, said : "The legal 
 principles applicable to the subject appear to me to be free 
 from difficulty. Regarded as persons, the negro slaves had no 
 power to contract, and therefore could not enter into any 
 treaty or convention. Regarded as property when captured, 
 they were to be treated as any other movable property cap 
 tured from an enemy in a land war. ..." He then pointed 
 
 16 Yates, Perm. Rep. 481. 
 
OF THE DRED SCOTT DECISION 177 
 
 out that our government had restored all captured slaves to 
 their former masters where their "status ante bellum" was es 
 tablished. And in the case of the others he held that they must 
 be returned to their former masters, saying, "I do not per 
 ceive on what principles you can interfere to deprive the Sem- 
 inoles of their property, to give to their slaves any qualified 
 freedom." 17 
 
 Again in 1855 negro slave property belonging to Indians 
 outside of the municipal regulations of any State, was recog 
 nized and protected by the Federal Government. 18 These 
 instances are representative of the rule upon which the Federal 
 Government acted through its legislative and executive de 
 partments concerning the property nature of slaves found 
 within the jurisdiction of the United States and outside the 
 jurisdiction of any State. Now let me give another inter 
 esting precedent from the judicial branch. 
 
 In the circuit court for the United States, for the district 
 covering Massachusetts, at Boston in May, 1816, an appeal 
 from a decision of the United States district court came before 
 Associate Justice Joseph Story of the United States Supreme 
 Court, and the district judge. The case is a most important 
 judicial precedent in support of the doctrine upon the point 
 now before us. Its facts are: Arthur Emerson of Norfolk, 
 Virginia, owned a negro slave, Ned. In 1811, he hired Ned 
 on board the Ann Alexandria, one Kempton, master, on a voy 
 age first to Liverpool, England, and thence to one or more 
 ports on the continent of Europe, and thence back to some 
 point in the United States. "The ship safely arrived at Liver 
 pool, and sailed from thence to Archangel, in Russia, in Jan 
 uary, 1812, and while on the voyage, on the 5th of July fol 
 lowing, was captured by a Danish cutter, and carried into 
 Drontheim, in Norway" in the hope of being adjudged a 
 prize. But the United States secured her release. In September, 
 and before the ship was released, Kempton discharged his 
 
 4 Opinion of U. S. Attys .-Gen., 726, 729. 
 Ib. v. 7, 728. 
 
178 LEGAL AND HISTORICAL STATUS 
 
 crew, and did not proceed to Archangel. But in 1813 he took 
 a new cargo and sailed for Ireland. Landing his cargo there 
 he went to Liverpool, and from thence sailed for the United 
 States, and arrived at Boston in March, 1814. At Dron- 
 theim, Ned, having been discharged as no longer needed, went 
 immediately on board the Frederick, then about to sail for 
 London. Kempton told Coffin, the captain of the Frederick, 
 that Ned was a slave, and asked him to make an effort to se 
 cure for the negro passage from London to the United States. 
 At London Coffin did procure Ned passage on a vessel bound 
 for the United States, and on board of it saw him for the 
 last time; "but there was no positive evidence that Ned came 
 in her, or had ever returned to the United States," though the 
 ship arrived in New York March 29, 1813. Now Ned s master 
 brought suit to recover the wages he was to have for the hire 
 of Ned, and insisted that he was to be paid from the time the 
 negro left up to the I2th of March, 1814, the date of Kemp- 
 ton s arrival in Boston on the return voyage. What was 
 Ned s status? He had been in free territory the English 
 courts, and they are quoted by Judge Curtis and McLean in 
 their dissenting opinions, say a slave becomes free in England. 
 Now if Ned became free then most certainly the Virginia 
 master could not recover his wages. The laws of Virginia 
 either followed him fixing his status or they did not. If 
 they did, then the master was entitled to recover the wages 
 of his slave. There were no complications in the case. Ned 
 was not a runaway, but \vas in free territory by virtue of his 
 master s will, and for a temporary purpose, just as was Scott 
 with Dr. Emerson a remarkable co-incidence in names. If 
 being on free soil could avoid the positive laws of slavery, then 
 Ned was free. If free, then his master had no right to his 
 wages after he left Virginia. That is a plain proposition. Mr. 
 Justice Story that uncompromising friend of the free-labor 
 States delivered the opinion of the court. AYatch him : The 
 next question is as to the validity of the discharge of the slave 
 at Drontheim. It is the settled rule of this court, that the 
 
OF THE BRED SCOTT DECISION 179 
 
 capture of a neutral ship does not of itself dissolve the con 
 tract of manners wages. The ultimate effect that can be at 
 tributed to it, is, that it suspends the contract, which is revived 
 or extinguished by the ultimate acquittal or condemnation. 
 The seamen, therefore, are not bound to quit the ship imme 
 diately upon the capture, nor can the master compel them to 
 receive a discharge. They have a right to remain by the ship 
 until a sentence of condemnation or acquittal has passed, or 
 all reasonable hope of recovery is gone. 
 
 "But if with the consent of the master, they leave the 
 ship, they are not prejudiced in their rights; and their title 
 to wages for the previous period of the voyage will be con 
 firmed or destroyed, according to the event of the ultimate 
 adjudication. And such would have been the principles ap 
 plicable in the present case, if the discharged mariner had 
 possessed a legal capacity to make, and dissolve, the contract 
 for wages. His discharge would then have been a voluntary 
 act, and binding upon him ; and as the ship was restored, his 
 title to full wages for the antecedent term of service would 
 have been perfect. But such a legal capacity can in no re 
 spect be attributed to him. The contract for his wages was 
 entered into by his owner in Virginia; and must, therefore, 
 be construed with reference to the Ic.v loci contractus. In Vir 
 ginia slavery is expressly recognized; and the rights founded 
 upon it are incorporated into the whole system of the laws of 
 the State. The owner of the slave has the utmost complete 
 and perfect property in him. The slave may be sold or de 
 vised, or may pass by descent, in the manner as other inherit 
 able estate. He has no civil rights or privileges. He is in 
 capable of making or discharging a contract ; and the per 
 petual right to his service belongs exclusively to his owner. 
 Tt follows from these considerations, that the discharge of the 
 slave at Drontheim, even with his own consent, was an un 
 authorized act, and in no respect binding upon the plaintiff 
 [the Virginia master.] As the latter never assented to, or 
 
ISO LEGAL AND HISTORICAL STATUS 
 
 ratified it, it was, as to him, a tortuous act, and draws after it 
 all the consequences of an unjustifiable discharge." 19 
 
 This is a representative case of the many found in our 
 court reports. The decision was rendered by a native of Mas 
 sachusetts, Judge Story, one of our most able jurists, and a 
 man entirely unfriendly to the institution of slavery as such. 
 This decision and the many of which it is a fair representa 
 tive show that the American interpretation of the w T ord prop 
 erty in its relation to the negro slave was that "the perpetual 
 right to his services belongs exclusively to his owner" under 
 the Constitution after he had passed beyond the laws of the 
 State legalizing such property. 
 
 Look into the adjudications in any of the Northern States 
 and there we find that the slave was property no matter where 
 found, and that the rules of litigation concerning property 
 interests in him differed in no respect from those applied to 
 any other property. Of this fact a representative statement 
 is found in the charge of Judge Baldwin, associate justice of 
 the Supreme Court of the United States, to a Federal jury in 
 1833 m Pennsylvania, when in Johnson vs. Tompkins he said: 
 "On a question of freedom or slavery the right is to be estab 
 lished by the same rules of evidence as in other contests about 
 the right to property." 20 As authority he cited the decision 
 of the Supreme Court of the United States which had an 
 nounced the same rule 21 in 1813. 
 
 In 1871, most of the judges who decided the Dred Scott 
 Case having disappeared from the bench, the Supreme Court 
 in Osborne vs. Nicholson, decided, Chief Justice Chase alone 
 dissenting: "Slavery was originally introduced into the Amer 
 ican colonies by the mother country, and into some of them 
 against their will and protestations. In most, if not all of 
 them, it rested upon universally recognized custom, and there 
 were no statutes legalizing its existence more than there were 
 legalizing the tenure of any other species of personal proper- 
 
 19 Emerson v. Rowland et al., i Mason s Circuit Court Rep. 50-1. 
 
 * i Baldwin (U. S. C. C.), 577. 
 
 21 Minnie Queen vs. Hepburn, 7 Cranch, 295. 
 
OF THE DRED SCOTT DECISION l8l 
 
 ty. Though contrary to the law of nature, it was recognized 
 by the law of nations. The institution of slavery has existed 
 largely under the authority of the most enlightened nations of 
 ancient and modern times. Wherever found, the rights of the 
 owner have been regarded there as surrounded by the same 
 sanctions and covered by the same protection as other property. 
 The British government paid for the slaves carried off by its 
 troops from this country, in the war of 1812, as they did for 
 other private property in the same category. ^ 
 
 This opinion and decision were rendered by Justices Nel 
 son, Swayne, Davis, Strong, Clifford, Miller, Field, and Brad 
 ley. No one can say that the institution of slavery had friends 
 upon the bench at this time. But of those who participated in 
 the decision and opinion the Republican party counted some 
 very strong adherents. Justices Miller, Strong, and Bradley 
 rendered that party an important partizan service on the Elec 
 toral Commission of 1877, which, by a narrow margin of eight 
 Republicans to seven Democrats, declared Garnejcl President 
 over Tilden in the face of some of the most disgraceful frauds 
 and forgeries ever committed by the Republican party. So that 
 the decision in Osborne vs. Nicholson was rendered by the 
 greatest possible extreme of "the slave power," whatever 
 that was, if it ever were. The case directly involved the nature 
 of the property rights in slaves, as the suit was an action 
 seeking to enforce the payment of a note executed for slaves 
 bought March 26, 1861, in Arkansas. 
 
 Slaves being property in the sense in which any other 
 article is property, according to this court s decision, the mak 
 er was required to pay the note. Further on in its opinion the 
 court says: "Many cases have been decided by the highest 
 State courts where the same questions were raised which we 
 have been called upon to consider in this case. In very nearly 
 all of them the contract was adjudged to be valid, and was 
 enforced. They are too numerous to be named. The opinions 
 in some of them are marked by great ability." 
 
 22 13 Wallace, 661; citing Le Louis, 2 Dodson, 250; i Phillmore, Law of Nations, 
 316; i Wildmore, Intern. Law, 70; Dana s Wheaton, 199; The Antelope, 10 Wheaton 
 67. 
 
182 LEGAL AND HISTORICAL STATUS 
 
 At the same term the court decided White vs. Hart, in 
 volving- a similar question, with the additional one as to the 
 validity of that clause in the constitution of Georgia, adopted 
 in 1868 while the State was under the dominion of the Recon 
 struction acts, wherein it was declared that no court shall 
 have jurisdiction to try or give judgment on, or enforce any 
 debt, the consideration of which was a slave, or the hire there 
 of. The court, Chase dissenting, held that this provision as to 
 such debts contracted thertofore, was void because ex post facto 
 and impaired the obligation of contracts concerning property 
 just in the same sense as if the note had been given for a 
 horse. The court further decided that the fact that the State 
 was under the supervision of the Federal Government under 
 the Reconstruction acts did not alter the law of the case, be 
 cause ki if Congress had expressly dictated and expressly ap 
 proved the provision in question, such dictation and approval 
 would be without effect. Congress has no power to supersede 
 the National Constitution." 23 
 
 Though it is a digression as to the immediate point before 
 us, I am impelled" to call attention to the fact that in this case 
 the court further decided : "As the case is disclosed on the 
 record we entertain no doubt of the original validity of the 
 note, nor of its validity when the decision before us [by the 
 trial court] was made. But as that question was not raised 
 in this case, we deem it unnecessary to remark further upon 
 the subject." 24 Here a Republican member of the court de 
 cided the merits of questions not even raised in the case before 
 it, although shown upon the record, and which had no im 
 mediate connection with the grounds upon which the court 
 rested its decision: in the Dred Scott Case the court decided 
 the merits of the questions raised in the record, vigorously ar 
 gued, and which bore directly upon the judgment in the case. 
 Yet ever since the Dred Scott decision especially Republicans 
 and anti-Southern people have been shouting Obiter dicta!" 
 
 13 Wallace, 649, 652. 
 b. 654- 
 
OF THE DRED SCOTT DECISION 183 
 
 Again in 1873 in Boyce vs. Tabb 25 the Supreme Court 
 rendered a decision sustaining the same principles as those 
 decided in Osborne vs. Nicholson and in White vs. Hart. 26 
 Xo\v notice the applicability to property rights in a Territory 
 and under the Constitution. The institution of slavery be 
 longed to the common law as it was recognized in the colonies 
 at the time of our separation from England. "It rested upon 
 universally recognized custom, and there was no statutes legal 
 izing its existence more than there were legalizing the tenure 
 of any other species of personal property." It "was sur 
 rounded by the same sanction and covered by the same protec 
 tion as other property." It was not a peculiar class. There 
 fore, when the word property was used in the Constitution, 
 it comprehended this class of property "held by the same ten 
 ure as any other species of personal property." Being thus 
 recognized and thus protected differing in no respect whatever 
 from other personal property, it was comprehended by and pro 
 tected under, just as any other property, the fifth amendment 
 of the Constitution which forbids Congress to destroy or take 
 property without due process of law, a provision applicable 
 in a Territory no less than in a State, for it indicates an entire 
 absence of power in the Federal Government. An act which 
 takes one man s property and gives it to another without just 
 compensation, is not due process of law, decided the court in 
 Osborne vs. Nicholson ; and this is as certainly true of an act 
 which takes one man s property and gives it to no one, without 
 just compensation to the owner. 
 
 Turn where we may; scrutinize history before the Con 
 stitution ; look in upon the convention that drafted that great 
 charter; listen to the debates in the various gatherings when 
 the States, zealous for the preservation and retention of every 
 possible right, were analyzing every word of the proposed 
 instrument to find what powers were being entrusted to any 
 branch of the Federal Government; consider the express pur- 
 
 ^ 1 8 Wall. 546. 
 
 26 See also French vs. Tumlin, 9 Fed. Cases, No. 5, 104, also decided in 1871. 
 
184 LEGAL AND HISTORICAL STATUS 
 
 pose and the actual force of the amendments made after rati 
 fication of the original draft ; go to the practical contemporary 
 constructions begun with the first moment of the Constitu 
 tion and continued unbroken down to the Dred Scott decision, 
 constructions by Congress, by all the departments of the 
 government including diplomatic agents and representatives 
 from all sections of the country and at one time or another be 
 longing to all parties, who settled our disputes with foreign 
 countries, and by the judiciary in Federal courts or in State 
 courts or in the Territories, adjudicating cases arising on the 
 land or on the high seas, and we find that property in slaves 
 was not an exceptional class. With the decision of the court 
 every impartial mind must agree that then, "if the Constitu 
 tion recognizes the right of property of the master in a slave, 
 and makes no distinction between that property and other 
 property owned by a citizen ; no tribunal, acting under the 
 authority of the United States, whether it be legislative, execu 
 tive, or judicial, has a right to draw such a distinction, or 
 to deny to it the benefit of the provisions and guarantees which 
 have been provided for the protection of private property 
 against the encroachment of the government. Hence, in view 
 of the fact that power to destroy or impair property rights in 
 express terms is denied Congress, we see it could not destroy 
 that property in a slave in a Territory or elsewhere, because 
 the words of the prohibition "are general, and extend to the 
 whole territory over which the Constitution gives it power 
 to legislate, including those portions of it remaining under 
 territorial government as well as that covered by States. It 
 is a total absence of power everywhere within the deminion 
 of the United States, and places the citizens of a Territory, so 
 far as these rights are concerned, on the same footing with 
 citizens of the States, and guards them as plainly and firmly 
 against any inroads which the general government might 
 attempt, under the plea of implied or incidental powers." 27 
 To us of to-day the thought of property in man is repul- 
 
 21 19 Howard, 450-51. 
 
OF THE DRED SCOTT DECISION 185 
 
 sive. So it was to the vast majority of our Southern ancestors, 
 and to the few yet living who inherited that property. But we 
 must not forget that the South, to the preservation of the 
 slave property of which the Federal Government was pledged, 
 was no more responsible for her slaves than were the people 
 of Massachusetts for hers. For commercial and party pur 
 poses the Republican party became pronounced rebels against 
 our government. The over-conscientious in the North saw 
 only what he believed to be the interest of the slave, entirely 
 overlooking the interest of the white people whose property 
 he was. This country cannot endure half slave and half free, 
 said Lincoln, but by coercion and not by constitutional amend-j 
 nient it was proposed to shift the burden entirely upon the 
 South and give the Northern white man an advantage in the 
 Territories over the white man from the South. If the gov 
 ernment was not what it should have been, not what the Re 
 publican party of the North thought it should have been, they 
 had a right of revolution; but at no time had any section or 
 party claiming allegiance, the right to repudiate and to nul 
 lify. To quote Judge Baldwin again, to visit disapproval of 
 the government formed by all our forefathers "on those who 
 have honestly acquired and lawfully hold property, under the 
 guarantees and protection of the laws, is the worst of all op 
 pression, and the rankest injustice toward our feliowmen." 
 Fiske says: "A majority held that Dred Scott was not a 
 citizen of Missouri, but a thing." 28 The same logic would lead 
 us to conclude, since a foreigner is not a citizen, he is but a 
 thing." That a slave was property did not reduce him to the 
 level of the horse. My horse and my plow are both my prop 
 erty. I may entirely destroy my plow, but if I mistreat my 
 horse the law interferes. The State law has provided for the 
 protection of the horse; the slave labor States had provided 
 for the humane protection of slave property as for no other 
 property. The horse has higher rights than the plow ; the 
 
 26 Hist. U. S. 346. Many writers make this blunder. For instance: Brice, Amer. 
 Com., vol. i, 263; Chancellor, A Textbook Amer. Hist., 356; Twentieth Cent. Cyc. 
 and Die. (1903). 
 
1 86 LEGAL AND HISTORICAL STATUS 
 
 slave has higher rights than the horse. That a negro of Afri 
 can descent whose ancestors had been American slaves was not 
 such a person as meant by the Constitution when "citizens of 
 different States" are authorized to sue each other in Federal 
 courts, no more rendered such a person "but a thing," than did 
 the decision that "citizens of different States" did not mean 
 citizens of a Territory or of the District of Columbia; and 
 that, therefore, such persons could not sue each other in the 
 Federal court on the grounds of diverse citizenship. 
 
XI. 
 
 NORTHERN NULLIFICATION AND 
 SOUTHERN SECESSION 
 
 The Dred Scott decision is important because of its law; 
 iits reception by the North is indispensable to history because 
 of its bearing upon the secession of the Southern States. To 
 ignore the Northern nullification to which it gave opportunity, 
 is to neglect one of the most important concrete justifications 
 of the secession of 1861. Lincoln waged a bloody and aggres 
 sive war to suppress secession ; secession was a defensive move 
 to defeat the most dangerous overt nullification Northern 
 nullifications of the Federal Government to be found upon the 
 pages of history dealing with constitutional government. This 
 Northern nullification was more destructive of what Lincoln 
 sought to preserve than was the secession which he fought. 
 On the pages of history as sometimes written, the nullifica 
 tion of South Carolina in 1832 stands gibbeted under a placard 
 the inscription of which declares the most damnable disloyal 
 ty; while over against it the New England conspiracy against 
 the Federal Government, is labeled as having disappeared from 
 the Northern States certainly not later than 1802. Nothing 
 could be a greater perversion of our history ; no story could be 
 less fair to the seceding States. 
 
 The vast ramifications of the "underground railroad" to 
 which great numbers of the representative men of the North, 
 from the seaboard New England States to the Mississippi 
 river, subscribed, were conceived in nullification and grew to 
 be powerful and dangerous in practicing rebellion ; the "Kansas 
 War" was a product of Northern nullification which ended 
 in overt and bloody rebellion against our National Govern 
 ment ; and nullification was one of the most aggressive arms 
 
 187 
 
1 88 LEGAL AND HISTORICAL STATUS 
 
 of the Northern abolitionists. All over the North the free- 
 A labor States resisted, spurned, repudiated and taught disobe- 
 : dience to the laws and to the Constitution. On July 14, 1851, 
 Judge Levi Woodbury, at the time an associate justice of the 
 United States Supreme Court, in charging a grand jury at 
 Newport, Rhode Island, called attention to the fact that it is 
 the citizen s imperative duty "at every hazard to sustain the 
 laws until duly repealed," and referred to the prevalent nulli 
 fication as of "such violence as to overthrow order, and, by 
 polluting the very sanctuary of justice with anarchy and crime, 
 strike at the root of all organized society." 1 In the same year 
 Judge Samuel Nelson, an associate justice of the same court, 
 whose circuit covered Vermont, Connecticut, and part of New 
 York, said : 
 
 "It is not to be denied, that the legislation of most, if 
 not all, of the Northern States, tending to embarrass, and, in 
 some instances, to annul the provisions of the act of 1793 
 [which provided for the return of fugitive slaves], has strong 
 ly impressed our Southern brethren with the conviction that 
 these States have resolved to throw off this constitutional obli 
 gation. They take it for granted, and it is difficult to deny 
 the inference, that the acts reflect the general sentiment of the 
 people on this subject; and that it must have become deep 
 and abiding, to be sufficiently powerful to mould the legisla 
 tion of the State. It is this legislation, more than occasional riot 
 ous assemblies in resistance of the law, that has forced them to 
 the question, whether the Union, with this provision of the 
 fundamental law rejected and condemned a provision vital 
 to the rights and interests of that portion, and without which 
 the Union would never have been formed is to them a bles 
 sing or a curse. . . . That laws exist on the statute books 
 of most if not all of them, in conflict with the acts of Congress, 
 and repugnant to this provision of the Constitution, is a matter 
 of history. That the enforcement of these laws would be a 
 virtual abrogation of the provision, is not to be denied. ... If 
 
 1 Writings of Levi Woodbury, vol. 2, 20 and 366. 
 
OF THE DRED SCOTT DECISION 189 
 
 anyone supposes that this Union can be preserved, after a ma 
 terial provision of the fundamental law upon which it rests is 
 broken and thrown to the winds by one section of it a pro 
 vision in which nearly one-half of the States composing it are 
 deeply and seriously interested he is laboring under a delu 
 sion which the sooner he gets rid of the better/ 
 
 So it was that in constantly increasing ratio as we ap 
 proach the period of secession, the free-labor States through 
 their legislative machinery made it possible and certain for their 
 citizens to mob the Federal laws; and the fanatics, of a numer 
 ous and dangerous number, led by such men as John Brown 
 who was abetted by such representative and prominent men 
 as Thomas Wentworth Higginson, the more widely known 
 Charles Sumner, the great agitator Henry Thoreau, and the 
 distinguished political leader Governor John A. Andrew, the 
 well-known Senator Howe, and Ralph Waldo Emerson, 
 known to the literature where the English tongue is read or 
 spoken, organized to mob the Southern people. 2 
 
 No branch of the Federal Government escaped the nul 
 lifying virus that had permeated the free-labor States of the 
 Xorth. Accordingly when the Dred Scott decision had been 
 handed from the Supreme Bench, disappointment and indig 
 nation seized the State machinery and created statutes and 
 passed resolutions still more bitterly in nullification of the 
 Federal laws. The following concrete instances are fairly 
 representative of the conditions which confronted the South 
 when her effort to escape the evil they engendered brought 
 her patriots to decide that secession would be the least hurtful 
 and most nearly right of all possible remedies. 
 
 April 17, 1857, tne general assembly of Ohio passed a 
 joint resolution "relative to the decision in the Dred Scott 
 Case," in which she declared : "That this general assembly 
 has observed with regret, that, in the opinion lately pronounced 
 by Chief Justice Taney in behalf of the majority of the Su 
 preme Court of the United States in the case of Dred Scott 
 
 - Ewing, Northern Rebellion and Southern Secession, 354. 
 
I 9O LEGAL AND HISTORICAL STATUS 
 
 against J. H. F. Sanford, occasion has been taken to pro 
 mulgate extra-judicially certain doctrines concerning slavery, 
 not less contradictory to well-known facts of history, than 
 repugnant to the plain provisions of the Constitution, and 
 subversive to the rights of freemen and free States. 
 
 4 That in the judgment of this general assembly, every 
 free person, born within the limits of any State in this Union, 
 is a citizen thereof, and to deny to such person the right of sue- 
 ing in the courts of the United States, in a palpable and unwar 
 rantable violation of that sacred instrument. 
 
 "That the doctrine announced by the Chief Justice, in 
 behalf of the majority of the court, that the Federal Constitu 
 tion regards slaves as mere property, and protects the claims 
 of masters to slaves, to the same extent, and in the same man 
 ner as the rights of owners in property, foreshadows, if it 
 does not include the doctrine, that masters may hold slaves as 
 property within the limits of free States, during ^temporary vis 
 its, or for purposes of transit, to the practical consequences 
 of which doctrine no free State can submit with honor." 
 
 Because Ohio and other States found it incompatible with 
 their sense of honor to submit to the laws, the South insisted 
 that she could not with honor submit to the consequences of 
 the Northern illegality. Ohio herself had formulated and 
 enforced the strongest possible precedent for the Dred Scott 
 decision. At the very time she announced her determination 
 not to submit to the laws as interpreted by the Supreme Court, 
 her own laws, which had been enforced with relentless inhu 
 manity, declared that negroes, no matter whether born free 
 or slave, "were no part of the body politic; and at no time 
 had she treated them as citizens either of her own State or of 
 the United States. 
 
 This position of the general assembly of the State of Ohio, 
 was not only the most pronounced form of nullification : it 
 was a declaration by the State of her right to secede. In direct 
 disregard of her own bitter anti-negro laws, this declaration 
 was one of the strongest moral supports for the nullification 
 
OF THE DRED SCOTT DECISION IQI 
 
 of the fugitive slave law that had for years made Ohio the 
 hotbed of fugitive-slave abbettors and harborers and of slave 
 thieves. The distinguishing difference between the American 
 government and that of any other country in the world lies in 
 the fact that it is based upon a written Constitution; and in 
 the no less important truth that where there is a question as 
 to the meaning of the instrument or of any law passed by 
 Congress, the Supreme Court is the final determinant of that 
 meaning and of the force and effect of that law. Except by an 
 exercise of tyranny; the Supreme Court of the United States 
 cannot violate the Constitution. Its interpretation of that 
 instrument become the Constitution and is final. But final only 
 in the sense that it is the supreme law of the land until amended 
 by a vote of two-thirds of the States. Where the matter is 
 of sufficient importance to demand it, the people always have 
 a remedy against the effect of a decision by our Supreme 
 Court by amending the Constitution. If enough States to affect 
 an amendment do not agree therein, a dissenting minority 
 has no escape from submission except through revolution, 
 and this inalienable right of revolution the Southern people 
 believed to have been written in their ratification of the Con 
 stitution, and the synonym of the right of secession. Plainly 
 there were not a sufficient number of States agreed to amend 
 the Constitution so as to escape the force and the power of the 
 Dred Scott decision; therefore to teach that that decision was 
 "repugnant to the plain provisions of the Constitution, and 
 subversive of the rights of freeman and free States," was to 
 teach nullification. If the Northern States had a right to 
 teach and practice nullification, no matter for what cause, 
 the Southern States cannot be denied the equal right to declare 
 and to treat that nullification as a destruction of the obligation 
 of Southern allegiance. There can be no allegiance to that 
 which has been materially altered without consent of the con 
 stitutional power. That power under the American Govern 
 ment lies in the action of two-thirds of the States. That 
 must be taken as right which has been created by that Con- 
 
I9 2 LEGAL AND HISTORICAL STATUS 
 
 stitutional power and which continues to have its assent. Too, 
 the student must not forget, that right in any period of the 
 past and under environments known to him only through the 
 medium of history cannot justly be measured by the standard 
 of a later and more enlightened day. 
 
 Again in another resolution passed by the general assem 
 bly of Ohio, she declared : 
 
 That the general assembly, in behalf of the people of 
 Ohio, hereby solemnly protest against these doctrines [of the 
 Dred Scott decision], as destructive of personal liberty, of 
 State s rights, of Constitutional obligations, and of the Union; 
 and, so protesting, further declare it unalterable convictions 
 that in the -Declaration of Independence the fathers of the 
 Republic intended to assert the indestructible and equal rights 
 of all men, without any exception or reservation whatsoever, 
 to life, liberty, and the pursuit of happiness." " 
 
 How differently that resolution reads when translated in 
 the light of the Ohio anti-negro laws. 
 
 In November, 1857, the legislature of Vermont declared: 
 
 "No. 70. Resolutions on the opinions of the United 
 States Supreme Court in the case of Dred Scott. 
 
 "Resolved, by the Senate and House of Representatives, 
 That the Supreme Court of the United States, being the high 
 est judicial tribunal in the Republic, ought to be conspicuous 
 for its wisdom, learning and dignity; that the protection of the 
 interest and the individual rights of the subject ought to be 
 its especial care; that any departure by any member of that 
 court from established rules of judicial propriety is calculated 
 to degrade the tribunal and lessen the respect with which its 
 opinions ought to be received ; that whenever any such member 
 seeks to convert that court into a political institution, to make 
 it an instrument to carry into effect the designs of a political 
 party, such conduct ought to meet the emphatic and decided 
 reprobation of the people. 
 
 "Resolved, That the opinions and views expressed by 
 
 3 Acts of general assembly, 1857, 301. 
 
OF THE DRED SCOTT DECISION 
 
 several members of that court, comprising the its majority, 
 upon questions not contained in the record in the Dred Scott 
 Case, are extra judicial and political, possessing no color of 
 authority or binding force, and that such views and opinions 
 are wholly repudiated by the people of Vermont. 
 
 "Resolved, That Vermont re-asserts the Constitutional 
 right of Congress to regulate slavery in the Territories of the 
 Union, by legislative enactments ; that such right is clearly 
 conferred by the Constitution itself, and its timely exercise is 
 indispensable to the safety and perpetuity of the Union." 
 
 At her next session of the legislature Vermont manifested 
 even stronger determination tojrebel and openly to resist the 
 United States Government. There could be no doubt, no law 
 yer of authority, and no judicial body, had ever or has ever 
 questioned that the Constitution recognized and protected the 
 property rights existing in a fugitive slave. Our govern 
 ment, executive, , legislative, and judicial, in all its depart 
 ments, and from the earliest times down to the war between the 
 States, recognized and enforced the property rights in negro 
 slaves as the several laws of the various slave States denned 
 those rights. From the time the administration of John Quin- 
 cy Adams secured, in 1827 the payment by England of one 
 million two hundred and four thousand nine hundred and 
 sixty dollars for slaves demanded as property in our treaty 
 of peace with that country in conclusion of the war of 1812, 
 which slaves had been declared property by Alexander, Em 
 peror of Russia, who arbitrated the dispute between this 
 country and England, 4 on down to the case of the Comet in 
 1830, the Ecomium in 1834, the Enterprise in 1835, the claim 
 of the \Yiggs heirs before Congress in 1853, and again in 
 1860, to April 1862 when the Northern Republicans then in 
 Congress emancipated the slave property in the District of 
 Columbia by paying the property value of one million dollars, 
 the most indubitable evidence has been given that the govern 
 ment of the United States, that the Constitution of the United 
 
 4 Am. St. Papers: Foreign Relation, v. i, 190; Adams Wks., vols. 3, 336, 10, 
 632; Am. St. Papers; v. 3, 750, v. 4, 106, 363, 402; 645. 
 
LEGAL AND HISTORICAL STATUS 
 
 States, did recognize "the right of property in man. But in 
 October, 1858, Vermont coupled the constitutional fugitive 
 slave laws with the Dred Scott decision, and in the following 
 words announced her right as a State to decide for herself 
 u lien there had been an Infraction of flic governmental com 
 pact, and actually pronounced the Federal laws unconstitution 
 al. Her legislature said : 
 
 "Resolved, That property in slaves exists only by the 
 positive law of force in the States creating it. The moment it 
 passes from under the operation of those laws, it is property 
 no longer. 
 
 "Resolved, further, by the Senate and House of Repre 
 sentatives, That the doctrine maintained by a majority of the 
 judges of the Supreme Court are a dangerous usurpation of 
 power, and have no binding authority upon Vermont, or the 
 people of the United States." 
 
 Put that side by side with the nullification of South Caro 
 lina back in 1832, place with it the disloyalty of Ohio, and 
 the Southern manifesto becomes innocent and harmless. Yet 
 there are those who tell us that the Northern States aban 
 doned the doctrine that a State might pronounce the laws of 
 the United States Government void, shortly after the New 
 England confederacy in 1804, and most surely soon after the 
 resolutions of the Hartford Convention when New England 
 refused to support the government in the war of 1812! Yet 
 Vermont proceeded to declare further : 
 
 "Resolved, That whenever the government or the judic 
 iary of the United States refuses or neglects to protect the 
 citizens of each State in their lives or liberty, when in an 
 other State or Territory, it becomes the duty of the sovereign 
 and independent States of this Union to protect their own citi 
 zens at whatever cost." 5 
 
 For the same reason, because the Northern States had 
 so infected the Federal Government for many years as that it 
 would not protect their citizens in their lives and liberty of 
 
 5 Resolves of the Gen. As& embly of Vt., Oct., 1858, pp. 67 and 68. 
 
OF THE DRED SCOTT DECISION IQ5 
 
 movement with constitutional and legal property, the Southern 
 sovereign and independent States of the Union found it their 
 duty to protect their own citizens at whatever cost." Had 
 Ohio, Vermont, Maine and New York as States been as honest 
 with the South as they were quick to act upon the same 
 grounds in their own interests, the cost of secession would not 
 have been the devastating war which the North waged. 
 
 In April, 1857, a committee reporting to the legislature 
 of Maine said : "The late decision of the Supreme Court of 
 the United States, in the case of Dred Scott, considered in 
 connection with the president s message, certainly looks omi 
 nous for the cause of freedom [sic], not only in Kansas, but 
 everywhere in the United States. By this decision, no per 
 son of the African race, although he may have a skin as white, 
 an intellect as towering and character as pure and noble as 
 any judge upon the bench, can be a citizen of the United 
 States, under the Constitution. . . . 
 
 "In 1857, in the case of Dred Scott, the high tribunal of 
 the United States, the boasted land of the free and the home 
 of the brave, utters the mandate^ let the negro with his wife 
 and children be doomed to returnless bondage." 
 
 Then the legislature resolved : 
 
 "Whereas, The Supreme Court, in the recent case of 
 Dred Scott, . . . has undertaken to pronounce an extra-ju 
 dicial opinion. . . . 
 
 "Resolved, That the extra-judicial opinion of the Su 
 preme Court of the United States, in the case of Dred Scott, 
 is not binding, in law or in conscience, upon the government 
 or citizens of the United States, and that it is of an import 
 so alarming and dangerous, as to demand the instant and 
 emphatic reprobation of the country. 
 
 "Resolved, That the independent right of each State to 
 determine who shall be admitted to political franchise and citi 
 zenship within its own limits, is clear and indisputable, and 
 is to be exercised without question by any other State, and 
 that persons admitted to the rights of citizenship by any State, 
 
IQ LEGAL AND HISTORICAL STATUS 
 
 are, by the plain letter of the Constitution of the United 
 States, entitled to all privileges and immunities in the sev 
 eral States/ . . . 
 
 "Resolved, That Maine will not allow slavery within 
 its borders, in any form under any pretense, for any time, how 
 ever short, let the consequences, be what they may." 6 
 
 No stranger statement of the right of secession could have 
 been penned. 
 
 There was a large backing in the New York legislature 
 for the following resolutions : 
 
 "Resolved, That the Supreme Court of the United States 
 by reason of a majority of the judges thereof having identi 
 fied it with a sectarian and aggressive party, has lost the 
 confidence and respect of the people of this State." 7 
 
 Mr. Little, speaker of the assembly of that State, on the 
 floor in referring to the court s decision that the Missouri 
 Compromise was unconstitutional, said : "If this be law I 
 place my foot upon the Constitution of the United States. 
 
 Representative Northern States were not alone, acting 
 as States, in this position of open nullification and pronounced 
 disloyalty. The great Republican party, the party of the 
 North and of the then West, took the position that neither 
 the President nor the Congress of the United States was 
 bound by the Dred Scott decision. Said Mr. Lincoln : ". . . 
 we nevertheless do oppose that decision as a political rule, 
 . . . which shall be binding on the members of Congress or 
 the President to favor no measure that does not actually con 
 cur with the principles of that decision." 9 
 
 The error fo which this position would lead us was un 
 flinchingly exposed by Mr. Justice Curtis, the same judge who 
 dissented in the case now under consideration; but the truth 
 was announced too late to have any weight in averting the war 
 which had already gathered for its deadly work. When ex- 
 
 8 Resolutions of Maine, 1857, p. 61, ch. 112. 
 
 7 Washington Union, May 5, 1857. 
 
 8 Providence (R. I.) Post, May 2, 1857. 
 8 Bell s Lincoln, 128. 
 
OF THE DRED SCOTT DECISION IQ7 
 
 posing the illegality of Mr. Lincoln s so-called emancipation 
 proclamation, Judge Curtis said : "If it be true that the judic 
 iary was created to act upon the constitutional validity of 
 laws, when they affect the rights of the citizen, it must, a 
 fortori, be true that its decisions that an executive act which 
 affects a citizen is unconstitutional, is binding upon the Presi 
 dent ; otherwise, the President is sole judge of the extent 
 of his powers, and if he will not submit to judicial decision, 
 there is no limit to the powers which he may practically exer 
 cise." 
 
 The principle is quite as applicable to the legislative arm 
 of the government. If Congress and the President may per 
 sist in passing laws known to be in opposition to the decision 
 of the Supreme Court, then there can be no settled rule of 
 legislation, and Congress and the President can so encumber 
 the Supreme Court as entirely to destroy its functions, and 
 to render useless any arm of the government is to destroy the 
 government to which the States, or any considerable portion 
 of the people whether considered by the geographical limits 
 of States or otherwise, owe allegiance. 
 
 In defending President Johnson on his trial of impeach 
 ment before the Senate of the United States, Judge Curtis, 
 of counsel for the President, said : "Do not let me be misun 
 derstood on this subject. I am not intending to advance upon 
 or occupy any extreme ground, because no such ground has 
 been advanced upon or occupied by the President of the United 
 States. He is to take care that the laws are faithfully ex 
 ecuted. AYhen a law has been passed through the forms of 
 legislation, either with his assent or without his assent, it is 
 his duty to see that that law is faithfully executed so long as 
 nothing is required of him but ministerial action. He is not 
 to erect himself into a judicial court, and decide that the law 
 is unconstitutional, and that therefore he will not execute it; 
 for, if that were done, manifestly there could be no judicial 
 decision." 10 
 
 10 Life and Works of B. R. Curtis, v. 2, 364. 
 
198 LEGAL AND HISTORICAL STATUS 
 
 Hence, manifestly there could be no judicial decision if 
 the doctrine advanced by the Republican party and the North 
 ern States, in their effort to nullify the Dred Scott decision, 
 was to prevail. That the result of the contention went to 
 the most serious hurt of the South, no honest historian will 
 deny. 
 
 In April, 1857, tne negro proprietor of the Worcester 
 (Mass.) Gymnasium, having failed on account of his color to 
 get a residence, advertised for one. Commenting on this April 
 28th, the Providence (R. I.) Post says: 
 
 "Worcester ... is the place where disunion conventions 
 are held, and disunion is preached from pulpit to rostrum, and 
 in the leading papers of the Republican party Dred Scott 
 decisions are defied and ridiculed there. Kansas treason is 
 hatched there. The ideal negro is worshiped there. And the 
 higher law, which knows no difference in color, is pretty near 
 ly the only law that is recognized. But even in this city of 
 Worcester this headquarters of abolitionists this grand cen 
 ter of treason, ... a respectable, genteel colored man . . . 
 can t get a tenement. 
 
 Corroborative evidence of this charge of the disunion 
 position of these Massachusetts citizens may, for one instance 
 of many, be seen in The Liberator, March 27, 1857; an( l 
 another in the Washington Union of the same date. 
 
 The Rock Island, Illinois, Argus, of the Dred Scott de 
 cision said : 
 
 "No decision for a generation has created a deeper sensa 
 tion throughout the country." Then pointing to the citizen s 
 duty, it continued : "Under this view of the case the presump 
 tion and insolence of no inconsiderable portion of the partisan 
 press seem almost incredible. Every contemptible sheet which 
 hisses from the ruins of convert treason has found a tongue, 
 and, true to its first great type, whispers meritricious sophisms 
 in the ear of baser ignorance and credulity. . . . This inquisi 
 tion, blind and mad as it is, which has foisted itself into the 
 pulpit and the forum,, may be soon expected to sit with veiled 
 face, in mockery of common sense and common decency, upon 
 
OF THE DRED SCOTT DECISION 199 
 
 the last relic of constitutional liberty. A blow aimed at the 
 third great branch of the government, the judiciary, is tanta 
 mount to a blow struck at the heart of all law and order." 11 
 
 In a splendid editorial entitled "The Supremacy of the 
 Law," the Washington Union of May I, 1857, pointed to the 
 only proper remedy where citizens are dissatisfied with laws 
 or constitutions, and then indicated the character and wide ex 
 tent of the attack upon the judiciary in these words: 
 
 " Reverting to the late decision of the Supreme Court. 
 . . . How has it been received in those [free-labor] States? 
 \Ye shall not pollute our columns with the monstrous lies, the 
 exaggerated misrepresentations, the false constructions, and 
 unfounded conclusions to which it has given birth; much less 
 shall we copy the vulgar ribaldry which has been poured on 
 the heads of Chief Justice Taney and the associate justices 
 who coincided with him in the Dred Scott decision. . . . 
 
 "Let us ask ourselves what is to be the end of all this? 
 If the law is no longer of any force if the Constitution is 
 a nullity, and the solemn decisions of the Supreme Court are 
 to be set aside by the resolutions of. a State legislature what 
 becomes of this government of laws? 
 
 The Springfield, Illinois, State Register, March 19, 1857, 
 said : 
 
 "We did not suppose that journals that had not openly 
 hoisted the flag of disunion would so far forget what js at 
 least due to public decency and decorum as to assert that the 
 solemn and deliberate judgment of the highest tribunal in our 
 country is entitled to no more respect and moral weight than 
 that of a majority of those congregated in a Washington bar 
 room, or to impugn the honesty and purity of the great con 
 stitutional lawyers who occupy the exalted positions of su 
 preme and final judges of all matters relating to the interpreta 
 tion of the Constitution and laws. * 12 
 
 The Boston Atlas declared that the "names of the judges 
 
 11 Washington Union, April 16, 1857. See a splendid statement of the erroneous 
 position of ttte opposition in this same paper for April 20, 1857. 
 
 12 See the Register for March 19 and 24, 1857. 
 
2OO LEGAL AND HISTORICAL STATUS 
 
 will go down with that of Arnold, the traitor;" and the Bos 
 ton Chronicle solemnly insisted that "a majority of the court 
 are great scoundrels." 13 
 
 The Eastern Argus of Portland, Maine, quoted this from 
 the New York Tribune s correspondent : 
 
 "We come at once to the expression of a firm conviction, 
 blunt as it may seem, that the Union is not worth saving nor 
 this government worth preserving upon the basis of the doc 
 trine of President Buchanan s inaugural, backed by the coming 
 Dred Scott decision of the Supreme Court." Then in a scath 
 ing rebuke of this leading Republican organ it pressed the 
 question, "Are the people of Maine prepared to raise the 
 standard of revolt against the Union? What in the name of 
 reason have they suffered that they should come to the con 
 clusion that the Union is not worth saving?" 14 
 
 March 14, 1857, the New York Herald warned the North 
 against the "treason and rebellion" of its leading Republi 
 cans; and on the I5th it indicted the New York Tribune, the 
 Evening Post, the Courier and Enquirer, the Albany Evening 
 Journal, the Boston Atlas, and other "prominent Republican 
 journals," and pointed to the evidence that they were "brim 
 full of the elements of sedition, treason, and insurrection." 
 
 Painfully true these allegations were, as will appear by 
 inspecting the columns of the indicated journals. 15 
 
 The parasite of Northern rebellion was not content with 
 the politicians, the State officials and State legislatures, it bored 
 deep into the Northern ministry and sapped the truth from 
 the most influential of many New England religious periodi 
 cals. The Eastern Argus of Portland, Maine, March 30, 
 1857, says: 
 
 "We have never been disposed to believe that any very 
 considerable portion of New England desires a dissolution 
 
 13 New York Herald, March 13, 1857; Eastern Argus, March 16, 1857; see also 
 splendid articles in the latter for March i7th and 24th. 
 
 14 Argus, March 14; see also March 12. 
 
 16 See the Tribune for April i, April 9, and 18; March n and 16, 1857. 
 
OF THE DRED SCOTT DECISION 2OI 
 
 of the Union. . . . But all who read the newspapers, especially 
 professedly religious papers, cannot fail to see that the tenden 
 cy of much of their discussions is directly and immediately 
 calculated to sow seeds of revolution and disunion. . . . For 
 instance, there is the New York Independent, the leading 
 organ of the Congregational denomination. It is said to have 
 the largest circulation of any of its contemporaries, and it 
 claims to exert a wide and more controlling influence over New 
 England orthodoxy than any other publication. ... It will 
 readily be seen, then, that a paper conducted with ability, hav 
 ing an immense circulation, and lording it over the consciences 
 of men with the authority for which that is proverbial, has it 
 within its power to do immense mischief. . . . That it does 
 make mistakes and that too of a heinous character is easily 
 shown. Who does not revolt from such atrocious sentiments 
 as these : 
 
 "We affirm that Chief Justice Taney, .from his high 
 seat of power, pronounces that to be law which in his inner 
 most soul he knows not to be law. We affirm that, deliberately, 
 and after a winter s study, he alleges as historic fact that 
 which he knows to be not fact. 
 
 "Here is a charge involving the Chief Justice, against 
 whose character there has never been a breath of suspicion, 
 in falsifying his honor, and committing downright, wilful per 
 jury. . . . Now it may be said that such ebolutions carry their 
 own curse with them. With men of candor and independence 
 it is so. But these are not the men on whom the mischief 
 operates. The wrong is perpetuated on that numerous portion 
 who take their religious paper to the family circle for Sunday 
 reading; men who . . . treat the columns of a professedly 
 religious periodical nearly, if not quite, as infallible as the 
 pages of Holy Writ. . . . 
 
 "There was, a few days since, an article in the leading 
 organ of another large denomination in New England, the 
 direct tendency of which was to give countenance to disloyalty 
 to the Union and the Constitution. . . . We quote from the 
 
2O2 LEGAL AND HISTORICAL STATUS 
 
 Boston Watchman and Reflector/ the Baptist organ. In com 
 menting on the decision of the court in the Dred Scott Case, 
 among other things it says : 
 
 "The decision is a sacrilege against which the blood of 
 our fathers cried from the ground. No man that has in his 
 veins a drop kindred to the blood that bought our liberties, 
 can submit to this decree. But if the free States will sit down 
 in the dust, without an effort to vindicate their sovereign 
 rights, if the majority of the people are so fallen away from 
 the spirit of their fathers, as to yield their birth-right without 
 a struggle, then it becomes the solemn duty of every conscien 
 tious freeman to regard the Union of these States as stripped 
 henceforth of all title to his willnig allegiance/ 
 
 Many other like utterances might be given from the 
 columns of these and many other such journals, such as the 
 declaration by the Independent that the Dred Scott decision 
 was "a treasonable attempt" to alter the law, 1 " or that of a 
 correspondent in the Independent of April 12: 
 
 "The decision of the Supreme Court against God s word 
 and the Constitution of our country has no more authority 
 upon any of us, or in any department, than the command of 
 Satan to the Lord Jesus to fall down and worship him. . . . 
 And it is just the most abandoned corruption and putridity of 
 national selfishness and avarice, the very faeces of moral de 
 pravity on the dung hill of the world, which the Chief Justice 
 applies in his reasoning, for the quickening into life of his 
 moral principles." 
 
 June 27, 1857, the Detroit (Mich.) Free Press pointed 
 to the persistent misrepresentations of the Dred Scott decision 
 by the Northern ministry, indicated that the error must be wil 
 ful, and said : "Probably most of them never will read the 
 opinion, and nine out of ten will persist in the misrepresenta 
 tions they have indulged." 17 The Democratic Standard, Con- 
 
 16 March 26th, 1857. 
 
 17 See Washington City Union, June 4, 1857. 
 
OF THE DRED SCOTT DECISION 2C>3 
 
 cord, New Hampshire, July 4, 1857, pointed to this same 
 condition. 
 
 A representative of one of the most radical of the nulli 
 fying ministry is found in one Rev. Dr. Cheever who preached 
 to large audiences in New York, and who charged that the 
 Supreme Court had "boldly, unblushingly, Satanically" as 
 serted that the negro was to be defrauded of his rights. He 
 called upon all classes at the North to resist, and asserted that 
 the free-labor States should and could nullify the decision. 
 One of his sermons in full may be seen in the New York 
 Independent for April 9, 1857. The New York Tribune says 
 that he was listened to by large and respectable audiences, and 
 that lie and those preachers like him gave expression to a 
 public feeling so strong that it could no longer be kept under. 18 
 
 The annual conference of the Methodist Episcopal 
 Church, held in Bristol, Rhode Island, April, 1857, appointed 
 a committee on slavery which reported: 
 
 "The late decision of the Supreme Court, which national 
 izes slavery and reverses previous decisions in favor of free 
 dom as the national birth-right of all the inhabitants of our 
 loved country, has overwhelmed us with surprise and gnief, 
 and affords additional assurance that the decisive battle of free 
 dom is yet to be fought." 19 
 
 Negroes of Boston remonstrated against the decision, 
 filing their prayers for nullification before the legislature of 
 Massachusetts. Governor John A. Andrew, then a member 
 of that body, presented the remonstrance and made it the 
 occasion to deliver a lengthy address in which he purported 
 to analyze the decision, insisting that in fact the court had 
 really decided nothing! In the course of this speech of abuse 
 and misrepresentation, he says : "I quarrel with the opinion 
 as pronounced by the Chief Justice because of its injustice to 
 the colored race ; because of its calumny upon the memory 
 of the fathers of the Republic, and of its unendurable immor- 
 
 18 See the Tribune for April 10, 1857. 
 
 19 The Providence Post, May 6 and 16, 1857, and the Boston Transcript for 
 May. 
 
2O4 LEGAL AND HISTORICAL STATUS 
 
 ality. I denounce it as unjust to the colored man. . . . The 
 opinion declares . . . that the negro, having no rights which the 
 white man was bound to respect, was, by the necessity of his 
 nature, excluded from the privileges of citizenship. . . . This 
 war, made by the court for political purposes, by Presidents 
 and by cabinets, upon colored men, is no war declared against 
 race. It is not a war against color, nor a demonstration in 
 the interests of white men. It is a war against freedom. It 
 is a demonstration in behalf of human servitude. It is an op 
 eration commenced in the interests of slavery, as a political 
 poivcr, an anomalous political power in this Republic; and as 
 such it becomes the American people to meet it, to denounce 
 it, to overthrow it, if possible, at the threshold." 20 
 
 Why inveigh to the legislature of Massachusetts? Un 
 derneath the movement is the most emphatic a vowel of the 
 doctrine that a State might nullify and render inoperative the 
 acts and laws of the Federal Government. Andrew was to 
 Massachusetts in influence what Hayne or Calhoun was to 
 South Carolina. His denunciation of the legal nature and the 
 binding force of the decision had immense influence and found 
 extensive response. The method by which it was proposed to 
 overthrow the decision of the court was patent in every move 
 of the Northern nullificationists. For instance : Massachusetts 
 removed from the probate office Judge Loring because as 
 United States commissioner he enforced the Federal fugitive- 
 slave law in a case where it was unquestionably applicable 
 and his undoubted official duty. Andrew stood squarely be 
 hind this State nullification of the Federal Government. Com 
 menting upon this action of the State and its legislative approv 
 al by Andrew and his party, The Liberator said : "This, then, 
 is the work to be accomplished to make the soil of Massachu 
 setts as free as that of Canada or Great Britain to every fugi 
 tive slave, Constitution or no Constitution, Union or no 
 Union. We will do it!" (Ib.) January 29, 1858, Theodore 
 
 20 See speech in full in The Liberator, March 26, 1858. April 7 and 21, 1892, the 
 New York Nation, commended Andrew s analysis, failing to see its misrepresentations 
 and virtually commending its nullification. 
 
OF THE DRED SCOTT DECISION " 205 
 
 Parker in an address to a large Massachusetts audience said : 
 "The whole policy of the Republican party must be changed. 
 We must attack slavery slavery in the Territories, slavery 
 in the District, and above all, slavery in the slave States." It 
 was the doctrine advocated by S. P. Chase in 1847, it was 
 Northern nullification grown bolder and much stronger. Said 
 Chase : "If the courts will not overthrow it [the Democratic 
 doctrine of the Constitution], the people will, even if it be 
 necessary to overthrow the courts." 21 It was the same doc 
 trine and the same defiance which Sedgwick, of New York, 
 hurled at the South from the halls of Congress on March 
 26, 1860, when he said: "If must have been expected . . . 
 that personal liberty bills would be passed, as they have been 
 though not half as stringent as they ought to be to dis 
 charge the duty which every independent State owes to each 
 of its citizens, however humble I mean protection to their 
 personal liberty." 
 
 Thus throughout the North the States, the courts, 2 the leg 
 islatures, leaders of public sentiment, the bar, the press, the 
 pulpit, the Republican party, the masses ol the people follow 
 ing, taught and enforced the right of a State to nullify the 
 laws of the Federal Government. Let the excuse be what it 
 may, as a doctrine it was as absolutely unjustifiable and as 
 much rebellion as any which the human mind can conceive. 
 The machinery of the government being in the hands of the 
 nullificationists the injured section was powerless, and the 
 most complete subversion of material Federal powers followed. 
 
 21 Worden, Life of S. P. Chase, 315. 
 
 22 App dx Cong. Globe, 36 Cong, ist session, 179. See also speech of Thos. B. 
 Florence of Pennsylvania delivered in the House April 12, 1860, indicating the exten 
 sive nullification of the Dred Scott decision. 
 
 23 An instance is given in The Liberator, March 19, 1858. 
 
XII. 
 NULLIFICATION IN THE SOUTH. 
 
 The extensive Northern nullification of the Dred Scott 
 decision, was one of the grounds of subsequent action 
 by the South. To determine the value of this concrete instance 
 upon which the South to an extent stands for an excuse and 
 justification, it is necessary to have a correct view of the rela 
 tion of the South to the doctrine. 
 
 Nullification, the act of invalidating or making void, 
 in American politics or questions of government, is that doc 
 trine which asserts the right of any State to declare the un- 
 constitutionality of any United States law, though enacted 
 in the prescribed manner and held to be constitutional by the 
 Supreme Court of the United States, the State remaining the 
 while unrevolted or unseceded. This definition is equally 
 applicable to any party, section, or part of the people. The 
 concensus of American scholarship is that this theory is wrong 
 and entirely without foundation in our system of government. 
 Unchecked, its practice by any number of the States, by any 
 section of the Union, or by any part of the people, would sub 
 vert and destroy the American government ; in the words of 
 Webster in 1832: "It is disunion by force, it is secession by 
 force : it is civil war." 1 
 
 In histories of American government and politics nulli 
 fication is asscribed almost exclusively to the South, and John 
 C. Calhoun and his friends in South Carolina in their con 
 troversy with the Federal Government in 1828-1833, over 
 the tariff, are regarded as chief exponents. Only the merest 
 
 1 Writings and Speeches, vol. 13, 41. 
 
 206 
 
OF THE DRED SCOTT DECISION 2O/ 
 
 outline of the history of this doctrine in the South can here 
 be given, but it will suggest that broader view which must 
 attain before the true relation of the doctrine to our history 
 can be seen. When this readjustment of our historic perspect 
 ive shall have been made, the nullification of the Dred Scott 
 decision will stand much nearer to the foreground and in 
 outlines bold; and it will appear that the secession of the 
 South certainly was not the climax of her faith in and practice 
 of that contention. 
 
 To the Virginia and Kentucky resolutions of 1798 and 
 1799 is sometimes attributed the origin of nullification. 2 These 
 famous resolutions were provoked by the alien and sedition 
 laws passed by Congress shortly before. The alien law gave 
 the President arbitrary power to expel from the United States 
 any alien he might regard as dangerous to the peace and safety 
 of the country. The sedition law made the printing, writing, 
 or publishing of anything false, scandalous, or malicious 
 against the President, Congress, or the government, or the 
 doing of anything to bring either into disrepute or contempt 
 on the part of the people, an offence punishable by fine and 
 imprisonment. These acts of legislation were the peculiar 
 work of the Federalists in Congress, who sought to gather 
 arbitrary powers to the Federal Government. Timothy Pick 
 ering of Massachusetts, as an instance of the spirit of the 
 Northern Federalist, expressed regret that these laws were 
 not more radical and far-reaching. Amos Fisher led the 
 general opposition on the part of the Federalists to John 
 Marshall, proposed for Chief Justice of the Supreme Court 
 of the United States, on the ground that Marshall disapproved 
 of these laws. 3 There was no popular demands for the laws, 
 and it was clearly the purpose of the Northern Federalist 
 to place the States at the mercy of the Federal Government. 4 
 These laws excited alarm in every section of the Union. The 
 
 2 i Von Hoist, Const. Hist. U. S. 142; Powell, Nullification and Secession, 63 
 and many others. 
 
 3 Gaillard Hunt, The Life of Madison, (1902) 250; 4 Elliot s Debates , 441; i 
 Statutes at Large, 570, 596. 
 
 4 See Thomas E. Watson, Life and Times of Jefferson, 362. 
 
2O8 LEGAL AND HISTORICAL STATUS 
 
 people were brought again to inquire for rights and remedies 
 just as shortly before the colonists had been forced to do. 
 Plainly, the alien and sedition laws were unconstitutional ; they 
 were despotic. Out of this situation sprang the Virginia and 
 Kentucky resolutions. 
 
 The legislature of Kentucky passed its resolution in No 
 vember, 1798. The following embodies the doctrine set forth : 
 "That the several States composing the United States of 
 America are not united on the principle of unlimited sub 
 mission to their general government; . . . and that whenever 
 the general government assumes undelegated powers, its acts 
 are unconstitutional, void, and of no force, . . . that this 
 government was not made the final or exclusive judge of the 
 extent of the powers delegated to itself, since that would have 
 made its discretion, and not the Constitution, the measure 
 of its powers ; but that as in all other cases of compact among 
 parties having no common judge, each party has an equal right 
 to judge for itself, as well of infractions as of the mode and 
 measure of redress." 5 
 
 This resolution was an address to the other States and 
 was meant primarily as a protest against the action of the 
 Federal Government. It does no more than assert that correct 
 ive power remains with the States and is preserved by the 
 Constitution ; and that, should the corrective power when 
 exercised fail of the desired relief, there remained the right 
 of revolution, a right denied by no one. This resolution de 
 clares that the State will not submit "to undelegated and con 
 sequently unlimited powers in no man or body of men," but it 
 does not say that the remedy lay in the nullification of the ob 
 jectionable laws by the action of a single State. However, it 
 does specifically declare "that, although this Commonwealth, 
 as party to the Federal compact, will bow to the laws of the 
 Union, yet it does, at the same time, declare that it will not now 
 or hereafter cease to oppose in a constitutional manner every 
 attempt, at what quarter soever offered, to violate that com- 
 
 5 See Warfield, The Kentucky Resolution of 1798; 4 Elliot, 540; Smith s History 
 of Kentucky, 346, where the resolutions are given in full. 
 
OF THE DRED SCOTT DECISION 200, 
 
 pact." J The doctrine of State nullification in the objection 
 able sense of that v;ord has been imputed to the resolution and 
 to the State because the resolution declared that "a nullifica 
 tion by those sovereignties [the States], of all unconstitutional 
 acts done under color of that instrument is the rightful reme 
 dy." But these words taken in connection with the entire 
 resolution show clearly that there was no intimation that the 
 nullification was to be accomplished by other than the three- 
 fourths power of the States. In an unobjectionable sense the 
 States have the power to nullify any act or to destroy any 
 power of the Federal Government, under that clause of the 
 Constitution which has reserved to the States the right and 
 power to amend or alter the Constitution. As Shaler has said, 
 this resolution, as is shown by previous and subsequent his 
 tory of the State, was not entered as the basis of any con 
 templated action. "It would be a distortion of history to look 
 upon this action as though it had been taken in i86o;" 7 or to 
 give the word nullification the meaning not in the mind of the 
 Kentuckians, and which the word came to have at a later day. 
 The Virginia resolution was passed by the legislature 
 in December, 1798. It was formulated by James Madison, 
 whose loyalty to the Federal Government has never been 
 questioned. His understanding of the Constitution and his 
 grasp upon the fundamentals of the government were in 
 ferior to none. The doctrine advocated by this resolution 
 was that the Federal Government was bound by the "plain 
 sense and intention" of the Constitution and that its acts are 
 "no further valid than they are authorized by the grants 
 enumerated" in that instrument; "and that, in case of a de 
 liberate, palpable, and dangerous exercise of other powers, 
 not granted by the said compact, the States who are parties 
 thereto* have the right, and are in duty bound, to interpose, 
 for arresting the progress of the evil, and for maintaining with 
 in their respective limits the authorities, rights, and -liberties 
 appertaining to them." 
 
 " 4 Elliot, 545- 
 
 ~ See Shaler, History of Kentucky; Smith, History of Kentucky, 356. 
 
2IO LEGAL AND HISTORICAL STATUS 
 
 As was natural this resolution was bitterly assailed by 
 the Federalists and distorted into a doctrine its language does 
 not warrant and which those who passed it did not entertain. 
 So it was that at the next session of the legislature, 1799- 
 1800, Madison made that analytical report showing that the 
 doctrine advocated was that recognized and preserved in the 
 Constitution. It was clearly shown that, as was the Kentucky 
 resolution, this by Virginia was no more than a protest and a 
 reminder to the Federal Government, pointing out that in the 
 last resort, short of revolution, the power lay with three- 
 fourths of the States. In the statements that " the States as 
 sovereign parties to their compact, must ultimately decide 
 whether it has been violated ;" and "that it is evident that the 
 interposition of the parties, in their sovereign capacity, can 
 be called for by occasion only deeply and essentially affecting 
 the vital principles of their political system," every fair con 
 struction in the light of contemporary history concludes that 
 the doctrine asserted was no more than that the right of revo 
 lution lay primarily with the State organizations ; and of course, 
 should these not agree, with the people regardless of State 
 units. Our forefathers believed that the interests of the 
 people of each State were so common that there was little 
 danger of State disintegration. Alexander Hamilton under 
 stood American sentiment, and in the notes made by him dur 
 ing the convention which drew the Constitution we find : 
 "State governments will always have the confidence and gov 
 ernment of the people; if they cannot be conciliated no efficient 
 government can be established." 8 
 
 Neither resolution proposed anything "but the necessary 
 and proper means;" 9 and the proper means by which the 
 "States have the right, and are in duty bound, to interpose 
 for arresting the progress of the evil," as Madison showed 
 when defining the Virginia resolution, was that the States 
 should either have Congress, by two-thirds of both Houses, 
 
 8 Hamilton s Notes, 16. 
 8 4 Elliot, 528. 
 
OF THE DRED SCOTT DECISION 211 
 
 propose amendments of the Constitution, or that on the appli 
 cation of the legislatures of two-thirds of the States there 
 should be a convention for proposing amendments, "which, 
 in either case," to use the words of the Constitution, "shall 
 be valid for all intents and purposes, as part of this Constitu 
 tion, when ratified by the legislatures of three-fourths of the 
 several States, or by conventions in three-fourths thereof, 
 as the one or the other mode may be proposed by the Con 
 gress." So Madison was correct when he said : "These several 
 means . . . were all constitutionally opened for considera 
 tion," 10 for they were plainly left to the States by the fifth 
 article of the Constitution as we yet have it in force and as 
 it was originally ratified. 
 
 It is not surprising, therefore, that Webster, when he 
 came to denounce the seditious and dangerous nullification of 
 Federal laws and acts should frankly have admitted the true 
 nature of the Virginia resolution. He said the resolution "is 
 susceptible of more than one interpretation. It may mean no 
 more than that the States may interfere by complaint and 
 remonstrance ; or by proposing to the people an alteration of 
 the Federal Constitution. This would all be quite unobjec 
 tionable; or, it may be, that no more is meant than to assert 
 the general right of revolution, as against all governments, 
 in the case of intolerable oppression. This no one doubts ; 
 and this, in my opinion, is all that he who framed the resolu 
 tion could have meant by it." 11 
 
 That there was no objectionable State nullification pro 
 posed by the Virginia resolutions, aside from an interpreta 
 tion of the wording, is also shown by the attitude of the 
 people toward the obnoxious laws. The wide and general 
 enforcement of the sedition law, against persons for the most 
 unimportant declarations, 12 served to strengthen the fear con 
 cerning the powers thus lodged in the Federal Government. 
 The people of Virginia were brought face to face with a 
 
 10 4 Elliot, 579. 
 
 11 10 Benton y Abridgement Cong. Debates, 434. 
 
 12 See list in E. P. Powell, Nullification and Secession, 62. 
 
212 LEGAL AND HISTORICAL STATUS 
 
 most aggravating instance of this abuse of power in one 
 of these judicial enforcements. In May and June, 1800, a 
 Virginia jury sustained by the public sentiment of the entire 
 State enforced in Richmond in the trial of James Thomas 
 Callender, the law believed by them and the public to have been 
 unconstitutional and seriously dangerous. The case was heard 
 in the Federal court, Samuel Chase, a justice of the United 
 States Supreme Court, presiding. Chase was an ardent Fed 
 eralist and in hearty sympathy with the objectionable laws and 
 warmly approved the purposes for which they had been en 
 acted. Quick of temper, of will unbending, vindictive in dis 
 position, he resolved to enforce the detested law with 
 the utmost rigor. He succeeded in the most arbitrary and 
 dictatorial manner. Callender, of Petersburg, had written, 
 "The Prospect Before Us," a slanderous and infamous produc 
 tion bitterly arraigning President Adams. Indicted, ar 
 rested, and put upon trial, the prisoner was represented by 
 William Wirt, George Hay, and P. N. Nicholas, all of whom 
 in their lifetimes were recognized as lawyers of great ability. 
 Chase s treatment of these distinguished attorneys was so 
 reprehensible that it was made one of the counts in the famous 
 impeachment procedure brought against him before the United 
 States Senate January, i8c>4. 13 The judge s conduct was the 
 very strongest illustration of the dangers feared by reason of 
 the arbitrary powers conferred especially upon the President 
 by the alien laws. The jury, although it had seen the gross 
 abuse of power by the presiding judge, although it believed 
 the law under which it was proceeding was unconstitutional 
 and dangerous to individuals, to the State and to the country, 
 being sustained in this conviction by the opinion of the entire 
 people, found Callender guilty. No attempt was made to 
 rescue the prisoner; no voice arose to denounce the judiciary. 
 Monroe, writing to Madison June 4, 1800, of this trial says: 
 "The conduct of the people on this occasion was exemplary, 
 and does them the highest honor. They seemed aware the 
 
 13 The Trial of Samuel Chas e, (Washington, 1805) 5. 
 
OF THE DRED SCOTT DECISION 213 
 
 crisis demanded of them a proof of their respect for law and 
 order, and resolved to show they were equal to it." 14 Then 
 very correctly he adds that everything connected with the case 
 went to provoke a different conduct. 15 
 
 In short, the res gestac of the Virginia and the Kentucky 
 resolutions prove that the people neither suggested nor con 
 templated the nullification of the Federal laws by the action 
 of a State or by that of any number of the States in any other 
 than the manner provided by the Constitution. Whether the 
 people were correct in saying that the sovereign States were 
 parties to a compact, and that the Constitution was the compact 
 between them as parties on one side and the Federal Govern 
 ment on the other, or that the States were the independent 
 sovereigns contracting each with the other, it is certain that 
 the main point is not altered: for in the last resort three- 
 fourths of the States wield sovereign and supreme power over 
 the Federal Government. At any rate, no attempt at an exer 
 cise of nullification in the dangerous sense is attributed to the 
 South or any part of it until 1831. Askley brings the indict 
 ment against the State of Georgia in her controversy regarding 
 certain Indiana lands. 16 We cannot here examine this in 
 different alleged instance; but it is proper to direct attention 
 to the many real and flagrant instances found in the North 
 up to this time, and which are generally neglected by writers. 
 
 Up to 1832 no practice of nullification was indulged by 
 the South. It was not advocated by any representative num 
 ber, and not until seriously injured by Federal power by even 
 the few. The first important discussion of the doctrine in 
 Congress is found in the celebrated debate between Webster 
 and Hayne, the latter of South Carolina. Hayne is often re 
 garded as an early champion of that which Webster fought 
 so bitterly: "The right of a State to annul a law 7 of Congress 
 or anv act of the Federal Government." In the debate Web- 
 
 14 4 Writings of Madison, 413, n. 
 
 13 An interesting account of the trial is in Howison s History of Virginia, (Rich 
 mond, 1845) 37 8 et seq. 
 
 10 R. L. Ashley, The American Fed. State, (1902) 144. 
 
214 LEGAL AND HISTORICAL STATUS 
 
 ster drew his own inferences from what Hayne said, and then 
 proceeded to batter what he insisted was the conclusion from 
 the position which he thus imputed to Hayne, rather than 
 what Hayne had really argued. Webster s speeches are pub 
 lished more widely than are Hayne s, and so Hayne s true 
 contention is not always understood. Much of Webster s 
 fight was made against the doctrine that the Constitution is a 
 compact, made by and between sovereign and independent 
 States, questions entirely foreign to an inquiry concerning the 
 powers the States actually have under the Constitution in 
 reference to or over that instrument and the Federal Govern 
 ment. 
 
 The debate took place in the Senate in 1830. It was 
 precipitated by Webster, and had the Foote resolution as its 
 immediate cause and not the remonstrance of South Carolina 
 against the tariff. The resolution had not even a remote 
 bearing upon nullification. It involved a mere temporary sus 
 pension of the sale of public lands. January 19, the resolu 
 tion having been called up, Hayne arose and recommended 
 "some fixed and settled policy with reference to the public 
 lands," disapproving the prior course of the government in 
 this respect, and deprecated the building of an immense Fed 
 eral fund from land sales. In his remarks he said: "Sir, I 
 am one of those who believe that the very life of our system 
 is in the independence of the States, and that there is no evil 
 more to be deprecated than the consolidation of this govern 
 ment. It is only by a strict adherence to the limitations im 
 posed by the Constitution on the Federal Government, that 
 this system works well, and can answer the great ends for 
 which it was instituted." 17 
 
 W ebster seized this reference to consolidation, and made 
 the remark an excuse to deliver to certain citizens of South 
 Carolina a rebuke for their attitude toward the Federal Gov 
 ernment on account of the tariff laws that, in very truth, were 
 impoverishing the State to enrich the North, and that with 
 
 17 10 Benton s Abridgement, 421. 
 
OF THE DRED SCOTT DECISION 215 
 
 no public need for the sacrifice. Webster insisted that dis 
 union and not consolidation was the imminent danger. Though 
 carefully exonerating Hayne, he incriminated Hayne s per 
 sonal friends, most of whom were absent, except Calhoun, 
 then Vice-President and as the presiding officer of the Senate 
 who could not speak. 
 
 Hayne replied, defending his State and insisting that 
 his position as to the powers of the States over the Federal 
 Government was that expressed by the Virginia resolution. 
 Except in so far as he advocated the right of a State to sus 
 pend the operation of an objectionable law until three-fourths 
 of the States could take some action, he did not advocate nul 
 lification. He plainly said that where a State and the Fed 
 eral Government were in conflict as to the constitutionality 
 of a Federal law, the mode of settling the disagreement was 
 found in the very form and structure of the government. "The 
 creating power is three-fourths of the States. By their de 
 cision the parties to the compact have agreed to be bound, even 
 to the extent of changing the entire form of the government 
 itself; and it follows of necessity, in case of a deliberate and 
 settled difference of opinion between the parties to the compact 
 as to the extent of the powers of either resort must be had 
 to their common superior that power which may give any 
 character to the Constitution they may think proper viz : 
 three-fourths of the States," was the plain language in which 
 he defined his contention. 18 
 
 Entirely regardless of whether the States be parties and 
 the Constitution a compact, it is certain that the nullification 
 which Hayne advocated in this debate with Webster was 
 quite different to that practiced by the North with reference 
 to various Federal laws, and widely unlike that especially 
 advocated concerning the Dred Scott decision. 
 
 In 1832 a large part of the people of South Carolina grew 
 desperate. Congress had not heeded their prayers for relief, 
 and they believed themselves to be seriously injured by the 
 
 18 Ib. 443, 445. See 4 Elliot, Debates, 515. 
 
216 LEGAL AND HISTORICAL STATUS 
 
 sectional tariff laws. They insisted that the tariff laws were 
 an "imposition laid, not by the representatives of those who 
 paid the tax, but by the representatives of those who are to 
 receive the bounty." The legislature, following a bitter con 
 test over the election of members, called a convention of the 
 people to meet in November, 1832, authorizing it to take into 
 consideration the tariff laws and to take such steps as should 
 be decided to be proper. 19 The convention promptly convened 
 and after discussion passed an ordinance declaring the tariff 
 laws "unconstitutional, and therefore absolutely void, and of 
 no binding force within the limits of this State." The legis 
 lature was requested to provide for carrying into execution 
 this declaration, and "all the functionaries and all the citizens 
 of the State, on their allegiance," were enjoined to cooperate. 
 The legislature at its following session put the State in readi 
 ness for war, and made every preparation to carry into full 
 force the ordinance if necessary at the point of the bayonet. 
 Calhoun, having resigned the Vice-Presidency, had been sent 
 to the United States Senate where he could take open issue 
 with those regarded as the enemies of the State. Hayne went 
 home and was by the nullificationists elected governor. The 
 entire action of both the convention and the legislature was 
 nullification and more; it was in effect revolution by the State 
 backed by threatened secession. The ordinance of nullification 
 declared that should the Federal Government attempt to en 
 force the laws regarded as injurious the people would "thence 
 forth hold themselves absolved from all further obligation to 
 maintain or preserve their political connection with the people 
 of the other States, and will forthwith proceed to organize 
 a separate government, and do all other acts and things which 
 sovereign and independent States may of right do." Decem 
 ber 29, 1832, the legislature having passed an act for the en 
 forcement of the will of the convention, President Jackson 
 indicated his determination to enforce the Federal law, but the 
 State held stubbornly to her position until Clay came forward 
 
 19 Southern Patriot (Charleston, S. C.), October 26, 1832; Acts of Legislature. 
 
OF THE DRED SCOTT DECISION 217 
 
 with his compromise tariff law and thus averted armed con 
 flict. Jackson s message to Congress refuting the doctrine 
 is recognized as one among the ablest of state papers. 20 The 
 law enacted, practically that proposed by Clay, provided for the 
 gradual scaling down of the high tariff duties until at the end 
 of ten years a free-trade basis should be reached. Accepting 
 the compromise the State convention on March 16, 1833, re 
 pealed the ordinance of nullification. 
 
 Entirely apart from the grounds upon which the nullifi- 
 cationists of South Carolina acted, we are here concerned alone 
 with the extent that the doctrine and the movement met the 
 approval of the South. If nullification were the doctrine of 
 the South, then there could be no justice in the complaint of 
 that section against the nullification of the Dred Scott de 
 cision. The nullification of the Federal la\vs by the North, 
 including as many which did not involve slavery as which did, 
 as has been said, and the fact that the machinery of the 
 government was in the hands of the nullifiers and those who 
 were either in tacit or open sympathy with them, are among 
 the concrete justifications upon which the secession of the 
 South rests. Therefore the truth of the South s relation to 
 the nullification of South Carolina, is most vital to the South 
 ern people. This is the more true because this act of the 
 State of South Carolina is the only actual and flagrant in 
 stance of nullification in the objectionable sense of the doc 
 trine to be found in Southern history. 
 
 In the election of the legislature which called the nullifi 
 cation convention in South Carolina there was a stubborn fight 
 against the doctrine. The vote stood about 17,000 anti-nulli- 
 fiers to about 23,000 nullifiers. 21 Even the nullificationists 
 had not rushed into an exercise of the doctrine. For years 
 they had asked for relief, and had resorted to divers remedies, 
 
 20 See the message in 2 Richardson s Message and Papers of the Presidents, 610, 
 and the Proclamation at page 640. As to the action of the State see The (Charleston) 
 Mercury, January 5, 1833; The Patriot, November 24, 1832; and State Papers on 
 Nullification, for the ordinance in full. 
 
 21 De Bow, Political Annals of South Carolina, (1845) 39; i Legare, Writings, 209; 
 Houston, Nullification in South Carolina, 107. 
 
2l8 LEGAL AND HISTORICAL STATUS 
 
 such as discarding imported goods and actually wearing home 
 spuns. 22 After the ordinance of nullification had been passed 
 and Jackson had signified his intention of enforcing the laws 
 of the Federal Government, the Union men of the State or 
 ganized and notified the President that no outside assistance 
 would be needed to enforce the execution of the laws, laws 
 detested by practically the entire State including most of these 
 very men thus willing to sustain them as against the doctrine 
 of nullification. In March, 1833, about 1,000 Union men vol 
 unteered for military duty and stood ready to act for the Fed 
 eral Government in any emergency. 23 Some of the ablest 
 papers of the State both before and after the nullification 
 action took the most advanced ground in support of the Fed 
 eral laws so long as the State remained in civil and political 
 connection with the Union. Conspicuous among these was 
 ihe Southern Patriot, published in Charleston. 24 The Union 
 ists were not the high tariff people ; the people were agreed as 
 to the oppressive nature of the laws ; the opposition to the nul- 
 lifiers rested purely upon a disavowal of the doctrine of nulli 
 fication. 25 The Union people recognized, in common with 
 all civilized people, the right of revolution ; and, as did the 
 South generally later, believed the right to be concretely 
 expressed by secession and to be exercised only in cases of in 
 tolerable oppression. 20 The right of political dismember 
 ment they recognized; nullification they would not tolerate. 
 As a /State South Carolina is responsible for the nullifi 
 cation of 1832. She had gone scarcely further than had 
 such Northern States as Massachusetts and Connecticut, the 
 governors of which flatly refused to obey the Federal law 
 requiring soldiers for the defence of the country in 
 our war with England in 1812, declaring the Federal Gov- 
 
 22 Charleston Mercury, July 7, 12, 16, and August 4, 1828. 
 
 23 Houston, Nullification in South Carolina, 115. 
 
 24 See especially issues of July 19, 25, and September 15, 22, 1832. 
 
 25 Ib. September 15, 1832. 
 
 2(! See The Patriot, quoting from the Augusta, Georgia, Constitutionist, July 
 19, 1832. 
 
OF THE DRED SCOTT DECISION 2 19 
 
 eminent had violated the Constitution. South Carolina 
 occupied no ground in advance of that taken by the repre 
 sentatives of Rhode Island, New Hampshire, Vermont, and 
 Massachusetts in the Hartford Convention, who issued an 
 ordinance declaring: "In case of deliberate, dangerous, and 
 palpable infractions of the Constitution, affecting the sover 
 eignty of a State and the liberties of the people, it is not only 
 the right but the duty of such State to interpose its authority 
 for protection in the manner best calculated to secure that 
 end. . . . Therefore, resolved, that it be and is hereby recom 
 mended to the legislatures of the States represented in this 
 convention, to adopt all such measures as may be necessary 
 effectually to protect the citizens of the said States from the 
 operation and effect of all acts which have been or may be 
 passed by the Congress of the United States; and which shall 
 contain provisions subjecting the militia or other citizens to 
 drafts, conscriptions, or impressments, not authorized by the 
 Constitution of the United States. <27 To carry out this ordi 
 nance as did the one Southern State so the several in North 
 made ready to maintain State nullification against the Fed 
 eral Government by war. Yet the citizens of the State of 
 South Carolina were far from a unit concerning the right 
 which the nullification convention attempted to exercise, and 
 it is seriously questionable whether the work of the conven 
 tion reflected the true sentiment of a majority of the people. 
 The saner sentiment was that expressed by a resolution of an 
 anti-nullification convention at Columbia : "It is not a mere 
 infraction of the Constitution which, like an external injury, 
 leaves the general utility unimpaired, but a radical and fatal 
 error. ... If one State has the jurisdiction to declare a law \ 
 unconstitutional every other must have the same ; and the Con- I 
 stitution can have no settled meaning." 28 ^) 
 
 What of the South generally or any important part? 
 
 27 American State Papers; Miscl., volume 2, 186; i Richardson, Messages of the 
 Presidents, 516. For a contemporary list of Northern nullifications see Hampden, The 
 Genuine Book of Nullification, (Charleston, 1831). 
 
 28 See The Patriot, December 12, 13, 20, and 21, 1832. 
 
22O LEGAL AND HISTORICAL STATUS 
 
 Scarcely a more opportune time or a more plausable excuse 
 for asserting or abetting nullification could have been af 
 forded the Southern people. Those who wrote and who 
 sanctioned the Virginia and Kentucky resolutions were yet 
 living. No popular change of sentiment had occurred in either 
 State: what now of Virginia and Kentucky? 
 
 With direct reference to the action of South Carolina 
 the legislature of Kentucky, on February 2, 1833, declared 
 that " no State of this Union has any constitutional right or 
 power to nullify," "contravene" or "obstruct" the laws or regu 
 lations of the United States; and that the Federal judiciary 
 alone could "abrogate or annul" the laws of Congress ; and 
 "that so long as the present Constitution remains unaltered 
 the legislative enactments of the constitutional authorities of 
 the United States can only be repealed by the authorities that 
 made them."- In language no less clear and certain the legis 
 lature of Virginia repudiated the doctrine, and with Kentucky 
 again declared that in the resolutions of 1798 South Carolina 
 found neither encouragement nor precedent. In the most em 
 phatic manner the people of each State made it clear that 
 nullification would not be sanctioned by them. 
 
 The South generally, as a section, took a- stand side by 
 side with Virginia and Kentucky. Not a single Southern State 
 failed in the most positive manner to repudiate nullification and 
 to condemn the action of the South Carolina nullifiers. 30 The 
 legislature of North Carolina affirmed "that the doctrine of 
 nullification declared by South Carolina ... is revolutionary 
 in its character, will in its operation be subversive of the Con 
 stitution of the United States, and lead to a dissolution of 
 the Union." Said the Richmond, Virginia, Enquirer: "Let 
 us hope for the best. This Union must be preserved nulli 
 fication arrested the protective system extinguished. . . . 
 we trust that the Southern States will continue to wage in 
 terminable war against the odious tariff, while they dissent 
 
 29 Smith, Hist. Ky., 355. 
 
 30 State Papers on Nullification, 101-292; Houston, Nullification in S. C., 119. 
 
OF THE DRED SCOTT DECISION 221 
 
 from the dangerous remedy of nullification/ 31 Such were 
 the sentiments representative of the South. 
 
 When Powell says : "Nullification was the watchword 
 of a united South," he draws a hasty and unwarranted con 
 clusion from very narrow premises. 32 Here and there local 
 meetings encouraged the nullifiers, but such sympathy was 
 expressed by a decided minority. 33 Small gatherings, repre 
 sentative of the others of their kind, in Louisiana and Georgia 
 urged the nullifiers to perpetuate the determination of their 
 ancestors to be "tenants of the soil or of the sod," rather than 
 surrender, and declared that "the children of Marion, Pick- 
 ney, and Hayne will not stop to calculate the cost after they 
 have planted themselves upon the Constitution." 34 In fact, 
 the nullifiers received far more encouragement from the North 
 than from the South. ::r> Even Thorpe admits: "The extreme 
 nullifiers were a minority in the Democratic party at the 
 South." 30 Not only were the nullifiers a minority, as com 
 pared with the entire section an insignificant minority; but 
 nullification was at no time the doctrine of the South. Seces 
 sion was not nullification; secession was not the climax of 
 the nullification doctrine. The two are as unlike as self-de 
 fense is unlike murder. 
 
 The contrast is not difficult to see. The two sections 
 of the Union differed upon questions most vital to the Ameri 
 can government. As the period of the war between the States \ 
 drew rapidly on, nullification became the watchword of a i 
 united North. It became evident that coercion impended the 
 one side or the other. Buchanan said in his inaugural address 
 that the question of the power of Congress over slave property 
 in a Territory "is a judicial question which legitimately be 
 longs to the Supreme Court of the United States, before whom 
 
 31 See also The Patriot, Dec. 13. 
 
 32 Nullification and Secession, 267. 
 M The ~Mecury, Jan. n, 1833. 
 
 34 Ib. January 4. 
 
 33 The Mecury, January 9, 1833. 
 
 36 Const. Hist. U. S., vol. 2, 405, n. 2. 
 
222 LEGAL AND HISTORICAL STATUS 
 
 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." 37 
 Some say this indicated that "the slave power, as Alex. H. 
 Stephens, Reverdy Johnson and other leaders of the South 
 are unjustly called by some writers, had improperly impor 
 tuned the Supreme Court to decide the constitutionality of the 
 Missouri Compromise; and that this "power had adroitly 
 and illegally influenced the court by means "well calculated to 
 disturb their judgment." But as against such statements the 
 facts are that there is no more ground for them than that 
 similar influences were brought to bear upon the court by the 
 Republicans, or the anti-Southern people, or the anti-negro 
 party. 
 
 Judge McLean on November 2, 1855, wrote to a political 
 friend, in reference to the Dred Scott Case: "The Supreme 
 Court has decided that slavery exists by virtue of the munici 
 pal law, and is local. The Constitution gives Congress no 
 power to institute slavery; therefore there can be no slavery 
 in the Territories ; for there is no power but Congress which 
 can legislate for the Territories. ... I write to you in con 
 fidence. . . . It is better that my opinions should find their 
 way to the public from the bench." 38 Thus we have the writ 
 ten evidence that at least one of the members of the court 
 gave the Republican party an intimation of what might be ex 
 pected and an absolute assurance of what his opinion would be. 
 Too, this was while the case was pending. 
 
 In his speech at Galena, Illinois, August i, 1856, just short 
 ly before the Dred Scott Case was argued the last time, speak 
 ing directly of the constitutionality of the Missouri Compro 
 mise, Lincoln said : "I grant you that an unconstitutional act 
 is not law; but I do not ask you and will not take your con 
 struction of the Constitution. The Supreme Court of the 
 United States is the tribunal to decide such a question, and 
 
 S Richardson, Mes. and Papers of the Pres., 431. 
 Bibliotheca Sacra, Oct., 1899, 339. 
 
OF THE DRED SCOTT DECISION 223 
 
 we will submit to its decisions; and if you do also, there will 
 be an end of the matter. Will you? If not, who are the dis- 
 unionists you or we?" 39 Lincoln said no less than Buch 
 anan. We know the Republicans had the assurance of Judge 
 McLean, and if such is of the weight ascribed to much less 
 evidence regarding the. Southern influence, certainly the anti- 
 Southern people had adroitly attempted to influence the judges 
 "by persuasion well calculated to disturb their judgment." 
 Having failed, the court having declared their construction 
 of the Constitution wrong, having refused to submit, by Lin 
 coln s measure who were the disunionistsf 
 
 In truth, up to the very moment of defeat the ranks 
 and the leaders of the anti-Southern party were ardent in 
 swearing loyalty to whatsoever decision of the Dred Scott 
 Case the Supreme Court might reach. For years the laws 
 of Congress boastfully had been nullified to the serious hurt 
 of the South by a rebellious North. The machinery of the 
 Federal Government, that part specially charged with the 
 execution of these laws and the enforcement of the Constitu 
 tion, fell into the hands of the Northern party. Congress, as 
 late as January, 1861, admitted the prevalent nullification, 
 but proposed no substantial remedy. 40 (Having lost the de 
 cision which they themselves sought from the court, the situa 
 tion in connection with the blind storm of repudiation, nullifi 
 cation and denunciation which sprang with a murderous roar 
 from the erstwhile submissionists clearly demonstrated the 
 fixed determination of the North to coerce the South and to 
 continue the subversion of the Federal Government. 
 
 39 Bell, Letters and Addresses, of Lincoln, 93. 
 
 40 Ho. Committee Rept. No. 31, p. 9:36 Cong., 2nd sess. 
 
INDEX 
 
 Abatement 
 
 plea of, 32, 42, 50, 93, 95. 
 Africans 
 
 not political persons, 38. 
 American government 
 
 definition of, n ; 
 
 how preserved, 9, 10 ; 
 
 nullification in, 206. 
 Anti-negro laws 
 
 in New York, 59 ; 
 
 in Massachusetts, 59 ; 
 
 in New Jersey, 60 ; 
 
 in Indiana, 62; 
 
 in Illinois, 63 ; 
 
 in Ohio, 63 ; 
 
 in Oregon, 66; 
 
 in Kansas, 66; 
 
 in Connecticut, 67. 
 Ashley, R. L. 
 
 charges, nullification, 213. 
 
 Benton, Thos. H. 
 
 on the Constitution, 117. 
 Blair, Scott s attorney 
 
 urges decision of Missouri 
 
 Compromise, 107, 109. 
 Brewer, Judge 
 
 on court and Constitution, 13. 
 Brice, James 
 
 on importance of Dred Scott 
 
 Case, 5 ; on function of Supreme 
 
 Court, 13. 
 Brown, Judge 
 
 on nature of slave property, 167. 
 Burgess, John W. 
 
 view as to interpreting the Con 
 stitution, 137. 
 Buchanan, President 
 
 pledges loyalty to the Dred 
 
 Scott decision, 221. 
 
 Congress 
 
 amenability of to Constitution, 
 
 119. 
 Chaffee, C. C 
 
 manumits Dred, 29. 
 Calhoun, John C. 
 
 relation of Constitution to Ter 
 ritory, 120; 
 
 nullification ascribed to, 206. 
 California 
 
 slavery in Territory of, 173. 
 Carson, H. L. 
 
 denounces Dred Scott decision, 
 
 7- 
 Children 
 
 when born slaves, no. 
 Coercion 
 
 by North against South, 223. 
 Constitution 
 
 unchangeable nature of, 12; 
 
 how changed, 13 ; 
 
 and Supreme Court, 13, 194 ; 
 
 finality of court s interpreta 
 tion, 14; 
 
 and slavery, 20; 
 
 method of interpreting, 168, 53, 
 
 70, 137; 
 
 Webster on, 120. 
 
 Citizenship 
 
 as basis of jurisdiction, 33, 55; 
 negro in North Carolina, 6r ; 
 negro in Ohio, 64 ; 
 negro in California, 66; 
 negro in Connecticut, 67 ; 
 negro in Pennsylvania, 68; 
 negro, Denny of Pa. on, 72 ; 
 nature of, 70; 
 defined by Virginia, 71 ; 
 before the I4th amendment, 51. 
 
 225 
 
226 
 
 LEGAL AND HISTORICAL STATUS 
 
 Curtis, Judge 
 
 error as to negro citizenship, 
 
 54; 
 
 on power of Congress in Ter 
 ritories, 18; 
 on due process, 155. 
 on power of President, 197. 
 
 Decision 
 
 judicial, what, 15, 35. 
 
 Denny, Jno. F. 
 
 on negro citizenship, 72. 
 
 Disunionists, who \vere, 223. 
 
 Dred s child- 
 born in Territory, 107 ; 
 right of future suit by, 108; 
 possible free birth of, no. 
 
 Dred Scott 
 
 a slave by Illinois law, 75. 
 
 Dred Scott Case- 
 instituted by the North, 23, 27; 
 in the State court, 24; 
 verdict in State court, 25; 
 facts in, 28, 30; 
 
 judgment of Supreme Court in, 
 40. 
 
 Due process of law 
 
 constitutional provision of vio 
 lated by the Missouri Compro 
 mise, 159; 
 definition of, 158; 
 relation of to the State, 156; 
 Curtis on, 155. 
 
 Elson, H. W. 
 
 denounces Dred Scott decision, 
 7- 
 Emerson, Dr. John 
 
 nativity, service and death of, 
 
 24. 
 Error, historic 
 
 concerning Dred Scott Case, 
 
 why, 115. 
 
 Federal courts 
 
 jurisdiction of, 27. 
 
 Federalist, the 
 
 quoted, 9. 
 Federal Government 
 
 how established, 9; 
 
 Curtis, Judge, on, 54; 
 
 powers in Territories, 132. 
 Florida, case from 
 decision of and light on obiter, 
 
 103. 
 Fourteenth amendment 
 
 due process clause of, 157. 
 
 Gray, Judge, error of, 106. 
 Government of the United States, 
 nature of, 10. 
 
 Hamilton, Alex. 
 
 declares slaves property, 162; 
 
 on unity of State, 210. 
 Hart, A. B. denounces decision, 7. 
 History of Dred Scott Case, 18. 
 Henry, Patrick 
 
 on slavery, 161, 163. 
 Hayne, of South Carolina 
 
 on nullification, 214; 
 
 debate with Webster, 214. 
 
 Indenture law, 79, 150, 154; 
 
 ratified by Congress, 151. 
 Illinois law 
 
 not examined by court, why, 78 ; 
 
 slavery under, 84, 90 ; 
 
 anti-negro laws in, Si. 
 
 Johnston, Alex. 
 
 on Dred Scott decision, 6. 
 Jurisdiction 
 
 kinds of, 93; 
 
 of Federal courts, see courts. 
 
 Labor systems in U. S., 19. 
 
 Law of the land, def. of by Web 
 ster, 157. 
 
 Lincoln, A. 
 
 on Dred Scott decision, 222; 
 on a divided court, 16. 
 
OF THE DRED SCOTT DECISION 
 
 227 
 
 Madison, James 
 
 on Constitution, 9; 
 
 on Virginia resolution, 210. 
 Monroe, Jas. 
 
 to Madison on conduct at Cal- 
 
 lender trial, 212. 
 McLean, Judge 
 
 on presumption as to slavery, 
 
 5o; 
 
 error concerning presumption, 
 
 56; 
 
 politics of, 76; 
 
 on power of Congress,- 76; 
 
 suggests possible decision of 
 
 Dred Scott Case, 222, 76. 
 Merits, questions of, 98, 104. 
 Miller, Judge 
 
 on importance Dred. Scott Case, 
 
 6. 
 Missouri 
 
 fight over admission of, 20; 
 
 laws of as to children born of 
 
 slaves in free State, in. 
 Missouri Compromise 
 
 constitutionality of, 28; 
 
 repeal of, 28; decision as to 
 
 constitutionality of, 114; in 
 volved in State action, no, 112; 
 
 who decided, 106. 
 
 Negro, see anti-negro laws 
 
 civil status of in America, 70; 
 the North and the negro, 19; 
 citizenship of, 51, 53; 
 Curtis on, 54. 
 
 Nelson, Judge 
 opinion of, 41. 
 
 North, anti-free negro, 23. 
 
 Nullification 
 
 Northern, 189, 205 ; in Ohio, 
 190; in Vermont, 194; in Maine, 
 196; in New York, 196; in Mas 
 sachusetts, 203, 205, 207; by the 
 Republican party, 205 ; in South 
 Carolina, 217; position of North 
 and South as to in South Caro 
 
 lina, 220, 222 ; in Virginia and 
 Kentucky resolutions, 207; defi 
 nition of, 206; advocated in 
 North, 203. 
 
 Obiter dictum 
 
 nature of, 91; def. of, TOO; 
 
 application to opinion in Scott 
 
 Case, 95, 91. 
 Opinion of court, what, 16 ; 
 
 where court is divided, 17. 
 Ordinance of 1787 
 
 legal force in Illinois, 88; 
 
 Curtis on force of, 141; 
 
 force of after the Constitution, 
 
 142; 
 
 defunct after States formed, 
 
 144; 
 
 in Territories, 143, 147. 
 
 Polk, President 
 
 on territory derived from Mexi 
 co, 20. 
 
 Powell- 
 error as to nullification in the 
 South, 221. 
 
 Plea in abatement 
 see abatement. 
 
 Presumption 
 nature of, 56; 
 of slavery, 55 ; 
 against Scott, 77; 
 when admitted by courts, 76. 
 
 Randolph, of Virginia 
 
 on slave property, 161. 
 Record followed by court, 197, 
 Rhodes, Jas. K 
 
 on Dred Scott Case, 5, 7. 
 Republican part 
 
 defeated by decision of Dred 
 
 Scott Case, 78 ; see Anti-negro 
 
 and Nullification. 
 
 Secession, grounds of, 206. 
 
221 
 
 LEGAL AND HISTORICAL STATUS 
 
 Slaves, rights to sue, 115. 
 
 children of, when born free, 
 
 III. 
 Slave property 
 
 in Old Northwest, 148, 152. 
 
 outside of a State, 173, 176, 
 
 195; 
 
 among Indians, 170; rules of 
 litigation concerning, 180; na 
 ture of, 185 ; under the Consti 
 tution, 164 ; in Cuba, 163 ; 
 Southern owners and, 140, 161. 
 
 States, relation of to Federal Gov 
 ernment, 10. 
 
 Supreme Court, powers of, 138; 
 followed record in Scott Case, 
 197. 
 
 Stephens, Alex. H 
 
 on importance of Dred Scott 
 Case, 6. 
 
 Taney, Chief Justice 
 
 inherits slaves and their treat 
 ment by, 15; 
 
 opinion by judicial, cumulative 
 proof of, 46, 48, 53; 
 
 interpretation of the Constitu 
 tion by, 195. 
 Tariff laws- 
 South Carolina s objections to, 
 
 215- 
 
 Territorial expansion, effect of, 19. 
 
 Territory 
 
 effect on slaves in, 134; 
 Constitution in, see Constitu 
 tion. 
 
 Virginia 
 
 resolution of 1798, 209; 
 see citizenship. 
 
 Von Hoist- 
 on -importance of Dred Scott 
 Case, 5- 
 
 Webster, Daniel 
 
 on Virginia and Kentucky res 
 olutions, 2ii ; 
 debate with Hayne, 214; 
 on Constitution in Territories, 
 22; 
 on due process, 157. 
 
 Wilmot Proviso, 21. 
 
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