denied the jurisdiction of the court on the ground that Dred Scott, as a negro and the descendant of negro slaves, was not a citizen of the state of Missouri, and therefore could not, by virtue of art. III, sec. 2, § 1, of the constitution, bring suit in a federal court. The court declared this plea invalid, but instructed the jury that Dred Scott, according to the laws in force, had no claim. to freedom, and he was, therefore, adjudged to Sandford as his slave. Dred Scott now appealed to the supreme court of the United States. In the spring of 1856 the case came up for argument, but no decision was rendered. Judge Campbell subsequently stated that this was brought about by Judge Nelson, because he had as yet formed no fixed opinion on the question at issue, whether it was necessary for the supreme court to subject the decision of the circuit court to a revision, which decision. had declared Sandford's objections to its jurisdiction invalid; and that Nelson's proposition to hear the attorneys of both parties on "that and other questions" again, was unanimously adopted. In republican circles, this not enter, because the special constitutional questions involved in it have no independent political significance. Even the principal constitutional question I shall discuss as briefly as possible. In what I say, in the text, I shall confine myself, as much as possible, to the political aspect of the question; for that aspect alone gives the case its eminent, historical importance. 1 See Campbell's letter of November 24, 1870, to G. Tyler, in the latter's Memoir of Roger B. Taney, pp. 382, 383. Gooch said, on May 3, 1860, in the house of representatives: "It was not until two of the judges dissented from the opinion of the majority of the court that Dred Scott was a slave, and proposed to publish their opinions, that the majority felt it to be necessary to express opinions in relation to the constitutionality of the Missouri compromise. "It was then that the court ordered the case to be re-argued for the purpose of ascertaining whether it could be made to appear that that act was unconstitutional." Congr. Globe, I Sess. 36th Congr., App., p. 293. THE DRED SCOTT CASE. 27 postponement of the decision was believed to be connected with the impending presidential election.' After the case had come up again for argument, the majority of the judges resolved to confine the judgment of the court to the case before them, and Justice Nelson was intrusted with the writing of the argument which was to serve as the ground of the decision. It should have needed no special resolution to confine the judgment of the court to the case before them; such a course should have been considered simply self-evident. This, however, was so far from being the case that the resolution was afterwards reversed, and Chief Justice Taney requested to write the opinion of the court. Nelson had already finished the task intrusted to him, and it now stands as his personal opinion in the records of the Dred Scott case. Hence the original and real opinion of the federal supreme court is not Taney's, but is to be found in Nelson's argument, and it, therefore, should be examined first. The proper appreciation of the remarkable and sudden change which turned the original minority of the judges into a majority will thus be greatly facilitated. Nelson was of opinion that the supreme court had no 1 Judge Curtis writes, on the 8th of April, 1856, to Ticknor: "The court will not decide the question of the Missouri compromise line,— a majority of the judges being of opinion that it is not necessary to do so. (This is confidential.) The one engrossing subject in both houses of congress and with all the members is the presidency; and upon this everything done and omitted, except the most ordinary necessities of the country, depends." Curtis, A Memoir of Benjamin Robbins Curtis, I, p. 180. 2"The instruction of the majority, in reference to the preparation of this opinion, was to limit the opinion to the particular circumstances of Dred Scott; and Mr. Justice Nelson prepared his opinion, on file, under this instruction, to be read as the opinion of the court." Campbell, in the letter quoted loc. cit., pp. 383, 384. reason to entertain the question raised by Sandford as to the jurisdiction of the supreme court. The question, what effect the sojourn, voluntarily caused by his owner, of a slave in a free state, had, when the latter was again brought back to the slave state,- that question, Justice Nelson said, had been decided in different ways by the courts of the slave states. The supreme court of Missouri had answered this question in the Dred Scott case, and held that only the law in force in the state concerned governed, and it had further decided that, according to the laws of Missouri, Dred Scott was still a slave. As to the first point, not only he, Nelson, agreed with the supreme court of Missouri,' but the supreme court of the United States also had, years ago, laid down the same principle. The decision of the supreme court of Missouri was, therefore, binding on the circuit court, and hence the judgment of the circuit court could now only be affirmed. 1 He argues thus: "They insist that the removal and temporary residence with his master in Illinois, where slavery is inhibited, had the effect to set him free, and the same effect is to be given to the law of Illinois, within the state of Missouri, after his return. Why was he set free in Illinois? Because the law of Missouri, under which he was held as a slave, had no operation by its own force extraterritorially; and the state of Illinois refused to recognize its effect within her limits, upon principles of comity, as a state of slavery was inconsistent with her laws and contrary to her policy. But how is the case different on the return of the plaintiff to the state of Missouri? Is she bound to recognize and enforce the law of Illinois? For, unless she is, the status and condition of the slave upon his return remains the same as originally existed. Has the law of Illinois any greater force within the jurisdiction of Missouri than the laws of the latter within that of the former? Certainly not. They stand upon an equal footing. Neither has any force extraterritorially, except what may be voluntarily conceded to them." Howard's Rep., XIX, Williams' edition, Book 15, p. 724. 2 Strader et al. v. Graham, Howard's Rep., X, p. 82. THE DRED SCOTT CASE. 29 This opinion would not have been very agreeable to the republicans, and an effort would have been made here and there by them to create political capital out of it, as the fact mentioned by Nelson himself, that even the courts of different slave states had given opposite opinions, would have readily lent itself to that purpose. It would, however, have created no excitement at all. Much less would it have been the signal for the breaking out, with redoubled violence, of party war. The Dred Scott decision became such a signal only in consequence of the voluntary resolution of the supreme court to use it as an opportunity, by their authoritative decree, to cut the Gordian knot of the territorial question, and thus solve the great problem which the politicians had sought to solve, always with the negative result of an aggravation of the evil: the problem of the permanent exclusion of the slavery question from politics. Before the opinion which Nelson had prepared was read,' and in Nelson's absence, Justice Wayne moved to decide all the questions covered by the record, because the public were of opinion that this would be done. This proposition and the further motion to substitute Taney for Nelson as the spokesman of the court were adopted. Whether all the justices except Nelson were present at this session, who spoke and voted against Wayne's propositions, and how strong the opposition was, does not appear from the sources of information at my command. Only this is shown by Campbell's letter cited above, that there was opposition; and the published opinions prove that Wayne alone fully agreed with Taney, that Daniel and Campbell differed widely in their reasoning 1 Campbell in the letter cited. 2 Nelson to S. Tyler, May 13, 1871. Tyler, loc. cit., p. 385. from that of Taney, that Grier and Catron, together with Nelson, held the first judicial opinion to be sufficient, and lastly that McLean and Curtis did not approve the judgment of the court in a single point. -- Campbell assures us that Wayne had not informed him, and so far as he knew had not previously informed the other associate justices of his views, and that the consultations and conclusions of the court had not been influenced by any person not belonging to it, in any manner whatever — especially not by Buchanan. This last is the only thing of importance, and the presumption is that it is entirely in harmony with the truth, easy as it is to conceive that, at the time, people were by no means generally convinced that it was the truth. But even if none of the judges had ever spoken a word outside the court room on the Dred Scott case, the incontrovertible fact remains that Wayne's motions and their adoption were prompted by purely political considerations, and that is, evidently, the main point. Wayne's own statement excludes all doubt of this. Taney's opinion, he said, corresponded both in its argumentation and in its conclusions so completely with his views, that he gave up the idea of handing in an opinion of his own, although he had prepared one, believing, at first, that it would be both necessary and proper to do so. He did not, however, consider it superfluous to try to justify the conclusion reached, to decide "every point which was made in the argument of the case by the counsel on either side of it." But of the technical arguments intended to show that this mode of procedure was regular, he places the political motive first and foremost as the governing one. "The case," he says, "involves private rights of value, and constitutional principles of the highest im |