THE CASE OF DRED SCOTT. 5. Resolved, That the Democratic party will Resolved, That the Administration of FRANKexpect of the next Administration that every LIN PIERCE has been true to Democratic principroper effort be made to ensure our ascendency ples, and therefore true to the great interests in the Gulf of Mexico, and to maintain perma- of the country; in the face of violent opposinent protection to the great outlets through which are emptied into its waters the products raised out of the soil and the commodities created by the industry of the people of our western valleys and of the Union at large. tion he has maintained the laws at home, and vindicated the rights of American citizens abroad; and therefore we proclaim our unqualified admiration of his measures and policy. THE CASE OF DRED SCOTT. THE opinions of the judges, if not the river, in the Territory known as Upper decision of the court, in the case of DRED Louisiana, acquired by the United States SCOTT agt. JOHN F. A. SANDFORD, touch of France, and north of the latitude of upon questions of such great importance, thirty-six degrees thirty minutes north, and have been made the basis of such and north of the State of Missouri. Dr. startling political dogmas, as warrant Emerson held the plaintiff in slavery at us in devoting considerable space to their elucidation. Fort Snelling, from the last mentioned date, until 1838. "In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the year 1836. He then sold and delivered her as a slave at Fort Snelling unto Dr. Emerson, who held her in slavery there until 1838. The case, which was a simple action of assault and battery-the declaration of the plaintiff alleging three assaults, one upon himself, one upon his wife, and a third upon their two children-came up from army of the United States. In that year, the Circuit Court of the United States for Major Taliaferro took her to Fort Snelling, the District of Missouri. The defendant and kept her there as a slave until the had pleaded to the jurisdiction of that court, on the ground that the plaintiff was not a citizen of Missouri, since he was "a negro of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves." To this plea the plaintiff filed a demurrer, which was sustained by the court. The defendant then pleaded not guilty, and justified on the ground that the plaintiff, his wife and daughters, were his negro slaves. On these pleas issue was joined and the case went to the jury in May, 1854, upon the following agreed facts: "In the year 1836, the plaintiff and Harriet at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks. "In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, a surgeon in the army of the United States, who, in that year, took him from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836, when he removed him daughter Eliza, from Fort Snelling to the to the military post at Fort Snelling, State of Missouri, where they have ever aituate on the west bank of the Mississippi | since resided. "In the year 1838, Dr. Emerson removed the plaintiff, Harriet, and their "Before the commencement of this suit, give an outline of the views of those Dr. Emerson sold and conveyed the plain tiff, Harriet, Eliza, and Lizzie, as slaves to the defendant, who has ever since claimed to hold them as slaves. "At the times mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon the plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing, in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times. "Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; there was a verdict and judgment in his favor; on a writ of error to the Supreme Court, the judgment below was reversed, and the same remanded to the Circuit Court, where it was continued to await the decision of this case." Under the instructions of the court that the law upon these facts was with the defendant, the jury found for him upon the ground that the plaintiff, his wife and daughters were negro slaves, as alleged. By writ of error the case was brought up to the United States Supreme Court, where, after two arguments, judgment was pronounced upon the sixth of March, 1857, reversing the judgment of the Circuit Court, and directing the dismissal of the suit for want of jurisdiction. Upon the threshold of the case arose the purely technical inquiry, whether the plea to the jurisdiction was legally before the court. Four judges (Taney, Wayne, Daniel and Curtis) maintained the affirmative; two judges (Catron and McLean, in whose conclusion Judge Grier would seem to have concurred), held the oppo judges who went into the discussion. Judges Taney and Daniel present the negative side of this question with great fullness. The former, after premising that the case of the Indian race is not in point, been treated and naturalized as foreigners, proceeds to take a curious distin ction, in support of which no facts or authorities are adduced, and which is not again adverted to in the course of the argument, between citizens of a State, whose rights are "restricted to the State which gave them," but who may be created by such State, even in despite of the confessedly exclusive power of Congress to establish a uniform rule naturalization, and citizens of a State in the sense of the Federal Constitution, entitled to sue in the federal courts, and to the "privileges and immunities of citizens in the several States" which are, in so many words, secured in the Constitution inasmuch as its members have alwa s to "the citizens of each State." Judge Taney next addresses himself to the inquiry whether free negroes whose ancestors were slaves were citizens of the several States when the Constitution was adopted, since "Every person and every class and descrip tion of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else." The position assumed on this point by the Chief Justice, cannot be better stated than in his own words: "In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words site opinion. Judges Nelson and Camp- used in that memorable instrument. They had bell expressly waive the inquiry, as irrele- for more than a century been regarded as vant and unnecessary to the decision of beings of an inferior order, and altogether the cause. As out of nine judges, only unfit to associate with the white race, either four passed upon the sufficiency of the in social or political relations; and so far plea to the jurisdiction, and as one of those four (Curtis) radically differed in opinion from the others, the point involved cannot have been decided by the court. Since, however, the question of the citizenship of free negroes, whose ancestors were slaves, is one of no little interest and importance, and has been answered by the State Department in one way and by a number of the States in another, it is worth while to inferior, that they had no rights which the white man was bound to respect; the negro might justly and lawfully be reduced to slavery for his benefit." Taking up the matter chronologically, the Chief-Justice cites, as samples of colonial legislation, a law of Maryland passed in 1717, and one of Massachusetts in 1705, both prohibiting, under penalties, the marriage of negroes or mulattoes with whites, thus "fixing a stigma of the deepest federation to "citizens" in the Constitudegradation upon the whole race." The tion is deemed significant, although it is language of the Declaration of Indepen- not admitted that even the former phrase " dence and of the Federal Constitution is deemed to be equally conclusive, since to include negroes among the "all men with respect to whom certain truths are affirmed in the former instrument to be self-evident, or among "the people of the United States," named as the authors of the latter instrument, would be to make the conduct of their distinguished framers "utterly and flagrantly inconsistent with the principles they asserted," and would be at variance with those clauses of the Constitution, which, in sanctioning the importation of slaves for a certain period, and requiring the return of " persons held to service," etc., point to the negro race "as a separate class of persons." comprised persons of color. The ChiefJustice concludes by saying that " if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word 'citizen' and the word 'people." Judge Daniel is no less sure of the correctness of this view. Mr. Justice Curtis, on the other hand, maintains that under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its constitution or laws, is also a citizen of the United States. Agreeing with Chief-Justice Taney that those who were citizens of the several States at the time of the adoption of the In proof of the general proposition, Federal Constitution, were citizens of the reference is also made to a Massachusetts United States under the Confederation, law, similar to that of 1705, referred to and became such under the Constitution, above, passed in 1786, and embodied in he cites the State Constitutions then in the Revised Statutes in 1836; to a similar force in New Hampshire, Massachusetts, one passed in Rhode Island in 1822, and New York, and New Jersey, and the decireenacted in 1844; to Connecticut laws, sions of North Carolina and Massachusetts one passed in 1774, the same year in to prove that at that time, all the free which steps were taken towards the abo- inhabitants of those States were not only lition of slavery in the State, and repealed citizens, but were entitled to vote, if they in 1797, which forbade all negroes to possessed the necessary qualifications, of travel without a written pass, and one in which color or descent was not one. The 1833, making it a penal offence to teach fact that restrictions have since been blacks, not inhabitants of the State; to a placed upon the right of colored persons New Hampshire law, forbidding the enrol- to vote in New York, North Carolina, and ment in the militia of any but free white citizens, passed in 1815, and in force in 1855; to early decisions in Kentucky, Tennessee, and by Chief-Justice Daggett, in Connecticut, that blacks are not citi zens; to various acts of Congress, such as the naturalization law of 1790, 90, the provisions of which were restricted to aliens, New Jersey, is thought to prove its previous existence. From the history of the fourth article of the confederation, it is argued that it was meant to have the effect of conferring upon free persons of color the privileges of general citizenship. This clause in 1778, South Carolina moved Congress to amend, so that it should read: being free white persons," the militia law The free white inhabitants of each of of 1792, applying to "free able-bodied white male citizens," a law of 1813, prohibiting the employment on board United States vessels of any "except citizens of the United States or persons of color, natives of the United States," and the charter of the city of Washington, authorizing certain legislation with reference to slaves and free negroes; and to the action these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States." The motion was lost. Did the Constitution of the United States deprive these free colored persons or their descendants of citizenship? Judge Curtis contends that it did not, but that of the State Department in refusing pass- it recognizes the principle that allegiance ports, during the Attorney-Generalship of and citizenship spring from the place of Wm. Wirt and of Caleb Cushing. Stress birth, and that citizens of the several is laid upon the danger to the slavehold- States are citizens of the United States. ing States of admitting negroes to the privileges and immunities of citizens and the consequent improbability that those States would have agreed to such a provision in the Constitution.. The change of free inhabitants" in the articles of con To the assertion that a recognition of the citizenship of free persons of color would be pregnant with danger to the slave States, Judge Curtis replies, that the Constitution confers on the citizens of one State in all other States, not specific and enumerated privileges and immunities, not Dred Scott and his family came, at Fort such as belong to particular citizens, attended by other qualifications, but such as belong to citizenship, which each State restrict according to its pleasure. The Snelling, is discussed at length by all the judges except Judge Nelson: six (Taney, Daniel, Grier, Campbell, Wayne and Catron) being of the opinion that it was un language is: "all privileges and immunities constitutional, and two (McLean and Cur of citizens;" not "the privileges and immunities of all citizens." Judge Curtis adds that whether free negroes are or are not citizens of the United States matters not, inasmuch as the Constitution applies to the "citizens of each State." The fact that the phrase "free inhabitants" in the Articles of Confederation was changed into "citizens" in the Constitution, is explained by a reference to the State papers of the period, and to the history of the change, which are thought to show that the two phrases were then practically synonymous. That the naturalization laws apply to white persons alone is held to prove nothing more than that Congress has not thought best to extend them to colored aliens; since there is no ground for saying that it has no power so to do under the Constitution-a fact which shows that color was not regarded by its framers as a necessary qualification of citizenship and since it has in fact done so by treaties which have admitted large bodies of North American and Mexican Indians, as well as free colored inhabitants of Louisianawho still exercise the electoral franchise -to citizenship of the United States. The militia law of 1792, the law of 1803, forbidding masters of vessels from import ing "any negro, mulatto or other person of color not being a native, a citizen, etc." and other acts of a similar tenor concerning seamen, are cited to show that, in the apprehension of their framers, other than white persons might be citizens. tis) that it was constitutional. All agreed that Congress possessed some power to govern the territories acquired from foreign governments, but they differed respecting its source and its extent. Judges Taney, Campbell, Daniel and Wayne derived whatever authority to legislate respecting such territories Congress possessed, from the power to expand the territory of the United States by the admission of new States-the power to acquire necessarily carrying with it the power to preserve and apply to the purposes for which the acquisition was made. Judges Catron, McLean and Curtis, on the other hand, pointed to the following provision of the Constitution, as the only source of authority: "The Congress shall have power to dispose of and make all needful rules and regulations other property be respecting the territory or longing to the United States: and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular State." Had the court decided the question of citizenship raised by the demurrer, those raised upon the pleas in bar might have been passed by, "as requiring," in the words of Judge Daniel, neither a particular examination nor an adjudication engagements of the Confederation. directly upon them." In that case it would have been, in the language of Judge Curtis," an assumption of authority," to have examined them, since after the case had been dismissed for want of jurisdiction, nothing would have remained before the court upon which it could judicially pass. But as the point raised by the demurrer was not passed upon, those upon the merits remain. The question of the constitutionality of the prohibition of slavery in the territory of the United States north of 36° 30, by the Missouri Compromise Act, under which Judges Taney, Campbell, Wayne and Daniel argued from the history of the early cessions from the several States to the General Government, and from the juxtaposition of the two provisions contained in the above clause, that it was formed for a known and particular territory, and to meet a special emergency and nothing more. They also maintained that its language precluded the supposition that general powers of legislation were conferred; and defended their exercise by the first Congress, upon the ground that those cases fell under the clause of the Constitution holding the Union to the McLean, and Curtis, in support of the opposite conclusion, review the history of the provision in question, examine its language, and dwell upon the fact that the Constitution was "a practical instrument, and was formed for the whole country." That Congress possesses full power to establish territorial governments, which was denied by Judge Campbell in some parts of his opinion, is deemed to be shown by its exercise from the earliest times. Judges Judges Taney, Daniel, Campbell, and Wayne, while all are apparently of the opinion that the nature of the legislation deny that the supposed limitation to the of Congress respecting the territories is a authority of Congress over the territories matter necessarily resting within its discre- exists. To Judge Catron's argument tion, affirm that this discretion is so limited from the terms of the treaty of cession, by the Constitution and the principles of a Judge McLean makes this short answer: "In the first place, such a subject does not belong to the treaty-making power; and any such arrangement would have been nugatory. And, in the second place, by no admissible construction can the guaranty be carried further than the protection of property in slaves at that time in the ceded territory. And this has been complied with. The organization of the slave States of Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana at the republican government as to exclude the of the cession. This removes every ground of objection under the treaty." To the arguments sought to be deduced from those provisions of the Constitution which protect private property, it is an den as that of slaves; Judge Daniel avers swered that, as, in the words of Judge that "no other right of property is placed McLean, "all slavery has its origin in by the Constitution upon the same high power and is against right," "the state ground, nor shielded by a similar guaran- of slavery," as was held by the Supreme ty." Another line of argument is, that Court of the United State in the famous Congress holds the territories as the agent case of PRIGG agt. PENNSYLVANIA, "is or trustee for the United States, and can- deemed to be a mere municipal regulation, not, without a breach of trust and a fraud, founded on and limited to the territorial appropriate the subject of the trust to laws;" that it is so completely the creaany other beneficiary or cestui que trust ture of municipal law, that its nature and than the United States, or to the people extent are measured, and the rights, of the United States upon equal grounds, powers and obligations which grow out legal or equitable; but that under a pro- of it necessarily defined, protected and per application of this principle a citizen enforced by such law: that, therefore, it of South Carolina has the same right to go stands upon a different footing from other into the territories with property, which property, and requires, as essential to the laws of South Carolina recognize, its existence, municipal regulations, which that a citizen of New York has to go there the Constitution has neither made nor with property which the laws of New provided for; and that if the right to York recognize. take slaves into the public domain exists, Judge Catron, while substantially agree- it is a right, the limits and conditions of ing with the above views, brings forward which are unknown; a right to introduce an additional argument of his own, which and continue diverse systems of foreign is not alluded to by his brethren. He law derived from the last previous domicil maintains that the Louisiana territory was of each slave. The provision that no one protected against legislation on the sub- shall be deprived of his property without ject of slavery by the treaty made at the due process of law, is stated to be as old time of its cession, with France, the third as Magna Charta, and to form a part of article of which declares that: every State constitution. And it is said "The inhabitants of the ceded territory shall that if a prohibition of slavery in a terri be incorporated in the Union of the United States, and admitted as soon as possible to the of all the rights, advantages immunities of citizens of the United States, and in the meantime shall be maintained and protected in the free enjoyment of their liberty, property" (slaves being then the most valuable of all personal property there), "and the religion which they profess." Judge Grier, who also holds that the Compromise is unconstitutional, is silent as to the grounds of his opinion. Judges McLean and Curtis controvert every one of the above propositions, and tory in 1820 violated this provision, the ordinance of 1787, the laws against the slave-trade, the statutes of many of the slaveholding States, declaring slaves imported within their limits free, and the common law of Great Britain, violated it as well. With the assumption "which lies at the basis of this theory," that the territory ceded by France was acquired for the equal benefit of all the citizens of the United States, the dissenting judges do not disagree; but Judge Curtis replies : |