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We the People: The Citizen and the Constitution
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Court Cases


As recorded in:
The Middle Period, 1817-1858
By John William Burgess
Published by C. Scribner's sons, 1897

THE time has come when the correct story of the Dred Scott case may be told, and should be told. The author of this volume has been so fortunate as to obtain from A. 0. Crane, Esq., of St. Louis, an account of the early history of the Scott case' case, which is entirely original and authentic. Mr. Crane was, at the time that the case was brought in the Circuit Court of the United States, a clerk in the law office of the great lawyer who espoused Dred Scott's case, and who freely gave his legal services to the work of securing the negro's freedom, Roswell M. Field. Mr. Field was a native of Vermont, and a strong anti-slavery man. He was utterly incapable of any collusion with slaveholders for the getting up of a case, through which the Supreme Court of the United States might be brought to support the cause of slavery in the Territories, the purpose charged by many of the anti-slavery men of the North for which this case was created. Mr. Crane most emphatically declares that Mr. Field was influenced to undertake the case only by humanitarian motives of the highest order.

There were, indeed, two Dred Scott cases, one in the courts of Missouri, and one in the United States courts, but they had no connection with each other.The case decided by the Supreme Court of the United States originated in the Circuit Court of the United States, and did not come up on a writ of error from the Missouri court.

The facts in the two cases were, however, the same. One Dr. Emerson, the owner of Dred Scott, had taken Dred, as his slave, into Illinois, a Common-wealth in which slavery was forbidden, and then into the Louisiana territory above the latitude thirty-six degrees and thirty minutes, where slavery was prohibited by the Congressional Act of 1820; had allowed Dred to marry in the free territory; had purchased the woman he married from an army officer at a post within the same; and had taken Dred back to Missouri, with his wife and a child born to them on free territory, and held them as slaves in Missouri. Dr. Emerson's return to Missouri was in 1838. In 1844 the Doctor died, leaving Dred and his wife and child to Mrs. Emerson. According to the statement of facts recited by the Chief Justice of the United States, Dr. Emerson sold Dred and his family to a Mr. Sandford, a citizen of New York, the defendant in the case before the Supreme Court, but Mr. Crane says that Dr. Emerson's will, in the Probate Office at St. Louis, shows that Dred and his family belonged to the Doctor at the time of the latter's death, and that Dred told him that such was the case. Mr. Crane also says that Dred told him that, after the Doctor's death, Mrs. Emerson hired him out to different persons, and that he became dissatisfied with this treatment, and resolved to sue for his freedom.

This first suit was brought in one of the inferior courts of Missouri, and was decided in Dred's favor. Mrs. Emerson appealed the case to the supreme court of Missouri, and two of the three judges upon that bench held that the condition of slavery reattached to the negro upon his being brought back into Missouri, and reversed the decision of the lower court.

While the case in the Missouri courts was in progress Mrs. Emerson made over the control of the Scotts to a relative of hers, a Mr. Sandford, then a citizen of New York, who hired them out to residents of Missouri. It was then, and for this reason, that Dred appealed to Roswell M. Field for his powerful aid in bringing suit against Sandford in the Courts of the United States.
The case in the Circuit Court of the United States was begun before the case in the Missouri court was concluded. The defendant in the Circuit Court of the United States first pleaded that Dred was not a citizen of Missouri, and could not be, since he was a negro and descended from slaves held in the United States, but the court overruled the plea, that is, decided that Dred Scott could be party in a suit in the courts of the United States.

The evidence in the case consisted simply of a statement of facts agreed upon by the two parties. The pleas then put forward by the defendant in bar of the action were argued, on the basis of this statement, and the court ordered the jury to find for the defendant. Judgment was rendered in his favor in the month of April, 1854.

Mr. Field then carried the case to the Supreme Court of the United States, upon a writ of error, and secured the services of his friend, the Hon. Montgomery Blair, for the negro. Mr. Blair undertook the management of the case at Washington, and, like Mr. Field, gave his time and labor without pecuniary reward. The court costs incurred by Dred in both cases were paid by Taylor Blow, son of the man who sold Dred to Doctor Emerson. There is certainly not the slightest evidence in this history of the case that the case was anything but a genuine proceeding from beginning to end, conducted by anti-slavery men, for the purpose of securing the freedom of an intelligent and worthy African, who had been taken voluntarily by his master upon free soil, and had thus been made, by the principles of the common law, a free man. The case was argued twice with great learning before the Supreme Court, and the decision finally reached was virtually acquiesced in by seven of the nine Justices, although Justice Nelson did not give his assent to any part of the opinion except that which decided that, on the return of Dred to Missouri with his master, any effect upon his slavery, which the taking of him into Illinois and the Louisiana territory above the latitude thirty-six degrees and thirty minutes might have had, disappeared. This seemed to Justice Nelson sufficient to the decision of the case, and he was unwilling to go farther, but some of his brethren, especially Justice Wayne, thought that the entire record of the case in the Circuit Court was brought up for examination by the Supreme Court, and that the Supreme Court ought to decide every point contained in the record. Justice Nelson had been, at first, selected by his colleagues to write the opinion, and it is thought that this attitude of his was what moved the Chief Justice to write the opinion himself.

Justice Catron also thought that there was nothing before the Supreme Court but the question whether, after the return of the Scotts to Missouri, their temporary sojourn on free territory could be held to have worked their emancipation. Justice Catron presided at the trial in the Circuit Court and ruled, as we have seen, in favor of Dred Scott on the point of his having a standing in the United States Courts, and the Justice thought that Scott could not bring up to the Supreme Court, on a writ of error, a point decided in his favor in the court below.

The Chief Justice, Mr. Taney, held that there were two leading questions presented by the record from the Circuit Court. The first was the question whether the Circuit Court, had jurisdiction over the case, and the second was whether the judgment it gave was correct or erroneous.

The Chief Justice was right in holding that the writ of error brought up the entire record for examination by the Supreme Court, but it was not necessary that the Supreme Court should include every point of the record in its decision. And he was certainly wrong when he extended, as is now generally conceded he did, the opinion of the court beyond the points in the record of the case in the Circuit Court. The form of the judgment pronounced by the Chief Justice as the opinion of the Court, that is, of the majority of the Justices, was that the Circuit Court did not have jurisdiction of the case, since the Scotts were not citizens of Missouri, in the meaning of the Constitution of the United States, and that the judgment of the Circuit Court for the defendant must, therefore, be set aside, and a mandate be issued, directing the suit to be dismissed by the Circuit Court for want of jurisdiction. The Chief Justice undertook to sustain his opinion by a long argument, the principal propositions of which were, that negroes descended from negro slaves held in this country were not citizens in any of the "States" of the Union at the time of the formation of the Constitution of 1787; that by that Constitution the "States" transferred all power to make new classes of persons citizens to the Congress of the United States, and limited the power of Congress in this respect to the naturalization of persons born outside of the dominion of the United States; and that, consequently, negroes born of negro slave parents in the United States were not only not citizens of any of the "States" at the time of the formation of the Constitution of 1787, but could not be made such, either by the "States " or by Congress, subsequent to the adoption of that Constitution.

In his powerful dissenting opinion, Mr. Justice Curtis demolished this argument completely, by simply showing from the statute books and the judicial decisions of several of the "States" that, at the time Of the formation of the Constitution of 1787, negroes descended from Africans, who had been held as slaves in the country, were citizens, even to the point of possessing the suffrage, in several of the "States" of the Union. The great argument of the Chief Justice turned out to be only a political essay, without fact, law, or jurisprudence to sustain it. Mr. Justice Curtis, therefore, held that, as nothing against Dred Scott's citizenship had been alleged by the defendant in the Circuit Court, except that he was a negro, and descended from negroes who had been held as slaves in this country, the jurisdiction assumed by the Circuit Court ought to be sustained by the Supreme Court.

But if the opinion of the Court should be accepted as correct upon this point, it is difficult to see why the opinion should not have ended with the decision upon this point. Nothing further was necessary in the determination of the case. And it is certainly most difficult to see what connection the Act of 1820, prohibiting slavery in the Louisiana territory, the court's north of the latitude thirty-six degrees and °p thirty minutes, had with the case. No decision upon that point was rendered by the Circuit Court, whose record the Supreme Court was reviewing.
If the Supreme Court had confirmed the jurisdiction of the Circuit Court in the case, and had then ruled that the Circuit Court was in error in holding that slavery reattached to the Scotts by Missouri law, upon their return to Missouri, even if they had been made free by their temporary sojourn upon free soil, probably the Supreme Court should have decided the question as to what effect that sojourn may have had, and, in this way, included the question of the constitutionality of the slavery prohibition clause in the Act of 1820. But the majority of the Supreme Court approved the view of the Circuit Court upon this point.

There is little doubt that the majority of the Justices thought that a declaration from the Supreme Court in regard to the mooted question of slavery in the Territories would aid in bringing quiet to the country, and that they had persuaded themselves that it was necessary to the decision of the point in issue. But they were certainly in error, as to the first consideration, and it is difficult to see that they were not as to the second.

The Chief Justice advanced to his conclusion in this part of the opinion through a most labored argument. He started with the dictum that there was no clause in the Constitution which gave Congress any power over territory acquired subsequently to the adoption of the Constitution, interpreting the provision which vests in Congress "the power to make all needful rules and regulations concerning the territory and other property of the United States," as applying only to territory held by the United States at the time of the adoption of the Constitution. He then founded the power to govern the territory subsequently acquired upon the right to acquire territory; and declared that in governing such territory, or providing for its government, Congress was limited by all those provisions of the Constitution which protect private rights against governmental power. He claimed, finally, that that one of these provisions which ordains that no person shall be deprived of life, liberty, or property without due process of law protected property in slaves, taken into the Territories by their masters, against both the power of Congress and of the agents of Congress in the Territories, the Territorial governments, to free them. The conclusion from this reasoning was that anybody could take slaves into a Territory of the United States, and hold them there in slavery, no matter what might be the disposition of Congress or of the Territorial government in regard to the subject, and that the question whether slavery was to be permanently established in a Territory or not could not be determined until the Territory should become a "State," and then only by an act of the "State."

This was the point which the Kansas-Nebraska Act had not covered, and which the President said, in his inaugural address, would be decided in the forthcoming opinion on the Dred Scott case. The opinion was pronounced several days after the inaugural, and it was later charged by Mr. Seward, and intimated by Mr. Lincoln, and believed by a large number of persons, that the Chief Justice imparted the opinion of the Court to the President before it was pronounced. But this point, though not necessarily involved in the case, had been argued by counsel, and the newspapers had declared that it would be decided, and both Mr. Buchanan and Mr. Taney were men of the highest personal and official integrity, and possessed the most delicate sense of the requirements and proprieties of the great stations which they occupied. It is almost certain that the charge was an unfounded suspicion. The prevalence of the suspicion was, however, an ominous sign of the danger impending over the land.

Justice Curtis found no more difficulty in controverting these propositions than those upon the first point treated in the opinion of the Chief Justice. He first referred to the undoubted facts that not all the territory claimed by the several "States " had been ceded to the United States at the time that the Constitution of 1787 was adopted, but that it was expected that what remained would soon be so ceded, and that therefore the clause vesting in Congress "the power to make all needful rules and regulations concerning the territory of the United States" must have been framed with these future acquisitions in view, and intended to apply to them also. He then demanded to know why, if the Court could derive the power of Congress to govern territory acquired from foreign states from a right which is not expressed in the Constitution, but is itself implied, the right to acquire, should it hesitate to derive it from a power in respect to the territory of the United States which is expressed in the Constitution. He contended that until Congress or the Territorial legislature had legalized slavery in a Territory, no one could be said to be deprived of his property in slaves in the given Territory, either by a Congressional act forbidding the existence of such property, or by the failure of Congress or the Territorial legislature to enact laws for the security of such property. He repudiated the idea that a holder of slaves could take the law of the place from which he emigrated, securing such property, into a Territory with him as a monstrosity in jurisprudence, since it would introduce into a given Territory as many slave codes as there were slaveholding Commonwealths represented therein by their slaveholding emigrants, and he indicated, finally, that the reasoning of the Court must reach ultimately the proposition that Congress was required by the Constitution to establish slavery in every Territory of the Union, and consequently to make every new "State" a slaveholding "State."

The slaveholders and the Douglas Democrats of the North were in high glee over the decision, and hardly stopped to read the powerful dissenting opinion which had shattered it to atoms. They caused thousands upon thousands of copies of the decision to be printed and distributed among the masses of the people. The Free-soilers did the same thing with the opinion of Justice Curtis. It was not many weeks before it became entirely manifest that the cause of slavery had lost immensely by the decision, and the cause of free-soilism had gained in the same degree. Justice Curtis had demonstrated that the decision had cast the responsibility for the further extension of slavery upon the nation, and the nation now began to show its resolution to meet its responsibility by acquitting itself of any participation in this great wrong, in the only manner now left to it, that is, by preventing it. the court. The natjon could no longer deceive itself with the idea that it could stand neutral. The Court had actually swept away the dogma of "popular sovereignty" in the Territories. The nation must now neither prohibit, nor allow the Territorial governments to prohibit, slavery within the Territories, as the decision would have it, or the nation must itself prohibit it, as the dissenting opinion would have it. When these alternatives were distinctly recognized as necessary and exhaustive, it did not take the nation long to decide which course it must pursue.

The Middle Period, 1817-1858
By John William Burgess
Published by C. Scribner's sons, 1897