on the exchange of New York or Bos- | § 3) which says "Congress shall have ton as a slave-trader; and no man today blazons the fact that the wealth he inherits was obtained by successful ventures on the Slave-Coast. Mr. Taney proceeds to show, after his fashion, that no State can make its black people citizens, because that would be very inconvenient and unsafe for the slaveholders of other States. "For," he says: power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," applies only to such territory as belonged to the United States at the time the Constitution was framed! The territory covered by the Missouri Restriction, having all been acquired since that time, is not, in his view, subject to this provision. He proceeds to affirm that, by the mere fact of our acquiring territory, "the Government and the citizen both enter it under the authority of the Constitution;" in other words, that the Constitution takes effect upon any territory that our Government may acquire, at the instant of such acquisition, in such manner as to create and uphold the right of every slaveholder to take his slaves thither and hold them there as property. But this particular and only "If they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport; and, without obstruction, to sojourn there as long as they pleased; to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and private upon all subjects upon which its own citizens might speak; to hold pub-clause of the Constitution relating lic meetings upon political. affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State." Having thus determined, to his own satisfaction, that Dred Scott, being a negro and descended from slaves, had no right to bring this suit, and no standing in the Federal Courts, and that the Court has no authority in the premises, the Chief Justice proceeds to take jurisdiction, in order to obtain a footing from which to nullify the Missouri Restriction and deny the right of Congress to exclude Slavery from any territory. To this end, he affirms that that clause of the Constitution (Art. IV. to territory has no application or subsisting validity; because, if it had, it might enable Congress to prohibit Slavery therein. The Chief Justice, therefore, nullifies the Missouri Restriction, and all kindred restrictions, in the following terms: "Upon these considerations, it is the opinion of the Court that the act of Con gress which prohibited a citizen from holding property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and it is therefore void; and that neither Dred Scott himself, nor any of his into this territory, even if they had been family, were made free by being carried carried there by the owner, with the intention of becoming a permanent resident." But Dred's freedom was claimed on still another ground; viz.: that he had been taken by his master to WAYNE, NELSON, GRIER, ETC., ON DRED SCOTT. the Free State of Illinois, and there retained some two or three years. But this the Chief Justice disposes of by declaring that his claim was not properly before the court; that the question raised by it was to be adjudged by the tribunals of Missouri alone; and he concludes as follows: tt 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." Justice Wayne, of Georgia, concurred "entirely in the opinion of the Court, as written and read by the Chief Justice, without any qualification of its reasoning or its conclusions." Justice Nelson, of New York, concurred also in the conclusion of the Court, and favored an astonished world with the following sample of judicial logic: 'If Congress possesses power, under the Constitution, to abolish Slavery in a territory, it must necessarily possess the like power to establish it. It cannot be a onesided power, as may suit the convenience or particular views of the advocates. It is a power, if it exist at all, over the whole subject." But the power against which Mr. Nelson is contending is a power to prohibit by legislation certain forms of injustice and immorality. If, then, according to his reasoning, Congress should, by law, prohibit adultery, theft, burglary, and murder, in the territories of the Union, it would thereby affirm and establish its right to reward and encourage those crimes. 257 Mr. Justice Grier, of Pennsylvania, emitted all the additional light he had power to shed on the subject in the following commendably brief, but not otherwise commendable, opinion : "I concur in the opinion delivered by Mr. Justice Nelson on the question discussed by him. "I also concur with the opinion of the Court, as delivered by the Chief Justice, that the act of Congress of 6th of March, 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, requiring the Court to decide all the questions properly arising in it; 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 between the parties to the suit." of the Court, and is the same in effect Mr. Justice Daniel, of Virginia, in announcing his opinion, seemed appalled by the magnitude of the issues involved in the question before the Court. The tremor and awe with which he had approached the subject may have blunted his judicial acumen, since his exhibitions of it were mainly confined to such assertions as these: "Now, the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know--that the African negro race have never been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recognized by the inhabitants of other countries anything partaking of the character of nationality, or civil or political polity; that this race has been, by all the nations of Europe, regarded as subjects of capture or purchase, as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves-as property, in the strictest sense of the term." He proceeded in this vein to deny followed with a general assent to the views of Chief Justice Taney. Mr. Justice Catron, of Tennessee, concurs with Justice Nelson, that Dred Scott has no right to freedom, at the hands of this court, on the ground of his two years' residence in Illinois; but he dissents from the Chief Justice's notion that the power over the territories, expressly given to Congress by the Constitution, has no force or application beyond the territory possessed by us when that Constitution was framed. In fact, as he had been hanging men for the last twenty years under this, very power, he could not well do otherwise. He says: the right or power of any State to elevate persons (or, as he would say, property) of African descent to citizenship of the United States, "by any direct or indirect proceeding," so as to entitle them to sue, or be sued, in the Federal tribunals. And, having thus put Dred Scott out of court, and finished the case, he proceeds to deal with the political questions introduced and discussed by Chief Justice Taney, in order "to put them finally to rest." He is horror-struck at the "inequalities," the disfranchisement, and the degradation, involved in the prohibition of Slavery in the Federal territories, which he reprehends and stigmatizes as follows: "It is due to myself to say, that it is ask"Nothing can be more conclusive to showing much of a judge, who has for nearly the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them, because they are the owners of slaves, than the fact that the same instrument, which imparts to Congress its very existence, and its every function, guarantees to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, further, that the only private property which the Constitution has specifically recognized, and has imposed it as a direct obligation, both on the States and the Federal Government, to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guarantee." There is much more of this, but the above must suffice. Mr. Daniel, pushing his doctrines to their legitimate result, pronounces the Ordinance of '87 only equal in constitutionality and validity with the Missouri Restriction-that is to say, essentially null and void. Mr. Justice Campbell, of Alabama, 4 In his "Historical and Legal Examination of that part of the Decision of the Supreme Court, from the Western Missouri line to the Rocky twenty years been exercising jurisdiction Mountains, and, on this understanding of the Constitution, inflicting the extreme where the direct legislation of Congress was penalty of death for crimes committed the only rule, to agree that he had all the while been acting in mistake, and as an usurper. "More than sixty years have passed away since Congress has exercised power to govern the territories, by its legislation directly, or by territorial charters, subject to repeal at all times; and it is now too late to call that power in question, if this Court could disregard its own decisions, which it cannot do, as I think.” Several points in his opinion evince a sturdy independence; yet he concludes that that clause of the Consti tution which provides that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," gives slaveholders an indefeasible right to carry their slaves into, and hold them in, the territories. CALHOUN AND BENTON ON TANEY'S LAW. opinion of the Court, as pronounced by Chief Justice Taney in this celebrated case, is, in essence, but an amplification of certain resolves submitted by Mr. Calhoun to the United States Senate, in February, 1847, in the following language: "Resolved, That the Territories of the United States belong to the several States composing this Union, and are held by them as their joint and common property. Resolved, That Congress, as the joint agent and representative of the States of the Union, has no right to make any law, or do any act whatever, that shall directly, or by its effects, make any discrimination between the States of this Union, by which any one of them shall be deprived of its full and equal rights in the territory of the United States, acquired or to be acquired. Resolved, That the enactment of any law which would directly, or by its effects, deprive the citizens of any of the States of this Union from emigrating, with their property, into any of the Territories of the United States, would make such a discrimination; and would, therefore, be a violation. of the Constitution, and the rights of the States from which such citizens emigrated, and in derogation of that perfect equality which belongs to them as members of this Union, and would tend directly to subvert the Union itself." The resolve submitted to the Democratic National Convention of 1848, by Mr. William L. Yancey, and unceremoniously rejected by it, 216 to 36, as will have been seen -sets forth the same doctrine more concisely and abruptly. 5 Col. Benton, himself a life-long slaveholder and upholder of Slavery, thus forcibly refutes," from a conservative and legal standpoint, the Calhoun-Yancey dogma: г "The prohibition of Slavery in a territory is assumed to work an inequality in the States, allowing one part to carry its property with it-the other, not. This is a mistake —a great error of fact-the source of great errors of deduction. The citizens of all the States, free and slave, are precisely equal in their capacity to carry their property with 5 See page 192. 259 them into territories. Each may carry whatever property by the laws of nature: neither can carry that which is only property by statute law; and the reason is, because he cannot carry with him THE LAW which MAKES which is the subject of this local property; it property. Either may carry the thing but neither can carry the law which makes The Virginian may carry his manslave; but he cannot carry the Virginian law which makes him a slave. The citizen of Massachusetts may carry the pile of money which, under a State law, constitutes a bank; but he cannot carry the law or charter which makes it a bank: and his treasure it so. is only a pile of money; and, besides being impossible, it would be absurd, and confusion confounded, to be otherwise. For, if the citizen of one State may carry his Slave State law with him into a territory, the citizens of every other Slave State might do the same; and then what Babylonish confusion, not merely of tongues, but of laws, would be found there! Fifteen different codes, as the Slave States now number, and more to come. For every Slave State has a servile code of its own, differing from others in some respects-and in some, radically: as much so as land, in the eye of the law, differs from cattle. Thus, in some States, as in Virginia and others, slaves are only chattels: in others, as in Kentucky and Louisiana, they are real estate. How would all these codes work together in a territory under the wing of the Constitution, protecting all equally; no law of Congress there, or of the territory, to reconcile and harmonize them by forming them into one; no law to put the protecting power of the Constitution into action; but of itself, by its own proper vigor, it is to give general and equal protection to all slaveholders in the enjoyment of their property-each, according to the law of the State from which he came! For, there being no power in Congress, or the Territorial Legislature, to legislate upon Slavery, the whole subject is left to the Constitution and the State law! that law which cannot cross the State line! and that Constitution which gives protection to slave property but in one instance, and that only in States, not in Territories-the single instance of recovering runaways. The Constitution protect slave property in a territory! when, by that instrument, a runaway from the territory or into the territory cannot be reclaimed! Beautiful constitutional protection that! only one clause under it to protect slave property; and that limited, in express words, to fugitives between State and State! and but one clause in it to protect the master against his slaves, and that limited to States! and but one clause in it 6 In his "Examination," aforesaid. to tax slaves as property, and that limited to States! and but one clause in it to give a qualified representation to Congress, and that limited to States. No; the thing is impossible. The owner cannot carry his Slave State law with him into the Territory; nor can he carry it into another Slave State, but must take the law which he finds there, and have his property governed by it; and, in some instances, wholly changed by it, and rights lost, or acquired, by the change." 66 To the same effect, Mr. Webster, when resisting, in 1848, the attempt, on a bill organizing the Territory of Oregon, to fasten a rider" extending the Slave line of 36° 30′ to the Pacific, refuted this doctrine as follows: "The Southern Senators say we deprive them of the right to go into these newly acquired territories with their property. We certainly do not prevent them from going into those territories with what is, in general law, called property. But these States have, by their local laws, created a property in persons; and they cannot carry these local laws with them. Slavery is created and exists by a local law, which is limited to a certain section; and it is asked that Congress shall establish a local law in other territories to enable Southern Senators to carry their particular law with them. No man can be held as a slave unless the local law accompany him.” Justice McLean, of Ohio, in his opinion dissenting from that of the Court in this case of Dred Scott, says: "Will it be said that the slave is taken as property, the same as other property which the master may own? To this I answer, that colored persons are made property by the law of the State, and no such power has been given to Congress. Does the master carry with him the law of the State from which he removes into the territory? and : does that enable him to coerce his slave in the territory? Let us test this theory: If this may be done by a master from one Slave State, it may be done by a master from every other Slave State. This right is supposed to be connected with the person of the master, by virtue of the local law. Is it transferable? May it be negotiated as a promissory note or bill of exchange? If it be assigned to a man from a Free State, may he coërce | the slave by virtue of it? What shall this thing be denominated? Is it personal or real property? Or is it an indefinable fragment of sovereignty, which every person carries with him from his late domicile? One thing is certain, that its origin has been very recent, and it is unknown to the laws of any civilized country. It is said that the territories are the common property of the States, and that every man has a right to go there with his property. This is not controverted. But the Court say, a slave is not property beyond the him such. Never was a truth more authoroperation of the local law which makes itatively and justly uttered by man. Suppose a master of a slave in a British island owned a million of property in England; would that authorize him to take his slaves with him to England? The Constitution, in express terms, recognizes the status of Slavery as founded on the municipal law: 'No person held to service or labor in one State, under the laws thereof, escaping to another, shall,' etc. Now, unless the fugitive escape from a place where, by the municipal law, he is held to labor, this provision affords no remedy to the master. What can be more conclusive than this? Suppose a slave escape from a territory where Slavery is not authorized by law, can he be reclaimed? In this case, a majority of the Court have said that a slave may be taken by his master into a territory of the United States, the same as a horse, or any other kind of property. It is true, this was said by the Court, as also many other things, which are of no authority. Nothing that has been said by them, which has not a direct bearing on the jurisdiction of the Court, against which they decided, can be considered as authority. I shall certainly not regard it as such. The question of jurisdiction, being before the Court, was decided by them authoritatively, but nothing beyond that question. A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence." of Massachusetts, in his dissenting To the same effect, Justice Curtis, opinion, thus traverses the judgment of the Court : "Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regulations which were essential to the existence of Slavery? Is it not more rational to conclude that they who framed and adopted the Con |