The Dred Scott Case – The Decision – In outline of the opinion and the views of the Dissentients, etc.

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"The Dred Scott Case – The Decision – In outline of the opinion and the views of the Dissentients, etc.," Louisville (KY) Journal, March 12, 1857, p. 2.
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Louisville (KY) Journal
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The Dred Scott Case – The Decision – In outline of the opinion and the views of the Dissentients, etc.
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Sayo Ayodele
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[Special Correspondence of the Louisville Journal.]

The Dred Scott Case – The Decision – In outline of the opinion and the views of the Dissentients, etc.

WASHINGTON, March 8th, 1857.

Seven of the nice members of the Supreme Court of the United States concurred in the general grounds assumed in the decision just announced in the case of Dred Scott against Sandford. On minor points, these gentlemen differ, and six of them – Nelson, Catron, Daniel, Wayne, Campbell and Grier – submitted their views in writing. I was among the many who were present in the Court room both on Friday and Saturday, and can truly say never before was so much interest manifested, and such close attention, paid to the delivery of an opinion. This full to the task of the venerable Chief Justice Taney – a man old in years and judicial honors, and who, notwithstanding his strong political party bias in days long past, deservedly enjoys a high reputation for his learnedness in the law. Though feeble in body he still enjoys a vigorous mind.

The opinion was close and elaborate, showing that negroes, or men of the African race, though free, are not citizens of the United States by the Constitution; that the ordinance of 1787 had no independent constitutional force or legal effect subsequently to the adoption of the constitution, and could not operate of itself to confer freedom or citizenship within the Northwest territory, on negroes not citizens by the constitution; the act of 1820, commonly known as the Missouri Compromise, in so far as it undertook to exclude negro slavery from, and communicate freedom and citizenship to negroes in the northern part of the Louisiana cession, was a legislative act exceeding the powers of Congress, and void, and of no legal effect to that end. The expression “territory and other property” of the United States, in the constitution, applies, in terms, only to such territory as the Union possessed at the time of the adoption of the constitution; that the rights of citizens of the United States emigrating into any federal territory, and the power of the General Government there, depend on the general provisions of the constitution, which defines in this, as in all other respects, the powers of Congress; as Congress does not possess power itself to make enactments relative to the persons or property of citizens of the United States in federal territory, other than such as the constitution confers, so it cannot constitutionally delegate any such powers to a territorial government organized by it under the constitution; and that the legal condition of a slave in the State of Missouri is not affected by the temporary sojourn  of such slave in any other State, but, on his return, his condition still depends on the laws of Missouri.

The opinion takes the ground, with regard to citizenship, that the Constitution was made for white men, for, at the time of its adoption, the number of blacks was so small as to excite no attention; and, besides, for fifty years previously, the blacks were esteemed and regarded as merchandise, having no right which white men were bound to respect. In the slave States, there were particular codes of laws alone applicable to that degraded class, and it certainly was not in the contemplation of the framers of the Constitution that these blacks, of African descent, should have with the whites the blessings sought to be secured by the Constitution. A State might confer citizenship on an alien within its own limits, but this would not entitle him to the rights of citizenship in any other State; and, to be a citizen of the United States, an alien must be made such in pursuance of the naturalization laws. But Dred Scott, the colored man, who claimed his freedom on the plan that he was emancipated by his residence in Illinois, was a slave when he returned to Missouri, as he was previously, and therefore was not a citizen of Missouri, nor of the United States. This being the case, the Circuit Court of that State had no jurisdiction in the promises, and hence it followed that there could be no appeal to the Supreme Court of the United States.

Associate Justices McLean and Curtis dissented from the opinion of the majority of the Court. The former assumed that free colored men having been born under the constitution and laws, no naturalization was required to make them citizens. The most general definition of a citizen was a freeman. As to colored persons not being agreeable members of society, this was more a matter of taste than of law. Several of the States, slaveholding as well as free, had admitted such persons to the right of citizens. We have not been very fastidious on the citizenship. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in relation to Louisiana and Florida. No one ever doubted, nor any Court held, that such inhabitants did not become citizens under the treaty. They became citizens without being naturalized. The power to govern territory implies the power to acquire territory, and he the proceeded to argue that Congress has the power to prohibit slavery therein. He was occupied in this for nearly two hours.

Associate Justice Curtis then delivered his views in dissent from the opinion of the majority. They were certainly marked by ability and showed that the learned gentleman had given much research and reflection to his subject. He argued that persons of African descent can be citizens. It is a fact, he said, that all the free native-born inhabitants of New Hampshire, Massachusetts, New York, and North Carolina were, under the Confederation, not only citizens, but possessed the franchise of electors on equal terms with other citizens; and they became citizens under the Constitution of the United States, in the adoption which they assisted. Under the Constitution, every free person born on the soil of a State, and who is a citizen by force of the constitution and laws of the State, is a citizen of the United States. He argued  that it was not true in point of the fact that the Constitution was made only for white men, as color was not necessary, under that instrument, to citizenship; and it might be added, colored persons had in repeated instances been made citizens by the treaty; as in the case of the Choctaws, Cherokees, and the mongrel Mexicans under the treaty of Guadaloup Hidalgo. He, as did Mr. McLean, insisted that Dred Scott and his family were free on returning to Missouri, and that a person, having acquired his freedom, could not be deprived of it. He held that the power to make all “needful rules and regulations respecting the territory or other property of the United States” gave Congress the power to do all that was “needful,” looking to the happiness of the inhabitants, but not legislating on prohibited subjects. There were two class of acts on the subject. From the first Congress to 1818, there were eight cases in which Congress has excluded slavery from the territories, in forming territorial governments; and in six distinct instances Congress had organized territorial governments which recognized slavery. These were signed by seven Presidents, beginning with Washington and coming down to John Quincy Adams. This was, in his view, a weight of authority which it would be difficult to resist.

The decision must have a salutary effect upon the country; and, however distasteful it may be to the people of the free States, as law-abiding citizens they must submit to the authority of the tribunal of such eminent ability and judicial power.

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