The Sheriff's wound was not fatal, but it was reported that he was dead, and the Missourians began to organize for another invasion. Before they were ready, the Territorial judiciary came to their assistance. Chief Justice Lecompte charged the Grand Jury of Douglas County, in the early part of May, that resistance to the Territorial laws was high treason against the United States, and that entering into combinations for the purpose of making such resistance was constructive treason, and instructed the body to find true bills against all persons guilty of such offences. This was a most astounding piece of jurisprudence. It looked like nothing but a trick to deprive the "Free-state" men of their leaders, since one arrested for treason was considered as not having the privilege of bail.
The Grand Jury found indictments against nine or ten persons, among them Robinson, Reeder, and Lane, and also against two newspapers published in Lawrence, and the Emigrant Aid Company's hotel there. The indictments were put in the hands of the United States Marshal for the Territory, J. B. Donaldson. On May 11th, Donaldson issued a proclamation, declaring that the service of these writs by his deputy had been resisted in Lawrence, and calling "the law-abiding citizens of the Territory to appear at Lecompton, as soon as possible, and in numbers sufficient for the proper execution of the law." As a matter of fact, only Reeder had resisted service, and had succeeded in escaping. All the others, except Lane and Wood, were taken into custody without difficulty. Reeder's justification was that he was at the moment in attendance, as a witness, upon the Congressional committee sent to the Territory, and was, therefore, legally exempt from arrest at the time.
The Marshal did not publish his proclamation in Lawrence, but a copy of it fell into the hands of a Lawrence citizen, who hastened to make known to the people the peril which was impending. The citizens already knew of forces being organized, both in the Territory and in Missouri, against Lawrence, and had demanded the Governor's protection against them. The Governor had replied that he knew of no force near or approaching Lawrence, except the posse under the orders of the United States Marshal and the Sheriff of Douglas County, who had writs to serve in Lawrence, and that he should not interfere.
The citizens of Lawrence now held a meeting and passed formal resolutions, declaring that the charges contained in the Marshal's proclamation were untrue, and that the citizens were not only ready to acquiesce in the service of any judicial writs against them by the United States Marshal, but to furnish him a posse, if required, to aid him in the discharge of his duty. And after receiving the Governor's reply, they appealed to the Marshal, asking him to state his demands, promising not to resist the service of his processes, but to aid him in the discharge of his legal duties, and praying his protection against the lawless bands collecting about their town for the purpose of its destruction.
The Marshal replied in a flippant and sarcastic manner, saying that his correspondents must be strangers in Lawrence if they were ignorant of the demands against the citizens of the town, referring in exaggerated language to the shooting of Jones, and Reeder's resistance to his deputy, and to the military organization and equipment of the people of Lawrence, and declaring that he should execute all processes in his hands in his own time and way.
Three days later, on May 17th, the citizens communicated again with the Marshal, calling his attention to the depredations committed by the bands around Lawrence, asking if he was responsible for these bodies, and demanding protection from him against them. At the same time, the managers of the hotel appealed to the Governor to protect their property, and carried with them an offer from the citizens to give up their arms to Colonel Sumner, if he would station a detachment of United States soldiers in the town for their protection.
The Marshal and the Governor thought favorably of this proposition. They were willing to guarantee the safety of the citizens and their individual property, but they thought they must consult with the captains of the squads composing the posse before they could give such assurances in regard to the hotel and the printing offices. These persons were found to be determined on the destruction of the printing offices, certainly, and of the hotel, probably. Colonel Titus, of Florida, declared that the South Carolina boys in the posse would be satisfied with nothing short of the destruction of the printing offices.
The hotel managers and the representatives of the citizens turned again to the Governor and implored him to send the United States soldiers for the protection of the town, but he again refused to interfere; and, finally, when they said to him that they feared the citizens would be compelled to defend themselves by armed power, and precipitate the horrors of civil war, he answered angrily, while striding out of their presence: "War then it is, by God!"
On the morning of the 21st, the Marshal's armed force appeared upon one of the heights overlooking the town, displaying first a white flag, then a red one, and, lastly,the flag of the United States. The Deputy-marshal then entered the town with a small posse, and called the managers of the hotel and several of the citizens to join his posse and assist him in the service of his writs. They obeyed, and two persons were arrested. The Deputy, with his force and his prisoners, returned to the camp. Colonel C. W. Topliff, a prominent citizen, went with them, bearing a communication from the committee of safety of Lawrence to the Marshal, in which the promise of obedience to his processes was again made, and his protection claimed.
It was hoped that the crisis was now passed. The Marshal dismissed his posse. But the Sheriff immediately reorganized the bands ashisposse. This was most ominous of evil. The Sheriff was burning with passion for personal revenge. In the middle of the afternoon (May 21st), he rode into the town at the head of his army, and, in spite of every plea and remonstrance, caused the contents of the printing offices to be scattered through the streets and the hotel to be burned, and allowed the pillage, and even the burning, of private houses.
The atrocious and disgraceful deed of sacking Lawrence was denounced by many of the persons who had joined the Marshal's posse. General Atchison tried to prevent the Sheriff from thus wreaking his vengeance, and denounced his deed afterward. Jackson, the leader of the Georgians, and Buford, the captain of the Alabama squad, also denounced the vile procedure, and declared that they had not come to Kansas to destroy property.
Atchison knew well enough that a great blow had been given to the prospects of the Democratic party in the now approaching presidential election. What, then, must have been his despair upon learning that an attack,even more outrageous than the sacking of Lawrence, had been made, at the same time, upon the defender of "Free-state" Kansas in the Senate chamber at Washington?
The debate on the bills for the admission of "Free-state" Kansas had progressed from day to day, in both Houses of Congress, with increasing earnestness and excitement. At length, on May 19th and 20th, Mr. Sumner delivered his fierce philippic on the "Crime against Kansas." It was not only an unvarnished statement of the case from the Abolitionist point of view, but it was a personal arraignment of several of the Senators. The attack contained in it upon Senator Butler, of South Carolina, a gentleman of great refinement and politeness, and much honored and esteemed by his associates, was especially coarse and brutal. Almost all the Senators felt the attack to be more than a discourtesy. Senator Butler was in ill health and was absent from his seat, both of which circumstances made the affair all the more exasperating. For two days the Capital rang with denunciations of the insulting speech, when Preston S. Brooks, a nephew of Senator Butler, and a member of the House of Representatives, demanded and took satisfaction of Mr. Sumner for the attack upon his kinsman. Had he carried out his purpose in a brave and manly way, he would have been generally applauded for it, but being no match physically for Sumner, Brooks had recourse to a method which stamped him as a coward, and his attack upon Sumner as a brutal outrage. He entered the Senate chamber on May 22nd, after the adjournment of the body, and approaching Mr. Sumner, who was seated and bending over his desk, charged him with libel on South Carolina and her sons, and struck him with a cane upon the headuntil the Senator became helpless and unconscious. With this, Sumner's outrage upon Butler was entirely lost sight of in Brooks's far more brutal outrage upon Sumner.
The cowardly deed was looked upon everywhere in the North as the fit companion-piece to the sacking of Lawrence. The indignation of the North was roused to the highest pitch, and it seemed as if the elections of 1856 must bring the anti-slavery party into the seats of power.
But just at this most critical juncture, when everything depended on calmness and moderation on the part of the "Free-state" men to secure immediate victory, and when immediate victory, thus pursued, was, so far as human eye can discern, within their grasp, an outrage was perpetrated by a gang of men, or rather fiends, who claimed some sort of relation to the "Free-state" party, which so far overshadowed in cruel atrocity all that had gone before as to produce a revulsion of feeling most damaging to the "Free-state" cause. On May 23rd, John Brown, with six or seven others, all, except two, members of his own family, went to the settlement about Dutch Henry's Crossing on the Pottawattomie Creek, and, on the night of the 24th, took five men, innocent of anything which could even justify arrest by proper authorities, from their cabins, and murdered them, cutting and slashing their bodies with cutlasses, until their savage thirst for blood was partially satiated. So barbarously atrocious was the deed, so calculated to rouse the sentiment of the whole country against the "Free-state" cause in Kansas, that the Republican members of the Congressional committee of investigation in the Territory refused to make the event a part of their inquiry. The Democratic member, Mr. Oliver, investigated it, and reported it to Congress and to the public.
No sane mind can find the slightest justification, excuse, or palliation for this atrocious crime. It was murder, pure and simple. And when we consider the purpose for which, as well as the mind with which, it was committed, it became, in addition to common crime, also public crime of the most grievous nature. Dr. Robinson says it was done for the purpose of involving the North and the South in war against each other. Thus to the murderous mind was added the seditious purpose. Some men have professed to find virtue in this noxious compound, but such minds have lost their moorings, and are roaming without star or compass over the border lands between reason and insanity. To murder, Brown and his vile brood added robbery; but this was so slight a crime in comparison with the other that it may be passed without further notice.
The inhabitants of the region were thrown into the greatest consternation and excitement. The pro-slavery and the anti-slavery men assembled together, denounced the horrible deed as foulest murder, and resolved to act together as men of reason and common sense for the maintenance of peace and order and the suppression of crime.
For a few days it was not known who the authors of these murders were, but suspicion soon pointed to Brown and his gang, and steps were taken to procure warrants for their arrest. The Governor, also, sent down a body of troops to the scene of the massacre. The troops were volunteers, chiefly Missourians, commanded by a Captain Pate. Pate's force met Brown's at Black Jack, and Brown captured Pate and his men. This was June 2nd. With nothing to hinder him for the moment, Brown now robbed and pillaged all around. By the 3rd, however, the Missourians, led by Whitfield, were rallying to the aid of their pro-slavery friends inKansas, and by the 5th, battle was impending between the Missourians and the "Free-state" men, who had gathered in the neighborhood of the excitement. The Governor had at last comprehended the serious character of the situation. He issued his proclamation warning invaders to retire, and commanding armed and illegal organizations to disperse. And he sent Colonel Sumner with a company of regular cavalry to the scene of action.
Sumner rescued Pate and his men, dispersed Brown's gang, and ordered the Missourians to get out of Kansas. He did not arrest Brown, because he had no warrant for his apprehension, and did not know, at the time, that he was the author of the Pottawattomie murders. Sumner remained a fortnight or more in southern Kansas until the excitement was somewhat spent, and then returned to Fort Leavenworth. Brown disappeared, and a measure of peace was momentarily restored.
The Pottawattomie murders, and the robberies succeeding them, had, however, greatly damaged the "Free-state" cause. The great advantage which had accrued to it through the sacking of Lawrence and the outrage upon Senator Sumner was now largely lost again. Still, emigration from the Northern Commonwealths to Kansas continued in great activity, and the House of Representatives at Washington was steadily advancing toward the passage of the resolution for the admission of "Free-state" Kansas into the Union, although the flight of its committee of investigation from the Territory, in consequence of the excitement following the murders on the Pottawattomie, and the two reports which its members made of the situation in Kansas, exercised an unfavorable influence on the movement. The House passed the bill,however, on July 3rd, by a majority of two votes, but it would admit neither of the claimants to a seat in the House.
On the other hand, Colonel Sumner, while personally in sympathy with the "Free-state" cause, felt it to be his official duty to disperse the "Free-state" legislature which assembled at Topeka on July 4th. The President and the Secretary of War, Mr. Jefferson Davis, subsequently disapproved of this act, and denied that the authority for it was either expressed or implied in any of their instructions to Colonel Sumner. The Colonel thought the contrary, and felt that the unpopularity of the procedure throughout the North had caused the President and the Secretary to disavow a responsibility for it which was rightfully their own. A careful reading of the dispatches leads to the conclusion that the Colonel did exceed his powers. He was, doubtless, led to do so unconsciously by the violent deeds of men professing connection with the "Free-state" party. The misunderstanding led finally to the retirement of Colonel Sumner from the command of the United States forces in Kansas, and the assignment of General P. F. Smith to that duty.
After the dispersion of the "Free-state" legislature, the "Free-state" men, who were gathered in Lawrence, held a convention, and elected a committee, whose duty it should be to look after the interests of the people. This committee selected from among its members a sub-committee of five, and transferred all of its powers and duties to this sub-committee. The "Free-state" government had now become a directorial board of five persons, chief among whom were William Hutchinson and James Blood. The seat of this Directory was Lawrence.
The Directory organized a strong military force under the command of Colonel Walker. This force attacked and broke up three pro-slavery bands during the month of August, the last one at Fort Titus, near Lecompton, and commanded by the noted Colonel Titus himself. Titus and his men were captured.
The Governor now became alarmed for his own safety. Accompanied by Major Sedgwick, he went to Lawrence, on August 17th, and concluded with the Directory the noted agreement of that date, the terms of which were, that the "Free-state" men should keep the arms which they had captured from the pro-slavery bands; that the howitzer taken from Lawrence should be returned to the town; that all persons arrested by the United States Marshal, under charge of participating in the attack upon the pro-slavery band at Franklin, should be delivered unharmed to the Directory; that the Governor should disband the Territorial militia, order all bands of armed men to disperse, and command all armed bands of nonresidents to leave the Territory. The Directory engaged, upon its side, to release Titus and his men. The Governor virtually surrendered to the Directory. He then returned to Lecompton, resigned his office, and made his way back to Ohio.
Secretary Woodson was now again in the Governor's chair, and this, of itself, was notice to the Missourians to come on. They had already gathered on the border. On August 25th, Woodson published a proclamation, in which he declared the Territory to be "in a state of open insurrection and rebellion," called "upon all law-abiding citizens of the Territory to rally to the support of their country and its laws," and commanded "all officers,civil and military, and all other citizens of the Territory, to aid and assist by all means in their power in putting down the insurrectionists."
The Missourians took this as an invitation to advance. They entered the Territory again, on the 29th, and pitched their camp on Bull Creek. Atchison was in command. On the 13th, a detachment of them attacked and destroyed Ossawattomie. About a dozen men were killed in the fight.
General Smith now issued instructions that the United States troops should not "interfere with persons who may have come from a distance to give protection to their friends or others, and who may be behaving themselves in a peaceable and lawful manner." This attitude seemed at first view to be friendly to the pro-slavery men; but the friends of the "Free-state" men were now pouring into the Territory by way of Iowa and Nebraska, and Smith's order worked ultimately to their advantage. Unquestionably the General intended to be impartial.
The attack on Ossawattomie roused the "Free-state" men to new exertions. Three hundred of them, commanded by Lane, advanced upon the camp at Bull Creek. The two forces drew up in battle array, but, after a slight skirmish, they both drew off.
Acting Governor Woodson now ordered Colonel Cooke to attack Topeka with United States troops, but the Colonel refused to obey the order, and General Smith sustained him.
The "Free-state" men now planned an attack upon Lecompton. They moved in two separate columns, one commanded by Harvey and the other by Lane. The attack was to be made on September 4th, but the failure of Lane's column to arrive until the 5th enabled theUnited States soldiers to reach the town first. When the "Free-state" men learned that the regulars were in the town, they returned to Lawrence.
The Missourians were now roused to serious and decided action. An army of some three thousand of them had gathered on the border, and was on the point of marching in for the purpose of destroying every "Free-state" settlement in the Territory. Only one thing could now save the Territory from thoroughgoing and relentless civil war, and that was the interference of the United States army. The fiasco of "popular sovereignty" in the Territories was at last complete. The general Government must assume control.
The President's eyes had at last been opened to the fact, that if he allowed things to drift any farther in Kansas, the Republicans would win the presidential election in November. He, therefore, resolved to put the government of the Territory into impartial hands. He ordered the United States Marshal to release Robinson and his colleagues; appointed J. W. Geary, of Pennsylvania, a man of strong character, Governor of the Territory; and authorized Geary to call the United States troops to his assistance. Geary arrived at Lecompton on September 10th. On the 12th, he went to Lawrence, and, after promising the "Free-state" men protection against the Missourians, returned to Lecompton. On the 14th, the force advancing on Lawrence arrived in the neighborhood of the town. Word was immediately sent to the Governor. The Governor summoned a detachment of United States soldiers, and set out for the scene of action. On the morning of the 15th, he met the army of Missourians and interposed the United States army betweenthem and Lawrence. The Governor informed the Missouri leaders that they must leave the Territory. They dared not put themselves in an attitude of hostility to the military power of the Union, and quickly retreated back to Missouri. With this the warfare inaugurated by the murders on the Pottawattomie ended. The Governor had at last brought peace to the distracted Territory, but at the expense of the principle of home rule in the Territory, and upon the point of the sword of the Union.
The establishment of order in Kansas saved the Democratic party, according to the general opinion, from the threatened defeat in the November election, and made Buchanan, instead of Frémont, President. After the danger was over, the Administration became less hearty in its support of Geary; and when Geary virtually espoused the "Free-state" cause, as he did during the winter of 1856-57, the Administration became largely estranged from him. He resigned in disgust on the day of Buchanan's inauguration to power.
The next contribution to the history of the struggle for Kansas was to come from an entirely new quarter. The new President indicated, in his inaugural, whence it was to come, if not what it was to be. He said: "A difference of opinion has arisen in regard to the point of time when the people of a Territory shall decide this question"—the question of slavery—"for themselves. This is, happily, a matter of but little practical importance. Besides it is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled." The President referred to the Dred Scott case, which had been twice argued before theSupreme Court, and decision upon which, it was understood, would be published to the world in a few days. We must, therefore, break the thread of Kansas history here for a moment, and trace the history of this case down to the point where it becomes connected with the further history of the Territory.
THE DRED SCOTT CASE
THE DRED SCOTT CASE
The Origin of the Dred Scott Case—Two Dred Scott Cases—The Facts of the Cases—The Case in the Missouri Courts—The Case in the United States Courts—The Case a Genuine Proceeding—The Decision by the Supreme Court of the United States—The Dissenting Opinion of Mr. Justice Curtis—Criticism of the Court's Opinion—The Obiter Dictum—The Chief Justice and the President—Justice Curtis' Dissent Continued—The Printing and Distribution of the Decision and the Dissenting Opinion—The Doctrine of Popular Sovereignty in the Territories Overthrown by the Opinion of the Court.
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. C. Crane, Esq., of St. Louis, an account of the early history of the 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-slaverymen 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 Commonwealth 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 Courtof 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 uponthis 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, north of the latitude thirty-six degrees and 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.