The case was twice argued by eminent lawyers; Blair and G. F. Curtis for Dred Scott, and by Geyer and Johnson for the defendant.

Dred Scott brought a suit in the United States Circuit Court in Missouri for trespa.s.s against one Sanford, charging him with a.s.sault on him, his wife, and two children--in fact, for his and their freedom.

The facts, as agreed, were as follows:

"In the year 1834, the plaintiff (Dred Scott) was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff 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. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi River, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the lat.i.tude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling from said last-mentioned date until the year 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 army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

"In the year 1836, the plaintiff and said Harriet, at said Fort Snelling, with the consent of said 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 fruits of that marriage.

Eliza is about fourteen years old, and was born on board the steamship _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, and at the military post called Jefferson Barracks.

"In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided.

"Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

"At the times mentioned in the plaintiff's declaration, the defendant, claiming to be the owner as aforesaid, laid his hands upon said 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."

It is our purpose here only to set forth what was decided, or attempted to be decided, bearing upon slavery and its political status in the United States.

This purpose we can accomplish no better than by quoting parts of the Syllabi of the case.

We quote:

"A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Const.i.tution of the United States.

"When the Const.i.tution was adopted, they were not regarded in any of the States as members of the community which const.i.tuted the State, and were not numbered among its 'people or citizens.'

Consequently, the special rights and immunities guaranteed to citizens do not apply to them. And not being 'citizens' within the meaning of the Const.i.tution, they are not ent.i.tled to sue in that character in a court of the United States, and the Circuit Court has no jurisdiction in such a suit.

"The only two clauses in the Const.i.tution which point to this race treat them as persons whom it was _morally_ lawful to deal in as articles of property and to hold as slaves.

"The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Const.i.tution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.

"The plaintiff, having admitted (by his demurrer to the plea in abatement) that his ancestors were imported from Africa and sold as slaves, he is not a citizen of the State of Missouri according to the Const.i.tution of the United States, and was not ent.i.tled to sue in that character in the Circuit Court.

"The clause in the Const.i.tution authorizing Congress to make all needful rules and regulations for the government of the territory and other property of the United States applies only to territory within the chartered limits of some of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of States in the treaty of peace. It does not apply to territory acquired by the present Federal Government, by treaty or conquest, from a foreign nation.

"The United States, under the present Const.i.tution, cannot acquire territory to be held as a colony, to be governed at its will and pleasure. But it may acquire and may govern it as a Territory until it has a population which, in the judgment of Congress, ent.i.tles it to be admitted as a State of the Union.

"During the time it remains a Territory Congress may legislate over it within the scope of its const.i.tutional powers in relation to citizens of the United States--and may establish a territorial government--and the form of this local government must be regulated by the discretion of Congress--but with powers not exceeding those which Congress itself, by the Const.i.tution, is authorized to exercise over citizens of the United States, in respect to their rights of persons or rights of property.

"The Territory thus acquired is acquired by the people of the United States for their common and equal benefit, through their agent and trustee, the Federal Government. Congress can exercise no power over the rights of persons or property of a citizen in the Territory which is prohibited by the Const.i.tution. The government and its citizens, whenever the Territory is open to settlement, both enter it with their respective rights defined and limited by the Const.i.tution.

"Congress has no right to prohibit the citizens of any particular State or States from taking up their home there, while it permits citizens of other States to do so. Nor has it a right to give privileges to one cla.s.s of citizens which it refuses to another.

The territory is acquired for their equal and common benefit--and if open to any it must be open to all upon equal and the same terms.

"Every citizen has a right to take with him into the Territory any article of property which the Const.i.tution of the United States recognizes as property.

"The Const.i.tution of the United States recognizes slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority on property of that description than it may const.i.tutionally exercise over property of any other kind.

"The act of Congress, therefore, prohibiting a citizen of the United States from taking with him his slaves when he removes to the Territory in question to reside, is an exercise of authority over private property which is not warranted by the Const.i.tution--and the removal of the plaintiff, by his owner, to that Territory, gave him no t.i.tle to freedom.

"The plaintiff himself acquired no t.i.tle to freedom by being taken by his owner to Rock Island, in Illinois, and brought back to Missouri. This court has heretofore decided that the status or condition of a person of African descent depended on the laws of the State in which he resided."

Thus the highest and most august judicial tribunal of this country p.r.o.nounced doctrines abhorrent to the age, overthrowing the acts and practices of the fathers and framers of the Republic, and p.r.o.nouncing the Ordinance of 1787, in so far as it restricted human slavery, and all like enactments as, from the beginning, _unconst.i.tutional_.

This decision startled the bench and bar and the thinking people of the whole country, not alone on account of the doctrines laid down by the court, but because of the new departure of a high court in going beyond the confines of the case made on the record to announce them.

It is, to say the least, only usual for any court to decide the issues necessary to a determination of the real case under consideration, nothing more; but the court in this case first decided that the Circuit Court, from which error was prosecuted, had no jurisdiction to render any judgment, it having found "upon the showing of Scott himself that he was still a slave; not even to render a judgment against him and in favor of defendants for costs."

In the opinion it is said:

"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 same sense in which that word is used in the Const.i.tution; 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."

Having thus decided, it followed that anything said or attempted to be decided on other questions was extra-judicial--mere _obiter dicta_, if even that.

Nor does the objection to the matters covered by the decision rest alone on its extra-judicial character, but on the fact that in settling a mere individual controversy it pa.s.sed from private rights to public rights of the people in their national character, wholly pertaining to political questions, entirely beyond the province of the court, legally, judicially, or potentially. It had no legal right as a court to decide or comment upon what was not before it; it had no judicial power to make any decree to enforce public or political rights, nor yet to enforce, by any instrumentalities or judicial machinery,--fines, jails, etc.,--any such decrees.

Moreover, the decision invaded the express powers of the Const.i.tution grated to it by the Const.i.tution "respecting the Territory of other property belonging to the United States." This grant is preceded in the Const.i.tution by the language, "The Congress shall have power to,"(93) etc.

The court entered the political field, though clothed only with judicial power, one of the three distinct powers of the government.

For wise purposes executive, legislative, and judicial departments were provided by the Const.i.tution, each to be potential within its sphere, acting always, of course, within their respective proper, limited, const.i.tutionally conferred authority.

"The judicial power shall extend to all _cases_ in law and equity arising under this Const.i.tution."(94)

This highest judicial tribunal, it is seen, pa.s.sed from a case wherein no jurisdiction, as it held, rested in the courts to enter any form of judgment--not even for costs, to decide matters not pertaining in any sense to the particular case, nor even to _judicial_ public rights of the people or the government, but wholly to the political, legislative powers of Congress, not in any degree involved in the jurisdictional question arising and decided. If it be said that courts of review or error sometimes decide all the questions made on the record, though some of them may not be necessary to a complete disposition of the case before it, it must be answered that this is most rare, if at all, where the case is disposed of, as was the Dred Scott case, against the trial court's jurisdiction.

But, manifestly, the many political questions discussed at great length in the opinions and formulated as _syllabi_ (quoted above) for the case, did not and could not arise of record, and they were not covered by a.s.signments of error, and hence, whether the sole question decided or to be decided was one of jurisdiction or not, these questions can only be regarded as discussions--personal opinions of the justices--not rising to the dignity of mere volunteer opinions on matters of _law_; of no binding force even as _legal precedents_, because outside of the case and record--not even properly _obiter dicta_.

But slavery then dominated and permeated everything and everybody.

Why should the justices of the Supreme Court be free from its influence? The Ordinance of 1787 was re-enacted by the First Congress under the Const.i.tution, and its slavery restriction clause was enforced, without question, by Washington, Adams, Jefferson, Madison, Monroe, and Jackson and their administrations. The Missouri Compromise line had stood una.s.sailed for above a third of a century.

In 1848 Polk and his Cabinet approved the Oregon Bill prohibiting slavery; also Pierce and his Administration approved (1853) the extension of the same prohibition over Washington Territory.

Earlier, in 1845, the Texas Annexation Act, as we have seen, re- enacted the 36 30' line of restriction for slavery, and in 1848 the pro-slavery party in Congress voted to extend this line to California. Congress again and again exercised the power of legislating for the Territories; eleven times, between 1823 and 1838, it amended the laws of the Legislature of Florida, thus a.s.serting the absolute right to legislate for the Territories.

The Supreme Court of the United States for nearly seventy years had a.s.sumed and acted on the principle of the right of Congress to legislate for them.

Now all became changed, as though a new oracle of construction had appeared, higher and wiser than all who had gone before--an oracle who knew more of the Const.i.tution than its makers. This new oracle did not divine the fates. The announcement of the principle that the Const.i.tution treats negroes "as persons whom it is _morally_ lawful to deal in as articles of property and to hold as slaves,"

shocked the consciences of just men throughout the earth.

Referring to the times when the Declaration of Independence and the Const.i.tution of the United States were adopted, and speaking of the African race, the Chief-Justice, in his opinion, said:

"They had, for more than a century before, been regarded as beings of an inferior order, and altogether unfit to a.s.sociate with the white race, either in social or political relations: and so far inferior, _that they had no rights which the white man was bound to respect:_ and that the negro might justly and lawfully be reduced to slavery for his benefit."

These and kindred expressions astonished all civilization and all Christian people.

The North was stunned by the decision, some fearing that slavery was soon to become national. The South exulted boastfully of their cause,(95) loudly proclaiming the paramount, binding force of the supreme judicial tribunal in the Republic. Free labor and free laborers were decried. They were, in speech and press, called "_mud sills of society:_" only negro slavery enn.o.bled the white race.

The over-zealous South was even persuaded that the small farmers, trafficking merchants, and mechanics did not possess bravery enough to fight for _liberty_.