States Circuit Court found a verdict for the defendant, under the direction of the court, declaring Scott and his family to be negro slaves, the lawful property of the defendant. On exceptions to the instructions which caused this verdict, the case came before the Supreme Court of the United States, and was argued at the December term, 1855, and re-argued and decided at the December term, 1856.

It will be seen, then, that Scott was taken, by his master, first, to a free State; thence to a Territory where, by the laws of the United States, "slavery and involuntary servitude, otherwise than in punishment of crimes, whereof the parties shall have been duly convicted," was "for ever prohibited"; he was there married; and soon after returned to Missouri with his family, all as slaves, where they had remained, in that condition, until the commencement of these proceedings, that is, for the space of some fifteen years. To those accustomed to the general doctrine, that to breathe the air of a free country gives freedom to a slave, the question might seem to be easily decided in favor of the freedom of Scott by this simple narrative. The effect of the return to Missouri would cause, with them, the only doubt. No doubt would arise as to the effect of the residence in free territory, coupled with the fact of his marriage there. But both branches of the question are opened up in the discussions and reported opinions of the court in this case; and it is not only held that the return to Missouri restores to the state of slavery the man who, by his sojourn in free territory, had been for a time free, but it is maintained by the majority of the court, that "the act of Congress which prohibited a citizen from holding and owning property of this kind (viz. slaves) in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident."

The technical decision of the case, upon which the judgment and decree of the court is founded, is, that it appeared by the record before it, that the plaintiff was not a citizen of VOL. LXIII. —5TH S. VOL. I. NO. I.

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Missouri in the sense in which that word is used in the Constitution; that therefore the Circuit Court for the Missouri district had no jurisdiction in the case, and could of course give no judgment; and therefore, further, its judgment for the defendant must be reversed, and a mandate issued directing that the suit be dismissed.

In arriving at this conclusion, however, the Chief Justice, who was the exponent of the opinion of the court, had discussed two questions, both of which, he claimed, were presented by the record:

1. Had the Circuit Court jurisdiction?

2. If it had, is the judgment it has given erroneous, or not? Considering both these questions open, — and although he had decided the first in the negative because Dred Scott was not a citizen, he proceeded to decide, that, for the same reason, the law was as stated by the court below, and to maintain that that court judged rightly, although it had had no jurisdiction.

It is necessary to state this double decision briefly, here, in order to understand the relations to the decree held by other members of the court. Only five of the nine (including the Chief Justice) deny the jurisdiction of the court below. Even to make up this five we are obliged to count Judge Grier, of the Pennsylvania circuit, who concurs both with Judge Nelson, whose "conclusion is that the judgment below be affirmed," and with that of the Chief Justice cited above, that it must be "reversed." But he distinctly states that he considers "the form of the judgment as of little importance; for whether the judgment be affirmed, or dismissed for want of jurisdiction, it is justified by the decision of the court, and is the same in effect between the parties in the suit." And yet it is necessary to claim the opinion of this indifferent member of the court in order to make up the majority which supports the decision of the Chief Justice. Including him, five judges deny the jurisdiction of the court below, and the four others distinctly admit that jurisdiction. Besides Judge Grier, among those who support the Chief Justice is Judge Campbell, of the Alabama circuit, who, while he expresses the opinion that the court might either affirm or deny the juris

diction, concurs entirely in the decree. Judges Wayne, of the Georgia circuit, and Daniel, of the Virginia circuit, give an unqualified assent to it.

Judge Nelson, of New York, and Judge Catron, of Tennessee, sustain the jurisdiction of the court below, and affirm its decision against the plaintiff. Judges McLean, of Ohio, and Curtis, of Massachusetts, hold that the suit was properly brought in the Circuit Court below, but that the judgment was wrong; that that judgment should be reversed, and the cause remanded for a new trial.

To reverse the decision of the court below, denying that it had jurisdiction, and thus decide that Scott could not sue in a United States court for his freedom, is the course of five judges. To affirm that decision, and the additional decision of the court below, that Scott was a slave, is the course of two more. The concurrent opinion of the seven, although differently stated, not only produces the same result, but is based upon the same principle; namely, that "Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts."

We have been thus particular in attempting to explain the different modes in which the members of the court arrived at ' and expressed their opinions, because it is of some importance to know what are the points of law settled by the case, and what are to be considered as the opinions of individual members, expressed by way of argument and illustration. It will be seen that the statement that the Circuit Court (and consequently the Supreme Court itself) had not jurisdiction, covers the whole judgment in the case. Judge McLean, in the course of his opinion (p. 549), says: "Nothing that has been said by them [the court] which has not a direct bearing upon 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." The decision of the case on its merits, then, involving the dictum that we have quoted concerning the constitutionality of the Ordinance of 1787 and

the act of Congress of March 6, 1820, is not to be considered a part of the law of the land, although it may be regarded as of almost equal importance, because indicating the course that would be taken by the respective judges with regard to actions brought in their own circuits, or a new case involving similar questions coming by any means before the full court. But however we may feel their importance, we are oppressed by the inconvenience of any court's discussing such weighty topics, and deciding such serious questions, upon an issue so loosely prepared. We can agree with Mr. Justice Curtis when he says (p. 590): "A great question of constitutional law, deeply affecting the peace and welfare of the country, is not, in my opinion, a fit subject to be thus reached." And we may apply to the course of the court the language of the Chief Justice himself, used in another connection, but in this very case (p. 428): "And certainly an error in passing a judgment upon the merits, in favor of either party, in a case which it was not authorized to try, and over which it had no jurisdiction, is as grave an error as a court can commit."

We have seen that five judges support the special judgment of the court so far as to say that Dred Scott was not entitled to sue in Missouri; but we are left in doubt, by this plan of arguing two questions at the same time, whether more than three of them (Judges Taney, Wayne, and Daniel) sustain the reasoning of the original plea in abatement, viz. that he is not a citizen of the State of Missouri "because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves." The sweeping principle to be deduced from sustaining this plea would be, that no negro whose ancestors, of pure African blood, were brought to this country and sold as slaves, could be a citizen of the United States in such sense that he could sue in their courts. But we do not find that this broad doctrine is actually taken by more than three members of the court. All the others seem to admit such a possible right in "a negro" to sue, as enabled them to judge of the merits of this case, and to decide that Dred Scott could not sue; but there is no distinct opposition taken to

this general averment made by the plea, except by the two dissenting judges, Curtis and McLean.

The discussion of the two involved questions — viz. the one whether a negro of African descent can sue at all in the United States courts, and the other, whether, even if some negroes can sue, Dred Scott was, upon the statement of facts, entitled to his freedom- brings out from each of the judges elaborate investigations, historical and otherwise; 1st, of the condition and relations of men of color towards the body politic, at the time of the adoption of the Constitution; and 2d, of the right of Congress to prohibit slavery in the Territories, the latter embodying a discussion of the history and authority of the "Ordinance of 1787," and the Missouri act of 1820.

In considering both these points, we find the whole reasoning based upon the distinction which we have already pointed out. The Southern judges see only a subject race; the Northerners point out the acknowledged and notorious existence and citizenship of black freemen. The Chief Justice quotes statutes of Connecticut, and decisions of Maryland and Massachusetts, to show the disabilities under which the black race were placed; and Mr. Justice Curtis brings up the proof, that at the same time there were actually black citizens voting for the Constitution, which, it is urged, was to disfranchise them, and quotes the North Carolina explanation of the status of negroes, which we have copied above. Each upon his own track rides triumphantly to a satisfactory conclusion as to the intentions of the framers of the Constitution and its construction by its contemporaries.

With regard to the first of the two questions above stated, the Chief Justice says (and this is the gist of his whole argument, as it is its starting-point and its basis):

"In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words of that instrument.