to import slaves until the year 1808, if it thinks proper. . . . And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. . . . And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. . .

The only two provisions which point to them and include them, treat them as property, and make it the duty of the government to protect it ; no other power, in relation to this race, is to be found in the constitution; and as it is a government of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves.

. . . This court was not created by the constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty. . . .

And upon a full and careful consideration of the subject, the court is of opinion, that, upon the facts stated in the plea in abatement, 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; and, consequently, that the circuit court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous.

. . . the plaintiff . . . admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and upon their return to Missouri became citizens of that State. . . .

The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by

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France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under the laws of any one of the States. The counsel for the plaintiff has laid much stress upon that article in the constitution which confers on congress the power " to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;" but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more.

The form of government to be established necessarily rested in the discretion of congress. . .

But the power of congress over the person or property of a citizen can never be a mere discretionary power under our constitution and form of government. The powers of the government and the rights and privileges of the citizen are regulated and plainly defined by the constitution itself. And when the territory becomes a part of the United States, the federal government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a territory of the United States, put off its character, and assume discretionary or despotic powers which the constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the constitution. The territory being a part of the United States, the government and the citizen both enter it under the authority of the constitu

tion, with their respective rights defined and marked out; and the federal government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved. . . .

in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their government, and interfering with their relation to each other... if the constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the government. Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the constitution. . . . This is done in plain words—too plain to be misunderstood. And no word can be found in the constitution which gives congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

Upon these considerations, it is the opinion of the court that the act of congress which prohibited a citizen from holding and owning property of this kind 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.

. . . And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois. . . .

... As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois.

Dred Scott v. Sandford, 19 Howard, 403-452 passim; in Samuel F. Miller, Reports of Decisions in the Supreme Court of the United States (Washington, 1875), II, 6–56 passim.

43. Dred Scott Decision Reviewed (1857)

THE

BY THOMAS HART BENTON

Benton, after thirty years of continuous service as senator from Missouri (a state admitted by the Missouri Compromise), was dropped as not pliable enough for proslavery service. He was then in the House for two years, and fought the KansasNebraska Bill. In 1857 he was in retirement, but he could not keep silent on what seemed to him a decision contrary to the facts of history and to the undisputed practice of the government. - For Benton, see Theodore Roosevelt, Life of Thomas Hart Benton; Contemporaries, III, No. 189.- Bibliography as in No. 41 above. of the Court is judicialpower so declared in the Constitution; and so held in theory, if not in practice. It is limited to cases "in law and equity;" and though sometimes encroaching upon political subjects, it is without right, without authority, and without the means of enforcing its decisions. It can issue no mandamus to Congress, or the people, nor punish them for disregarding its decisions, or even attacking them. Far from being bound by their decisions, Congress may proceed criminally against the judges for making them, when deemed criminally wrong one house impeach and the other try: as

done in the famous case of Judge Chase.

In assuming to decide these questions, - (Constitutionality of the Missouri Compromise, and the self-extension of the Constitution to Territories,) — it is believed the Court committed two great errors: first, in the assumption to try such questions: secondly, in deciding them as they did. And it is certain that the decisions are contrary to the uniform action of all the departments of the government—one of them for thirty-six years; and the other for seventy years; and in their effects upon each are equivalent to an alteration of the Constitution, by inserting new clauses in it, which could not have been put in it at the time that instrument was made, nor at any time since, nor now.

The Missouri Compromise act was a "political enactment," made by the political power, for reasons founded in national policy, enlarged and liberal, of which it was the proper judge: and which was not to be reversed afterwards by judicial interpretation of words and phrases.

Doubtless the Court was actuated by the most laudable motives in undertaking, while settling an individual controversy, to pass from the private rights of an individual to the public rights of the whole body of the people; and, in endeavoring to settle, by a judicial decision, a political question which engrosses and distracts the country: but the undertaking was beyond its competency, both legally and potentially.

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It had no right to decide no means to enforce the decision chinery to carry it into effect — no penalties of fines or jails to enforce it: and the event has corresponded with these inabilities. Far from settling the question, the opinion itself has become a new question, more virulent than the former! has become the very watchword of parties has gone into party creeds and platforms-bringing the Court itself into the political field- and condemning all future appointments of federal judges, (and the elections of those who make the appointments, and of those who can multiply judges by creating new districts and circuits,) to the test of these decisions. This being the case, and the evil now actually upon us, there is no resource but to face it — to face this new question-examine its foundations show its errors; and rely upon reason and intelligence to work out a safe deliverance for the country.

Repulsing jurisdiction of the original case, and dismissing it for want of right to try it, there would certainly be a difficulty in getting at its merits — at the merits of the dismissed case itself; and, certainly, still greater difficulty in getting at the merits of two great political questions which lie so far beyond it. The Court evidently felt this difficulty, and worked sedulously to surmount it-sedulously, at building the bridge, long and slender- upon which the majority of the judges crossed the wide and deep gulf which separated the personal rights of Dred Scott and his family from the political institutions and the political rights of the whole body of the American people.

. . . In the acquisition of Louisiana came the first new territory to the United States, and over it Congress exercised the same power that it had done over the original territory. It saw no difference between the old and new, as the Court has done, and governed both, independently of the Constitution, and incompatibly with it, and by virtue of the same right-Sovereignty and Proprietorship! the right converted into a duty, and only limited by the terms of the grant in each case.

Louisiana was acquired in the spring of 1803: an extra session of Congress . . in October . . . passed an act . . . providing for a temporary government: and which was in these words:

...

"That until the expiration of the present session of Congress, unless provision for the temporary government of the said territories be sooner made by Congress, all the military, civil and judicial powers exercised by the officers of the existing government of the same, shall be vested in such persons, and shall be exercised in such manner, as the President of the United States shall direct for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property and religion."