"On the question of possibility of citizenship to one of the Dred Scott color, extraction, and origin, three Justices, viz., Taney, Wayne, and Daniels, held the negative. Nelson and Campbell passed over the plea by which the question was raised. Grier agreed with Nelson. Catron said the question was not open. McLean agreed with Catron, but thought the plea bad. Curtis agreed that the question was open, but attacked the plea, met its averments, and decided that a free-born colored person, native to any State, is a citizen thereof by birth, and is therefore a citizen of the Union, and entitled to sue in the Federal Courts.
"Had a majority of the court directly sustained the plea in abatement, and denied the jurisdiction of the Circuit Court appealed from, then all else they could have said and done would have been done and said in a cause not theirs to try and not theirs to discuss. In the absence of such a majority, one step more was to be taken. And the next step reveals an agreement of six of the Justices, on a point decisive of the cause, and putting an end to all the functions of the court.
"It is this. Scott was first carried to Rock Island, in the State of Illinois, where he remained about two years, before going with his master to Fort Snelling, in the Territory of Wisconsin. His claim to freedom was rested on the alleged effect of his translation from a slave State, and again into a free territory. If, by his removal to Illinois, he became emancipated from his master, the subsequent continuance of his pilgrimage into the Louisiana purchase could not add to his freedom, nor alter the fact. If, by reason of any want or infirmity in the laws of Illinois, or of conformity on his part to their behests, Dred Scott remained a slave while he remained in that State, then—for the sake of learning the effect on him of his territorial residence beyond the Mississippi, and of his marriage and other proceedings there, and the effect of the sojournment and marriage of Harriet, in the same territory, upon herself and her children—it might become needful to advance one other step into the investigation of the law; to inspect the Missouri Compromise, banishing slavery to the south of the line of 36° 30' in the Louisiana purchase.
"But no exigency of the cause ever demanded or justified that advance; for six of the Justices, including the Chief Justice himself, decided that the status of the plaintiff, as free or slave, was dependent, not upon the laws of the State in which he had been, but of the State of Missouri, in which he was at the commencement of the suit. The Chief Justice asserted that 'it is now firmly settled by the decisions of the highest court in the State, that Scott and his family, on their return were not free, but were, by the laws of Missouri, the property of the defendant.' This was the burden of the opinion of Nelson, who declares 'the question is one solely depending upon the law of Missouri, and that the Federal Court, sitting in the State, and trying the case before us, was bound to follow it.' It received the emphatic endorsement of Wayne, whose general concurrence was with the Chief Justice. Grier concurred in set terms with Nelson on all 'the questions discussed by him.' Campbell says, 'The claim of the plaintiff to freedom depends upon the effect to be given to his absence from Missouri, in company with his master in Illinois and Minnesota, and this effect is to be ascertained by reference to the laws of Missouri.' Five of the Justices, then (if no more of them), regard the law of Missouri as decisive of the plaintiff's rights."
—"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. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States in every State that might desire it, for twenty years."—Ch. J. Taney, 19 How. U.S.R., p. 451. Vide language of Mr. Madison, note 34, as to "merchandise."
—Not only was the right of property not intended to be "distinctly and expressly affirmed in the Constitution"; but the following extract from Mr. Madison demonstrates that the utmost care was taken to avoid so doing: