These utterances, it must be remembered, occurred in the year 1852, when all slavery agitation was supposed to have been forever settled. They show conclusively that the calm was superficial and delusive, and that this deep-reaching contest was still, as before the adjustment of 1850, actually transforming the various institutions of society. Gradually, and as yet unnoticed by the public, the motives disclosed in these opinions were beginning to control courts of justice, and popular discussion and excitement were not only shaping legislation, but changing the tenor of legal decisions throughout the country.
Not long after the judgment by the Supreme Court of Missouri, Dred Scott and his family were sold to a man named Sandford, who was a citizen of New York. This circumstance afforded a ground for bringing a similar action in a Federal tribunal, and accordingly Dred Scott once more sued for freedom, in the United States Circuit Court at St. Louis.[1] ] The case was tried in May, 1854, and a decree rendered that they "were negro slaves, the lawful property" of Sandford. As a final effort to obtain justice, they appealed by writ of error to the Supreme Court of the United States, the highest judicial tribunal of the nation.
Before this court of last resort the case was argued a first time in the spring of 1856. The country had been for two years in a blaze of political excitement. Civil war was raging in Kansas; Congress was in a turmoil of partisan discussion; a Presidential election was impending, and the whole people were anxiously noting the varying phases of party politics. Few persons knew there was such a thing as the Dred Scott case on the docket of the Supreme Court; but those few appreciated the importance of the points it involved, and several distinguished lawyers volunteered to take part in the argument.[2] ] Two questions were presented to the court: First, Is Dred Scott a citizen entitled to sue? Secondly, Did his residence at Rock Island and at Fort Snelling, under the various prohibitions of slavery existing there, work his freedom?
The Supreme Court was composed of nine justices; namely, Chief-Justice Taney and Associate Justices McLean, Wayne, Catron, Daniel, Nelson, Grier, Curtis, and Campbell. There was at once manifested among the judges not only a lively interest in the questions presented, but a wide difference of views as to the manner of treating them. Consultations of the Supreme Court are always shrouded in inviolable secrecy, but the opinions afterwards published indicate that the political aspects of slavery, which were then convulsing the country, from the very first found a certain sympathy and reflection in these grave judicial deliberations. The discussions yet turned upon certain merely technical rules to be applied to the pleadings under review; and ostensibly to give time for further examination, the case was postponed and a re-argument ordered for the next term. It may, however, be suspected that the nearness of the Presidential election had more to do with this postponement than did the exigencies of the law.[3] ]
The Presidential election came, and Mr. Buchanan was chosen. Soon after, the court met to begin its long winter term; and about the middle of December, 1856, the Dred Scott case was once more elaborately argued. Again occupying the attention of the court for four successive days, as it had also done in the first hearing, the eminent counsel, after passing lightly over mere technical subtleties, discussed very fully what was acknowledged to be the leading point in the controversy; namely, whether Congress had power under the Constitution to prohibit slavery in the Federal Territories, as it had done by the Missouri Compromise act and various other laws. It was precisely the policy, or impolicy, of this and similar prohibitions which formed the subject of contention in party politics. The question of their constitutional validity was certain to take even a higher rank in public interest.
When after the second argument the judges took up the case in conference for decision, the majority held that the judgment of the Missouri Federal tribunal should simply be affirmed on its merits. In conformity to this view, Justice Nelson was instructed to prepare an opinion to be read as the judgment of the Supreme Court of the United States. Such a paper was thereupon duly written by him, of the following import: It was a question, he thought, whether a temporary residence in a free-State or Territory could work the emancipation of a slave. It was the exclusive province of each State, by its Legislature or courts of justice, to determine this question for itself. This determined, the Federal courts were bound to follow the State's decision. The Supreme Court of Missouri had decided Dred Scott to be a slave. In two cases tried since, the same judgment had been given. Though former decisions had been otherwise, this must now be admitted as "the settled law of the State," which, he said, "is conclusive of the case in this court."