Wayne, J., Opinion in the Dred Scott case, 19 Howard, pp. 454-5.
The judges were, after all, but men. They dined, they talked, they exchanged daily personal and social courtesies with the political world. Curiosity, friendship, patriotism, led them to the floors of Congress to listen to the great debates. Official ceremony called them into the presence of the President, of legislators, of diplomats. They were feasted, flattered, questioned, reminded of their great opportunity, tempted with the suggestion of their supreme authority.[4] ] They could render their names illustrious. They could honor their States. They could do justice to the South. They could perpetuate their party. They could settle the slavery question. They could end sectional hatred, extinguish civil war, preserve the Union, save their country. Advanced age, physical feebleness, party bias, the political ardor of the youngest and the satiety of the eldest, all conspired to draw them under the insidious influence of such considerations. One of the judges in official language frankly avowed the motive and object of the majority of the court. "The case," he wrote, "involves private rights of value, and constitutional principles of the highest importance, about which there had become such a difference of opinion that the peace and harmony of the country required the settlement of them by judicial decision." This language betrays the confusion of ideas and misconception of authority which tempted the judges beyond their proper duty. Required only to decide a question of private rights, they thrust themselves forward to sit as umpires in a quarrel of parties and factions.
Campbell to Tyler, Tyler, p. 384.
Nelson to Tyler, Tyler, p. 385.
In an evil hour they yielded to the demands of "public interest," and resolved to "fulfill public expectation." Justice Wayne "proposed that the Chief-Justice should write an opinion on all of the questions as the opinion of the court. This was assented to, some reserving to themselves to qualify their assent as the opinion might require. Others of the court proposed to have no question, save one, discussed." The extraordinary proceeding was calculated to touch the pride of Justice Nelson. He appears to have given it a kind of sullen acquiescence. "I was not present," he wrote, "when the majority decided to change the ground of the decision, and assigned the preparation of the opinion to the Chief-Justice; and when advised of the change I simply gave notice that I should read the opinion I had prepared as my own, and which is the one on file." From this time the pens of other judges were busy, and in the inner political circles of Washington the case of Dred Scott gradually became a shadowy and portentous cause célèbre.
The first intimation which the public at large had of the coming new dictum was given in Mr. Buchanan's inaugural. The fact that he did not contemplate such an announcement until after his arrival in Washington[5] ] leads to the inference that it was prompted from high quarters. In Congressional and popular discussions the question of the moment was at what period in the growth of a Territory its voters might exclude or establish slavery. Referring to this Mr. Buchanan said: "It is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be."
The popular acquiescence being thus invoked by the Presidential voice and example, the court announced its decision two days afterwards—March 6, 1857. The essential character of the transaction impressed itself upon the very form of the judgment, if indeed it may be called at all by that name. Chief-Justice Taney read the opinion of the court. Justices Nelson, Wayne, Daniel, Grier, Catron, and Campbell each read a separate and individual opinion, agreeing with the Chief-Justice on some points, and omitting or disagreeing on others, or arriving at the same result by different reasoning, and in the same manner differing one from another. The two remaining associate justices, McLean and Curtis, read emphatic dissenting opinions. Thus the collective utterance of the bench resembled the speeches of a town meeting rather than the decision of a court, and employed 240 printed pages of learned legal disquisition to order the simple dismissal of a suit. The opinion read by Chief-Justice Taney was long and elaborate, and the following were among its leading conclusions:
That the Declaration of Independence and the Constitution of the United States do not include nor refer to negroes otherwise than as property; that they cannot become citizens of the United States nor sue in the Federal courts. That Dred Scott's claim to freedom by reason of his residence in Illinois was a Missouri question, which Missouri law had decided against him. That the Constitution of the United States recognizes slaves as property, and pledges the Federal Government to protect it; and that the Missouri Compromise act and like prohibitory laws are unconstitutional. That the Circuit Court of the United States had no jurisdiction in the case and could give no judgment in it, and must be directed to dismiss the suit.
This remarkable decision challenged the attention of the whole people to a degree never before excited by any act of their courts of law. Multiplied editions were at once printed,[6] ] scattered broadcast over the land, read with the greatest avidity, and earnestly criticised.
The public sentiment regarding it immediately divided, generally on existing party lines—the South and the Democrats accepting and commending, the North and the Republicans spurning and condemning it. The great anti-slavery public was not slow in making a practical application of its dogmas: that a sweeping and revolutionary exposition of the Constitution had been attempted when confessedly the case and question had no right to be in court; that an evident partisan dictum of national judges had been built on an avowed partisan decision of State judges; that both the legislative and judicial authority of the nation had been trifled with; that the settler's "sovereignty" in Kansas consisted only of a Southern planter's right to bring his slaves there; and that if under the "property" theory the Constitution carries slavery to the Territories, it would by the same inevitable logic carry it into free-States.