19 Howard, pp. 537-8.
I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.
Many of the States on the adoption of the Constitution, or shortly afterwards, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests. But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles white men were made slaves. All slavery has its origin in power and is against right.
To the constitutional theory advanced by the Chief-Justice, that Congress cannot exercise sovereign powers over Federal Territories, and hence cannot exclude slave property from them, Justices McLean and Curtis also opposed a vigorous and exhaustive argument, which the most eminent lawyers and statesmen of that day deemed conclusive. The historical precedents alone ought to have determined the issue. "The judicial mind of this country, State and Federal," said McLean, "has agreed on no subject within its legitimate action with equal unanimity as on the power of Congress to establish Territorial governments. No court, State or Federal, no judge or statesman, is known to have had any doubts on this question for nearly sixty years after the power was exercised."
19 Howard, p. 619.
And Curtis added: "Here are eight distinct instances, beginning with the first Congress, and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States; and six distinct instances in which Congress organized governments of Territories by which slavery was recognized and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Washington, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Constitution was adopted. If the practical construction of the Constitution, contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be entitled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to."
[ [1]] The declaration in the case of Dred Scott vs. John F.A. Sandford was filed in the clerk's office of the Circuit Court of the United States for the district of Missouri on the second day of November, 1853. The trespass complained of is alleged to have occurred on the first day of January, 1853.—Manuscript Records of the Supreme Court of the United States.
[ [2]] At the first hearing Montgomery Blair argued the case for Dred Scott, and Senator Geyer, of Missouri, and ex-Attorney-General Reverdy Johnson, of Maryland, for the claimant. At the second hearing Mr. Blair and George Ticknor Curtis, of Boston, argued the case on behalf of Dred Scott, and Mr. Greyer and Mr. Johnson again made the argument for the claimant. All of them performed the service without compensation.
[ [3]] "The court will not decide the question of the Missouri Compromise line—a majority of the judges being of opinion that it is not necessary to do so. (This is confidential.) The one engrossing subject in both Houses of Congress and with all the members is the Presidency; and upon this everything done and omitted, except the most ordinary necessities of the country, depends."—[Letter of Justice Curtis to Mr. Ticknor, April 8, 1856. G.T. Curtis, "Life of B.R. Curtis," Vol. I., p. 180.]