| The dissenting opinion of Mr. Justice Curtis. |
In his powerful dissenting opinion, Mr. Justice Curtis demolished this argument completely, by simply showing from the statute books and the judicial decisions of several of the "States" that, at the time of the formation of the Constitution of 1787, negroes descended from Africans, who had been held as slaves in the country, were citizens, even to the point of possessing the suffrage, in several of the "States" of the Union. The great argument of the Chief Justice turned out to be only a political essay, without fact, law, or jurisprudence to sustain it. Mr. Justice Curtis, therefore, held that, as nothing against Dred Scott's citizenship had been alleged by the defendant in the Circuit Court, except that he was a negro, and descended from negroes who had been held as slaves in this country, the jurisdiction assumed by the Circuit Court ought to be sustained by the Supreme Court.
| Criticism of the Court's opinion. |
But if the opinion of the Court should be accepted as correct upon this point, it is difficult to see why the opinion should not have ended with the decision upon this point. Nothing further was necessary in the determination of the case. And it is certainly most difficult to see what connection the Act of 1820, prohibiting slavery in the Louisiana territory, north of the latitude thirty-six degrees and thirty minutes, had with the case. No decision upon that point was rendered by the Circuit Court, whose record the Supreme Court was reviewing.
If the Supreme Court had confirmed the jurisdiction of the Circuit Court in the case, and had then ruled that the Circuit Court was in error in holding that slavery reattached to the Scotts by Missouri law, upon their return to Missouri, even if they had been made free by their temporary sojourn upon free soil, probably the Supreme Court should have decided the question as to what effect that sojourn may have had, and, in this way, included the question of the constitutionality of the slavery prohibition clause in the Act of 1820. But the majority of the Supreme Court approved the view of the Circuit Court upon this point.
There is little doubt that the majority of the Justices thought that a declaration from the Supreme Court in regard to the mooted question of slavery in the Territories would aid in bringing quiet to the country, and that they had persuaded themselves that it was necessary to the decision of the point in issue. But they were certainly in error, as to the first consideration, and it is difficult to see that they were not as to the second.
| The obiter dictum. |