The Chief Justice advanced to his conclusion in this part of the opinion through a most labored argument. He started with the dictum that there was no clause in the Constitution which gave Congress any power over territory acquired subsequently to the adoption of the Constitution, interpreting the provision which vests in Congress "the power to make all needful rules and regulations concerning the territory and other property of the United States," as applying only to territory held by the United States at the time of the adoption of the Constitution. He then founded the power to govern the territory subsequently acquired upon the right to acquire territory; and declared that in governing such territory, or providing for its government, Congress was limited by all those provisions of the Constitution which protect private rights against governmental power. He claimed, finally, that that one of these provisions which ordains that no person shall be deprived of life, liberty, or property without due process of law protected property in slaves, taken into the Territories by their masters, against both the power of Congress and of the agents of Congress in the Territories, the Territorial governments, to free them. The conclusion from this reasoning was that anybody could take slaves into a Territory of the United States, and hold them there in slavery, no matter what might be the disposition of Congress or of the Territorial government in regard to the subject, and that the question whether slavery was to be permanently established in a Territory or not could not be determined until the Territory should become a "State," and then only by an act of the "State."
| The Chief Justice and the President. |
This was the point which the Kansas-Nebraska Act had not covered, and which the President said, in his inaugural address, would be decided in the forthcoming opinion on the Dred Scott case. The opinion was pronounced several days after the inaugural, and it was later charged by Mr. Seward, and intimated by Mr. Lincoln, and believed by a large number of persons, that the Chief Justice imparted the opinion of the Court to the President before it was pronounced. But this point, though not necessarily involved in the case, had been argued by counsel, and the newspapers had declared that it would be decided, and both Mr. Buchanan and Mr. Taney were men of the highest personal and official integrity, and possessed the most delicate sense of the requirements and proprieties of the great stations which they occupied. It is almost certain that the charge was an unfounded suspicion. The prevalence of the suspicion was, however, an ominous sign of the danger impending over the land.
| Justice Curtis's dissent continued. |
Justice Curtis found no more difficulty in controverting these propositions than those upon the first point treated in the opinion of the Chief Justice. He first referred to the undoubted facts that not all the territory claimed by the several "States" had been ceded to the United States at the time that the Constitution of 1787 was adopted, but that it was expected that what remained would soon be so ceded, and that therefore the clause vesting in Congress "the power to make all needful rules and regulations concerning the territory of the United States" must have been framed with these future acquisitions in view, and intended to apply to them also. He then demanded to know why, if the Court could derive the power of Congress to govern territory acquired from foreign states from a right which is not expressed in the Constitution, but is itself implied, the right to acquire, should it hesitate to derive it from a power in respect to the territory of the United States which is expressed in the Constitution. He contended that until Congress or the Territorial legislature had legalized slavery in a Territory, no one could be said to be deprived of his property in slaves in the given Territory, either by a Congressional act forbidding the existence of such property, or by the failure of Congress or the Territorial legislature to enact laws for the security of such property. He repudiated the idea that a holder of slaves could take the law of the place from which he emigrated, securing such property, into a Territory with him as a monstrosity in jurisprudence, since it would introduce into a given Territory as many slave codes as there were slaveholding Commonwealths represented therein by their slaveholding emigrants, and he indicated, finally, that the reasoning of the Court must reach ultimately the proposition that Congress was required by the Constitution to establish slavery in every Territory of the Union, and consequently to make every new "State" a slaveholding "State."
| The printing and distribution of the decision and the dissenting opinion. The doctrine of popular sovereignty in the Territories overthrown by the opinion of the Court. |
The slaveholders and the Douglas Democrats of the North were in high glee over the decision, and hardly stopped to read the powerful dissenting opinion which had shattered it to atoms. They caused thousands upon thousands of copies of the decision to be printed and distributed among the masses of the people. The Free-soilers did the same thing with the opinion of Justice Curtis. It was not many weeks before it became entirely manifest that the cause of slavery had lost immensely by the decision, and the cause of free-soilism had gained in the same degree. Justice Curtis had demonstrated that the decision had cast the responsibility for the further extension of slavery upon the nation, and the nation now began to show its resolution to meet its responsibility by acquitting itself of any participation in this great wrong, in the only manner now left to it, that is, by preventing it. The nation could no longer deceive itself with the idea that it could stand neutral. The Court had actually swept away the dogma of "popular sovereignty" in the Territories. The nation must now neither prohibit, nor allow the Territorial governments to prohibit, slavery within the Territories, as the decision would have it, or the nation must itself prohibit it, as the dissenting opinion would have it. When these alternatives were distinctly recognized as necessary and exhaustive, it did not take the nation long to decide which course it must pursue.