Moreover, the decision invaded the express powers of the Constitution grated to it by the Constitution "respecting the Territory of other property belonging to the United States." This grant is preceded in the Constitution by the language, "The Congress shall have power to,"(93) etc.
The court entered the political field, though clothed only with judicial power, one of the three distinct powers of the government. For wise purposes executive, legislative, and judicial departments were provided by the Constitution, each to be potential within its sphere, acting always, of course, within their respective proper, limited, constitutionally conferred authority.
"The judicial power shall extend to all cases in law and equity arising under this Constitution."(94)
This highest judicial tribunal, it is seen, passed from a case wherein no jurisdiction, as it held, rested in the courts to enter any form of judgment—not even for costs, to decide matters not pertaining in any sense to the particular case, nor even to judicial public rights of the people or the government, but wholly to the political, legislative powers of Congress, not in any degree involved in the jurisdictional question arising and decided. If it be said that courts of review or error sometimes decide all the questions made on the record, though some of them may not be necessary to a complete disposition of the case before it, it must be answered that this is most rare, if at all, where the case is disposed of, as was the Dred Scott case, against the trial court's jurisdiction. But, manifestly, the many political questions discussed at great length in the opinions and formulated as syllabi (quoted above) for the case, did not and could not arise of record, and they were not covered by assignments of error, and hence, whether the sole question decided or to be decided was one of jurisdiction or not, these questions can only be regarded as discussions—personal opinions of the justices—not rising to the dignity of mere volunteer opinions on matters of law; of no binding force even as legal precedents, because outside of the case and record—not even properly obiter dicta.
But slavery then dominated and permeated everything and everybody. Why should the justices of the Supreme Court be free from its influence? The Ordinance of 1787 was re-enacted by the First Congress under the Constitution, and its slavery restriction clause was enforced, without question, by Washington, Adams, Jefferson, Madison, Monroe, and Jackson and their administrations. The Missouri Compromise line had stood unassailed for above a third of a century. In 1848 Polk and his Cabinet approved the Oregon Bill prohibiting slavery; also Pierce and his Administration approved (1853) the extension of the same prohibition over Washington Territory.
Earlier, in 1845, the Texas Annexation Act, as we have seen, re- enacted the 36° 30´ line of restriction for slavery, and in 1848 the pro-slavery party in Congress voted to extend this line to California. Congress again and again exercised the power of legislating for the Territories; eleven times, between 1823 and 1838, it amended the laws of the Legislature of Florida, thus asserting the absolute right to legislate for the Territories. The Supreme Court of the United States for nearly seventy years had assumed and acted on the principle of the right of Congress to legislate for them.
Now all became changed, as though a new oracle of construction had appeared, higher and wiser than all who had gone before—an oracle who knew more of the Constitution than its makers. This new oracle did not divine the fates. The announcement of the principle that the Constitution treats negroes "as persons whom it is morally lawful to deal in as articles of property and to hold as slaves," shocked the consciences of just men throughout the earth.
Referring to the times when the Declaration of Independence and the Constitution of the United States were adopted, and speaking of the African race, the Chief-Justice, in his opinion, said:
"They had, for more than a century before, been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations: and so far inferior, that they had no rights which the white man was bound to respect: and that the negro might justly and lawfully be reduced to slavery for his benefit."
These and kindred expressions astonished all civilization and all
Christian people.