Page:The History of Slavery and the Slave Trade.djvu/890

 in Congress, based on the fact of acquisition and growing out of the necessity of the case. McLean, Catron and Curtis held, on the other hand, that under authority to make needful rules and regulations, as well as by the necessity of the case, Congress had a full power of legislation for the territories, limited only by the general restraints upon its legislative power contained in the constitution. Nelson expressed no opinion on this point; nor did Grier, except the implication in favor of the first view from his joining in pronouncing the Missouri prohibition of 1820 unconstitutional, though on what particular ground he held it to be so does not appear.

Taney, Wayne, and Daniel held that the ordinance of 1181, though good and binding under the confederation, expired with the confederation, and that the act of Congress passed to confirm it was void, because Congress had no power to legislate for the territories. M'Lean, Catron, and Curtis held, per contra, that the reënactment of the ordinance of 1787 was a valid exercise of the power of Congress; while Campbell admitted—and in this Catron concurred with him (Daniel contra, the others silent)—that the ordinance of 1787, having been agreed to by Virginia, became thereby a part of the compact of cession permanently binding on the parties, and was so regarded by the convention that framed the constitution.

Five judges, a majority of the court—Taney, Wayne, Daniel, Campbell, and Grier—held that the Missouri prohibition of 1820 was unconstitutional and void; while Catron argued that it was void because it conflicted with the French treaty for the cession of Louisiana. M'Lean and Curtis held the prohibition constitutional and valid. Nelson silent.

Five judges—Taney, Wayne, Daniel, Campbell, and Catron—a majority of the court, held that slaves were property in a general sense, as much so as cattle, or at least were so recognized by the constitution of the United States; and as such might be carried into territories, notwithstanding any congressional prohibition. M'Lean and Curtis held, per contra, that slaves are recognized property only locally and by the laws of particular states, being out of those states not property, nor even slaves, except in the single case of fugitives. Grier and Nelson silent.

It was held by six judges—Taney, Wayne, Daniel, Campbell, Catron, and Nelson—that, whatever claim to freedom Scott might have had (if any, which most of them denied,) he lost it by his return to Missouri. This opinion, on the part of Taney, Wayne, and Daniel, was based solely on the law of Missouri, as recently laid down by the Supreme Court of that state. Nelson and Catron based it on what they thought the prevailing current of legal decision on the subject; and Campbell on the fact that no sufficient domicil, either in slave or master, appeared in Illinois or Minnesota. M'Lean and Curtis held, per contra, that Scott had been made free by his residence in Illinois and Minnesota, and that the rules of international law respecting the emancipation of slaves by residence were a part of the law of Missouri, which law had been improperly departed from and set at nought by the Missouri decision in the plaintiff's case; and that, on Questions depending not on any statute or local