CHAPTER XIII. CONSTITUTIONAL QUESTIONS ARISING OUT OF SLAVERY, THE CIVIL WAR, THE RECONSTRUCTION PERIOD AND THE FOURTEENTH AMENDMENT. § 263. The slavery question. The slavery question exerted an important influence upon the early constitutional and legal as well as political, social and economic history of the United States. Two of the three great compromises adopted in the Constitutional Convention were connected with this institution,1 and a large part of the debates in this Convention either directly or indirectly were concerned with slavery. Neither the word "slave" nor "slavery," however, is to be found in the Constitution. To avoid the use of these words various expedients were resorted to. The three-fifths representation of the slaves was provided for by the provisions for counting "three-fifths of all other persons," the continuance of the slave trade for twenty years was secured by allowing: "the migration or importation of such persons as any of the States now existing shall think proper to admit;" while in the fourth article of the Constitution a slave was referred to as "a person held to service or labor in one State, under the laws thereof." The early cases involving the slavery question which came before the Supreme Court were mainly relative to the recapture of fugitive slaves. The Fugitive Slave Laws of 1795 and of 1850 were both repeatedly held to be constitutional by the Supreme Court.2 The rights of the slave owners were strongly upheld in the See Chapter IV. 2 That of 1793 in Prigg v. Penn., 16 Peters, 539, and in Moore v. Illinois, 14 Howard, 13. That of 1850 in Norris v. Crocker, 13 Howard, 429; and in Ableman V. Booth, 21 Howard, 506. 417 case of Prigg v. Pennsylvania, where it was decided that under, and in virtue of, the Constitution of the United States, the owner of a slave was clothed with entire authority, in every State of the Union, to seize and recapture his slave, whenever he could do so without violence or a breach of the peace; and that a State law which interrupted, impeded, limited, embarrassed, delayed, or postponed the right of the owner to the immediate possession of the slave, and the immediate commands of his services, was void. § 264. The "Dred Scott Decision."-It was not until nearly three-quarters of a century after the adoption of the United States Constitution, and until the slavery question had been for many years the leading political question of the country, that the general status of slavery was passed upon by the Supreme Court. Of all the decisions ever rendered by the Supreme Court of the United States the one which probably has occasioned the most discussion, received the greatest amount of adverse criticism, and which is most familiar to the average American citizen is the case of Dred Scott, plaintiff in error, v. John F. A. Sandford, decided in 1857, and commonly known as the Dred Scott decision. This case, in spite of the fact that questions of the highest importance was passed upon in its decision, was in its nature. a simple action of tort for assault and battery. In 1834 Dr. Emerson, a surgeon in the United States army, moved from Missouri to Illinois, where slavery was prohibited by statute, taking with him his negro slave, Dred Scott. Thence in 1836 they removed to Fort Snelling, in the territory of Upper Louisiana, north of latitude 36° 30′, and therefore within the territory from which slavery had been excluded by the Missouri compromise. In 1838 Dred Scott was taken back to Missouri. In 1847 he brought suit in a Missouri State court to recover his freedom on the ground that residence in free territory conferred freedom; a decision in his favor in the lower court was reversed by the Supreme Court of the State. Shortly 16 Peters, 539. 19 Howard, 393. afterwards Dred Scott was sold to one Sanford, a citizen of the State of New York, against whom he brought an action for assault and battery in the United States Circuit Court sitting in Missouri. The only ground for jurisdiction of this case which the United States Courts could have being the diverse citizenship of the parties, Sandford pleaded to the jurisdiction of the court that this could not be a suit between citizens of different States because Scott was not a citizen of Missouri, but a "negro of pure African descent; his ancestors were of pure African blood and brought into this country and sold as negro slaves." To this Scott demurred and the demurrer was sustained. The defendant then pleaded in bar that the plaintiff was his negro slave, and that he had only gently laid hands on him to restrain him, as he had a right to do. The judge instructed the jury that, "upon the facts in the case, the law is with the defendant." The plaintiff excepted to this instruction, and upon his exceptions the case was taken to the Supreme Court of the United States, where it was twice argued, first at the December term, 1855, and a second time at the December term, 1856. Judg ment was rendered on March 5, 1857. The Supreme Court, however, went much further than the lower court in their decision. Chief Justice Taney in delivering the decision of the Court said in part: "There are two leading questions presented by the record: Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? and. 2, If it had jurisdiction, is the judgment it has given erroneous or not? "Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement. It is sug- * * * "That plea denies the right of the plaintiff to sue in a Court of the United States for the reason therein stated. gested, however, that this plea is not before us. think they are before us and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a Court of the United States." The decision then went on to hold that the Constitution of the United States did not consider the negro slaves as citizens of the United States, but as an inferior order of men, that no State by any action on its part could bring any persons other than those recognized by the Constitution into the body of citizens of the United States; and that therefore no law or regulations of any State could raise a negro slave to the rank of citizen of the United States, so that he could sue in the United States Courts. Going still further the Court held that the right of property in slaves was as fully guaranteed by the Constitution as that in any other species of property. Then follows the clause of the decision declaring the Missouri Compromise unconstitutional. "Upon these considerations it is the opinion of the Court that the Act of Congress which prohibited a citizen from holding or owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner with the intention of becoming a permanent resident." The decision as rendered by the Chief Justice was: "Upon the whole, therefore, it is the judgment of this Court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which the word is used in the Constitution; and the Circuit Court of the United States, for that reason, had no jurisdiction in the case and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued directing the suit to be dismissed for want of jurisdiction." Justices McLean and Curtis delivered dissenting opinions. Of the seven who concurred in the judgment only three-Taney, Wayne and Daniel-held that the plea in abatement was open, and that therefore the question of the status of free negroes was before the Court. Six of the justices, however, concurred in holding the Missouri Compromise unconstitutional. The member of the majority who did not go to this extreme point of holding the Missouri Compromise unconstitutional was Judge Nelson. His decision, which contains all the law that all of the majority concurred in, was originally written to be delivered as the opinion of the Court. Mr. Justice Nelson bases his opinion on the ground that slavery was a question under State control, and one of those questions concerning which the United States Courts were obliged to follow the law of the State in which the Federal Court (of original jurisdiction) was held. The case of Scott v. Sandford had been originally tried in Missouri, and under the laws of that State Dred Scott was a slave and without rights against his master, and that, therefore, under the reasoning of Justice Nelson, the United States Courts were obliged to follow this law. $265. The War Period. The decision in Scott v. Sandford was rendered but four years before the breaking out of the Civil War. The history of the war is reflected in the opinions of this period by the Supreme Court, most of the important cases decided during the twenty years after 1860, either directly or indirectly, growing out of the war. These cases, taken together, form a series second only in importance to that long line of landmark cases in which John Marshall vindicated the supremacy of the Federal Government. The first important set of cases arising out of the conduct of the war were those of the brig Amy Warwick, the schooner Crenshaw, the schooner Brilliante, and the bark Hiawatha, known collectively as the Prize Cases," which were decided in 1863. The decision, which contains the most thorough inquiry into the principles of International Law to be found in any decision of our Supreme Court, was delivered by Justice Greer and was in part as follows: "There are certain propositions of law which must necessarily affect the ultimate decisions of these cases, and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each. They are: First-Had the President the right to institute a blockade of ports in possession of persons in armed rebellion against the government, on the principles of international law, as known and acknowledged * 2 Black, 635. |