Justice Rehnquist, the Supreme Court, and the Bill of Rights. Steven T. Seitz
power in territories. Besides, were Congress to have the power to abolish slavery in the territories, it also would have the power to establish slavery. Justice Grier agreed with Johnson and with Taney on the Missouri Compromise.
Johnson’s use of “impress a status upon” a slave or descendant was a direct contradiction with the conception of slaves as forever property. Status crimes were not because the act or intention was a crime or an action, but because of some transitory characteristic of the actor. Underage drinking is one example. Youth, like so many other human characteristics, passes with time. The same drinking act is illegal or legal, depending upon age. Old law defined a vagrant as someone without visible means of support. If the law impresses a status, the law may change that status. If one state law can impress the badge of slavery, another can remove it. Now we are back to Taney’s conundrum. Does the national government honor the status impressed by some states but removed by others? If the badge of slavery is a convention, not a condemnation of nature, it is not a necessary component of citizenship, since both require positive actions of government absent a Constitutional designation. The slave states make a positive law judgment; the free states make another. Power governs the balance in a multisovereignty system.
Justice Daniels also concurred but felt that the range of issues covered in the Scott decision were either directly or implicitly in Scott’s argument. Daniels agreed with Taney that the state court procedures differed from federal procedures, and the latter may look at the abatement, demurrers, and their judicial determination below. For a slave there is neither civil nor political relation; he is property. Slavery is not one of the properties associated with the word citizen. Manumission cannot, and has not, mystically created the qualities needed for citizenship. Only sovereignty can change or abolish a deep social distinction like master and slave, not small individual or state efforts aimed at mischief and ruin. The powers of naturalization limit conversion to US citizenship to free white aliens. The Founding Fathers also did not confuse citizenship with residence; the latter does not imply the former.
Justice Daniels wanted to put the issue of slaves or their descendants becoming citizens to final rest. The two simple questions were whether the Constitution of Illinois could instill the quality of freedom on a slave in temporary residence; whether Congressionally designated free territories might do the same? In the first question, an asserted authority, without foundation in law in the nation or in the state of domicile, forced the owner to relinquish property guaranteed to him through the Constitution. Claiming some international law trumps national laws on slavery is patently false. A sovereign is sovereign. Even if the Missouri Compromise were legal, the territory still could not bestow a condition denied by the state of domicile. Congress was not free to bestow upon a portion of the country the right of confiscation. Further, the Congressional legislation authoring the Missouri Compromise referred to the territories as property, over which Congress had a proprietary interest. Attempting to establish a free zone above the 36th parallel violated the terms of the trust and created a citizenry where one part is privileged at the expense of another.
Remember, Daniels concluded, that the central government exercised land purchases in the name of the people, by the combined effort of the states, and the resources of the entire nation. It would make no sense to put conditions that disadvantage one large sector of the citizens and states that made it possible. The Founding Fathers rejected the idea that the original states could impose conditions observable as a condition for entry. Doing so truncated the freedoms available to the citizens of a state by its date of entry. Under our Constitution, all citizens share the same privileges, rights, and obligations. The circuit court’s decision was correct, but it erred in sustaining the demurrer to the plea in abatement.
Justice Campbell concurred but added a separate opinion. Campbell chose not to pursue the lower court jurisdiction issue. Scott lived under the laws of Missouri, left its jurisdiction under the laws of Missouri, and despite the length and place of sojourn in Illinois and Minnesota, returned to the umbrella of the laws of Missouri. Campbell argued that justification for the trespass complaint depended upon the rule where the act occurred and is the judicial rule used by the trial court. Scott sued in the courts of Missouri which recognized slavery, provided guarantees to the master, and invited immigrants to bring in slaves as property with the promise of protection. Neither running away nor removal by a master effected manumission on return to Missouri. Emancipation still required public agency involvement. The domicile laws where someone is born determined the civil and political capacity. Campbell argued that some laws recognized a change in status with a change in domicile. Here, the status arises from the social and political arrangements of the state and each sovereignty determines that status. In the instant case, the slaves moved with their master’s transfer, and hence there is no permanent change of domicile, per se. There was no evidence that Scott ever permanently abandoned the Missouri domicile.
Foreign law cannot dissolve relations legally contracted in the original domicile. The plaintiff in this case argued that residence under a free policy regime imparted that status to the slave, even if residence was temporary. International law recognized slavery, so the authorities of one state cannot interfere with rights granted under a different state. Campbell cited the changes in law governing Europe by the Charlemagne capitularies. Charlemagne attempted to build an imperial empire while governing regionally. The old slave law allowed recovery within a set number of years, typically three. Charlemagne allowed recovery of slaves in Italy, without time limit, but the ancient laws would govern return to the Lombards and Romans. George Washington asked the British to stop transporting slave property through New York in 1783. In 1788, the US minister to Spain asked for an order to governors of Louisiana and Florida to facilitate recovery of fugitive slaves. International law recognized that a change of place did not effect a change of condition. The weakening of these international protocols eventually allowed recognition of privileged communities, or what we today call sanctuary cities. Residence in these privileged communities reduced the amount of time of slave reclamation to as little as a year and a day before perpetual liberty. In some cases, such as the French royal decree against a Spanish ambassador who brought a slave with him into France, a slave became frank and free when crossing the border. Ancient practice in Toulouse also set free slaves brought into the city by voyagers from afar. These practices were known in English and French courts by the early eighteenth century. Kings of France had confirmed from the fourteenth century that they exempted inhabitants of Paris from feudal and serf incapacities.
The claim that these cities were asylums of liberty were glosses added long after the fact. Economic reasons and the control of traders were paramount. The cities needed labor and population replacement from outside their borders. The dramatic expansion of trade between Europe and much of the ancient world fostered local controls over the economic power and presence of traders in the burgeoning routes of exchange. English courts confronted American slavery in the late eighteenth century, arguing that only positive law could justify such a practice. Mere residence for a time in England did not alter the master/slave relation in the New World. English law did not govern the New World courts, and New World law did not govern the English courts. The same applies to the courts of Missouri, on the one hand, and those of Illinois and Minnesota, on the other. The federal government had no power over slavery except fugitive slaves and hence could not prejudice the claims of any state. Setting up the territorial governments was one matter; setting their policies was another. Such a distinction limited the statutory power of England over internal colonial policy.
The great political question was not the independence of each colony, but their relation to the unincorporated Western lands. In one model, each colony had control of its contiguous lands. In another model, the one finally adopted, each colony would transfer all these lands to the central administration. Each territory, assisted by the central government and temporarily appointed ministers, would apply for statehood, and each would assume the same policy control as that exercised by the existing states over their internal affairs, save that none of the new states could engage in foreign slave trade. In all other respects, rightful power required sanction of the legislature and ratification by the people. Each new state made its decision on the institution of slavery; this should not, paralleling the British Parliament over the colonies, be a condition imposed by Congress. Campbell felt that the 9th and 10th Amendments served as explicit limits on the irresponsible use of supreme power, such as that now exercised over our boundless territory. When