Campbell argued that limits on the central government need not be a Constitutional prohibition and, conversely, the states and the people may extend laws beyond their enumerated powers. Congressional power over the territories through rules and regulations ended when the territory became a state. The rules and regulations should focus only on those needed to conserve the territory and prepare it for land sales and eventually statehood. The territories must observe national obligations such as taxation, war and peace, commerce including abolishing slavery, copyrights and inventions, and criminal justice. SCOTUS cannot decide the political question of the division of these powers between the national and territorial governments. Local protections of life, liberty, and property are beyond the control of Congress. This included the definition of property. Congress could not interfere with the internal migration of slaves across territories and states; this depended on the rights of the master.
Campbell looked closely at the Missouri Compromise and the Constitutional provision allowing Congress to dispose of the public domain or to organize it for government. Nothing gave authority over the master-slave relation. It is an error to assume that the federal government can do anything not prohibited by the Constitution. The 10th Amendment takes care of that, were there any previous doubt. There was no authority or justification for a big national government controlling the police powers of the territories. The Constitution put a time limit on the importation of slaves; the Georgia legislature did not. Georgia and North Carolina ceded lands to the central government after adoption of the Constitution. Neither would sign the anti-slavery clause. Both expected temporary governments in these territories to use state laws or to transit to popular institutions. The Louisiana Purchase raised questions of Constitutionality and then concern over the military-type government appointed by the president. Many were concerned with the admission of new states creating a geographic political power for anti-slavery states that would, in turn, send senators to Congress. Court decisions denied municipal-type jurisdiction in the territories and the new states should make their own decisions on slavery.
Congress did not have the direct power to subject persons in these territories to capacities and status that it dictated. Campbell saw the Constitution as a compact among states to establish a national government of limited powers. An effort to admit Missouri as a free state ended with the Missouri Compromise admitting Missouri as a slave state and leaving a geographically divided territory with slave territories to the south and free territories to the north of a meridian line. Campbell took special issue with the construction of the Constitutional grant to Congress: dispose of and make all needful rules and regulations respecting territory. He held that the Founding Fathers wanted this interpreted narrowly. Campbell repeated the judicial restriction that Congress cannot exercise municipal jurisdiction, sovereignty, or eminent domain. The grant of power did not reach to persons or property. The United States sold lands for its citizens empowered with unalienable and inalienable personal and political rights. Constitutional protections were insufficient to protect the territories from the legislative, executive, and state intrusions. Self-government must proceed quickly.
Congress did not have the municipal power to determine slavery or its absence in territories organizing for statehood. Making such a foray penetrated deeply into the social fabric of the entire nation on behalf of a vocal minority. This division introduced confederacies fighting for federal power and fighting one another. This is not a union. Congress had no power to dissolve the master-slave relation. Scott and his family remained slaves. The circuit court jury made the correct decision. Campbell concurred with Taney that the master-slave relation existed before, during, and long after the sojourn to a slave-free state or to northern territories. Campbell also agreed that the circuit court should not have rendered a general judgment but believed the Constitution limits Scott’s ability to sue in federal court. Scott only had his Missouri rights. Campbell wanted to see an affirmation of the judgment for lack of jurisdiction or just reverse and remand to dismiss the suit.
Dissent
Justice Catron objected to SCOTUS opening the plea in abatement made to the circuit court. Those demurrers were not open to review by a writ of error. Catron concluded that there is no error in law and that the lower court decision is correct and proper. The court should not have used the plaintiff’s plea in demurrer against him. Illinois law did not in fact provide Scott any relief; only if the master became a permanent citizen of that state were his slaves set free. Scott’s second claim derived from time spent in free territories. Catron did believe Congress had the power to forbid slavery in territory above the 36th meridian. The United States had the right to purchase or otherwise acquire territory not ceded by the original 13 states. The powers exercised by the king at the beginning of the possession chain passed to each subsequent possessor and finally to the United States. The ordinance of 1789 explicitly extended these powers to the new government. Congress gave the president, with the advice and consent of the Senate, the power to appoint governors or commissioners for these territories while they were preparing for statehood. Congress had exercised that power for 60 years, and it was too late to call it back now. While under its control, Virginia banned slavery in its western territory, and the United States inherited that provision. The state could decide otherwise when admitted, but not before. North Carolina cession had the provision that Congress would not emancipate the slaves. Georgia excepted to a provision barring slavery. The Louisiana Purchase contained the right to own slaves. These grants and purchases were treaties, the terms of which the United States must observe. Catron denied Congress the right to abrogate terms of the 1803 treaty with France, passing a vast amount of land into US possession.
Catron emphasized the importance of the equality of the states. A citizen of any state moving into the territories had the privileges and immunities carried from their home state, so citizens of each state had equal right to enjoy the territories. Catron observed that this meant each person comes there under the umbrella of their home state rights. Thus, the equality derived from the equality of the states, not individuals, per se. If Congress were to exclude slaves from one territory or another, it had the power to exclude all sorts of property. The Constitution and the conditions of cession determined what Congress could do. The Missouri Compromise violated equality of the states in these territories and was void. It provided no shelter for Scott; he was and is a slave.
Justices McLean and Curtis dissented, much to the consternation of some of their colleagues. The dissenters took exception to many of the claims raised in the Taney decision, but two are particularly important. There is no Constitutional basis whatsoever to claim that the Negroid race is inferior to the whites and that the race, descendants from slaves in this country, could never gain citizenship. The only Constitutional reference describes the slaves and their descendants as persons. Person is one of two words used in various sections of the Constitution and Bill of Rights: persons and citizens. All persons, for example, have the right of habeas corpus. Second, there is no Constitutional basis for assuming that the provisions giving Congress authority over territories applied only to those territories surrendered by the states around adoption of the Constitution. Taney must make both claims to uphold his approach to the decision; the dissenters sharply criticized both assumptions.
In the circuit court, Sanford’s answer to Scott’s plea was that the alleged trespass (personal injury by force) happened outside the jurisdiction of federal court and within the jurisdiction of the courts of Missouri. Sanford argued that Scott was not a citizen of Missouri, being of pure African descent and brought into this country and sold as a slave. The defendant filed a plea of demurrer against the plea in abatement and the plaintiff joined that plea in demurrer, which the court sustained. Arguing that the plaintiff is a person of African descent does not establish that plaintiff lacked citizenship and hence negated the right to sue. For the court to honor the defendant, it must assume that the plaintiff is a slave, which of course would be decisive on the merits. No known rule of pleading permits this. Only Congress has the right of naturalization. Under treaties with Mexico, and the admission of Louisiana and Florida, the peoples of these locations became citizens without naturalization.
Several points of law are in order. Slavery exists only within the territory where established; a master cannot reclaim a