In the previous segment on the Dredd Scott case we mentioned that Justice Curtis had touched many of the cases previously handled by the various states of the Union, he also spoke of the numerous Acts of Congress. In his dissenting opinion he quoted from an opinion from the Missouri State Supreme Court where Chief Justice Shaw stated, in essence that by not availing his (Dredd Scott’s) rights under the law and then returning to the Missouri – there was therefore, no change in his status, or condition, of slavery. Thinking about now that old adage of Court Judges where they spout off “ignorance of the law is no excuse.”
Justice Curtice brought up another point of interest, with respect to foreign law, where “…the master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emancipates his slave.” Our laws are based upon the laws of England where it only makes sense to look at their laws. However, it must be kept in mind that Dr. Emerson was in the Army and was, as is the custom of our military, not taking up permanent residence but only temporary due to a military assignment(s).
He raised three points of contention concerning slavery: 1. Congress can make regulations prohibiting slavery in a territory, but cannot make one allowing it; 2. that slavery can neither be established nor prohibited by Congress, but that the people of a territory, when organized by Congress, can establish or prohibit slavery; and 3. the Constitution itself secures to every citizen who holds slaves, under the laws of any state, the right to carry them into any territory and hold them as property. It seems to me that #3 is where Justice Curtice looses his case as it is the Constitution which is the law of the land. Also, the inaction of the Congress to settle the issue concerning slavery within the Union; they just kept putting it off.
He finally brought to bear the fact that slavery is, in-fact, contrary to natural law and natural right. He also made the notation that slavery was created by municipal law based upon a wide range of territorial laws. He continued on with a number of reasoning and raised a very interesting question: Does the setting free of slaves by legislation deprive a citizen of the United States violate his rights to property and due process of law?
There are several problems with our history one is the fact that people are unable to put themselves into the places or the mindset of the people of that time and region. Another is that people don’t like to learn history, because teachers push dates and other insignificant data – personally, I believe that kids would learn history better if given reference and then the dates would eventually follow. A third problem is that people either want to rewrite, or revise, our history, or they desire to discredit it. There are others, but this is not about the educational system, or the hoards of people who are revisionists, etc. This is about the 14th Amendment to the US Constitution.
As a northerner I would have one mindset, as a southerner with a plantation I would have another mindset. I am making no excuses, nor judgements, just that these are the facts. Hindsight is 20/20 after all. To get the most out of it you must read the case yourself! Also, as mentioned in Part 1, you need to read the treatises by Dave Champion and the specific Acts enacted by the US Congress during the reconstruction period.
See also Part 1, Part 2, Part 3, Part 4
Other Resources: Michael Badnarik’s Constitution Class (YouTube.com), Carl Miller Text, books by Judge Andrew Napolitano, “Its Good to be King” by Michael Badnarik, etc. (i.e., there are too many to list here or count!)