This review of decisions brings us chronologically to the Dred Seott case. Up to this time, it must be observed, that the chief reliance for the power to govern the territories had been the grant of authority contained in Article IV, Section III. It is further to be observed that recourse to this source of authority is subject to the possible limitation that it applies only to territories posted by the United States at the time the Constitution was adopted, and, therefore, that it cannot be appealed to for authority to govern areas acquired since that time; also that, over such territories as it is applicable to, it does not grant to the Government general governing powers, but only such as are necessary and proper for disposing of and regulating the public lands as property, and preparing them and their inhabitants for admission to the Union as States.

5 17 HOW. 284: 15 L. ed. 102.

6 It is worthy of note. that, though McLean relies upon an express grant of power given Congress in Article IV, Section III, he construes this to he not a direct grant of governing power, hut of a power to dispose of lands which carries with it the implied power to govern.

This was the position assumed by the majority of the court in the great case of Scott v. Sandford,7 decided in 1857.

This case we have already discussed with reference to its bearing upon citizenship in the United States. We have now to examine it in its bearing upon the status of territories.

This suit, it will be remembered, was one brought by Dred Scott, a negro, who had been owned and held as a slave in the State of Missouri, had been carried by his master first to the State of Illinois, where slavery did not exist, where he remained for two years; then to the Territory then known as Upper Louisiana, from which slavery had been excluded by the Missouri Compromise Act of 1820; and finally brought back to Missouri. Scott alleged that by being carried by his master voluntarily into the free State of Illinois and the free Territory he became a free man. He thereupon brought suit in the nature of an action of trespass against his master for restraining his liberty. The suit was brought in a federal court, the jurisdiction of the federal court being based upon a diversity of citizenship, Scott claiming to be a citizen of the State of Missouri, and Sandford, the defendant, being a citizen of the State of New York. The plea in abatement that Scott was not a citizen of a State within the constitutional sense, has already been considered in Chapter XVII (American Citizenship. 127. Citizenship Defined).

A plea in bar was filed which set up that Scott was still a slave, and that, therefore, no legal injury had been done him by the defendant; that when he was taken into Illinois as a slave and held there as such, and brought back by his master to Missouri, his status as fixed by the laws of Missouri was not changed; and that, as for his being carried into the free Territory of Upper Louisiana, Congress had had no constitutional power to exclude slavery therefrom, as it had attempted to do by the Act of 1820. It was in passing upon this last point that the court found it necessary to examine as to the constitutional power of the United States to acquire foreign territory and to govern it when acquired.

7 19 How. 393; 15 L. ed. 691.

The case was first argued in 1856 and at that time the majority of the court were of the opinion that it would not be necessary to consider the question whether or not Scott was a citizen, but that the case could be decided upon its merits, namely, that Scott, being originally -a slave, his being carried into Illinois and Upper Louisiana did not affect his status after his return to Missouri; that, in other words, the law of Missouri as determined by the highest courts of that State should govern the Supreme Court in its disposition of the case. This decision, it will be observed, made it unnecessary for the court to pass upon either the question as to whether a free negro could become a citizen of a State in the constitutional sense of the term, or the question as to the power of Congress to prohibit slavery in the Territories. To Justice Nelson was assigned the preparation, upon this basis, of the opinion of the court, and the individual opinion which he finally read was the one prepared for this purpose. In this opinion he said: "In the view we have taken of the case, it will not be necessary to pass upon this question [of citizenship], and we shall therefore pass at once to an examination of the case on its merits." Justice Nelson does later say, however: "It is perhaps not unfit to notice in this connection that many of the most eminent statesmen and jurists of the country entertain the opinion that this provision of the Act of Congress [of 1820], even within the Territory to which it relates, was not authorized by any power under the Constitution." But he goes on to say that whether it was valid or not, the act could have no operation or effect within the limits of the State of Missouri, and could not, therefore, affect the status of the plaintiff after his return thither.

A second argument of the case having been asked for and had, five justices agreed that the plea in abatement was not properly before the court and that, therefore, the case would have to be decided upon the merits.

With the judgment of the court as to the effect of the laws of Congress governing the Territory of Upper Louisiana and of the State of Illinois upon the status of Scott after his return to Missouri we are not here concerned. That which does concern us is that six of the nine justices held that the power of Congress over the Territories was of such a limited character as to render unconstitntional an attempt to exclude slavery from them.