Justice McLean wrote the dissenting opinion.
. . . He [Scott] is averred to have had a negro ancestry, but
this does not show that he is not a citizen of Missouri, within the
meaning of the act of Congress authorizing him to sue in the Circuit
Court. It has never been held necessary, to constitute a citizen within
the act, that he should have the qualifications of an elector. Females
and minors may sue in the Federal courts, and so may any individual who
has a permanent domicile in the State under whose laws his rights are
protected, and to which he owes allegiance.
Being born under our Constitution and laws, no naturalization is
required, as one of foreign birth, to make him a citizen. The most
general and appropriate definition of the term citizen is "a freeman."
Being a freeman, and having his domicile in a State different from that
of the defendant, he is a citizen within the act of Congress, and the
courts of the Union are open to him.
In the discussion of the power of Congress to govern a Territory, in the case of the Atlantic Insurance Company v. Canter,
(1 Peters, 511; 7 Curtis, 685,) Chief Justice Marshall, speaking for
the court, said, " . . . the power of governing a Territory belonging to
the United States, which has not, by becoming a State, acquired the
means of self-government, may result necessarily from the fact that it
is not within the jurisdiction of any particular State, and is within
the power and jurisdiction of the United States. The right to govern may
be the inevitable consequence of the right to acquire territory;
whichever may be the source whence the power is derived, the possession
of it is unquestioned."
If Congress may establish a Territorial Government in the exercise of
its discretion, it is a clear principle that a court cannot control
that discretion. This being the case, I do not see on what ground the
act [Missouri Compromise] is held [by the Supreme Court majority's
opinion in the Scott case] to be void. It did not purport to
forfeit property, or take it for public purposes. It only prohibited
slavery; in doing which, it followed the ordinance of 1787.
Now, if a slave abscond, he may be reclaimed; but if he accompany his
master into a State or Territory where slavery is prohibited, such
slave cannot be said to have left the service of his master where his
services were legalized. And if slavery be limited to the range of the
territorial laws, how can the slave be coerced to serve in a State or
Territory; not only without the authority of law, but against its
express provisions? What gives the master the right to control the will
of his slave? The local law, which exists in some form. But where there
is no such law, can the master control the will of the slave by force?
Where no slavery exists, the presumption, without regard to color, is in
favor of freedom. Under such a jurisdiction, may the colored man be
levied on as the property of his master by a creditor? On the decease of
the master, does the slave descend to his heirs as property? Can the
master sell him? Any one or all of these acts may be done to the slave,
where he is legally held to service. But where the law does not confer
this power, it cannot be exercised.
. . . Does the master carry with him the law of the State from which
he removes into the Territory? and does that enable him to coerce his
slave in the Territory? Let us test this theory. If this may be done by a
master from one slave State, it may be done by a master from every
other slave State. This right is supposed to be connected with the
person of the master, by virtue of the local law. Is it transferable?
May it be negotiated, as a promissory note or bill of exchange? If it be
assigned to a man from a free State, may he coerce the slave by virtue
of it? What shall this thing be denominated? Is it personal or real
property? Or is it an indefinable fragment of sovereignty, which every
person carries with him from his late domicile? One thing is certain,
that its origin has been very recent, and it is unknown to the laws of
any civilized country. . . .
Questions to Consider
On what key points does Justice McLean disagree with Chief Justice Taney?
What examples does Justice McLean use to demonstrate that Scott has the right to sue in court?
In his decision, Chief Justice Taney declared the Missouri
Compromise unconstitutional. How does Justice McLean deal with this
argument in his dissent?