by Andrew Hamilton



A GOOD PICTURE of the legal mechanics of American Territorial expansion in the period from the founding of the Republic to the Civil War emerges in the historic Supreme Court slavery decision Scott v. Sandford, 60 U.S. 393-633 (1857) (“Dred Scott”). By a vote of 7-2 the Court ruled against Scott, a slave. Among other things, it held that Congress lacked Constitutional authority to ban slavery in U.S. Territories. (On that specific issue the vote was probably 6-3, or 6-2 with one abstention, Justice Benjamin Nelson of New York being the holdout.)

The case prompted an extensive analysis of U.S. Territorial law and history by the nine justices, each of whom wrote a separate opinion. (The word “Territory” and its variants occurs 650 times.) Though fragmented and subject to partisan distortion, the scattered information can be pieced together to form a coherent picture of early American expansion.

What follows is a synthesis extracted from the case describing the legal framework used by Americans to enlarge their territory after the successful break with Britain. (I am ignoring other key holdings in the case.) Unorganized territories were largely uninhabited while America’s White population was exploding, as evidenced by the social norm of large families with many children. Although I’m primarily interested in the legal mechanics of expansion, slavery is so tightly intertwined with the Territorial issue that it must also be dealt with.

There is a startling statement in Dred Scott about the culture-distorting effects Negro slavery had on the United States. It was written by Democrat John Archibald Campbell of Alabama (an Episcopalian!), who voted with the majority and was the only Southern member of the Court to resign after war broke out; he served in the Confederate Cabinet. Note that if this analysis is correct, ostensible ethnic differences between White Northerners and White Southerners was not the fundamental cause of calamitous sectional division and racial fratricide.

That there is a difference in the systems of States, which recognise and which do not recognise the institution of slavery, cannot be disguised. Constitutional law, punitive law, police, domestic economy, industrial pursuits, and amusements, the modes of thinking and of belief of the population of the respective communities, all show the profound influence exerted upon society by this single arrangement. This influence was discovered in the Federal Convention, in the deliberations on the plan of the Constitution. Mr. Madison observed, “that the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concur in forming the great division of interests in the United States.” (Emphases added)

While the people of the States (once formed) could constitutionally abolish slavery within State boundaries without Federal consent, slave Territories in fact uniformly remained in that condition after new States were formed. The same was true of free Territories.

Consequently, the legal designation of new Territories as slave or free became a vital political issue. Admission of new States affected the North-South balance of power by changing the total number of States on each side, population size, the sectional allocation of economic resources, and, ultimately, control of the Federal Government. A bitter dispute over whether, or how, slavery should be extended into newly organized Territories during a period of frenetic national expansion was the proximate cause of the Civil War.

The Northwest Ordinance of 1787

Because the Constitution was still a living document in 1857, the justices’ first step was to ground Federal authority in that instrument—in this case the Territorial Clause, Article IV, Section 3, Clause 2. The paragraph applies specifically to Territories and public lands owned by the federal government.

The author of the Territorial Clause in 1787 was Gouverneur Morris. In 1803 he wrote: “I knew then as well as I do now that all North America [Morris explicitly included Canada in his prediction] must at length be annexed to us. Happy indeed, if the lust of dominion stop here.”

Since then, officials and ideologues have centralized and expanded Federal power far beyond anything envisioned by the Framers or the Taney Court. (Chief Justice Roger Taney of Maryland wrote the majority opinion in Dred Scott. His name is pronounced “Tawn-y.”)

This clause is also known as the Property Clause; that facet has continuing significance because the U.S. government today owns vast expanses of land, causing much social discontent. A great deal of this dissatisfaction is implicitly White. The recent Bundy family/militia confrontation with Federal officials, in which government agents killed a White man, was one such dispute. (“Ownership of Federal Land: Answers Suggested by the Bundy Standoff”, April 25, 2014.)

Because it became the model for U.S. Territorial expansion, the Northwest Ordinance of 1787 was extensively analyzed in Dred Scott. It not only established the first Territorial Government in the United States, but provided the legal template for organizing subsequent U.S. Territories, North and South, prior to their division into States and piecemeal admission into the Union. It is a marvelous piece of legal machinery.

The Ordinance was adopted by the Confederation Congress under the Articles of Confederation, and is considered that body’s most significant legislative achievement.

Because the nature of America’s pre-1789 government is so little understood, it is worth digressing a moment to quote Taney’s description of this early Congress. (There were four distinct national assemblies: First Continental Congress (1774); Second Continental Congress (1775-1781); Congress of the Confederation (1781-1789); and, finally, the United States Congress convened under the new Constitution in 1789.) Taney said of the Confederation Congress:

[T]here was no Government of the United States in existence with enumerated and limited powers; what was then called the United States were thirteen separate, sovereign, independent States which had entered into a league or confederation for their mutual protection and advantage, and the Congress of the United States was composed of the representatives of these separate sovereignties, meeting together, as equals, to discuss and decide on certain measures which the States, by the Articles of Confederation, had agreed to submit to their decision. But this Confederation had none of the attributes of sovereignty in legislative, executive, or judicial power. It was little more than a congress of ambassadors, authorized to represent separate nations in matters in which they had a common concern.

The Northwest Ordinance had its origin in a dispute between the States over claims to unsettled lands between the Appalachian Mountains and the Mississippi River originating in early colonial charters. The Congress of the Confederation desired States that possessed such claims to cede their territories to the United States so the land could be used as security for loans to fund the Revolutionary War, and, later, sold to pay war debts. The States ultimately agreed to these cessions.

They relinquished vast tracts of valuable property to the central government without the grantors receiving anything tangible in return. Sovereignty over western lands shifted from the States to the central government, which, over time, relinquished much of its acquired power in turn to new States and private citizens. Both processes are remarkable.

Indeed, many newly-created States ultimately exercised their power to secede from the Union! Citizens (“the people”) obtained power as well, either as purchasers or as homestead grantees of most of the land in fee simple absolute, the most extensive ownership interest it is possible to possess or convey in law.

Virginia was the first to cede its lands in 1784. This included, according to Justice Taney’s account, the vast Northwest Territory depicted in the upper right quadrant of the following map.

In reality, the situation was more complex, as shown in the next map, but Taney describes a Virginia-centric model of State land cessions like this, so its claim to the Northwest Territory perhaps had a firmer legal foundation than those of competing States.

Chief Justice Taney explained:

These fears and dangers were . . . at once removed, when the State of Virginia, in 1784, voluntarily ceded to the United States the immense tract of country lying northwest of the river Ohio, and which was within the acknowledged limits of the State. The only object of the State in making this cession was to put an end to the threatening and exciting controversy, and to enable the Congress of that time to dispose of the lands and appropriate the proceeds as a common fund for the common benefit of the States. It was not ceded because it was inconvenient to the State to hold and govern it, nor from any expectation that it could be better or more conveniently governed by the United States. The example of Virginia was soon afterwards followed by other States . . .

The Northwest Ordinance was reenacted as a Federal statute by the First U.S. Congress, though it continued to be referred to it by its old name.

Like the Constitution, the Ordinance was written with remarkable clarity and economy of language considering its significance and the amount of work it had to do. It is less than 3,000 words long. (Text of Ordinance here.) It became the legal template for the formation of all subsequent Territorial Governments, which is why it is so important.

The Ordinance consists of fourteen sections delineating the structure of the Territorial Government, and preparation for the region’s subsequent division into States. Six additional articles establish a “compact” between the original thirteen States and the people in the Territory. Justice John Archibald Campbell summarized the scheme:

[T]he plan of a Territorial Government, established by act of Congress, is first seen. . . . The plan placed the Government in the hands of a [Territorial] Governor, Secretary, and Judges [that is, a Territorial Supreme Court; thus, Rensselaer R. Nelson, the son of Dred Scott justice Benjamin Nelson, was an associate justice of the Minnesota Territorial Supreme Court the year Dred Scott was decided] appointed by Congress, and conferred power on them to select suitable laws from the codes [statutes] of the States until the population should equal 5,000. A Legislative Council [called Territorial Legislatures], elected by the people, was then to be admitted to a share of the legislative authority, under the supervision of Congress, and States were to be formed whenever the number of the population should authorize the measure. This ordinance was addressed to the inhabitants as a fundamental compact, and six of its articles define the conditions to be observed in their Constitution and laws. These conditions were designed to fulfill the trust in the agreements of cession that the States to be formed of the ceded Territories should be “distinct republican States.”

One feature of this blueprint was its adoption, when the Territory was organized, of a ready-made body of statutory law borrowed from an existing State. As soon as a Territorial Legislature came into existence it could modify these statutes to suit local needs or values. The requirement that all States maintain a republican form of government is mandated by the Guarantee Clause of Article IV of the Constitution.

From a racial standpoint two provisions of the Northwest Ordinance stand out. The first pertains to Indians.

The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.

This provision does not suggest physical or cultural amalgamation with Indians; it implicitly assumes continued separation. Parenthetically, in Dred Scott Indians are placed on an entirely different legal plane than Negroes—a much better one. Looking back, it is easy to see that Whites had radically different attitudes toward the two races.

The second racial provision does not deal with Blacks explicitly, but rather with the institution of slavery—an evasion frequently resorted to at the time.

Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted [tried and imprisoned]: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid [this is a fugitive slave law].

The de facto abolition of slavery in the new territory, thereby preventing its spread, was agreed to by Southerners as well as Northerners, including representatives of Virginia when it ceded its Northwestern lands to the Federal Government. As late as March 1803 John Randolph of Roanoke, in a committee report to the House of Representatives, denied a petition presented to Congress from the people of the Northwest Territory assembled in Convention requesting that the anti-slavery provision of the Ordinance be suspended.

This apparent anomaly is explained by Justice John McLean:

Many of the States, on the adoption of the Constitution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions, and it is a well known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation.

The relevant language of Section 8 of the Missouri Compromise of 1820, which Dred Scott declared unconstitutional, closely tracked this article of the Ordinance.

Sec. 8. That in all that territory ceded by France to the United States, under the name of Louisiana [the Louisiana Purchase], which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state [i.e., Missouri], contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid.

Thirty years later, during the Civil War, this line marked the de facto division between North and South. With few exceptions, States south of 36°30′ north joined the Confederacy, while those north of the parallel remained in the Union.

Types of Territories

Major territorial categories included:

Foreign territories such as New Spain and Florida (ruled by Spain), or the Louisiana territory ruled by France. These territories did not belong to the U.S. and were not controlled by the Federal Government. However, as a practical matter, territorial sovereignty was dichotomous throughout North America. From the outset U.S. and European powers negotiated or fought for control amongst themselves while simultaneously but separately negotiating sovereignty with the Indians.

Unorganized territories lacking Territorial Governments. Interestingly, these areas were not entirely lawless.

Criminals are brought to certain Territories or States, designated in the law, for punishment. Death has been inflicted in Arkansas and in Missouri on individuals, for murders committed beyond the limit of any organized Territory or State, and no one doubts that such a jurisdiction was rightfully exercised. If there be a right to acquire territory, there necessarily must be an implied power to govern it. (Justice John McLean)

Organized U.S. Territories possessing Territorial Governments established by Congress in accordance with the provisions of the Northwest Ordinance. Only the slavery provision differed.

“Slavery” John McLean noted, “was prohibited in the entire Northwestern Territory, with the approbation of leading men, South and North, but this prohibition was not retained when this ordinance was adopted [as a template] for the government of Southern Territories, where slavery existed.” Justice John Archibald Campbell stated, “The compacts of cession by North Carolina and Georgia, are subsequent to the Constitution. They adopt the Ordinance of 1787, except the clause respecting slavery.”

Justice Benjamin Curtis enumerated the two great categories of Territories, slave and free, established by the U.S. Congress from its inception until 1848.

Non-Slave Territories

In the first group Congress extended the Ordinance of 1787, including the prohibition against slavery, thereby exercising its power to prevent its spread. Acts of Congress establishing such Territorial Governments were:

Northwest Territory: Ordinance of 1787 (Confederation Congress), reenacted by the first U.S. Congress on August 7th, 1789.

Indiana Territory: Act of 1800.

Michigan Territory: Act of 1805.

Illinois Territory: Act of 1809.

The Missouri Compromise: Act of 1820 prohibiting slavery in the Louisiana territory acquired from France north of thirty-six degrees thirty minutes north latitude, except for Missouri, which was admitted as a slave State to maintain sectional balance when Maine was admitted as a free State.

Territory of Wisconsin: Act of 1836. Fort Snelling, on the west bank of the Mississippi River in present day Minnesota, was located here. The same month that Dred Scott was first brought there by his owner, a U.S. Army surgeon, the Territory’s designation changed from Upper Louisiana, which is what Justice Taney and some of the other judges call it, to Wisconsin Territory, which is how Justice Curtis refers to it. By the time Dred Scott was decided in 1857 it had become Minnesota Territory. Scott remained at Fort Snelling (i.e., within a free Territory) for two years, from May 1836 to April 1838. His attorneys’ argument was that residence there rendered him a free man.

When the region became Wisconsin Territory, Michigan’s statutes were adopted as law in the manner previously described. As soon as the Wisconsin Territorial Legislature convened, Wisconsin settlers’ elected representatives were free to alter or repeal such laws. Of course, U.S. (i.e., Federal) law, which in those days was strictly limited to enumerated powers, remained binding.

Territory of Iowa: Act of 1838.

Territory of Oregon: Act of 1848.

Slave Territories

The second group consisted of the Southwest Territory, Mississippi Territory, and lands acquired “in which Congress refused to interfere with slavery already existing under the municipal law of France or Spain, and established [new Territorial] Governments by which slavery was recognised and allowed” (Benjamin Curtis). They were:

Southwest Territory, 1790-1796 (later Tennessee): Organized under the terms of the Northwest Ordinance, except that “no regulations made or to be made by Congress shall tend to emancipate slaves.”

Mississippi Territory, 1798-1817 (later Mississippi and Alabama): In all respects like the Northwest Territory, “excepting and excluding the last article of the ordinance” prohibiting slavery.

District of Louisiana (first), then Louisiana Territory: Act of 1804.

Territory of Orleans (present day State of Louisiana): Act of 1804

Missouri Territory: Act of June 1812.

Territory of Florida: Act of 1822.

The establishment of these two groups of organized Territories by Congress, Curtis observed, permitting slavery in some and prohibiting it in others, constituted a “practical construction [interpretation] of the Constitution contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts.” The executive and judicial branches of the Federal government acquiesced in the decisions.

The Reynolds Map

A pre-Dred Scott Republican Party map published by William C. Reynolds of Chicago in 1856 showed the United States and its Territories, slave and free. It maintained that the “Democratic” Kansas-Nebraska Act of 1854, “repealing the Missouri Compromise,” opened all U.S. Territories to slavery, an area “greater than that of all the [existing] States combined.” What the Act really did was permit Territorial inhabitants to vote on the issue rather than have Congress impose a solution. It is unlikely that all the Territories would have voted for slavery. Reynolds and the Republicans projected an extreme, worst-case scenario. Subsequently, however, Dred Scott did rule that neither Congress nor voters in the Territories could prohibit slavery.

An interesting feature across the bottom of the map, too small to decipher online, is a detailed statistical comparison of slave and free states based upon data from the 1850 U.S. Census. A second, legible, statistical table is on the right. It tallies the number of White inhabitants in the South who owned slaves, and how many they owned.

“Of the 6,222,418 white inhabitants of the South,” the table reads, “only 347,525 [<6%] are owners of slaves.” Of these, 68,820 owned one slave, 105,483 owned 2-5, and so on through steadily diminishing gradations until just 56 out of 6.2 million Southern Whites owned 300-499 slaves, 9 owned 500-999, and 2 owned 1,000 or more. Jewish slaveholders such as Judah P. Benjamin, the owner of 140 slaves, were counted as “White.”

It is clear that anti-White racists, including the U.S. and State governments, have gotten lots of mileage imposing collective guilt on Whites who never had anything to do with slavery, either personally (that is, every White who’s lived for several generations) or ancestrally. The vast majority of Whites’ ancestors never owned or traded in slaves. And yet Leftists and governments invoke slavery, along with the “Holocaust,” as their “justification” for committing genocide, an American and international crime under the law.

Dred Scott’s Territorial Holding

From a legal perspective Dred Scott’s holding that Congress and by extension Territorial Legislatures lacked the Constitutional authority to prohibit slavery in the Territories is not convincing.

As Justice John McLean noted in dissent,

this law of Congress, which prohibits slavery north of Missouri and of thirty-six degrees thirty minutes, is declared to have been null and void by my brethren. And this opinion is founded mainly, as I understand, on the distinction drawn between the Ordinance of 1787 [whose constitutionality the majority did not question] and the Missouri Compromise line. In what does the distinction consist? . . . I do not see on what ground the act is held to be void. . . . It only prohibited slavery, in doing which it followed the Ordinance of 1787.

To briefly state some of the opposing arguments:

Justice John Catron wrote a concurring opinion (siding with the majority, but for different reasons) that made a stronger case than Taney’s about why the Missouri Compromise might have been unconstitutional on Territorial grounds. Catron restricted his holding on this point to the Louisiana (Purchase) Territory that encompassed Fort Snelling, the area specifically at issue, noting incidentally that the “aggressive” line of 36°30′ north latitude swept “over four-fifths, to say no more, of the original province of Louisiana” into the North’s political orbit. He grounded his reasoning on restrictions contained in the various documents of cession, including Louisiana’s.

Catron was German American; all four of his grandparents immigrated from Germany. An Andrew Jackson Democrat from Tennessee, he was a lifelong slaveholder who opposed secession and remained on the Court, and in the Union, until his death in 1865. He was estranged from his wife, who stayed in Tennessee and sided with the Confederacy. The couple had no children, though Catron fathered a mulatto son by a Black slave owned by a different family.

Some members of the majority, including Justices Taney and John Archibald Campbell of Alabama, who subsequently served as Assistant Secretary of War in the Confederate Cabinet, made a second case—stronger than their strictly Territorial one—for the unconstitutionality of slavery prohibition in the Territories. This was based upon property rights. I have ignored it here because I am writing about territorial expansion. But, legally, it is a much tougher nut to crack.

The property rights argument, while strong, was undermined by the majority’s jurisdictional and Territorial holdings and analyses. Probably by that time it was impossible to make this case forcefully, regardless of its legal merit, thereby engendering much of the confused and unpersuasive reasoning in the decision.

The Taney Court’s ruling is typically depicted as representing the politics of the Democratic Party and the South, even though two of the four Northern justices on the Court (New York’s Samuel Nelson and Pennsylvania’s Robert Cooper Grier—albeit both Democrats) voted with the majority. Historians and legal academics do not inform readers that the Republican Party’s insistence that the Constitution prohibited slavery in all the Territories was conceptually no different from the Court’s. It simply adopted the opposite outcome.

In sum, considering the Territorial issue in isolation (which is one of the things the Court did), and ignoring the thorny issue of property rights, Congress possessed the authority to prohibit or extend slavery into the Territories.

Legal issues aside, from a 21st century perspective, with 20/20 hindsight, it would have been racially destructive to spread slavery and a large Black population westward and northward as Dred Scott would have done. Better to restrict both to the region they already occupied. This, of course, is a White racial analysis, not a sectional one indissolubly linked to the institution of Negro slavery and the enormous numbers of Blacks essential to its economy and society.

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Source: Author