Some Notes on the Dred Scott Decision
AMONG the attempts to shift all blame for the coming of the Civil War on the Republicans, especial notice is due to the brilliant and highly influential essay by Frank Hodder, "Some Phases of the Dred Scott Case," published in The Mississippi Valley Historical Review, Volume XVI, pp. 3-22, June 1929. According to Hodder, the Supreme Court had originally decided only that the decision of the highest court of Missouri was final as to the status of persons within the boundaries of that state. It was not necessary, says Hodder, for the Court to have entered the question of the constitutionality of the Missouri Compromise, and it would not have entered upon it if Justices McLean and Curtis had not announced their intention to go over this ground in dissenting opinions. McLean was an active candidate for the Republican presidential nomination, and so he is the chief villain of Hodder's scenario, although he blames Curtis even more for supporting McLean, since Curtis was (according to Hodder) mending fences in anti-slavery New England, whither he intended soon to retire to enter upon a money-making legal practice. McLean was then the ambitious fanatic but Curtis the baser of the two, since he acted rather from avarice. All such speculations concerning motives are pure conjecture and tell us more about Hodder than about the judges. Let us, however, assume that Hodder is correct and that Justice Nelson's opinion would have been the opinion of the Court but for McLean and Curtis. Then let us ask whether a reasonable man who was genuinely concerned, as was Lincoln, about the nationalization of slavery would have nonetheless objected (as did McLean and Curtis).
"The opinion of Nelson, which but for the dissent of McLean and Curtis would have been the opinion of the Court," writes Hodder, "held that when a slave returns to a slave state his status is determinable by the courts of that state. That question had been decided by unanimous opinion of the Court, in 1850, in the case of Strader v. Graham. The Ordinance of 1787