April 10, 2007

A reconsideration of the Dred Scott case at Harvard Law School, presided over by Justice Breyer, concluded that by law in effect at the time the case should have been dismissed for lack of jurisdiction, making Taney’s inflammatory opinion totally unnecessary. You see there was no diversity of citizenship, because by Missouri law Scott was not a citizen there.

That would have simplified matters considerably. Without the ensuing aggravation of Northern opinion, the Republican party might never have triumphed, nor the South seceded – but then what? Would we still have slavery?

Speaking of citizenship, I’ve decided to go back and reread Edmund Morgan’s Puritan Dilemma. I recall something in it about how the Mass Bay Company charter originally failed to specify a meeting place for the directors, which in other such charters was generally London or some seaport; thus allowing them to meet in Boston, once the city was built and a quorum of directors was here, and then amend the charter as they saw fit. This may have been as important as the decision to bring the document with them, which Leo Collins emphasizes. Also – and this is the main thing – there was something about how some category of person with voting rights, originally meant to refer to shareholders or something similar, was reinterpreted to include the entire (churchgoing) population of the colony, making them in effect citizens of a self-governing territorial state; and I was wondering if maybe this actually created the concept of citizenship as we know it. For in England there were subjects, not citizens. The right to representation in parliament belonged to certain specific classes of person, not to the population at large. One was either heir to a patent of nobility, or a bishop of the Church, or a “knight of the shire” (which meant owning a certain amount of land), or a “burgess” in a municipal corporation (each of which had its own rules for membership)….


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