Haven’t read McLean’s decision yet, but Curtis’ didn’t seem to rely that heavily on foreign decisions. Although he did review them I don’t think he used them as precedent.
He did use common law, which was incorporated as the basic law of the state of Missouri shortly after it became a state.
In addition, French law was partially applicable, as it was used to some extent in the territories that were carved out of the LA Purchase, such as WI.
The most relevant point in his determination that Scott was no longer a slave, IMO, was that both the state of IL and the territory of WI had positive laws stating that the institution of slavery did not exist in those jurisdictions.
Once Scott entered these jurisdictions, his condition of slavery disappeared.
The only question then, according to Curtis, was to determine whether it “reactivated” on his return to Missouri. Curtis ruled that it did not.
If Scott could spend several years in a free state and territory and still be a slave, what would prevent a slave owner from moving 50 slaves to Ohio and setting up a plantation? I don’t see any logical reason why he couldn’t and I think lots of other free-soilers couldn’t either. Which is where, I think Taney and his felloow-conspirators over-reached.
This decision, and the Kansas-Nebraska Acts, IMHO, made the Civil War inevitable.
> If Scott could spend several years in a free state and
> territory and still be a slave, what would prevent a
> slave owner from moving 50 slaves to Ohio and setting up
> a plantation?
“[T]he slaveholder [would have] the same [political] right to take his negroes to Kansas that a freeman has to take his hogs or his horses,” Abraham Lincoln informed his fellow citizens, “if negroes were property in the same sense that hogs and horses are.” As Lincoln’s statement indicates, the main bone of contention between Taney and most antebellum northerners was whether the generally understood right to bring property into the territories entailed a right to bring human property into the territories.”
http://hnn.us/articles/30419.html
So, the crux of the decision, as I understand it (note: neither a scholar nor lawyer, here) is whether there was a constitutional basis for distinguishing between human property and other property.
If you say that the federal government may, for whatever reasons seem apt at the moment, redefine the legal rights entailed in distinct types of property simply because it seems good to the federal government to do so, you would have sped up the post 1970 “innovations” in environmental law, for instance, that allow the government to take property without compensating the owner, wouldn’t you?