“Dred Scott lived all but two of his sixty-odd years in obscurity.
The fame he achieved late in life was not for himself but for what
he represented. Scott had been a slave of army surgeon John Emerson,
who had taken him from Missouri to posts in Illinois and at Fort Snelling
in the northern part of the Louisiana Purchase [now Minnesota} for
several years in the 1830’s. At Fort Snelling, Scott married a slave also
owned by Emerson. She gave birth to a daughter in territory made free
by the Missouri Compromise while Emerson was returning the Scotts
to Missouri. After Emerson died and his widow inherited the Scotts,
white friends of Dred Scott in St. Louis advised him in 1846 to sue for
freedom on grounds of prolonged residence in a free state and a free
territory. Scott did so. Thus began an eleven-year saga that started as a
simple freedom suit and escalated into the most notorious cause celebre
in American constitutional history..
Scott first lost his suit but then won it on re-trial in St. Louis county court
in 1850. On appeal the Missouri supreme court overturned this decision
in 1852 and remanded the Scotts to slavery. The case was beginning to
acquire political significance. Missouri courts had previously granted
freedom to slaves in cases similar to Scott’s. In overturning those
precedents and asserting that Missouri law prevailed despite Scott’s
residence in free territory, the state supreme court was reacting to
proslavery pressures. Scott’s lawyers, who now included a Vermont
born resident of St. Louis, thought they could win the case if they could
get it before a federal court. Scott’s owner having moved to New York,
the lawyers appealed to federal circuit court under the diverse-citizenship
clause of the Constitution which gives federal courts jurisdiction over
cases involving citizens of different states. In 1854 the circuit court for
Missouri accepted the case [thereby affirming Scott’s status as a citizen]
but upheld the Missouri court’s denial of his suit for freedom.
Scott’s lawyers appealed to the U,S Supreme Court. Proslavery elements
welcomed the move. The potential of the case for resolving crucial consti-
tutional issues had become clear. And the Supreme Court had a southern
majority.
The justices first heard arguments on the case in 1856 and held it over for
argument in the 1856-57 session–perhaps to avoid rendering a decision
before the presidential election. Three main questions were before the
Court: 1] As a black man, was Scott a citizen with a right to sue in federal
courts? 2] Had prolonged residence [two years in each place] in a free state
and territory made Scott free? 3] Was Ft. Snelling actually free territory
that is, did Congress in 1820 have the right to ban slavery in the
Louisiana Purchase north of 36 degrees thirty minutes? The court could
have ducked questions one and three by merely reaffirming the decisions
of the Missouri supreme court and the federal circuit court that Missouri
law governed Scott’s status. Precedents existed for doing so; the Supreme
Court itself in Strader v. Graham [1851] had refused to accept an appeal
from the Kentucky supreme court which had ruled that slaves from
Kentucky taken temporarily to Ohio remained slaves under Kentucky law.
And indeed, for a time it appeared that the Court would take this way out.
On February 14th, 1857, a majority of justices vote to affirm the Strader
principle and let it go at that. Justice Samuel Nelson of New York began to
write the decision. But a few days later the majority reversed itself and
decided to issue a comprehensive ruling covering all aspects of the case.
Why did the court take this fateful step? Answers to this question have been
uncertain and partisan. Only fragmentary accounts of the justices’
confidential discussions leaked out, some of them years later.
One interpretation of this evidence maintains that the two non-Democrats
on the Court, John McLean of Ohio and Benjamin Curtis of Massachussets,
stated their intention to dissent from the narrow decision prepared by
Nelson. Their dissent would not only uphold Scott’s freedom but would also
affirm black citizenship and endorse the right of Congress to prohibit
slaves in the territories. Not wishing these dissents to stand as the Court’s
only statement on such contentious issues, the southern majority recon-
sidered its decision to ignore them and voted to have Chief Justice Roger
B. Taney write a comprehensive ruling. Thus, according to this interpret
ation , Mc clean and Curtis were responsible for provoking the vexatious
Dred Scott decision that superseeded Nelson’s innocuous opinion.
But the truth appears to be more complex. For a decade the question of
slavery in the territories had threatened the Union. Politicians had been try-
ing to pass the buck to the courts since the Compromise of 1850, which had
provided for expedited appeal to the Supreme Court of any suit concerning
slave property in the territories of Utah and New Mexico–a provision re-
peated verbatim in the Kansas-Nebraska act of 1854. The problem was that
because these territories did not prohibit slavery, no such suit materialized.
But here, conveniently, came a suit from another part of the Louisiana
Purchase. The yearning for settlement of the question by”political
statesmanship” was widespread in Washington during the winter of
1856-57, especially among southerners. Alexander Stephens, a friend of
Justice James M. Wayne of Georgia and a distant cousin of Justice Robert
Grier of Pennsylvania, wrote privately in 1856: “I have been urging all the
influence I could bring to bear upon Sup. Ct. to get them no longer to post-
pone the case on the Mo. Restriction. . . . “I have reason to believe they wiil
[decide] that the restriction was unconstitutional.” Other southerners
exerted similar pressures on the Court. They seemed to be succeeding.
Two weeks later Stephens reported that “from what I hear sub rosa [the
decision] will be according to my own opinions upon every point….
The restriction of 1820 will be held to be unconstitutional. The Judges are
all writing out their opinions I believe seriatim. The Chief Justice will give
an elaborate one.”
The five southern Justices did want to rule against Congress’s right to ban
slavery from the territories. Some of them had indeed begun writing
opinions to that effect. But the difficulty was in getting the two northern
Democratic justices, Grier and Nelson, to go along with them. This was why
the southerners had reluctantly decided to sidestep the issue with Nelson’s
narrow ruling. Word that McClean and Curtis would raise the broader
questions in their dissents gave southern justices the pretext they needed
to change their minds. They approved a motion by Wayne that Taney
should prepare a decision covering all aspects of the case.
There still remained the problem of cajoling a concurrence from at least
one northern justice to avoid the appearance of a purely sectional ruling.
Nelson could not be persuaded–he had already written his opinion and was
probably miffed by his colleagues’ intent to bypass it. But Grier was pliable.
He was also from Buchanan’s home state. The president-elect was anxious
to have the territorial question resolved. In response to a suggestion from
Justice John Catron of Tennessee, Buchanan brought highly improper but
efficacious influence to bear on Grier, who succumbed. Taney had his
northern justice and could proceed with his ruling.
It was an opinion he had long wanted to write. Eighty years old, the Chief
Justice was frail and ill. The death of his wife and daughter two years
earlier in a yellow fever epidemic had left him heart-stricken. Yet he clung
to life determined to defend his beloved South from the forces of Black
Republicanism. In his younger years Taney had been a Jacksonian
committed to liberating American enterprise from the shackles of special
privilege. As Jackson’s Secretary of the Treasury he had helped destroy the
Second Bank of the United States. His early decision as Chief Justice had
undermined special corporate charters. But the main theme of his twenty-
eight year tenure on the Court was in defense of slavery. Taney had no
great love of the institution for it’s own sake having freed his own slaves.
But he did have a passionate commitment “to southern life and values
which seemed organically linked to the peculiar institution and
unpreservable without it” In private letters Taney expressed growing
anger toward “northern aggression”. “Our own southern countrymen”
were in great danger, he wrote, “the knife of the assassin is at their throats”.
Taney’s southern colleagues on the Court shared this apprehension, accord-
ing to historian Don Fehrenbacher; Justice Peter Daniel of Virginia was a
“brooding proslavery fanatic” and the other three were “unreserved
defenders of slavery.” Because of this “emotional commitment so intense that it made
perception and logic utterly subservient,” the Dred Scott decision was
“essentially visceral in origin. . . a work of unmitigated partisanship,
polemical in spirit [with an] extraordinary cumulation of error,
inconsistency and misrepresentation.”
Taney’s opinion took up first the question whether Dred Scott, as a black
man, was a citizen with the right to sue in federal courts. Taney devoted
more space to this matter than to anything else. Why he did so is puzzling,
for in the public mind this was the least important issue in the case. But
southern whites viewed free blacks as an anomaly and a threat to the
stability of slavery; Taney’s own state of Maryland contained the largest
free Negro population of any state. The Chief Justice’s apparent purpose in
negating U.S citizenship for blacks, wrote Fehrenbacher, was “to launch a
sweeping counterattack on the antilavery movement and . . . to meet every
threat to southern stability by separating the Negro race absolutely from the federal
Constitution and all the rights that it bestowed.” To do so, however, he had
to juggle history, law, and logic in “a gross perversion of the facts”.”
Negroes had not been part of the”sovereign people” who made the Constitution,
Taney ruled; they were not included in the “all men” whom the Declaration
of Independence proclaimed “created equal.” After all, the author of the
Declaration and many of the signers owned slaves, and for them to have
regarded members of the enslaved race as potential citizens would have
been “utterly and flagrantly inconsistent with the principles they asserted.”
For that matter, wrote Taney, at the time the Constitution was adopted
Negroes “had for more than a century before been regarded as beings of
an inferior order . . . so far inferior that that they had no rights which a
white man was bound to respect.”
This was false, as Curtis and McCiean pointed out in their dissents.
Free blacks in 1778 and later had many legal rights [to hold and bequeath
property, make contracts, seek redress in courts, among others]. In five of
the thirteen states that ratified the Constitution black men were legal voters
and participated in the ratification process. No matter, said Taney, these
were rights of state citizenship and the question at issue was United States
citizenship. A person might “have all of the rights and privileges of the
citizen of a State,” opined the Chief Justice and “yet not be entitled to the
rights and privilege of a citizen in any other State”–a piece of judicial
legerdemain that contradicted Article IV. section 2 of the Constitution.
“The citizens of each state shall be entitled to all privileges and immunities
of citizens in the several states.”
Having established to his satisfaction that blacks were not citizens, Taney
could have stopped there and refused jurisdiction because the case was
not properly before the Court. That he did not so rendered the remainder
of his decision , in the opinion of many contemporaries and the earliest
generation of historians, obiter dictum— a statement in passing on matters
not formally before the Court and therefore without force of law. But Taney
insisted that because the circuit court had considered all aspects of the case
and decided them “on the merits”,” the whole case including the
constitutionality of the Missouri Compromise restriction on which Scott
based part of his suit for freedom was properly before the Court. Modern
scholars agree. Whatever else Taney’s ruling was, it was not obiter dictum.
Taney and six other Justices [with only Curtis and McClean dissenting]
concurred that Scott’s “sojourn” for two years in Illinois and for a similar
period at Ft. Snelling , even if the latter was free territory, did not make him
free once he returned to Missouri. To this matter Taney devoted only one of
the 55 pages of his opinion. The constitutionality of the Missouri
Compromise received 21 pages of labored prose arguing that Congress
never had the right to prohibit slavery in a territory. That the Constitution
[Article IV, section 3] gave Congress the power to “make all needful rules
and regulations” for the territories was not relevant, said the Justice in a
typical example of hair-splitting, because the rules and regulations were
not laws. The Fifth Amendment protected persons from being deprived
of life, liberty or property without due process; slavery was no different
from other property, and a ban on slavery was therefore an unconstitonal
deprivation of property. “And if Congress itself cannot do this,” continued
Taney in what he intended as a blow against popular sovereignty “it could
not authorize a territorial government to exercise” such a power.
This clearly was obiter dictum, since the question of the power of a
territorial government over slavery was not part of the case.”
Excerpted from “The Battle Cry of Freedom[The Civil War Era]”
Author James M. McPherson, who won the Pulitzer Prize for it.
Published by Oxford University Press,Inc.
200 Madison Avenue, New York, New York 10016.
“Yes Virginia”, the Supreme Court is a political institution, as it was then,is
now, and into the future, have no fear.
Mrs. Emerson remarried and gave Scott back to the original family
that had owned him, who subsequently freed him in 1857. He died of
tuberculosis in 1858. Small comfort, perhaps, but he did die a free man.
It’s remarkable that men such as Taney held such high office.
Even more remarkable is the fact that men of Taney’s stripe hold equally
high office in this nation today.
Islander.