“Dred Scott lived all but two of his sixty-odd years in obscurity.<\/p>\r\n\r\n\r\n\r\n
The fame he achieved late in life was not for himself but for what<\/p>\r\n\r\n\r\n\r\n
he represented. Scott had been a slave of army surgeon John Emerson,<\/p>\r\n\r\n\r\n\r\n
who had taken him from Missouri to posts in Illinois and at Fort Snelling<\/p>\r\n\r\n\r\n\r\n
in the northern part of the Louisiana Purchase [now Minnesota} for<\/p>\r\n\r\n\r\n\r\n
several years in the 1830’s. At Fort Snelling, Scott married a slave also<\/p>\r\n\r\n\r\n\r\n
owned by Emerson. She gave birth to a daughter in territory made free<\/p>\r\n\r\n\r\n\r\n
by the Missouri Compromise while Emerson was returning the Scotts<\/p>\r\n\r\n\r\n\r\n
to Missouri. After Emerson died and his widow inherited the Scotts,<\/p>\r\n\r\n\r\n\r\n
white friends of Dred Scott in St. Louis advised him in 1846 to sue for<\/p>\r\n\r\n\r\n\r\n
freedom on grounds of prolonged residence in a free state and a free<\/p>\r\n\r\n\r\n\r\n
territory. Scott did so. Thus began an eleven-year saga that started as a<\/p>\r\n\r\n\r\n\r\n
simple freedom suit and escalated into the most notorious cause celebre<\/em><\/p>\r\n\r\n\r\n\r\n in American constitutional history..<\/p>\r\n\r\n\r\n\r\n Scott first lost his suit but then won it on re-trial in St. Louis county court<\/p>\r\n\r\n\r\n\r\n in 1850. On appeal the Missouri supreme court overturned this decision<\/p>\r\n\r\n\r\n\r\n in 1852 and remanded the Scotts to slavery. The case was beginning to<\/p>\r\n\r\n\r\n\r\n acquire political significance. Missouri courts had previously granted<\/p>\r\n\r\n\r\n\r\n freedom to slaves in cases similar to Scott’s. In overturning those<\/p>\r\n\r\n\r\n\r\n precedents and asserting that Missouri law prevailed despite Scott’s<\/p>\r\n\r\n\r\n\r\n residence in free territory, the state supreme court was reacting to<\/p>\r\n\r\n\r\n\r\n proslavery pressures. Scott’s lawyers, who now included a Vermont<\/p>\r\n\r\n\r\n\r\n born resident of St. Louis, thought they could win the case if they could<\/p>\r\n\r\n\r\n\r\n get it before a federal court. Scott’s owner having moved to New York,<\/p>\r\n\r\n\r\n\r\n the lawyers appealed to federal circuit court under the diverse-citizenship<\/p>\r\n\r\n\r\n\r\n clause of the Constitution which gives federal courts jurisdiction over<\/p>\r\n\r\n\r\n\r\n cases involving citizens of different states. In 1854 the circuit court for<\/p>\r\n\r\n\r\n\r\n Missouri accepted the case [thereby affirming Scott’s status as a citizen]<\/p>\r\n\r\n\r\n\r\n but upheld the Missouri court’s denial of his suit for freedom.<\/p>\r\n\r\n\r\n\r\n Scott’s lawyers appealed to the U,S Supreme Court. Proslavery elements<\/p>\r\n\r\n\r\n\r\n welcomed the move. The potential of the case for resolving crucial consti-<\/p>\r\n\r\n\r\n\r\n tutional issues had become clear. And the Supreme Court had a southern<\/p>\r\n\r\n\r\n\r\n majority.<\/p>\r\n\r\n\r\n\r\n The justices first heard arguments on the case in 1856 and held it over for<\/p>\r\n\r\n\r\n\r\n argument in the 1856-57 session–perhaps to avoid rendering a decision<\/p>\r\n\r\n\r\n\r\n before the presidential election. Three main questions were before the<\/p>\r\n\r\n\r\n\r\n Court: 1] As a black man, was Scott a citizen with a right to sue in federal<\/p>\r\n\r\n\r\n\r\n courts? 2] Had prolonged residence [two years in each place] in a free state<\/p>\r\n\r\n\r\n\r\n and territory made Scott free? 3] Was Ft. Snelling actually free territory<\/p>\r\n\r\n\r\n\r\n that is, did Congress in 1820 have the right to ban slavery in the<\/p>\r\n\r\n\r\n\r\n Louisiana Purchase north of 36 degrees thirty minutes? The court could<\/p>\r\n\r\n\r\n\r\n have ducked questions one and three by merely reaffirming the decisions<\/p>\r\n\r\n\r\n\r\n of the Missouri supreme court and the federal circuit court that Missouri<\/p>\r\n\r\n\r\n\r\n law governed Scott’s status. Precedents existed for doing so; the Supreme<\/p>\r\n\r\n\r\n\r\n Court itself in Strader v. Graham<\/em> [1851] had refused to accept an appeal<\/p>\r\n\r\n\r\n\r\n from the Kentucky supreme court which had ruled that slaves from<\/p>\r\n\r\n\r\n\r\n Kentucky taken temporarily to Ohio remained slaves under Kentucky law.<\/p>\r\n\r\n\r\n\r\n And indeed, for a time it appeared that the Court would take this way out.<\/p>\r\n\r\n\r\n\r\n On February 14th, 1857, a majority of justices vote to affirm the Strader<\/em><\/p>\r\n\r\n\r\n\r\n principle and let it go at that. Justice Samuel Nelson of New York began to<\/p>\r\n\r\n\r\n\r\n write the decision. But a few days later the majority reversed itself and<\/p>\r\n\r\n\r\n\r\n decided to issue a comprehensive ruling covering all aspects of the case.<\/p>\r\n\r\n\r\n\r\n Why did the court take this fateful step? Answers to this question have been<\/p>\r\n\r\n\r\n\r\n uncertain and partisan. Only fragmentary accounts of the justices’<\/p>\r\n\r\n\r\n\r\n confidential discussions leaked out, some of them years later.<\/p>\r\n\r\n\r\n\r\n One interpretation of this evidence maintains that the two non-Democrats<\/p>\r\n\r\n\r\n\r\n on the Court, John McLean of Ohio and Benjamin Curtis of Massachussets,<\/p>\r\n\r\n\r\n\r\n stated their intention to dissent from the narrow decision prepared by<\/p>\r\n\r\n\r\n\r\n Nelson. Their dissent would not only uphold Scott’s freedom but would also<\/p>\r\n\r\n\r\n\r\n affirm black citizenship and endorse the right of Congress to prohibit<\/p>\r\n\r\n\r\n\r\n slaves in the territories. Not wishing these dissents to stand as the Court’s<\/p>\r\n\r\n\r\n\r\n only statement on such contentious issues, the southern majority recon-<\/p>\r\n\r\n\r\n\r\n sidered its decision to ignore them and voted to have Chief Justice Roger<\/p>\r\n\r\n\r\n\r\n B. Taney write a comprehensive ruling. Thus, according to this interpret<\/p>\r\n\r\n\r\n\r\n ation , Mc clean and Curtis were responsible for provoking the vexatious<\/p>\r\n\r\n\r\n\r\n Dred Scott decision that superseeded Nelson’s innocuous opinion.<\/p>\r\n\r\n\r\n\r\n But the truth appears to be more complex. For a decade the question of<\/p>\r\n\r\n\r\n\r\n slavery in the territories had threatened the Union. Politicians had been try-<\/p>\r\n\r\n\r\n\r\n ing to pass the buck to the courts since the Compromise of 1850, which had<\/p>\r\n\r\n\r\n\r\n provided for expedited appeal to the Supreme Court of any suit concerning<\/p>\r\n\r\n\r\n\r\n slave property in the territories of Utah and New Mexico–a provision re-<\/p>\r\n\r\n\r\n\r\n peated verbatim in the Kansas-Nebraska act of 1854. The problem was that<\/p>\r\n\r\n\r\n\r\n because these territories did not prohibit slavery, no such suit materialized.<\/p>\r\n\r\n\r\n\r\n But here, conveniently, came a suit from another part of the Louisiana<\/p>\r\n\r\n\r\n\r\n Purchase. The yearning for settlement of the question by”political<\/p>\r\n\r\n\r\n\r\n statesmanship” was widespread in Washington during the winter of<\/p>\r\n\r\n\r\n\r\n 1856-57, especially among southerners. Alexander Stephens, a friend of<\/p>\r\n\r\n\r\n\r\n Justice James M. Wayne of Georgia and a distant cousin of Justice Robert<\/p>\r\n\r\n\r\n\r\n Grier of Pennsylvania, wrote privately in 1856: “I have been urging all the<\/p>\r\n\r\n\r\n\r\n influence I could bring to bear upon Sup. Ct. to get them no longer to post-<\/p>\r\n\r\n\r\n\r\n pone the case on the Mo. Restriction. . . . “I have reason to believe they wiil<\/p>\r\n\r\n\r\n\r\n [decide] that the restriction was unconstitutional.” Other southerners<\/p>\r\n\r\n\r\n\r\n exerted similar pressures on the Court. They seemed to be succeeding.<\/p>\r\n\r\n\r\n\r\n Two weeks later Stephens reported that “from what I hear sub rosa<\/em> [the<\/p>\r\n\r\n\r\n\r\n decision] will be according to my own opinions upon every point….<\/p>\r\n\r\n\r\n\r\n The restriction of 1820 will be held to be unconstitutional. The Judges are<\/p>\r\n\r\n\r\n\r\n all writing out their opinions I believe seriatim<\/em>. The Chief Justice will give<\/p>\r\n\r\n\r\n\r\n an elaborate one.”<\/p>\r\n\r\n\r\n\r\n The five southern Justices did want to rule against Congress’s right to ban<\/p>\r\n\r\n\r\n\r\n slavery from the territories. Some of them had indeed begun writing<\/p>\r\n\r\n\r\n\r\n opinions to that effect. But the difficulty was in getting the two northern<\/p>\r\n\r\n\r\n\r\n Democratic justices, Grier and Nelson, to go along with them. This was why<\/p>\r\n\r\n\r\n\r\n the southerners had reluctantly decided to sidestep the issue with Nelson’s<\/p>\r\n\r\n\r\n\r\n narrow ruling. Word that McClean and Curtis would raise the broader<\/p>\r\n\r\n\r\n\r\n questions in their dissents gave southern justices the pretext they needed<\/p>\r\n\r\n\r\n\r\n to change their minds. They approved a motion by Wayne that Taney<\/p>\r\n\r\n\r\n\r\n should prepare a decision covering all aspects of the case.<\/p>\r\n\r\n\r\n\r\n There still remained the problem of cajoling a concurrence from at least<\/p>\r\n\r\n\r\n\r\n one northern justice to avoid the appearance of a purely sectional ruling.<\/p>\r\n\r\n\r\n\r\n Nelson could not be persuaded–he had already written his opinion and was<\/p>\r\n\r\n\r\n\r\n probably miffed by his colleagues’ intent to bypass it. But Grier was pliable.<\/p>\r\n\r\n\r\n\r\n He was also from Buchanan’s home state. The president-elect was anxious<\/p>\r\n\r\n\r\n\r\n to have the territorial question resolved. In response to a suggestion from<\/p>\r\n\r\n\r\n\r\n Justice John Catron of Tennessee, Buchanan brought highly improper but<\/p>\r\n\r\n\r\n\r\n efficacious influence to bear on Grier, who succumbed. Taney had his<\/p>\r\n\r\n\r\n\r\n northern justice and could proceed with his ruling.<\/p>\r\n\r\n\r\n\r\n It was an opinion he had long wanted to write. Eighty years old, the Chief<\/p>\r\n\r\n\r\n\r\n Justice was frail and ill. The death of his wife and daughter two years<\/p>\r\n\r\n\r\n\r\n earlier in a yellow fever epidemic had left him heart-stricken. Yet he clung<\/p>\r\n\r\n\r\n\r\n to life determined to defend his beloved South from the forces of Black<\/p>\r\n\r\n\r\n\r\n Republicanism. In his younger years Taney had been a Jacksonian<\/p>\r\n\r\n\r\n\r\n committed to liberating American enterprise from the shackles of special<\/p>\r\n\r\n\r\n\r\n privilege. As Jackson’s Secretary of the Treasury he had helped destroy the<\/p>\r\n\r\n\r\n\r\n Second Bank of the United States. His early decision as Chief Justice had<\/p>\r\n\r\n\r\n\r\n undermined special corporate charters. But the main theme of his twenty-<\/p>\r\n\r\n\r\n\r\n eight year tenure on the Court was in defense of slavery. Taney had no<\/p>\r\n\r\n\r\n\r\n great love of the institution for it’s own sake having freed his own slaves.<\/p>\r\n\r\n\r\n\r\n But he did have a passionate commitment “to southern life and values<\/p>\r\n\r\n\r\n\r\n which seemed organically linked to the peculiar institution and<\/p>\r\n\r\n\r\n\r\n unpreservable without it” In private letters Taney expressed growing<\/p>\r\n\r\n\r\n\r\n anger toward “northern aggression”. “Our own southern countrymen”<\/p>\r\n\r\n\r\n\r\n were in great danger, he wrote, “the knife of the assassin is at their throats”.<\/p>\r\n\r\n\r\n\r\n Taney’s southern colleagues on the Court shared this apprehension, accord-<\/p>\r\n\r\n\r\n\r\n ing to historian Don Fehrenbacher; Justice Peter Daniel of Virginia was a<\/p>\r\n\r\n\r\n\r\n “brooding proslavery fanatic” and the other three were “unreserved<\/p>\r\n\r\n\r\n\r\n defenders of slavery.” Because of this “emotional commitment so intense that it made<\/p>\r\n\r\n\r\n\r\n perception and logic utterly subservient,” the Dred Scott decision was<\/p>\r\n\r\n\r\n\r\n “essentially visceral in origin. . . a work of unmitigated partisanship,<\/p>\r\n\r\n\r\n\r\n polemical in spirit [with an] extraordinary cumulation of error,<\/p>\r\n\r\n\r\n\r\n inconsistency and misrepresentation.”<\/p>\r\n\r\n\r\n\r\n Taney’s opinion took up first the question whether Dred Scott, as a black<\/p>\r\n\r\n\r\n\r\n man, was a citizen with the right to sue in federal courts. Taney devoted<\/p>\r\n\r\n\r\n\r\n more space to this matter than to anything else. Why he did so is puzzling,<\/p>\r\n\r\n\r\n\r\n for in the public mind this was the least important issue in the case. But<\/p>\r\n\r\n\r\n\r\n southern whites viewed free blacks as an anomaly and a threat to the<\/p>\r\n\r\n\r\n\r\n stability of slavery; Taney’s own state of Maryland contained the largest<\/p>\r\n\r\n\r\n\r\n free Negro population of any state. The Chief Justice’s apparent purpose in<\/p>\r\n\r\n\r\n\r\n negating U.S citizenship for blacks, wrote Fehrenbacher, was “to launch a<\/p>\r\n\r\n\r\n\r\n sweeping counterattack on the antilavery movement and . . . to meet every<\/p>\r\n\r\n\r\n\r\n threat to southern stability by separating the Negro race absolutely from the federal<\/p>\r\n\r\n\r\n\r\n Constitution and all the rights that it bestowed.” To do so, however, he had<\/p>\r\n\r\n\r\n\r\n to juggle history, law, and logic in “a gross perversion of the facts”.”<\/p>\r\n\r\n\r\n\r\n Negroes had not been part of the”sovereign people” who made the Constitution,<\/p>\r\n\r\n\r\n\r\n Taney ruled; they were not included in the “all men” whom the Declaration<\/p>\r\n\r\n\r\n\r\n of Independence proclaimed “created equal.” After all, the author of the<\/p>\r\n\r\n\r\n\r\n Declaration and many of the signers owned slaves, and for them to have<\/p>\r\n\r\n\r\n\r\n regarded members of the enslaved race as potential citizens would have<\/p>\r\n\r\n\r\n\r\n been “utterly and flagrantly inconsistent with the principles they asserted.”<\/p>\r\n\r\n\r\n\r\n For that matter, wrote Taney, at the time the Constitution was adopted<\/p>\r\n\r\n\r\n\r\n Negroes “had for more than a century before been regarded as beings of<\/p>\r\n\r\n\r\n\r\n an inferior order . . . so far inferior that that they had no rights which a<\/p>\r\n\r\n\r\n\r\n white man was bound to respect.”<\/p>\r\n\r\n\r\n\r\n This was false, as Curtis and McCiean pointed out in their dissents.<\/p>\r\n\r\n\r\n\r\n Free blacks in 1778 and later had many legal rights [to hold and bequeath<\/p>\r\n\r\n\r\n\r\n property, make contracts, seek redress in courts, among others]. In five of<\/p>\r\n\r\n\r\n\r\n the thirteen states that ratified the Constitution black men were legal voters<\/p>\r\n\r\n\r\n\r\n and participated in the ratification process. No matter, said Taney, these<\/p>\r\n\r\n\r\n\r\n were rights of state citizenship and the question at issue was United States<\/p>\r\n\r\n\r\n\r\n citizenship. A person might “have all of the rights and privileges of the<\/p>\r\n\r\n\r\n\r\n citizen of a State,” opined the Chief Justice and “yet not be entitled to the<\/p>\r\n\r\n\r\n\r\n rights and privilege of a citizen in any other State”–a piece of judicial<\/p>\r\n\r\n\r\n\r\n legerdemain that contradicted Article IV. section 2 of the Constitution.<\/p>\r\n\r\n\r\n\r\n “The citizens of each state shall be entitled to all privileges and immunities<\/p>\r\n\r\n\r\n\r\n of citizens in the several states.”<\/p>\r\n\r\n\r\n\r\n Having established to his satisfaction that blacks were not citizens, Taney<\/p>\r\n\r\n\r\n\r\n could have stopped there and refused jurisdiction because the case was<\/p>\r\n\r\n\r\n\r\n not properly before the Court. That he did not so rendered the remainder<\/p>\r\n\r\n\r\n\r\n of his decision , in the opinion of many contemporaries and the earliest<\/p>\r\n\r\n\r\n\r\n generation of historians, obiter dictum<\/em>— a statement in passing on matters<\/p>\r\n\r\n\r\n\r\n not formally before the Court and therefore without force of law. But Taney<\/p>\r\n\r\n\r\n\r\n insisted that because the circuit court had considered all aspects of the case<\/p>\r\n\r\n\r\n\r\n and decided them “on the merits”,” the whole case including the<\/p>\r\n\r\n\r\n\r\n constitutionality of the Missouri Compromise restriction on which Scott<\/p>\r\n\r\n\r\n\r\n based part of his suit for freedom was<\/em> properly before the Court. Modern<\/p>\r\n\r\n\r\n\r\n scholars agree. Whatever else Taney’s ruling was, it was not obiter dictum.<\/em><\/p>\r\n\r\n\r\n\r\n Taney and six other Justices [with only Curtis and McClean dissenting]<\/p>\r\n\r\n\r\n\r\n concurred that Scott’s “sojourn” for two years in Illinois and for a similar<\/p>\r\n\r\n\r\n\r\n period at Ft. Snelling , even if the latter was free territory,<\/em> did not make him<\/p>\r\n\r\n\r\n\r\n free once he returned to Missouri. To this matter Taney devoted only one of<\/p>\r\n\r\n\r\n\r\n the 55 pages of his opinion. The constitutionality of the Missouri<\/p>\r\n\r\n\r\n\r\n Compromise received 21 pages of labored prose arguing that Congress<\/p>\r\n\r\n\r\n\r\n never had the right to prohibit slavery in a territory. That the Constitution<\/p>\r\n\r\n\r\n\r\n [Article IV, section 3] gave Congress the power to “make all needful rules<\/p>\r\n\r\n\r\n\r\n and regulations” for the territories was not relevant, said the Justice in a<\/p>\r\n\r\n\r\n\r\n typical example of hair-splitting, because the rules and regulations were<\/p>\r\n\r\n\r\n\r\n not laws. The Fifth Amendment protected persons from being deprived<\/p>\r\n\r\n\r\n\r\n of life, liberty or property without due process; slavery was no different<\/p>\r\n\r\n\r\n\r\n from other property, and a ban on slavery was therefore an unconstitonal<\/p>\r\n\r\n\r\n\r\n deprivation of property. “And if Congress itself cannot do this,” continued<\/p>\r\n\r\n\r\n\r\n Taney in what he intended as a blow against popular sovereignty “it could<\/p>\r\n\r\n\r\n\r\n not authorize a territorial government to exercise” such a power.<\/p>\r\n\r\n\r\n\r\n This clearly was obiter dictum<\/em>, since the question of the power of a<\/p>\r\n\r\n\r\n\r\n territorial government over slavery was not part of the case.”<\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n Excerpted from “The Battle Cry of Freedom[The Civil War Era]”<\/p>\r\n\r\n\r\n\r\n Author James M. McPherson, who won the Pulitzer Prize for it.<\/p>\r\n\r\n\r\n\r\n Published by Oxford University Press,Inc.<\/p>\r\n\r\n\r\n\r\n 200 Madison Avenue, New York, New York 10016.<\/p>\r\n\r\n\r\n\r\n “Yes Virginia”, the Supreme Court is a political institution, as it was then,is<\/p>\r\n\r\n\r\n\r\n now, and into the future, have no fear.<\/p>\r\n\r\n\r\n\r\n Mrs. Emerson remarried and gave Scott back to the original family<\/p>\r\n\r\n\r\n\r\n that had owned him, who subsequently freed him in 1857. He died of<\/p>\r\n\r\n\r\n\r\n tuberculosis in 1858. Small comfort, perhaps, but he did die a free man.<\/p>\r\n\r\n\r\n\r\n It’s remarkable that men such as Taney held such high office.<\/p>\r\n\r\n\r\n\r\n Even more remarkable is the fact that men of Taney’s stripe hold equally<\/p>\r\n\r\n\r\n\r\n high office in this nation today.<\/p>\r\n\r\n\r\n\r\n Islander.<\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n\r\n\r\n\r\n <\/p>\r\n","protected":false},"excerpt":{"rendered":" “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 … Continue reading “Dred Scott”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-1539","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/pages\/1539","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/comments?post=1539"}],"version-history":[{"count":4,"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/pages\/1539\/revisions"}],"predecessor-version":[{"id":2785,"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/pages\/1539\/revisions\/2785"}],"wp:attachment":[{"href":"https:\/\/thewalrussaid.net\/index.php\/wp-json\/wp\/v2\/media?parent=1539"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}