Dred Scott After Nearly Two Centuries

Posted in: Civil Rights

Nearly 170 years ago, Dred Scott began his litigation in search of freedom. His petition for freedom said simply, “Dred Scott, a man of color, respectfully states. he is claimed as a slave.” He filed his petition in April 1846, and finally lost in the Supreme Court in March 1857. That’s right—eleven years later. The wheels of justice grind slowly.

A lot has happened since then, but it is still worthwhile to take a closer look at this litigation. Modern law books typically devote a mere footnote or short paragraph to this case.

Dred Scott was born into slavery, approximately 1795 to 1799, in Virginia, a slave state. He was bought and sold several times. When his masters moved from state to state, he did as well. Sometimes, those states did not allow slavery. Around 1837, his master moved to the free territory of what would become the state of Wisconsin. There, he met and married Harriet Robinson, another slave. Robinson’s owner, who was also a justice of the peace, performed the wedding ceremony and then sold Robinson to Dred Scott’s master. Dred and Harriet Scott remained in Wisconsin until 1840, when their slave owners sent for them. They returned to Missouri. Dred Scott saved money and, in 1846 he offered $300 (the equivalent of at least $8,000 today when adjusted for inflation) to buy freedom for himself and his family. By that time Harriet had given birth to several children. The slave owner, Irene Emerson, refused to grant the Scotts their freedom, so Dred Scott sued in Missouri state courts.

Scott argued that he and his wife had spent so many years in free states or the free territory of the Missouri Compromise, that they were free. In addition, their first child was born on a steamboat on the Mississippi River, between the free state of Illinois and the free territory of Wisconsin.

At that time, the courts of both slave states and free states agreed that a master could have his slave for a limited period of time in a free state (either accompanying the master or performing some service for him) without the slave losing his status as a slave. However, if the non-fugitive slave resided for too long a time in the free state, the slave would become free. Many states, including the slave state of Missouri, respected the rule of “Once free, always free.”

On June 30, 1847, the St. Louis Circuit Court heard Scott’s case. Lawsuits cost money. Scott had some prominent white friends, among them, Taylor Blow—the son of Peter Blow, Scott’s original owner—who helped finance the lawsuit. Other children of Peter Blow also gave financial support.

Scott lost the first trial, but the judge ordered a retrial. At that retrial, before an all-white male jury, Scott won. The jury found that Scott and his family were free, because they had spent so much time in states or territories that did not recognize slavery. The slave owner appealed the verdict, and eventually, the case reached the Missouri Supreme Court, in Scott v Emerson (1852), which reversed. What of all the precedent (in Missouri and other states) embracing the “once free, always” free doctrine? The majority simply said, “Times now are not as they were when the former decisions on this subject were made.” The dissent responded, “Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my judgment, there can be no safe basis for judicial decisions but in those principles which are immutable.”

Dred Scott and his friends who supported him were not ready to quit after the setback before the Missouri Supreme Court. In 1853, Scott sued in federal district court (technically, the Circuit Court of the United States for the District of Missouri). The main defendant was John Sanford (the courts misspelled his name as Sandford). The lawyer who was then employing Scott as a janitor, Roswell M. Field, agreed to work for free. Scott sought jurisdiction on diversity of citizenship grounds, which governs lawsuits between parties who were residents of different states. Scott argued that defendant Sandford had assaulted the plaintiff, Harriet Scott, his wife, and Eliza Scott and Lizzie Scott, his children. Sandford argued, “That the plaintiff was a negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do.”

Scott lost at the trial court and appealed to the U.S. Supreme Court, where Montgomery Blair and George Ticknor Curtis represented him. George Curtis was the brother of U.S. Supreme Court Justice Benjamin Robbins Curtis. Curtis dissented in the Dred Scott decision and was so upset by what the majority did that he resigned in disgust. Later, he was President Andrew Johnson’s chief counsel in Johnson’s impeachment trial before the Senate. Curtis also was the first Supreme Court Justice to have earned a formal law degree.

Chief Justice Roger Brooke Taney, who hailed from Maryland (a slave state), wrote for the majority. He was a Jacksonian Democrat, a slave owner who eventually freed his slaves. He actually thought that he could solve the slavery problem once and for all. Dred Scott v. Sandford (1857) held, among other things, that blacks, even freed black slaves, could not become citizens. The first sentence of Section 1 of the Fourteenth Amendment overruled that case. It was only the second time that a constitutional amendment overruled a Supreme Court decision. (The first time was the Eleventh Amendment, which overruled Chisholm v. Georgia, (1793).) Taney died towards the end of the Civil War, on the same day that Maryland abolished slavery.

We know now that the Court majority initially agreed that it would not decide any constitutional issue but would only rule that because Missouri regarded Dred Scott still a slave, the Court would accept Missouri law. Scott had voluntarily returned to Missouri and should accept its law. In fact, a confidential letter from Justice Curtis to a friend explicitly said that the Court would find it unnecessary to rule on the constitutionality of the Missouri Compromise. However, Justice McLean—a possible presidential candidate and an abolitionist—made known his intention to dissent and endorse the constitutionality of the Missouri Compromise. The Court majority learned that Justice Curtis also intended to dissent and to raise the constitutional issue. Although Justice Nelson had already written a draft opinion avoiding the constitutional questions, Chief Justice Taney decided to meet the question head on and, in his view, “settle” the slavery question. Yeah, right.

In the official U.S. Reports, the decision produced eight separate opinions totaling nearly 250 pages. The Court Reporter noted that “want of room” prevented him from giving the arguments of counsel. Chief Justice Taney delivered the opinion of the Court on March 5, 1857. Taney framed the issue in this way:

The question is simply this: can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied [sic] by that instrument to the citizen. One of these rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

Taney’s answer was that Dred Scott has no right to sue, because blacks, in the nature of things, are not citizens of the United States even in free states, which treated them as citizens. That was not all. The Missouri Compromise of 1820, was unconstitutional because it limited the extension of slavery in the territories. It violates the Fifth Amendment for Congress to preclude slave owners of their property (slaves) just because they entered territory designated as free.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

[This] unfortunate race . . . had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

Many newspapers of the North reacted negatively to Taney’s opinion. The New York Tribune of March 7, 1857, the day after the decision was announced, wrote that Taney’s arguments “were based on gross historical falsehoods and bald assumptions, and went the whole length of the extreme southern doctrine.” Three days later it lamented that the Supreme Court had “sullied its ermine; it has dragged and polluted its garments in the filth of Pro-Slavery politics.” Curtis’s dissent demonstrated Taney’s “gross historical misrepresentations.” Taney, in response to Curtis’s refutation of his historical arguments, did not print his opinion for a few weeks after he had filed it, in order to add about eighteen pages of historical documentation in an effort to bolster his case. This revision (after announcement of the decision) was highly unusual.

Charles Evans Hughes, before he became Chief Justice, called the Dred Scott decision one of the Court’s great self-inflicted wounds, which devastated the reputation of the Court. After Dred Scott lost in the Supreme Court, his new owner freed him, together with his family, in May of 1857. About a year later, Scott died of tuberculosis. He is buried in a Catholic cemetery in the Archdiocese of St. Louis.

  • marstob

    Thank you for the opportunity of reading this historical article. To be born a Canadian is somewhat precious in particular – The Right to be Free. The idea of indenturehood or slavery is most appalling. Canadian women, in the eaerly 1920’s, had to appeal to Britains highest court for the “Right to be declared Persons.” In essence, prior to that , they also lived in a form of slavery.