THE DRED SCOTT DECISION holds a unique place in American constitutional history as the worst example of the Supreme Court trying to impose a judicial solution on a political problem. No other case called down such opprobrium upon the Court in its own time, nor has this criticism abated since. A later chief justice, Charles Evans Hughes, famously characterized the decision as the Court’s great “self-inflicted wound.”
The case involved not just the efforts of one enslaved man to be free, but the larger political debate then roiling the country—what would be the future of slavery—a question that ultimately would be resolved in a civil war. The decision might have been ignored had not Chief Justice Roger Brook Taney tried, in a single opinion, to resolve the nation’s most intractable problem.
Dred Scott was born a slave in Southampton County, Virginia, around 1800. His original owner, Peter Blow, moved to Alabama in 1818, and then relocated again to St. Louis, Missouri, in 1830, taking with him his property—including his slaves—as he moved west. Blow died in 1832, and Dr. John Emerson, an army surgeon, purchased Scott. From December 1, 1833, until May 4, 1836, Emerson served as the post physician at Fort Armstrong, Illinois, near the present city of Rock Island. Scott lived with Emerson on the army post.
Because Illinois was a free state, he could have claimed his freedom during these years. The illiterate Scott did not do so, however, perhaps because he did not know that a slave in a free state had a right to be free, and that therefore he could have sued for his freedom. It is also possible that Scott found Emerson a tolerable master, and that being a free black on the Illinois frontier did not seem attractive to him.
In 1836 Scott accompanied Emerson to the doctor’s new posting at Fort Snelling in the Minnesota Territory, now St. Paul. Minnesota was part of the Louisiana Territory, and the Missouri Compromise of 1820 “forever prohibited” slavery in the area. Two weeks before Emerson and Scott left Illinois, Congress passed the Wisconsin Enabling Act to govern the region that includes the present-day states of Wisconsin, Minnesota, and Iowa. The new law repeated the Missouri Compromise ban on slavery, and also applied the provisions of the Northwest Ordinance of 1787. Article VI of that law, passed by the Confederation Congress and reaffirmed by the new Congress after the ratification of the Constitution, declared, “there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted.”
Despite slavery’s illegality in the territory, Scott remained a slave at Fort Snelling from his arrival in May 1836 until his departure in April 1838. During those two years he met and married Harriet Robinson, a slave owned by Major Lawrence Taliaferro, the Indian agent stationed there. Taliaferro, who also served as a justice of the peace, performed a formal wedding ceremony for the two slaves. Some scholars speculate that since formal weddings between slaves were rare and because Emerson and Taliaferro both agreed to the ceremony, they might have believed that Harriet and Dred were in fact free. Even if the masters did not agree, the wedding ceremony itself might have been interpreted as a de facto emancipation, especially since Taliaferro had acted in his official capacity to perform the rite. Nonetheless, neither Scott nor his wife claimed freedom at the time, and at some point Harriet’s ownership passed into Emerson’s hands.
In November 1837 the army transferred Emerson to Fort Jesup in Louisiana, where he met and married Eliza Irene Sanford, who preferred to be called “Irene.” Emerson then sent for his slaves, and the Scotts traveled down the Mississippi to Louisiana, meeting up with Emerson in April. The two passed through free territories and states on the voyage, and at almost any of those stops could have gone ashore and claimed freedom. They did not.
Even after they arrived in Louisiana, they could have sued to be free. For more than twenty years, Louisiana courts had upheld the freedom of slaves who had previously lived in free jurisdictions. Had the Scotts pursued their freedom in 1838, it would have been an easy case with a foregone conclusion. They did not do this, and one again has to speculate why. Did they not know about the law? It is hard to believe that the Scotts had not met free blacks on their travels who would certainly have told them that free states make free men and women. Perhaps they did not know about Louisiana law, or even if they had, perhaps they were not bold enough to go this route.
Not until Emerson died did the Scotts begin their efforts to gain their freedom, and this may indicate that the two had not found servitude under Emerson onerous. He had, after all, agreed to their marriage, kept them together, and apparently treated them well—or well enough—that they did not try to escape or sue in court. There is also speculation that he may have promised them eventual freedom, and this convinced them to wait until they had secured a legal manumission. Unfortunately, we just do not know what the Scotts thought during this time.
In October 1838 Emerson was transferred again, and the Scotts moved with him back to Fort Snelling. On the trip up the Mississippi Harriet gave birth to their first daughter, whom they named Eliza after Dr. Emerson’s wife. The child was born between the free state of Illinois and the free territory of Wisconsin, and by all rights should therefore have been free.
A year and a half later, when the army sent Emerson to Florida to serve during the Seminole War, he settled his wife and slaves in St. Louis, Missouri. After the fighting ended, Emerson went to the Iowa Territory, but the Scotts remained in St. Louis, where they apparently hired out their services to various people. In December 1843 Emerson suddenly died, leaving his estate—including the Scotts—to his widow. For the next three years the Scotts worked as hired slaves, with the money they earned going to Irene Emerson. Not until February 1846, however, did Scott first seek freedom for himself and his family. The evidence indicates that Scott may have been advised to do so by a white abolitionist lawyer or by a former slave, the Rev. John Anderson, the pastor of the black Baptist church where Harriet Scott worshipped. Scott offered to purchase his freedom, but Irene Emerson refused to sell him to himself, and in April 1846 he began the legal proceedings that would eventually bring his case to the Supreme Court.
An attorney pleading the case at the time would have considered Scott’s argument an easy one to win, since the precedents were unambiguous. In 1824, in Winny v. Whitesides, the Missouri Supreme Court had declared that an enslaved person who had been taken to the free territory of Illinois had become a free person. Over the next dozen years, there were other such cases, and in every one the Missouri courts ruled that a slave working or living in a free jurisdiction for a reasonable period of time became free. As late as 1836, in Rachel v. Walker, the court held that a slave named Rachel became free when her owner took her to military bases in the North and in the western territories where slavery was prohibited. During this time the Missouri courts were among the most liberal in the nation on this question, but they were not alone even among the slave states. Similar cases had arisen in Kentucky, Louisiana, and Mississippi, and courts in those states had upheld claims of slaves that residence in a free state or territory made them free.
The courts in these cases nearly always referred to the leading English decision of Somerset v. Stewart (1772). There the British court had declared that the status of a slave was so contrary to both common law and natural law that it could not be maintained except through the passage of legislation specifically allowing it. Under Somerset, when a master took a slave into a jurisdiction that did not have laws authorizing slavery, the slave automatically reverted to his status as a free person. Well into the 1840s, courts in Missouri, Louisiana, and Kentucky freed slaves who had worked or lived in free jurisdictions. Under Somerset, Winny, and a dozen other precedents, Scott should have won his case and his freedom.
He lost the first round in June 1847 only because of a technicality. He sued Irene Emerson, but had no witness who could testify that she in fact owned him. In December the judge ordered a new trial in St. Louis Circuit Court, but a failed appeal from Mrs. Emerson to the Missouri Supreme Court, two continuances, a major fire, and a cholera epidemic all combined to delay the case until January 1850. After hearing the evidence, the judge charged the jury that residence in free jurisdictions destroyed Scott’s status as a slave, and that if they determined that he had lived in a free state or territory, they should find him free. The twelve jurors—all white men—found for Scott, and the judge ordered him, his wife, and their two daughters freed.
Reluctant to lose her four slaves, Mrs. Emerson instructed her lawyers to appeal to the state’s high court. Not just the ownership of Scott, his wife, and their children was at stake. In addition, since the litigation had begun in 1846, Scott had been hired out and all his wages were being held in escrow. This was a tidy sum, and Mrs. Emerson wanted it. In early 1850 she left Missouri for Springfield, Massachusetts, and that fall married Dr. Calvin Chaffee, a physician with antislavery leanings who later became a Republican representative. Although no longer in Missouri, she was the titular owner of the Scotts, and so her name remained as defendant. Her brother, John F. A. Sanford, a prosperous New York merchant with extensive personal and professional contacts in St. Louis, agreed to act on her behalf.
Absent any errors of law on the part of the trial judge, an appellate court should have routinely confirmed the decision since it was fully based on Missouri precedent. But there had been a seismic shift in the debate over slavery in the previous three decades, and the judges on the state’s high court responded to the political pressures the whole country—and especially the slave states—were feeling.
Slavery had been part and parcel of American history since the first boatload of African prisoners had been sold in Virginia in 1619. By the time of the Revolution the debate over slavery had begun, and at Philadelphia, representatives of the Southern colonies refused to sign the Declaration of Independence unless any references to slavery were deleted. The announcement that “all men are born free” rang hollow with those held in bondage because of the color of their skin.
At the Constitutional Convention of 1787, one of the great compromises involved slavery. The word itself is never used, but one provision called for the enactment of laws to recover “persons held to service or labor in one state” escaping to another state (Article IV, Section 2), while another declared that for purposes of taxation and representation, such persons shall be counted as “three fifths of all other persons” (Article I, Section 2).
In the early years of the Republic, as Northern states did away with slavery, a rough balance existed between the slaveholding South and the mercantile North in Congress. Then in 1819, as the House of Representatives considered the enabling legislation to admit Missouri to the Union, New York representative James Tallmadge Jr. offered an amendment prohibiting the further introduction of slaves into Missouri and emancipating all children born to slaves there once they reached their twenty-fifth birthday. The Tallmadge amendment passed the House by a narrow vote, and when news of it reached former president Thomas Jefferson at Monticello, he likened it to “a firebell in the night,” and “considered it at once as the knell of the Union.” The threat the Tallmadge amendment posed led the Senate to develop the Missouri Compromise as an alternative.
Although the Tallmadge amendment addressed only Missouri, Southerners immediately assumed that it would be the first in a series of laws not only limiting slavery in the growing western territories but potentially striking at the very existence of the “peculiar institution” (as it was euphemistically called) where it already existed. Moreover, with the North growing in population far faster than the South, the balance of power in the House of Representatives had already shifted away from the slave states. If slavery could be prohibited in the territories, then at some day in the not too distant future, the parity that existed between the two sides in the Senate would be gone, and there would be no barrier to stop the attack on slavery.
The Missouri Compromise of 1820 addressed all these issues. Missouri would be admitted to the Union without restrictions—that is, as a slave state—while Maine, until then part of Massachusetts, would enter as a free state. Slavery would be excluded in the rest of the Louisiana Purchase territory north of 36°30', the southern border of Missouri. Since previous army explorations had termed the Midwest the “great American desert,” unsuitable for settlement, this left only the Arkansas Territory open to slavery. The South saw the compromise as a victory, while many in the North denounced it. Thanks to the efforts of Henry Clay of Kentucky, both houses adopted the measure.
For the next two decades the Missouri Compromise governed the politics of slavery. States came into the Union in pairs, one free and the other slave, thus preserving the balance in the Senate. In the 1840s the structure collapsed. The war with Mexico brought in very large tracts of land in Texas, California, and the Southwest. The “great American desert” proved to be fertile beyond belief, attracting new settlers by the thousands. Perhaps most ominous to the South, the growing sentiment against slavery and the abolitionist movement threatened the slaveholding states and their reliance on the “peculiar institution.” Whigs and many Northern Democrats began to call for “free labor” and “free soil,” and opposed the expansion of slavery into the western territories.
In the middle of the Dred Scott case, the issue of whether the territories would be slave or free came to a boil following the election of Zachary Taylor as president in 1848. In his first annual message to Congress, Taylor endorsed statehood for California and urged that “those exciting topics” that had caused such apprehension be left to the courts. He opposed any legislative plan that would address the problems that so agitated Northerners and Southerners, thus preventing Henry Clay from pushing ahead with another compromise plan that, he hoped, would settle the issue for at least a generation, as had the Missouri Compromise thirty years earlier. Then Taylor died just sixteen months into his term, and his successor, Millard Fillmore, saw the wisdom of Clay’s proposal and encouraged him to continue.
The plan that Congress adopted had several parts: California came in as a free state, upsetting the equilibrium that had long prevailed in the Senate; the boundary of Texas was fixed along its current lines; Texas, in return for giving up land it claimed, received $10 million, enough to pay off the state debt; the area ceded, New Mexico, became a recognized territory, as did Utah, and in neither case was slavery mentioned; the slave trade, but not slavery itself, was abolished in the District of Columbia; and finally, Congress passed a new and stronger Fugitive Slave Act, taking the matter of returning runaway slaves out of the control of states and making it a federal responsibility.
The political system, already weakened by a decade of stress over the slavery issue, had seemed to work, and many Americans greeted the Compromise of 1850 with relief. President Fillmore called it “a final settlement,” and the South certainly had nothing to complain about. It had secured the type of fugitive slave law it had long demanded, and although California came in as a free state, it elected proslavery representatives. New Mexico and Utah enacted slave codes, technically opening the territories to slavery. Nothing, however, was said about the Missouri Compromise, and it was assumed that the proscription against slavery in the larger territories to the north and west remained in place.
Dred Scott’s case reached the Missouri Supreme Court in 1852, and was tied to the political issues surrounding the Compromise of 1850. The court was dominated by recently elected judges who were aggressively proslavery. They were prepared to reject the rulings in Winny v. Whitesides and Rachel v. Walker, and did so in Scott v. Emerson (1852). Speaking for the court, Chief Justice William Scott emphatically rejected the doctrine of “once free always free,” and held that regardless of the law of Illinois or the Missouri Compromise, the policy of Missouri would govern. The judges not only defended slavery but also vigorously attacked those who opposed it:
Times are not now as they were when the former decisions on this subject were made. Since then, not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequence must be the overthrow and destruction of our Government. Under such circumstances, it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others. . . . We will not go to [the Northern state courts] to learn law, morality or religion on this subject.
What had started out as a simple freedom suit had led to a sea change in Missouri law. It was about to evolve into a major political and legal issue.
Scott’s story might have ended in the Missouri courts. The case had been decided by a state court under state law, and no issue involving the U.S. Constitution had been raised. Section 25 of the Judiciary Act of 1789 permitted appeal from a state court only if the appellant could show that a federally guaranteed right had been impinged. In determining that Scott was still a slave, the Missouri court had blatantly ignored a federal statute: the Missouri Compromise of 1820. It seemed unlikely that the U.S. Supreme Court would have considered an appeal based on Missouri’s interpretation, or misinterpretation, of the Missouri Compromise without a more specific constitutionally based claim. Clearly, Scott did not have such a claim, and thus the case seemed over.
However, after Mrs. Emerson remarried and moved to Massachusetts, she transferred ownership of Scott to her brother, John F. A. Sanford, who had been taking care of the case for her.* Then the children of Peter Blow, Dred Scott’s original owner, entered the scene. Taylor, Peter, and Henry Blow had been childhood playmates of Dred Scott, a not uncommon situation; young black and white children often played together until the enslaved children were old enough to start helping in the field and the whites learned their place in the social and economic hierarchy of plantation life. The Blows had fond memories of Scott, and when they learned that their brother-in-law, Charles Edmund LeBeaume, was renting the Scotts and that Scott was trying to secure his freedom, they came to his aid. LeBeaume also joined in the effort, and helped obtain the services of Roswell Field, a Vermont-born lawyer with strong antislavery convictions. Field brought the case into federal court in May 1854, where Scott sued Sanford for battery and false imprisonment, and demanded $9,000 in damages. The complaint was based on Scott’s presumed status as a free man being held against his will by a slave owner, but this tactic allowed him to get the case into federal court. Since all of his avenues of legal redress in Missouri had been blocked, he used a claim of diversity of citizenship of the parties. Diversity jurisdiction allows a federal court to hear a case in which the parties are residents of different states and thus transcend a state court’s jurisdiction. Scott claimed to be a free citizen of Missouri, while Sanford was clearly a citizen of New York.
Sanford’s lawyer filed a “plea in abatement,” arguing that the case should be stopped. “Dred Scott is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves.” Because Scott was “a negro of African
The appeal to the high court would be expensive and cost more than Scott’s friends the Blows could afford. Fortunately for Scott, Montgomery Blair, a Washington lawyer connected to Missouri politics, agreed to take the case without fee. Blair did not oppose slavery where it existed, nor did he care how slavery affected blacks. He belonged, however, to the Free Soil wing of the Democratic Party, and opposed the spread of slavery into the territories. If the courts abandoned the “once free, always free” rule, then Southerners could take their slaves into the western territories with impunity, confident that their slaves could not sue them for freedom. Blair unsuccessfully sought some other lawyers to help him, but no one stepped forward. Most attorneys believed that the Supreme Court, dominated by Southern members, would reject Scott’s appeal and do so on narrow grounds that would set no new precedent.
Sanford also secured a new legal team. Missouri senator Henry S. Geyer, a strong advocate of slavery, and Reverdy Johnson of Maryland, one of the nation’s leading constitutional lawyers and a close friend of Chief Justice Taney, joined Garland. According to one historian, Johnson “added luster to any legal cause that he undertook,” and “made opposing attorneys apprehensive.”
Blair filed the appeal in December 1854, claiming that Judge Wells had erred in charging the jury that Scott was not free. The papers reached Washington too late for the 1854 term, so the Court held it over for the December 1855 term and finally heard oral arguments in Dred Scott v. Sandford in February 1856.
At oral argument, which lasted four days, both sides addressed the central questions of whether blacks could be citizens of the United States, and whether Congress had the power to prohibit slavery in the territories, as it had done in the 1820 Missouri Compromise. Geyer and Johnson claimed that blacks could not be citizens and that Congress had no power to enact legislation affecting the status of slaves as private property in the federal territories. The Missouri Compromise had, therefore, never been constitutional, and Scott’s sojourn in free territory did not affect his status as a slave. Blair, to the contrary, upheld the constitutionality of the Missouri Compromise and argued that free blacks could indeed be citizens.
The Court could not reach agreement after the first hearing, and ordered reargument for December 1856. In addition to divisions within the Court, the justices wanted to avoid a ruling before the presidential election of 1856. The Court asked the attorneys on both sides to focus on (1) whether the plea in abatement (upheld in the district court) was legitimately before the Supreme Court, and (2) whether a free Negro could be a citizen of a state or of the United States, and as such bring a suit in diversity in federal court. Both of these issues involved questions of the jurisdiction of the Supreme Court, and if the Court answered no to either one, it could and should simply dismiss the suit. But the justices also wanted to hear further argument on the constitutionality of the Missouri Compromise. This argument went beyond the 1820 act, however, and by extension dealt with the power of Congress to legislate on slavery in all the territories. If the 1820 act was unconstitutional, so were the acts banning slavery in the recently created Minnesota and Oregon Territories.
Also at stake was the whole idea of popular sovereignty. “Territorial” or “popular sovereignty” generated a lot of enthusiasm, and Sen. Stephen Douglas of Illinois, a rising star in the Democratic Party, had adopted it as the vehicle on which he hoped to ride into the White House. Rather than Congress legislating whether a particular territory would be free or slave, it should be left to the settlers in those areas acting through their territorial legislatures. This plan was questionably constitutional, however, since it gave the people of a territory the type of sovereign powers normally reserved to the states. Popular sovereignty had some supporters both in the North and the South, and it seemed to some the ideal way to resolve the issue—leave it to the people who actually settled in a territory. If the Court held, however, that Congress could not ban slavery in the territories, then territorial legislatures, created by Congress, would also be precluded from doing so.
From the outset, many commentators have argued that if ever a case called for judicial restraint and a narrow ruling, this one cried out for it. Although framed in constitutional terms, the questions confronting the Court had already torn gaping holes in the political and social fabric of the Union. The tense national atmosphere precluded any definitive judgment of the Court from being accepted by a large part of the nation, yet many people prayed for a final ruling by the Court. The political system seemed incapable of handling the issue of slavery in the territories, but a Court ruling might end debate and allow the nation to get back to the business of building railroads, settling new lands, and bringing prosperity to its white inhabitants. Taney and his brethren had an opportunity, so they thought, to render a great service to the nation by finally ending the debate over slavery in the territories.
At first, the Court leaned toward evading the territorial issue. Justice Samuel Nelson of New York drafted an opinion that affirmed the Missouri court’s interpretation of state law and reaffirmed that states had the power to determine the status of all people within their jurisdiction. Nelson deliberately avoided the questions of black citizenship, the constitutionality of the Missouri Compromise, and the power of Congress to legislate on slavery in the territories. The four Southern justices—James Wayne of Georgia, John Catron of Tennessee, Peter V. Daniel of Virginia, and John A. Campbell of Alabama—insisted, however, that the Court decide these issues. Taney agreed with them, and the chief justice drafted an opinion that dealt with every one of the major slavery issues.
The importance of the case led President-elect James Buchanan to write to Justice Catron of Tennessee, asking if the Court would reach its decision in time for him to refer to it in his inaugural address. In mid-February, Catron told Buchanan that the Court would address the constitutionality of the Missouri Compromise, and he suggested that in his inaugural the president tell the nation that the issue of slavery in the territories should be settled by the “appropriate tribunal”—the Supreme Court. In his inaugural address, Buchanan did just that, asserting that the issue of slavery in the territories was a “judicial question, which legitimately belongs to the Supreme Court of the United States.”
Catron also asked Buchanan to bring pressure on his fellow Pennsylvanian, Robert Grier, to join the majority so that the final decision would have less of a sectional character. Buchanan promptly did so, hoping fervently that a definitive ruling from the Court would spare his administration the problems that had plagued his predecessor.
On March 6, Taney handed down the decision of the Court, although each of his eight colleagues also wrote an opinion. While the opinions differ in many respects, the following is clear: seven of the justices agreed that Scott was still a slave, six agreed that blacks could not be citizens of the United States, and five or six agreed that the Missouri Compromise was unconstitutional. Two justices, John McLean of Ohio and Benjamin R. Curtis of Massachusetts, dissented from all these positions.
Taney’s opinion is the worst he ever wrote; he ignored precedent, distorted history, imposed a rigid rather than flexible construction on the Constitution, ignored specific grants of power in the document, and tortured meanings out of other, more obscure clauses.
Taney’s logic on the citizenship issue was perhaps the most convoluted. He admitted that blacks could be citizens of a particular state, and that they might even be able to vote, as they did in some states. But he argued that state citizenship had nothing to do with national citizenship, and that blacks could not sue in diversity because they could not be citizens of the United States. He dismissed Scott’s suit, therefore, for lack of jurisdiction. On this point, Taney stood on shaky constitutional ground; if one state considered a black person a citizen, then the Constitution required that all states, and by inference, the federal government, had to accord that person “all Privileges and Immunities of Citizens in the several States” (Article IV, Section 2), which included the right to sue in federal court. Furthermore, Article III gave the courts jurisdiction over suits “between Citizens of different States,” and did not discuss federal citizenship at all. But even with this weak argument, Taney could have been accused of no worse than faulty reasoning, if he had stopped there; if Scott was not a citizen, he could not sue in federal court, and therefore the Court could dismiss the case.
But Taney had determined to impose a judicial solution on the slavery controversy. Although later courts would adopt the policy of deciding constitutional questions on the narrowest possible basis, the pre–Civil War courts often decided all issues that could support their rulings. So Taney continued, holding that Scott had never been free. Congress had exceeded its authority in the Missouri Compromise, Taney stated, because it had no power to forbid or abolish slavery in the territories. The Missouri Compromise, which had served as the accepted constitutional settlement for nearly four decades, thus fell. Even the substitute of territorial sovereignty that Stephen Douglas had written into the 1854 Kansas-Nebraska Act lacked constitutional legitimacy: “The only power conferred [on Congress] is the power coupled with the duty of guarding and protecting the owner in his rights.” Taney thus voided the principles of free soil, territorial sovereignty, and indeed every aspect of antislavery constitutional thought. Nor could Scott claim freedom based on his residence in Illinois. Whatever status Scott might have had while in a free state or territory, once he had returned to Missouri, his status depended entirely on local law. The Missouri court had declared him to be a slave and therefore property, and no federal court could challenge that ruling. The doctrine of “once free, always free” had no validity.
Taney would have been on strong ground if he had simply upheld the lower court decision based on the idea that status was to be determined by states. He similarly would have been correct to hold that Dred Scott could not sue Sanford in federal court through diversity of citizenship. Even if free, he could not be a citizen of Missouri because Missouri did not allow free blacks to be citizens. Had Taney limited himself to this analysis and this result, the case would barely be remembered. But Taney outraged much of the North by asserting that blacks could never be citizens of the United States, and that Congress had no power to ban slavery in the territories.
Two justices, McLean of Ohio and Curtis of Massachusetts, wrote devastating critiques of the Taney opinion. Curtis in particular undercut most of Taney’s historical arguments, showing that blacks had voted in a number of states at the founding. “At the time of the ratification of the Articles of Confederation,” he wrote:
All free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
Thus, Curtis argued, they were members of the nation, and could not now be denied the right to claim citizenship. The majority decision violated both history and precedent.
The South could not have asked for more. “The Southern opinion upon the subject of Southern slavery,” trumpeted one Georgia newspaper, “is now the supreme law of the land,” and opposition to it is “morally treason against the Government.” The view that Southern ideologues such as John C. Calhoun had argued for more than a decade—that the federal government had a positive, indeed a constitutional, obligation to defend slavery—had apparently triumphed.
The North, of course, exploded in denunciations of Taney’s opinion. Several sober appraisals in the Northern press decimated the chief justice’s tortured legal reasoning. The Republican editor Horace Greeley published Justice Benjamin R. Curtis’s dissent as a pamphlet to be used in the elections of 1858 and 1860. The press and pulpit echoed with attacks on the decision as heated as Southern defenses of it. Taney’s hopes of settling the issue lay smashed; if anything, Dred Scott inflamed passions and brought the Union even closer to the breaking point. As for Scott himself, Taylor Blow, one of his champions throughout the long legal battle, purchased him from Sanford and emancipated him; he died a free man two and a half years after the Supreme Court had pronounced him a slave.
For all practical purposes, Northern courts and politicians rejected Dred Scott as binding. In an advisory opinion, Maine’s high court declared that blacks could vote in both state and federal elections. The Ohio Supreme Court ruled that any slave coming into the state with his master’s consent, even as a sojourner, became free and could not be re-enslaved upon returning to a slave state; the New York Court of Appeals handed down a similar ruling in Lemmon v. The People (1860). In several states, legislatures resolved to prohibit slavery, in any form, from coming onto their soil, and enacted legislation freeing slaves coming within their borders.
The case also raised fears in the North that the decision would impose slavery on the free states. Indeed, some extreme Southern spokesmen argued that the Constitution would protect them in taking their slaves anywhere, even for sale in the North. Sen. Robert Toombs of Georgia supposedly declared that one day he would call the roll of his slaves at Boston’s Bunker Hill. In the Lincoln-Douglas debates in the Illinois senate race of 1858, Lincoln put Douglas on the defensive by several times referring to the possibility that the Supreme Court could nationalize slavery by forbidding states to exclude bondage within their borders. In his famous “House Divided” speech in June 1858, Lincoln predicted that there would be “another Supreme Court decision declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits.” He argued, “Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome, or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State.”
In his debate with Douglas at Galesburg, Illinois, he spelled out the reasoning that many Northerners now deemed well within the realm of the possible: nothing in the Constitution or laws of any state can destroy a right distinctly and expressly affirmed in the Constitution of the United States. Since the right of property in a slave is distinctly and expressly affirmed in the Constitution of the United States, nothing in the Constitution or laws of any state can destroy the right of property in a slave.
Stephen Douglas appeared to be the major political loser as a result of Dred Scott. He had gambled his career on popular sovereignty, hoping that the flexibility of the formula would win him enough support in both the North and the South to propel him into the White House. The Supreme Court’s ruling had destroyed the entire basis of his proposed constitutional settlement. Yet he continued to insist that popular sovereignty would still work. In their debate at Freeport, Lincoln asked him how he could reconcile popular sovereignty with Dred Scott; Douglas responded that it did not matter what the Supreme Court said on the abstract question of slavery in the territories. The people would still decide, for “slavery cannot exist a day or an hour anywhere, unless it is supported by local police regulations.” The territorial assemblies could, therefore, adopt unfriendly legislation to discourage slave owners from bringing in their slaves. The so-called Freeport Doctrine, with its open invitation to disregard Dred Scott, infuriated the South, which now insisted that the Court’s decision meant Congress and the territorial legislatures had to protect slavery. Douglas won the senatorial election, but lost any chance he might have had for the presidency.
The decision in Dred Scott did not cause the Civil War; slavery and the opposition to slavery led to secession and conflict. The effort of the Court to resolve the debate, and the passions and fears it ignited in the North, must, however, be treated as a contributing factor. Roger Taney, who many historians believe was a good chief justice through most of his nearly thirty-year tenure, is remembered now almost solely for the blatantly proslavery decision he wrote, and his demeaning comments about African Americans. When he died in 1864 he was roundly denounced and vilified in the North. The fact that he had written Dred Scott was enough for many senators to oppose having Taney’s bust placed alongside those of other departed justices. Sen. Charles Sumner of Massachusetts predicted that “the name of Taney is to be hooted down the page of history,” and that prediction seemingly has come true. Whatever else he may have done, his name will always be linked with that of a black slave who wanted nothing more than his freedom.
Dred Scott did, in fact, get his freedom, but not through the courts. Irene Emerson’s second husband, the abolitionist doctor Calvin Chaffee, now a Massachusetts representative, learned that his wife owned the most famous slave in America in February 1857, just before the Court decision. Defenders of slavery ridiculed the hypocrisy of a man who owned slaves and yet spoke out against slavery. Since at that time a husband controlled his wife’s property, Chaffee immediately transferred ownership of Scott and his family to Taylor Blow in St. Louis; Missouri law only allowed a citizen of a state to emancipate a slave there. Irene Emerson Chaffee insisted, however, that she receive the wages the Scotts had earned over the past seven years, a sum of $750 that had been tied up because of the court proceedings. Since according to one estimate Scott and his wife were worth about $350 apiece on the slave market, Mrs. Chaffee came out a little bit ahead.
On May 26, 1857, Dred and Harriet Scott appeared in the St. Louis Circuit Court and were formally freed. Scott then took a job as a porter at Barnum’s Hotel in the city, and became a sort of celebrity there. Harriet took in laundry, which her husband delivered when he was not working at the hotel. Unfortunately, Dred Scott did not live to enjoy his free status very long; on September 17, 1858, he died of tuberculosis. His wife, Harriet, lived until June 1876, and saw the Civil War and the Thirteenth Amendment finally abolish slavery in the United States.
Lemmon v. The People, 20 N.Y. 560 (1860)
Rachel v. Walker, 2 Mo. 350 (1836)
Scott v. Emerson, 15 Mo. 576 (1852)
Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772)
Winny v. Whiteside, 1 Mo. 472 (1824)
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978), is a classic and puts the case in its wider social, political, and economic context. For a somewhat different context, see Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837–1857 (2006). Walter Ehrlich, They Have No Rights: Dred Scott’s Struggle for Freedom (1979), provides a careful and detailed narrative of the case, with a useful reminder that whatever other people made of it, Scott only wanted to be free. Paul Finkelman, Dred Scott v. Sandford: A Brief History with Documents (1997), provides a short analysis and explanation of this case, together with relevant documents. William M. Wiecek, “Slavery and Abolition before the United States Supreme Court, 1820–1860,” 65 Journal of American History 34 (1978), argues that the Scott decision was not an anomaly, but emerged from doctrines the Court had been expounding for twenty years. David T. Konig, Paul Finkelman, and Christopher A. Bracey, eds., The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law (2010), provides an interdisciplinary approach to the case through a collection of essays by numerous scholars and judges. A somewhat revisionist view is Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (2006). There is no modern biography of Taney, but Carl Brent Swisher, Roger B. Taney (1935), remains useful.
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* Sanford spelled his name with one “d,” but the Supreme Court reporter mistakenly spelled it “Sandford,” and the case has since been known as Dred Scott v. Sandford. descent,” Garland declared, he could never be a citizen of the United States, and therefore could never sue in diversity. Judge Robert W. Wells, a slave owner originally from Virginia, ruled that if Scott were free, then he was enough of a citizen of Missouri to sue in diversity in federal court. After hearing the case, however, Wells instructed the jury that Scott’s status under Missouri law had been determined by the Missouri Supreme Court, and federal courts were bound to accept that result. Wells did not consider whether the Missouri courts had improperly interpreted the Missouri Compromise. The jury found for Sanford, and Scott now had only one last chance to secure his freedom in court: an appeal to the U.S. Supreme Court.