Dred and Harriet Scott
CHAPTER 1
CITIZEN SLAVE
The Mississippi River was unusually shallow in September 1838, when a very pregnant Harriet Scott boarded the steamboat Gipsey in St. Louis for the month-long journey upriver. Steamships were a dangerous and uncomfortable mode of transportation for everyone, but they were especially risky for slaves like Harriet. Boilers exploded with some regularity, scalding to death seven hundred people on the Mississippi River alone in 1838—many of those the slaves consigned to travel below deck. Even when nothing went wrong, the boat’s inhabitants suffered from a combination of the sun’s “fierce rays down upon the roof” and a deck “heated by the furnaces below,” leaving the passengers “panting and exhausted between these two fires.” “Hell afloat” is how one nineteenth-century passenger described such travel during the summer months.1
Surely, Harriet would have preferred to give birth to her first child anywhere but a steamship crawling upriver in the lingering heat of late summer—a boat so small and crowded that there was no corner of it unoccupied by passengers and cargo. But she had no choice in the matter. She was only about nineteen years old, a “smart, tidy-looking” woman with a heart-shaped face and tired eyes. She had been married a little shy of two years, and her husband’s master, military surgeon Dr. John Emerson, now owned her as well. They were traveling with Dr. Emerson from St. Louis to his new assignment at Fort Snelling, near present-day St. Paul, Minnesota. As his slaves, they had no legal right to refuse to accompany him.2
As the labor pains began, Harriet knew that a bunk in the communal ladies’ cabin was off-limits to any black person, slave or free, and so her only choice would have been to create a makeshift space below decks behind the bales of blankets and boxes of cargo. Wherever she was, no one on that small boat could help but know that a new human being had arrived. Reverend Alfred Brunson, a Methodist missionary and fellow passenger, would later note in his memoirs that “on the upward trip . . . a girl . . . was born” to Dr. Emerson’s “servants.”3
Eight years later, when Harriet and her husband, Dred Scott, filed their famous lawsuit petitioning for their family’s freedom, their owner disputed many aspects of their claim. But all agreed that the Scotts’ daughter Eliza “was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi.”4
And that location mattered. The Missouri Compromise of 1820 had declared that territory north of Missouri’s southern border was perpetually off-limits to slavery—a line cleaving the United States into a country that was half slave, half free. Both before and after Eliza’s birth, Harriet and Dred Scott spent several years living at Fort Snelling in free territory. They had met at Fort Snelling when their respective owners had brought them there and had married with their owners’ blessing. In their legal filings, the Scotts asserted that under the then well-recognized rule of “once free, always free,” they remained free even after the family returned to the slave state of Missouri with Dr. Emerson. Their daughter Eliza had a double claim to freedom. Not only did the baby girl inherit her free status from her mother, she was born in free territory.5
When they filed their lawsuits in 1846, the status question that consumed Dred and Harriet Scott was whether they and their children were slaves or free, not whether they were US citizens. In any case, the Scotts had no reason to doubt they were Americans. After all, they had both been born and raised in the United States, as was their daughter Eliza and her younger sister Lizzie. How could the family be anything but US citizens?
And yet their citizenship became a central question in their case—one of the most important of several momentous issues addressed by the US Supreme Court, and one of the few that remains relevant more than one hundred and fifty years later. After the Civil War, when slavery was officially abolished by the Thirteenth Amendment to the US Constitution, the question of citizenship remained—not just for the newly freed slaves, but for all those in the United States whose race, ethnicity, religion, or political preferences struck those in power as undesirable and “un-American.” Dred and Harriet Scott’s petition for freedom raised questions about birthright citizenship, the nature of American democracy, the permanency of citizenship status, and the rights essential to citizenship—issues that continued to be litigated for decades to come, and which have yet to be resolved even today.6
The Scotts’ famous lawsuit began on April 6, 1846, when “Harriet, a woman of color,” filed a “petition for leave to sue for freedom.” Dr. Emerson had passed away, so she named Dr. Emerson’s young widow, Irene Emerson, as the defendant—though later Irene’s name would be replaced by that of her brother, John Sanford, who served as the administrator of her late husband’s estate. Harriet’s petition claimed that two days before, on April 4, 1846, Irene Emerson “made an assault upon” her, “then and there beat, bruised, and ill treated her,” and “kept and detained her . . . for the space of twelve hours.” Harriet argued that she “was and still is a free person,” rendering the assault and imprisonment illegal—and yet the “defendant held and still holds her in Slavery.” Dred Scott filed an identical petition on the same day, and each sought ten dollars in damages. The Scotts were illiterate, so in place of a signature each scrawled a rough “X” next to their printed names at the bottom of the petitions.7
By the time their lawsuits reached the US Supreme Court, Harriet’s case had been consolidated with that of her husband, and his name is the one that history remembers. But Harriet Scott was likely the driving force behind the litigation.8
Dred Scott was a small man with a “rather light frame” who stood little more than five feet tall, so he was not much use for heavy labor even in his younger years. By 1846, he was approaching fifty years old—the average life span of male slaves at the time. Like most slave states, Missouri required slave owners to provide for elderly and infirm slaves regardless of whether they could work. In other words, by 1846 Dred Scott was a liability, not an asset.9
And yet widow Emerson fought tooth and nail against the Scotts’ petitions for freedom. Her lawyers raised every technicality and point of error possible to delay and derail the Scotts’ case, even though the precedent in Missouri in 1846 strongly supported the Scotts’ claim to freedom. Why? As legal historian Lea VanderVelde has explained, perhaps it was because even though Dred was of little financial value to Mrs. Emerson, his case was inextricably intertwined with Harriet’s. And Harriet Scott was worth a small fortune.10
At twenty-eight, Harriet had decades of useful service left in her when she filed suit in 1846 and, in the parlance of slave advertisements of the day, she would have been described as “likely”—meaning likely to produce more slaves for her owner. She had already proven her fertility by giving birth to four children in eight years: Eliza, Lizzie, and two sons who had died in infancy. Just as important, the slave status of Harriet’s children turned on the outcome of her case under the doctrine of partus sequitur ventrem (what is born follows the womb). If Harriet won her freedom, Irene Emerson would also lose her claim to the Scotts’ two daughters, who, like their mother, had significant value for their reproductive potential as well as for their labor.11
The Scotts surely knew that Harriet and her two daughters would command a high price on the slave market, which must have terrified them. Harriet was described as “devotedly attached to her husband and children,” and Dred surely felt the same. But their devotion would not be enough to keep them together if Mrs. Emerson chose to sell her property.12
On any given day in 1846, Dred and Harriet Scott would have walked by slaves for sale. A slave pen in downtown St. Louis housed slaves awaiting sale down the river, in New Orleans. Slave dealers marched men and women “handcuffed and chained together, in a long two-by-two column” along the city’s sidewalks, “driven under the crack of the driver’s whip.” Every week like clockwork, slave auctions were held at noon on the east steps of the very same St. Louis courthouse where the Scotts had filed their suit. The auctions always attracted a crowd of buyers in black suits and top hats, milling around to watch as slaves were made to walk, jump, and dance to show their physical strength and stamina, sometimes in time with a fiddle. The courthouse took up a full square block at Market and Fifth Streets, in the very heart of the city, and so, like the rest of St. Louis, Harriet and Dred “couldn’t help seeing” the rowdy auctions as they passed by.13 In any case, Dred Scott needed no reminder of the danger—his first wife had been sold away from him decades before, and he had never laid eyes on her again.14
The lawsuit not only gave the Scott family a chance at freedom, it also bought them temporary protection. For as long as the litigation was pending, Mrs. Emerson was barred by court order from selling any member of the Scott family. And when she moved to Massachusetts shortly after the lawsuit began, it provided them with a small measure of freedom. The Scotts were left in custody of the sheriff, who hired them out and collected their wages but allowed them to find their own accommodations out from under the eye of a suspicious owner. Having little faith that the justice system would save them, Dred and Harriet “took advantage of the absence of restraint on their movements” to send their two daughters into hiding—so deeply hidden that the location has eluded the historians who have attempted to discover it since.15
Whatever the reason, Irene Emerson chose to litigate the Scotts’ case up to the US Supreme Court, with momentous consequences. In hindsight, she surely regretted her choice to fight. For the case came at a high personal cost to her and her family, as well as to the family she claimed to own.
At first, no one involved thought of Dred Scott v. Sandford as a case about citizenship. But the Scotts’ citizenship status became a threshold issue once the case was refiled in federal court—a court that only had jurisdiction to hear the case if the Scotts were “citizens” within the meaning of the US Constitution. This dry, technical question of federal jurisdiction nonetheless raised contentious issues about the status of free blacks in a country that embraced racialized slavery while at the same time espousing the principles of representative democracy, liberty, and equality for all.
In defense, John Sanford, acting for his sister Irene Emerson, argued that because Scott was “a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves,” he was not a citizen, regardless of whether he was a slave or free. The question of whether free blacks qualified as US citizens had divided the lower courts and bedeviled Congress, and the Supreme Court had yet to pronounce on it. Dred and Harriet Scotts’ case would put that question squarely before them.16
On July 4, 1776, Americans not only invented their own citizenship, they invented the very idea that people could choose their citizenship.17
Under English law, almost everyone born on territory controlled by the British Crown “ow[ed] a lasting obedience to his natural superior the king” and had no power to cut the ties that bound. “Once an Englishman, always an Englishman,” had been the maxim cited by British courts. But this was subjectship, America’s Founding Fathers decided, not citizenship. The Declaration of Independence and the American Revolution that followed refuted the English conception of perpetual and immutable citizenship, without choice or consent. The Declaration announced that the “people” were entitled to “dissolve the political bands which have connected them with another,” because “governments . . . deriv[e] their just powers from the consent of the governed.” After the war was won, and after the nation had ratified the US Constitution in the name of “We the People of the United States,” it was clear that these “People” were empowered to choose their government. Left unresolved, however, was the question of which of the United States’ millions of residents were included within “We the People.”18
Remarkably, neither the Declaration of Independence nor the US Constitution drafted eleven years later defined the rights and privileges of US citizenship, or even who could claim that status. The Founding Fathers did not explain whether American citizenship was acquired by being born on US soil, or by being the child of a US citizen parent, or whether both were required. Nor was it clear whether the federal government or the states controlled access to citizenship, or whether either could strip citizens of that status.19
Nonetheless, the Constitution does hint at what citizenship meant to the founding generation. We know that they conceived of citizenship as a significant marker of allegiance and civic engagement, for the Constitution provides that eligibility to serve as a member of the US House of Representatives requires a minimum of seven years of US citizenship, and to serve in the Senate a minimum of nine. The Framers shared the belief that US citizenship could be automatically acquired at birth, for the Constitution states that the president of the United States must be a “natural born citizen.” And even though the Constitution is silent about who acquires citizenship at birth, it explicitly granted Congress the exclusive power to create a “uniform rule of naturalization” governing immigrants’ acquisition of citizenship.20
The Framers opposed gradations or hierarchies among citizens, as had been the case in ancient Rome and medieval England. The Constitution prohibits both the government of the United States and those of the individual states from granting a “Title of Nobility” that would suggest that one person or group had a status above their fellow citizens. To ensure that each state treated the others’ citizens as equals, Article IV of the Constitution provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”21
But the Constitution’s Privileges and Immunities Clause begged the question of who qualified as a citizen entitled to equal treatment—a tinderbox issue in a nation divided over racialized slavery. As legal historian Martha Jones has explained, if free blacks were considered citizens anywhere, the Privileges and Immunities Clause suggested they had to be treated as citizens everywhere, entitled to all the political and civil rights that even many Northern states limited to white property holders alone. So if Vermont bestowed citizenship on its free black residents who then traveled to the South, did the Privileges and Immunities Clause require Virginia to treat those transplanted Vermonters as they would their own white citizens? That vexing question repeatedly came before both the courts and Congress in the first half of the nineteenth century, producing clashing oratory but no clear results.22
Indeed, the citizenship status of free blacks nearly derailed the Missouri Compromise of 1820—the legislation that kept war between the slave and free states at bay for decades. Congress had been on the verge of voting in favor of the agreement to allow Maine to join the union as a free state and Missouri as a slave state, as well as barring slavery in the Louisiana Purchase territory north of Missouri’s southern border. But then Missouri added to its constitution a prohibition against “free negroes and mulattos from coming to and settling in [Missouri] under any pretext whatsoever.” Northern congressmen objected, pointing out that free blacks were considered citizens in many Northern states, entitled under the US Constitution to “all Privileges and Immunities of citizens in the several States.” Ultimately, Congress dodged the issue, leaving the question whether free blacks were citizens to another day. Now that Dred Scott v. Sandford reached the US Supreme Court, that day had arrived.23
On a mid-December morning in 1856, the lawyers for Scott and Sanford settled themselves at counsel table in a ground-floor room on the Senate side of the US Capitol building, waiting for the justices to join them under the vaulted semicircular ceiling. After the packed audience had been shushed into silence, the nine men entered “without any flourish of parade, or announcement . . . in their black silk gowns, in procession, ranked according to the dates of their respective commissions.” The men took their seats directly in front of an arcade of windows, severe in their priest-like black robes. Perhaps by design, the light flooding from behind them made it difficult for the spectators to read the expressions on their faces.24
This was the second time that Dred Scott v. Sandford was to be argued before the US Supreme Court. Remarkably, when the case was first presented to the justices ten months earlier, the nation hardly seemed to notice. A few papers reported in small print on their back pages that a case entitled Scott v. Sandford had reached the high court, with little fanfare or commentary. The case was so obscure that no one could get the parties’ names right. A Supreme Court clerk misspelled John Sanford’s last name, adding a d where there was none, and at least one newspaper reported Dred Scott’s name as “Fred. Scott.” Only the abolitionist paper the National Era gave the case headline status. “Important Suit Before the Supreme Court,” the paper declared in all caps, and then marveled that “little attention seems to have been given” to a case that “involve[s] highly interesting legal and constitutional principles, touching Slavery and the rights of free colored people.”25
The Supreme Court, at least, recognized that the case raised important issues, allotting it four days of oral argument from February 11 to 14, 1856. And yet even that was not enough. After conferencing, the court asked counsel to reargue the case in December of the same year, requesting that the lawyers focus in particular on the question of “whether or not . . . [Dred Scott] is a citizen” whose case could be heard in federal court. That was an ominous sign for the Scotts, as this was the one issue on which they had won in the court below.26
By the time the second oral argument came around, the nation had finally awoken to the enormity of the matter pending before the US Supreme Court. On Monday, December 15, 1856, all nine justices were present to hear what the New-York Tribune called the “the most important [case] that has ever been brought before that tribunal.” “The Supreme Court was thronged this morning,” the Baltimore Sun reported on the same day, noting that the audience included “many distinguished jurists and members of Congress,” and that the case “daily attracts large crowds of earnest auditors.” The Washington Evening Star, which had failed to mention the matter when it was argued in February, now described it as “one of the most important cases ever brought up for adjudication by the Supreme Court.”27
The Scott family’s fate was now in the hands of the nine black-robed men, and in particular those of Chief Justice Roger Brooke Taney. As befit his status, Taney occupied the center chair, flanked by four justices on either side. By tradition, it was Taney who called for the Scotts’ attorney, Montgomery Blair, to step forward to the podium to begin the oral argument.
Taney was six feet tall and did not lack confidence. A contemporary remarked that Taney issued his pronouncements on questions of law and life alike with an air of papal infallibility. But he walked with a stoop and carried a whiff of “persistent invalidism” that for decades had led each new president to assume he would be looking for Taney’s replacement in short order. Yet Taney hung on. By the time the Scotts’ case came before the court, he was a few months shy of eighty. He had already served on the court for two decades and would labor on for another eight years until his death in 1864.28
Taney was born into a wealthy slave-owning family in Calvert County, Maryland. Although he had freed his own slaves more than thirty years before the Scotts’ case reached his court, he remained an ardent supporter of the slave states’ right to maintain the institution of slavery, free from interference by the free states or the federal government. And he was not alone. Four other justices were also from slave states, all from slaveholding families. Seven out of the nine justices had been appointed by Southern, slave-owning presidents. As a reporter for the New-York Tribune commented, “The members of the Court are not impartial in such a case,” so to “expect them to sit, hear, and resolve, unswayed by the passions of those who placed them where they are, and by the interests of that institution which now controls every other department of the Government, would be to suppose them more than men.”29
As he sat waiting for oral argument to begin, Montgomery Blair knew that he had his work cut out for him. The lanky forty-three-year-old Blair was a socially and politically prominent Republican from the border state of Kentucky who had taken on the Scotts’ case pro bono once it reached the Supreme Court.30
For over a decade, Dred and Harriet Scott had been dependent on a series of attorneys willing to work for little or no money, so the couple had little say in who represented them.31 If the Scotts had been able to select their own counsel, Blair would surely not have been their first choice. Although he was against the expansion of slavery into the western territories, Blair was also a former slaveholder who opposed integrating blacks into white society as social or political equals. In 1863, in a passionate speech given while serving as President Lincoln’s postmaster general, he declared that the nation was “menaced by the ambition of the ultra-Abolitionists” who wanted to see Negroes “elevated to equality” and who “would make the manumission of the slaves the means of infusing their blood into our whole system by blending with it ‘amalgamation, equality, and fraternity.’” Like many supporters of the Union—including, for a time, President Lincoln—Blair advocated that freed slaves be immediately removed from the United States to Africa or Central America. (Abolitionist William Lloyd Garrison attacked Blair for his “vulgar exhibition of senseless colorphobia,” concluding, “It is Mr. Montgomery Blair who ought to be banished, if anybody.”)
Blair clung to these views throughout the Reconstruction era and beyond. In 1879, a few years before his death, he published an article in the North American Review criticizing black suffrage and referring favorably to the idea of deporting the black population, writing that “Nature has drawn such indelible lines of distinction between the black and white races that they can not live as equals in the same government.”32
At 11 a.m. on December 15, 1856, this was the man who rose to his feet before the US Supreme Court to argue that Dred Scott was a free man and a citizen of the United States.
On a clear spring morning almost three months later, Chief Justice Taney slowly made his way through the throng of top-hatted dignitaries gathered on the platform over the steps at the Capitol’s east portico. In a few moments he would swear in James Buchanan as the nation’s fifteenth president.
Buchanan, a Democrat, won comfortably in the Electoral College, but he lost ten of the fourteen Northern states and received less than half the popular vote in the three-way race for president. His election temporarily put to rest the Southern states’ threats to secede had Republican John Frémont won, but the contentious campaign and election had done nothing to soothe sectional tensions around slavery. Buchanan despised abolitionists, viewed slavery as a kindness to the slaves, and had the South to thank for two-thirds of the Electoral College’s vote in his favor. He had no hope of bringing the country together.33
Buchanan seemed to think that the Taney Court could save him and the country from having to address the schism over slavery. In his three-hour-long inaugural speech, he described the conflict between slave and free states as “a judicial question,” promising to “cheerfully submit” to the court’s decision in Dred Scott, “whatever this may be.”34
That was easy for Buchanan to say. Violating today’s norms of secrecy, several of the justices had communicated with Buchanan to inform him that the court would rule against Dred Scott, and so Buchanan knew that the court would soon deliver a decision he could live with.35
Two days later, the rest of the nation learned the result as well. At 11 a.m. on March 6, Chief Justice Taney and his colleagues again took their places in their ground-floor courtroom. Once again, the courtroom was packed, but this time it was the justices and not the lawyers who took center stage. Taney cleared his throat and began. For more than two hours, he read aloud from his opinion defending the outcome, his wavering voice at times so low as to be barely audible.36
The opinion was breathtaking in its scope. A seven-member majority of the court had concluded that Dred Scott’s residence in free territory was not enough to free him, ending the “once free, always free” rule that had governed in the past. But Taney’s opinion then went far beyond that already broad ruling to conclude that Congress lacked any authority to prohibit slavery in the territories. The decision rendered the thirty-seven-year-old Missouri Compromise banning slavery north of Missouri’s southern border a dead letter, and it marked the first time in its history that the Supreme Court invalidated a major federal statute. Many in the North, including Abraham Lincoln, thought the decision would inevitably lead to the nationalization of slavery—unless the nation went to war first.
Arguably, however, Taney should not have reached any of those issues. For he also declared that no black person, whether slave or free, could ever be a US citizen. That meant the court had no jurisdiction to hear the Scotts’ case, and so the court lacked authority to opine on any other matter.37
The Dred Scott decision is infamous for its perpetuation and expansion of slavery, which pushed a teetering nation one step closer to civil war. But Taney’s conclusions about black citizenship were equally sweeping. In one stroke, he stripped national citizenship from half a million free blacks living in the United States and barred four million enslaved blacks from any hope of joining the polity, even if they bought or won their freedom.
Taney couched black citizenship as a question that began and ended with history—a history he skewed to support the conclusion he endorsed. He concluded that only those persons “who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of [the United States]”—a group that Taney concluded could not have included blacks. “For more than a century,” Taney wrote, blacks had “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations.” Then, in a sentence for which he would be pilloried for years to come, Taney said that blacks were considered “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.”38
As support, Taney pointed to long-standing state and federal laws prohibiting cross-racial marriage, excluding blacks from militias, barring blacks from naturalizing, and preventing blacks from voting. The US Constitution itself endorsed slavery by prohibiting Congress from interfering with the importation of slaves until 1808, and by requiring that any “person held to service or labor” (typically a slave) who flees to another state must be returned to his owner. Taney conceded that states could bestow state citizenship on black residents if they so chose, but states had no power to endow blacks with citizenship under the US Constitution.39
But what of the Declaration of Independence’s sweeping rhetoric that “all men are created equal” and are “endowed by their Creator with certain unalienable rights”? Taney admitted that such language would “seem to embrace the whole human family.” Yet for him it was “too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.” For if so, the “conduct of the distinguished men who framed the Declaration of Independence,” many of whom owned slaves themselves, “would have been utterly and flagrantly inconsistent with the principles they asserted.”
Like so many before and since, Taney could not reconcile the Declaration’s stirring words with its proponents’ actions. He concluded that if the Founding Fathers had intended to include blacks as among the “men” who were “created equal,” even as they imported and enslaved so many of that race for their own benefit, then they would have “deserved and received universal rebuke and reprobation” from the rest of the world. The twenty-first-century reader is struck by how Taney perfectly captured the founding generation’s hypocrisy, even as he tried to resolve it by enlarging the denial of blacks’ humanity at its core.40
And so Taney concluded that black inhabitants of the United States “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”41
Justice Benjamin Curtis was one of only two justices to dissent, and the only one to attack Taney’s views on black citizenship at length. A shade under fifty years old, Curtis was a generation younger than all but one of his colleagues on the bench, and he had served on the court for only six years—a mere whippersnapper from Taney’s perspective. Although born and educated in Massachusetts, Curtis was no firebrand for black equality. As the court’s first and only Whig, he advocated for compromise on the slavery issue. Curtis was a vocal supporter of the Fugitive Slave Act requiring that Northern states help return fleeing slaves as a key component in such a compromise—a position for which he had been excoriated in his home state. Later, he would go on record as opposing the Emancipation Proclamation. Ralph Waldo Emerson publicly proclaimed that Curtis was a man “without self-respect” and “without character” for such views.42
“It is not true,” Curtis wrote in a direct rebuke to Taney, “that the Constitution was made exclusively by and for the white race.” “Colored persons were not only included in the body of ‘the people of the United States’ by whom the Constitution was ordained and established,” Curtis explained, “in at least five of the States, they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption.” Because some blacks were citizens at the time of the Constitution’s ratification—indeed, had voted to ratify it themselves—they were part of “We the People” who, paraphrasing the words of the Constitution’s preamble, had “ordained and established” the Constitution for “themselves and their posterity.” It “would be strange,” the justice observed, “if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established.”43
Curtis’s dissent gave a full-throated defense of birthright citizenship, at least for those born free on US soil. Repeating arguments long made by free blacks, Curtis observed that the Constitution’s requirement that the president be “a natural-born citizen . . . assumes that citizenship may be acquired by birth.” Birthright citizenship was the common-law rule at the time the Constitution was ratified in 1788 and had generally been accepted both before the Declaration of Independence and after, when those born in the former colonies became citizens of the United States. Although Curtis failed to mention it, at the turn of the nineteenth century the federal government had expressly recognized birthright citizenship when it issued certificates of citizenship to black sailors to prevent their impressment by the British navy. The “Constitution has recognised the general principle of public law that allegiance and citizenship depend on place of birth,” Curtis declared.44
Curtis did not deny that state and federal laws subjected free blacks to a long list of disabilities. But he pointed out that similar laws excluded women, children, and the mentally incompetent from voting, holding office, controlling property, and the like, and yet no one denied that these groups were US citizens within the meaning of the Constitution. “Citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights,” he explained, “and any attempt to define it must lead to error.”45
Curtis was technically correct. And yet in making this point, he embraced a view of citizenship that was so thin as to be all but content-less. He would not have the Court resolve questions such as which citizens could exercise the franchise and “what civil rights shall be enjoyed,” leaving those matters to “be determined by each State, in accordance with its own views of the necessities or expediencies of its condition.” For Curtis, then, free blacks were citizens within the meaning of the US Constitution, but that status seemed to confer on them no rights beyond the ability to file a lawsuit in the US courts.46
Curtis’s dissent was applauded throughout the North, and his words were reprinted in newspapers across the country. But he took no pleasure in becoming the standard-bearer for Northern abolitionists, and his dissent in this momentous case would ultimately shatter what had once been a successful career. As he explained in a letter to a friend, the political nature of the court’s decision, the partisan rancor that followed it, and an acrimonious exchange of letters with Chief Justice Taney about the case had left him without the “confidence in the court . . . [or] that willingness to cooperate with them, which are essential to the satisfactory discharge of my duties as a member of that body.” Within six months of the decision, Curtis had tendered his resignation—one of the very few justices in the court’s history to leave the position before death or retirement—citing only “reasons growing out of his private affairs.”47
News of this final complete loss of any hope for freedom must have devastated Dred and Harriet Scott. In the words of St. Louis, Missouri’s Holmes County Republican, the Supreme Court’s decision “dooms [them] to Slavery.” The court’s ruling crushed not only their own hopes for freedom, but also those of every other slave in a similar position, as well as the claims of free blacks throughout the United States to the rights and privileges of US citizenship.48
For the Scotts, the lawsuit had been an eleven-year ordeal that had ended in disaster. Dred Scott told one newspaper reporter that the case had brought him a “heap ‘o trouble,” and that if he had known “it was gwine to last so long” he would not have filed it. The Scotts had brought the case to keep their family together, but they were now in greater danger than ever before. Irene Emerson would have no interest in retaining the slaves who had battled her for over a decade for their freedom, and there was nothing to stop her from selling Harriet and Dred at the next auction, as well as their two daughters—though only if she could find them first. Eliza, now eighteen years old, and Lizzie, about ten, were still in hiding, likely living under an assumed name with a friend or relative. Their parents must have clung to the hope that whatever happened next, the girls could stay together.49
And then, a miracle. In March 1857, the Springfield, Massachusetts, Argus ran a story reporting that the Scott family was owned by John Sanford’s sister Irene Emerson (now Irene Chaffee) and her second husband, US congressman Calvin Clifford Chaffee. The Chaffees lived in Massachusetts, where slavery was both illegal and unpopular, and Representative Chaffee was well known as an “ultra abolitionist” member of Congress. The Argus mocked him for pretending to be an abolitionist while “at the same time enjoy[ing]” the benefits of slavery “under the cover of his wife’s crinoline.”50
Chaffee quickly responded in a letter to the Springfield Republican that “neither myself nor any member of my family . . . ever knew of the existence of that suit,” and that he had “no power to control” the litigation. His professed ignorance was hard to square with his wife’s eleven-year legal battle. The Chaffees became laughingstocks, and Representative Chaffee was derided as a hypocrite. Although he did not resign his seat, life in Washington, DC, must have become “uncomfortable,” as the Argus gleefully put it. Chaffee lost his next election to Congress, and never served in elected office again.51
As one historian asked, did Chaffee “innocently march . . . up the aisle with his Southern bride, unaware that his betrothed was soon to be unmasked as one of the most famous slave masters on the continent?” Or did he know full well that his new wife had spent years defending her right to retain ownership of her slaves? Either way, that an abolitionist member of Congress became the accidental owner of the most famous slaves in America was further evidence that the United States was “a house divided”—at times, literally—on the issue of slavery.52
Whatever he may have known before the Supreme Court issued its decision, the humiliated Chaffee moved quickly to defend himself and right the very public wrong. He declared the Supreme Court’s decision “monstrous” and expressed his “fullest sympathy with Dred Scott and his family in their efforts to secure their just rights to freedom,” writing in the pages of the Springfield Republican newspaper, “I believe that, under the Constitution and laws of this Union, these colored persons have become not only freemen, but citizens.” In a heartfelt private letter to the Scotts’ attorney, Montgomery Blair, Chaffee asked advice on how to help the Scotts. “My whole soul utterly loathes & abhors the whole system of slavery,” he wrote, and the court’s decision “has made humanity grieve and all true Americans blush.”
On May 13, 1857, Chaffee filed papers transferring any ownership interests he and his family “have or are supposed to have” in the Scott family to the son of Dred Scott’s childhood owner—a man who had long supported the lawsuit financially, apparently on the strength of his fond memories of Dred while growing up—who promptly freed them.53
(Although Representative Chaffee took pains never to concede that his family owned the Scotts, his wife had no such qualms. On May 27, 1857, Irene Chaffee’s attorney quietly filed a legal claim for the Scotts’ wages earned during the years of litigation, which she received.)54
On May 26, 1857, more than eleven years after they filed their case in court, the Scott family was free. In an interview, Dred professed to be “grateful for the boon of liberty which had recently been granted him.” His daughters came out from hiding, and the family could live together openly for the first time in many years. Dred and Harriet Scott had filed their lawsuit to keep their family together, and in that they had succeeded. But, as they both well knew, they were free not because a court of law had declared them so. They were free because in their case—and their case only—the court of public opinion had demanded it.55
If President Buchanan had truly expected the country to “cheerfully submit” to the court’s decision in Dred Scott, then he was sorely disappointed. Newspapers throughout the North howled in outrage, competing to find colorful adjectives with which to condemn it. “Barbarous and humiliating,” shrieked the New York Evening Post. New York’s Independent spluttered, “There never was, under the whole heaven, a more atrocious, wholesale wickedness perpetrated upon the bench of justice than this.” Unable to leave it at that, the paper continued, Dred Scott “takes . . . a whole race by the throat, and strangles it, and flings forth the lifeless corpse.” Although most of the outrage was reserved for the majority opinion’s statements about slavery, editorials also condemned its rejection of black citizenship. The Evening Post declared that the Supreme Court “has annihilated at a single blow the citizenship of the entire colored population of the country, and with it all laws and constitutional provisions of the different states for the protection of those rights.”56
The Southern courts greeted the court’s decision in Dred Scott with relief. These courts relied in particular on Taney’s assertion that regardless of whether some states chose to make their black residents state citizens, no black person could ever be a citizen within the meaning of the US Constitution, and no state could be required to grant them the rights of citizenship. In 1859, the Mississippi Supreme Court cited Taney’s opinion to reject the claim of a freed slave living in the free state of Ohio that, as a citizen of Ohio, she could inherit property bequeathed to her by her former owner—a white Mississippian who also happened to be her father. “Ohio has . . . the right to degrade and disgrace herself” by “confer[ring] citizenship” on free blacks, or “on the chimpanzee or ourang-outang” for that matter, sneered Mississippi’s highest court. But according to Dred Scott, Ohio could not force Mississippi to “lower their own citizens and institutions” by granting a free black woman that same citizenship status.57
Free! The Scotts must have marveled at their change in fortune. After eleven long years in court, they were finally free. But they still had to live in the world that the divided nation and the Taney Court created for them. They felt secure enough to fetch their two daughters from hiding, living together for the first time in years in a wooden house with a balcony in an alley near Carr and Sixth Streets in downtown St. Louis. Dred Scott found work as a porter at the nearby Barnum Hotel. Aided by her daughters—Eliza now a young adult and Lizzie a teenager—Harriet was employed as a washerwoman, backbreaking physical labor requiring buckets of scalding water, caustic soap, and heavy irons. She was used to hard work, explaining to a reporter that she was proud that she had “always been able to yarn her own livin’.” The Scotts must have taken a newfound pleasure in keeping their wages every week rather than be forced to turn them over to their white owner.58
But were the Scotts safe? In the months after his case had made the front pages of newspapers across the nation, Dred Scott had become a public figure, “attracting a great deal of attention from strangers” as he walked the streets of St. Louis. One newspaper described him as “the most celebrated character of the present day,” and another as “the best known colored person in the world.”59
All the attention made the Scott family nervous. When newspaper reporters came knocking on the door a few months after the case was decided, Harriet was visibly riled. “Why don’t white man ‘tend to his own business, and let dat nigger ‘lone?” she complained, then worried out loud, “Some of dese days dey’ll steal dat nigger—dat are a fact.” Harriet had good reason to be worried. It was not unusual for free blacks to be snatched and sold back into slavery, and she feared that the extraordinary media attention followed by their very public emancipation put the whole family at risk of retaliation.60
Even if the Scott family could avoid kidnapping, re-enslavement, or other physical harm, their lives as ostensibly “free” persons were deeply circumscribed, as was the case for all free blacks in Missouri. As sectional tensions over slavery increased, white Missourians had grown more paranoid about the risk of free blacks unsettling the enslaved population and had enacted a series of laws intended to curb their influence. Black churches were not permitted to hold services unless a white police officer was present. Free blacks were barred from “bartering in liquors” or assembling in taverns. Although Dred Scott was permitted to work at the Barnum Hotel, no black person was allowed to stay there, or in any other hotel available to whites. Another law set a curfew for free blacks and slaves alike, declaring that “all negroes found in the street after the hour of ten o’clock without a proper pass will be arrested.” Free blacks were barred from most professions, and even from obtaining the license required to use a wheelbarrow in the streets, making the job of courier off-limits as well. In 1847, Missouri joined other Southern states by enacting a law forbidding teaching any black person, free or slave, how to read or write. Dred and Harriet Scott were illiterate and had signed their court papers with an “X”; Missouri sentenced their daughters to the same fate.61
Even to claim their status as free persons, the Scotts had first to obtain a license from the state, which entailed posting a $1,000 bond to ensure that they maintained “good behavior,” along with finding a white man willing to sign as security. A black person without a license could be arrested, jailed, rented out to pay off the large fine, whipped, and then immediately expelled from the state and barred from returning. Not only were the Scotts not citizens; they were just barely free.62
The Dred Scott decision illustrated how citizenship and freedom were inextricably intertwined. As for so many other Americans, Chief Justice Taney found it impossible to reconcile black citizenship with black enslavement—though he responded to that dilemma by ending citizenship rather than by ending slavery. The existence of one status rendered the other intolerable, perhaps because the social and political rights of citizenship—not only the right to vote and hold office but also to obtain an education, travel freely, own property, access the justice system, use public spaces, and participate in public discourse—suggested not just equality but also a shared humanity incompatible with the institution of slavery.