On September 17, 1858 Dred Scott died of tuberculosis in St Louis, Missouri. In March 1857 Mr Scott had been the subject of the infamous Supreme Court decision in Dred Scott v Sandford, considered one of stepping stones to the American Civil War. Less than three months after that decision, in which the Court affirmed that he remained a slave, Scott was freed by his owner, Charles Blow (there lies a very tangled tale behind the ownership of Scott and his wife Harriet).
But for an unlikely sequence of events Dred Scott would have won his freedom in a state court case a decade earlier and the case never would have added to the bonfire of sectional conflict.
THC's purpose is not to rehash the Supreme Court decision, which remains a source of scholarly and historical interest more than 150 years later with still-raging disputes about what the actual holding of the case is and what is mere dicta, a dispute complicated by the fact that all nine justices filed separate opinions. Rather it is to focus more on the earlier litigation in the Missouri state courts because it illustrates the changing and hardening attitudes about slavery in the slave holding states in the decades prior to the Civil War. The best account of the case and its historical setting remains the 1978 Pulitzer Prize winning book by Don E Fehrenbacher; The Dred Scott Case: Its Significance in American Law and Politics from which much of the story is this post is taken.
Dred Scott was born around 1800 in Virginia. Almost nothing is known of the man so we have virtually no insight into his personality. He may have been no more than five feet tall. Fehrenbacher cites an 1857 newspaper article in the St Louis Evening News which calls him "illiterate but not ignoble" and with a "strong common sense". We do not know how much of the initiative of the eleven years of litigation was at his initiative. There is still so much unknown regarding his character, his relationship with his original owners, the Blows, and what other people or groups played a role in setting the strategy and funding it for the years of litigation.
In 1833, Dred Scott was sold to Dr John Emerson of St Louis by the family of Peter Blow, his owners since his childhood or early adulthood. The Blow family was later to become his chief supporters in his fight for freedom. Dr Emerson had recently received an appointment as assistant surgeon in the U.S. Army and his first posting was in Illinois, a free state, to which he took Scott. In 1836 Dr Emerson was transferred to Fort Snelling on the Mississippi River near present day St Paul, Minnesota again taking Scott with him. Fort Snelling was in what was then the Wisconsin Territory and within the area where slavery was forbidden by the Missouri Compromise of 1820. While at Snelling, Scott met and was allowed to marry Harriet Robinson, a marriage that lasted until his death. Harriet and their two daughters joined Dred in his lawsuit.
In 1840, Dr Emerson was ordered to Florida. Instead of taking the Scotts with him they accompanied his wife Eliza (Sanford) Emerson to their home in St Louis. Emerson resigned from the Army in 1842 returning to St Louis and dying in Iowa the next year.
In 1846 Dred Scott tried to buy freedom for himself and his family but Mrs Sanford refused for reasons that are still unclear. In April of that year, Dred and Harriet filed petitions in Missouri court seeking their freedom based on their residence on free soil. Under then-existing Missouri law the petition by the Scott stood a good chance of success. It may seem surprising but several slave holding states applied a relatively strong presumption of freedom in such cases. On numerous occasions the Missouri Supreme Court had ruled that a slave, taken by his master to reside in a state where slavery was prohibited, was thereby emancipated and had even ruled in favor of a slave held by a military officer at Fort Snelling (see Rachel v Walker (1836)).
At trial in June 1847 Scott's lawyers only needed to prove two facts to prevail; that Dred had been taken by his master to reside in a free state or territory and that Mrs Emerson currently owned him. Nonetheless a verdict was returned in favor of Mrs Emerson because Scott's lawyers failed to prove that she was the owner of the Scotts leading to the bizarre result that the Scotts remained the slaves of Mrs Emerson because technically it had not been proved she owned them! Apparently, Scott's lawyers planned to rely on the testimony of Samuel Russell who stated he'd hired the Scotts to perform some work for him from Mrs Emerson. However, on cross-examination Russell admitted that his wife, who did not testify, had made all the arrangements and he only knew what his wife had told him. The whole thing sounds very strange to THC.
The cases were refiled with additional defendants added and a new trial ordered. The defendants appealed the order but the Missouri Supreme Court sided with the Scotts and directed the trial to proceed. At the second time around in January 1850 the jury found in favor of Dred Scott (this would have been an all-white jury as blacks were not permitted to serve). The defendants then appealed to the Missouri Supreme Court. Although briefs were filed in March 1850, the Court did not render a decision until 1852. If the Scotts had prevailed in the original 1847 trial they would have won their freedom but changes in the political atmosphere led to a different result five years later.
To understand what happened we need to go back a bit. At the time of the Declaration of Independence (1776) and the Constitution Convention (1787) sectional differences over slavery could not be resolved but the common assumption, North and South, was that it would, and should, cease to exist at some point in the future. As the United States expanded the issue of whether slavery was to be allowed in the territories was subject to a series of differing accommodations. Slavery also became more economically and culturally embedded with the growth of the cotton economy. Thomas Jefferson and John Adams, both of whom assumed slavery would fade away in time, grew more distressed at the intractability of the problem expressing their despair during the final years of their correspondence which ended with their deaths in 1826.
The 1830s saw the sectional conflict heat up with the start of the abolition movement in the North (particularly New England) which was seen as a great threat and incitement to slave rebellion by the South and in the South by the growing doctrine that slavery was a positive good for both master and slave. It also saw the start of an explicit rejection of the Declaration's statement that "all men are created equal" a proposition which John C Calhoun, the intellectual godfather of Southern rejectionism, called a "hypothetical truism" and "the most false and dangerous of all political errors" (as quoted by Harry Jaffa in Dred Scott Revisited, Harvard Journal of Law & Public Policy).
(John C Calhoun; ya gotta love the neckbeard!)
The situation reached a fever pitch during the Mexican War (1846-8) when Congress embarked on a series of fierce debates over whether to permit slavery in the territories acquired from Mexico and slavery for the first time became the dominant issue in a Presidential election (1848) all of which culminated in the Compromise of 1850 which left many in the South outraged because it did not open all the new territory to slavery and left many in the North angry that some of the territory would become slave-holding and that the North would be subject to the loathsome Fugitive Slave Act which subordinated state courts to federal enforcement in returning runaway slaves.
At the same time the legal framework for slavery was changing. All slave states had Slave Codes setting forth how enslaved people were, or were not, to have access to courts, the relative rights of master and slave, and on what grounds they could be freed. During the 18th and early 19th century some of these codes afforded slaves more legal rights than free white women. That changed in the decades preceding the Civil War. New restrictions were placed on the ability of slaves to travel on their own, pass systems were put into place, it became more difficult for masters to free slaves, many states required freed slaves to leave the state and several states forbid slaves being be taught to read and write.
It was in this context that Missouri law, which had been relatively liberal in providing access to courts and in presumptions regarding freedom was about to change. In 1852, the Missouri Supreme Court effectively overruled Rachel v Walker and found against the Scotts by a vote of 2-1.
It is worth quoting at length (from Fehrenbacher's book) the majority opinion by Justice William Scott which well captures the changed tenor of the times:
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 consequences must be the overthrow and destruction of our government . . . Although we may, for our own sakes, regret that the avarice and hard-heartedness of the progenitors of those who are now so sensitive on the subject, ever introduced the institution among us, yet we will not go to them to learn law, morality or religion on the subject.
Justice Scott closed his opinion with these sentiments:
We are almost persuaded that the introduction of slavery amongst us was, in the providence of God, who makes the evil passions of men subservient to His own glory, a means of placing that unhappy race within the pale of civilized nations.
On appeal to the Supreme Court, the Scotts again lost by a vote of 7-2. As mentioned previously the debate over what the court decided, as a matter of law, has gone on for over a century but what is clear is that the Court, or at least Chief Justice Roger Taney, decided that rather than base its decision on narrow grounds as it could have, it would attempt, once and for all, to resolve the slavery issue for the nation, one of the greatest miscalculations in American history.
(Chief Justice Taney, from Biography.com)
Most critically the Court, in Taney's decision, concluded:
(1) Negroes were not citizens of the United States and therefore unable to bring suit in a federal court [note: this applied to all Negroes slave or free]
(2) The Missouri Compromise provisions regarding slavery were unconstitutional since Congress had no power to forbid slavery in the territories.
For anyone who opposed slavery and the power of the South, not just abolitionists, the decision was their worst nightmare.
To reach his result, Justice Taney had to employ a type of perverted Originalism to rewrite the history of the Founding Era in order to conclude that it had never been the intent to provide Negroes any of "the rights and privileges which that instrument [the Constitution] provides for and secures to citizens of the United States". Once again, remember that Justice Taney is making this statement as to all Negroes whether free or slave. In the course of his opinion Taney ignores, distorts and rewrites the history of the late 18th century. As an example, he completely rewrites the history of the Northwest Ordinance, which forbid slavery in the territories north of the Ohio River and east of the Mississippi, was originally drafted by Thomas Jefferson and passed by the Continental Congress and then ratified by the first Congress under the new Constitution.
Justice Taney discovery of this "secret" history contravened the narrative of Southern leaders both before and after Dred Scott. After all, if the Founders never intended to include Negroes with at least some degree of rights, why was John C Calhoun so intent on denouncing their "error" in this regard in the quote cited earlier? And, as Jaffa points out in Dred Scott Revisited, if Taney was correct why did Alexander Stephens, Vice-President of the Confederacy feel compelled in his notorious Cornerstone speech of 1861 to express these sentiments?:
The prevailing ideas entertained by [Jefferson] and most of the leading statesmen at the time of the formation of the old Constitution were, that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the man of that day was that, somehow or other, in the order of Providence, the institution would be evanescent and pass away.
Our new government is founded upon exactly the opposite idea; its foundations are laid; its corner-stone rests upon the great truth that the negro is not the equal to the white man. That slavery - subordination to the superior race - is his natural and moral condition.
This, our new government, is the first in the history of the world based upon this great physical, philosophical, and moral truth.
[By the way, it turns out Stephens is a much more complex and interesting character than THC thought and will be the subject of a future post.]
The Dred Scott decision did not itself make the Civil War inevitable but it helped it along. THC believes Civil War was very likely regardless of the Scott decision but if Dred's lawyers had been a little more prepared and astute in 1847 it is possible that this bit of tinder might never have been added to the fire.
And, if you are interested in reading more about slavery as the root cause of the Civil War take a look at Forever Free, Part 2.