Chapter 4: Denying an Appeal for Freedom

Scott v. Sandford (1857)

In 1857 the Supreme Court refused to grant Dred Scott’s petition for freedom from slavery. In the 1830s, Dred Scott had moved from St. Louis with his owner, Dr. Emerson, to the free state of Illinois. After Emerson’s death, Scott returned to St. Louis with the doctor’s widow. Scott sued for his freedom in a Missouri state court based on the fact that he had resided in a state where slavery was illegal, but he failed to win his case. The Supreme Court accepted Scott’s appeal, but ultimately decided against Scott in 1857. Chief Justice Roger B. Taney’s opinion in this case, Scott v. Sandford, immediately prompted intense controversy. For example, Frederick Douglass, a prominent antislavery leader, called Taney’s opinion for the Court an “infamous decision.” Nonetheless, its historical significance has been huge.

The seeds that yielded the Court’s infamous decision in the Dred Scott case were planted long before 1857, during the country’s colonial period, when European traders brought slaves from Africa to America. This seedbed was cultivated anew during the founding of the United States of America, when slavery became a hot issue at the 1787 Constitutional Convention in Philadelphia. Some delegates owned slaves, and many others did not; but most were worried that controversy about slavery could disrupt and destroy the convention and ultimately the United States. Most delegates opposed the importation of slaves into their country, and a few wanted to abolish slavery throughout the nation, but others resisted any constitutional prohibition of slavery or the slave trade. Delegates of such slave states as South Carolina and Georgia even threatened to withdraw from the convention if a clause to ban slavery or the slave trade was put into the Constitution.

In response to these threats, the delegates compromised about the bitterly contested slavery issue. For example, the Constitution permitted the importation of slaves, but only until 1808, when a congressional act could end the slave trade. The Constitution also allowed slavery to exist within the new nation, but the government of each state in the federal union could decide independently whether to abolish or protect it. However, a fugitive slave clause was included (Article 4, Section 2); it provided for the return to slavery of anyone who had escaped to a free state or territory.

Clashing opinions about slavery continued to divide the nation following the ratification and implementation of the U.S. Constitution. This nefarious institution was never solidly established in most states of the northeastern section of the country, and it eventually was abolished there. Slavery was abolished in Massachusetts before 1787; it was undergoing gradual abolition in Pennsylvania based on a 1782 law; it was practically gone from New Hampshire and Rhode Island by 1790; and the Vermont Constitution prohibited it. In 1787 the Northwest Ordinance, an act of Congress, prohibited slavery in the federal territories north and west of the Ohio River. New states formed in the Northwest Territory were therefore bound to enter the federal union free of slavery. The federal government did not ban slavery in its southwestern territories, which at that time extended to the Mississippi River, and states carved out of this region entered the federal union as slave states.

The territory of the United States expanded far beyond the west bank of the Mississippi River in 1803, when President Thomas Jefferson authorized the purchase of Louisiana from France, which raised, once again, political arguments about whether slavery should be permitted in U.S. territories. Congress resolved this dispute, at least for a while, with the Missouri Compromise of 1820. This federal legislation established a boundary extending to the western edge of the country; territory south of this line, including Missouri, was open to slavery, but territory north of it was not. Thus, the United States continued to be divided along north-south lines by the presence or absence of slavery, a condition that had persisted in one way or another from its earliest years until Scott v. Sandford came before the Court in 1857.

The originator of this case, Dred Scott, was brought to Missouri from Virginia by way of Alabama by his owner Peter Blow. In 1832, the Blow family sold Scott to Dr. John Emerson. Dred Scott traveled with Emerson to Rock Island, a town in the free state of Illinois. Later, Scott went with his owner to Fort Snelling in the Territory of Wisconsin (an area now part of the state of Minnesota). Both the 1787 Northwest Ordinance and the 1820 Missouri Compromise had forbidden slavery in this territory. After Dr. Emerson’s death in 1843, Scott and his family (a wife and two children) became the property of Mrs. Emerson, and they returned to St. Louis. In 1846, Dred Scott sued Eliza Irene Emerson in a Missouri state court to gain his freedom from bondage.

The sons of the late Peter Blow, who had been Dred Scott’s original owner, financially supported Scott’s claim for freedom, which was based on his period of residence north of the Missouri Compromise line, where slavery was outlawed. Scott appeared to have a strong case because Missouri law recognized claims for emancipation by slaves who had resided in states or territories where slavery was illegal. After winning at trial, Scott’s case was mired in legal complexities and not settled until 1852, when the Missouri Supreme Court overturned the lower court decision that had favored Scott. The court rejected Scott’s claim of freedom based on residence in a free territory and held instead that the current law of Missouri prevailed, despite precedents to the contrary.

The state court’s decision seemed to be the final word on Dred Scott’s quest for freedom. Scott’s lawyers, however, found a way to bring the issue to the federal judicial system, where they might seek a favorable outcome for their client. Their strategy was made possible by the remarriage of Mrs. Emerson, who subsequently transferred her ownership of Scott and his family to her brother, John F. A. Sanford. Scott’s new owner carried out business in St. Louis, Missouri, but his primary residence was in New York. Scott, who claimed to be a citizen of Missouri, had the legal right to sue a citizen of another state in a federal court, because Article 3 of the U.S. Constitution gave jurisdiction in such cases to the federal courts. The Blow family continued to support Scott’s case by hiring lawyers and paying the legal expenses.

A federal judge validated Scott’s claim to citizenship, which enabled his case to proceed in the federal district court in Missouri. The judge, however, instructed the jury that their decision should be based on the prevailing law of Missouri and not on Scott’s claims to freedom based on his residence in a slavery-free state or territory of the United States. Thus, the jury quickly returned a verdict against Scott.

Scott’s lawyers appealed to the U.S. Supreme Court on the claim of a writ of error, charging that the presiding federal judge had improperly instructed the jury and, therefore, biased its decision. The U.S. Supreme Court accepted the appeal and conducted hearings on Scott v. Sandford in 1856. The clerk of the U.S. Supreme Court misspelled the last name of John F. A. Sanford by adding a “d” to it, and the misspelled name remains in the official record of this case.

The Supreme Court conducted hearings on the Dred Scott case in February 1856, and Sanford’s lawyers raised a new issue. They claimed that the Missouri Compromise was unconstitutional. If so, then Scott’s residence in northern federal territory could not make him free. Many observers believed that Congress’s Kansas-Nebraska Act of 1854 had superseded the Missouri Compromise by authorizing the residents of Kansas and Nebraska to decide by majority vote whether to permit slavery. However, Sanford’s lawyers believed that this federal statute applied only to Kansas and Nebraska, and they wanted to ensure that the popular sovereignty principle of the Kansas-Nebraska Act would be extended to all the western territories by influencing the Supreme Court to declare the Missouri Compromise unconstitutional.

Congressional and Presidential election campaigns were going on in 1856, and heated arguments about slavery consumed the attention of political candidates and voters. The justices thought it prudent not to decide the Dred Scott case in such a contentious climate, and they chose to hold oral arguments again in December, when the elections were over.

The Court’s decision to conduct a second round of oral arguments heightened public interest in a case fraught with momentous political consequences in the bitter debate over slavery. The Washington, D.C., newspaper reporters and members of Congress paid close attention when the hearings on the Dred Scott case began on December 15, 1856. The oral arguments continued for twelve hours spread across four days.

Counsel for Scott argued that residency on free soil justified his claim to be a free man. Even if Missouri did not recognize the antislavery laws of Illinois, where Scott had resided, the “supremacy clause” in Article 6 of the U.S. Constitution required all states to obey federal laws, such as the Missouri Compromise, which justified Scott’s claim to freedom from slavery. They also claimed that Scott could bring suit in a federal court because his right to citizenship had been sufficiently recognized by the judge who permitted his case to proceed in a federal district court.

Sanford’s lawyers contended that Dred Scott was not a citizen and therefore could not bring suit in a federal court. Furthermore, they asserted that Congress had no power to regulate slavery in the territories of the United States and consequently the Missouri Compromise was unconstitutional.

The Supreme Court ruled against Scott on March 6, 1857. Although Chief Justice Taney wrote officially for the Court, every other justice authored an opinion, and only Justice James M. Wayne agreed with Taney on every particular of his opinion. Despite the bulk, variety, and opacity of the opinions, it was clear that the Court’s majority had rejected Scott’s claim to freedom and had accepted the chief justice’s argument that black Americans were excluded from citizenship in the United States.

Writing for the Court, Chief Justice Roger B. Taney addressed three separate issues. First, could a person such as Dred Scott claim to be a citizen of the United States and thereby bring suit in a federal court? If not, then the Supreme Court had no jurisdiction in this case. Second, did Congress have power under the U.S. Constitution to ban slavery in the nation’s western territories? Third, did the federal statute authorizing the Missouri Compromise of 1820 violate property rights protected under the Fifth Amendment of the Constitution?

Chief Justice Taney first argued that Scott could not sue in a federal court because he was not a citizen of the United States. He claimed that no black person, slave or free, could be a citizen. The chief justice wrote,

The question is simply this: Can a negro, whose ancestors were imported into the country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges and immunities guaranteed by that instrument to the citizen?”

Taney answered,“We think they are not . . . included, and were not intended to be included, under the word ‘citizen’ in the Constitution.” Rather, the chief justice asserted that at the time the Constitution was written black persons were “considered as a subordinate and inferior class or beings, who had been subjugated by the dominant race, and whether emancipated or not . . . had no rights or privileges but such as those who held the power and the Government might choose to grant them.” Taney concluded that Dred Scott “could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and consequently, was not entitled to sue in its courts.”

Having decided that Scott had no right to sue in a federal court, Taney might have stopped. After all, he had concluded that the Court had no jurisdiction in this case. However, the issue of slavery in the federal territories was an important political question, and Taney wanted to let the nation know where the Court stood on it. He may even have thought that the Court could positively influence a resolution of the contentious issue and restore harmony to the divided country; but Taney’s superfluous slurs against African Americans were inflammatory. For example, he claimed that African Americans were regarded as “so far inferior, that they had no rights which the white man was bound to respect.”

Taney easily disposed of Scott’s claim to freedom based on the antislavery laws of Illinois, where he had temporarily resided. The chief justice held that when Scott left Illinois, he lost whatever claim to freedom he had while residing there, and no law or precedent obligated Missouri, where slavery was legal, to enforce Illinois’s antislavery laws.

Scott’s claim based on the Missouri Compromise was also dismissed by the chief justice, who declared this act of Congress to be unconstitutional. Taney recognized that Article 4, Section 3 of the Constitution gives Congress “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Congress had used this power to govern the federal territories through enactments such as the Northwest Ordinance, the Missouri Compromise, and the Kansas-Nebraska Act. However, the chief justice interpreted the “territories clause” of Article 4 in a novel and implausible way to support his judgment that the Missouri Compromise was unconstitutional. Taney wrote that the clause was

confined, and was intended to be confined, to the territory which at that time [1787] belonged to, or was claimed by, the United States . . . and can have no influence upon a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more.

According to Taney, Congress could enact laws to regulate the territory north and west of the Ohio River, as it did in the Northwest Ordinance of 1787. But it had no constitutional authority to regulate the vast territories gained by the Louisiana Purchase in 1803, as it did by enacting the Missouri Compromise. The chief justice could present neither historical evidence nor judicial precedent to support this bizarre interpretation of the Article 4 clause about the governance of federal territories.

An additional argument by Taney against the constitutional validity of the Missouri Compromise was based on the Constitution’s Fifth Amendment, which guaranteed that a person could not be deprived of his property without “due process of law” and “just compensation.” The Missouri Compromise, he argued, deprived persons, such as Dred Scott’s owner, of their property in slaves simply for entering federal territories. Thus, Taney held that the Missouri Compromise was an unconstitutional violation of the Fifth Amendment.

This was only the second time that the Supreme Court had used its power of judicial review to strike down an act of Congress. Judicial review against a coordinate branch of the federal government had first been used by the Court in Marbury v. Madison (1803).

Two justices, John McLean and Benjamin R. Curtis, wrote strong dissenting opinions. Both McLean and Curtis disputed and demolished the historical accuracy and legal reasoning of the chief justice’s opinion for the Court. McLean, for example, argued that the U.S. Constitution did not protect slavery, which existed in particular states only because of laws protecting it within these slave states. Further, he stressed that Dred Scott’s sojourn in Illinois and the Wisconsin Territory justified his claim to freedom.

Justice Curtis wrote an elaborate dissent that cogently refuted Chief Justice Taney’s opinion for the Court on every one of its main points. In particular, Curtis compiled evidence to demonstrate that many black Americans were citizens in several states when the U.S. Constitution was written and ratified. He pointed to historical records documenting that free black males had the right to vote during the 1780s and 1790s in Massachusetts, New Hampshire, New Jersey, New York, and North Carolina.

Thus, Curtis argued, free blacks had always been citizens in the nation, and if Scott was free the Court had jurisdiction to hear and decide his case. Curtis wrote,

I can find nothing in the Constitution which, proprio vigore [by its own force], deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption . . . nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State, by force of its Constitution or laws, is also a citizen of the United States.

Curtis also argued for the constitutionality of the Missouri Compromise, which he noted had existed as accepted law for more than three decades. During this time, it mitigated regional controversy that had threatened to disrupt and destroy the federal union. Curtis correctly noted that Congress was justified in enacting the Missouri Compromise by Article 4, Section 3 of the U.S. Constitution, which granted Congress the power to enact laws regulating the federal territories. Under the terms of the Missouri Compromise, Dred Scott was a free man due to his residence on free soil. Thus, he certainly had the right to bring suit in a federal court.

Finally, Justice Curtis used historical evidence to contradict Chief Justice Taney’s argument that a claim to freedom from slavery based on the Missouri Compromise violated the due process and just compensation clauses of the Constitution’s Fifth Amendment. He pointed out that Article 1, Section 9 of the U.S. Constitution gave Congress power to enact legislation prohibiting the importation of slaves after 1808. Congress acted according to this provision of the Constitution to enact legislation banning the external slave trade. Curtis then used this hypothetical example based on Article 1, Section 9:

A citizen of the United States owns slaves in Cuba, and brings them to the United States, where they are set free by the legislation of Congress. Does this legislation deprive him of his property without due process of law? If so, what becomes of the laws prohibiting the slave trade? If not, how can a similar regulation respecting a Territory [the Missouri Compromise] violate the fifth amendment of the Constitution?

Newspaper editorials throughout the northern states hailed Justice Benjamin Curtis’s dissent, and denounced the Supreme Court’s opinion in the Dred Scott case. In contrast, public opinion throughout the southern states praised Chief Justice Taney’s opinion for the Court, and reviled the dissenting opinions of Justices Curtis and McClean. The Dred Scott case was a pivotal topic in the 1858 debates between Stephen A. Douglas and Abraham Lincoln in their campaign for election to the U.S. Senate from Illinois.

Chief Justice Taney had imagined that his opinion in Scott v. Sandford would settle the issue of slavery in the federal territories and mitigate the acute tensions that had disrupted relationships of the northern and southern states. Instead, the Court’s decision became a hotly disputed issue. After 1857, sectional conflict became so enflamed that civil war ensued in 1861. When this bloody conflict between the North and South ended in 1865, the Thirteenth Amendment to the Constitution, abolishing slavery throughout the United States, was enacted. The Fourteenth Amendment, which guaranteed the citizenship of black Americans, was enacted in 1868. Thus, by amending their Constitution, the people of the United States overturned the Supreme Court’s decision in Scott v. Sandford.

Although the Supreme Court denied Dred Scott’s claim to freedom, he gained it through the beneficence of his lifelong friends, the sons of his deceased first owner, Peter Blow. They purchased Dred Scott, his wife Harriet Scott, and their two children from John F. A. Sanford. Then the Blow brothers freed Dred Scott and his family. Nine months later, on February 17, 1858, tuberculosis ended Dred Scott’s life, but he died a free man. John F. A. Sanford died in an insane asylum only two months after the conclusion of the Dred Scott case.