Sanford Emerson.

For some time Mrs. Emerson did what many slaveowners did in those days—hired her chattel out to various families who needed servants. Then, in the mid-i84o’s, she moved to New York, and she did not take Dred Scott with her. Instead she left him in St. Louis in the charge of the two sons of Scott’s original owner, Henry and Taylor Blow, ft was at about this time that the seeds of what was to become one of America’s most famous court cases were planted.

Henry Blow was then in his thirties, a lawyer and businessman of some wealth and prominence. He was head of a railroad, active in developing lead-mining properties in southwestern Missouri; active also in the Whig party, beginning to be known as an opponent of the extension of slavery. (A few years later Henry Blow helped organize the Free Soil movement in Missouri, and eventually he became a Republican.) As an antislavery man, Blow wanted Scott freed, and in 1846 he helped finance a suit in the Missouri courts to have Scott declared free. Scott himself appears to have been a little hazy as to what this was all about, but he willingly signed his mark to the necessary papers, and the lawsuit was on.

At this point it becomes obvious that the real point to this proceeding was not so much to win freedom for Scott personally as to win a legal point in the broad fight against slavery as an institution. Mrs. Emerson obviously did not want to retain Scott as her slave, and she apparently was no believer in slavery—a few years later she became the wife of Calvin Clifford Chaffee, a radical antislavery congressman from Massachusetts. When she moved to New York she could easily have executed papers of manumission to give Scott his freedom. She did not do that; instead, she left him with the Blows, and when his lawsuit began she was technically the defendant—the case was listed formally as “Scott, a Man of Color, v. Emerson.” The case is just a little mysterious, but it seems clear that what everyone wanted was a definite ruling about the status of a slave whose master took him into free territory.

This was beginning to be an important point. The western country was opening up for settlement, and the law said that north of the Missouri Compromise line of 36 degrees, 30 minutes, the new territory was free soil. Exactly what would happen if a slaveowner took his slaves with him when he moved into such territory?

Lawyers for Dred Scott argued that his five-year sojourn on tree soil had ended his bondage and that on his return to Missouri the state court should make formal declaration of his freedom. The lower court rided in Scott’s favor, but an appeal was taken—what everybody wanted, obviously, was a high-level finding that would stand as some sort of landmark—and the state supreme

court eventually reversed the lower court, holding that Missouri law still applied and that Scott, as a resident of Missouri, must remain a slave.

The law’s delays were as notorious then as they are now, and the case dragged on for six years; the ruling of the state supreme court was not handed down until 1852. During this time Scott remained under the nominal control of the county sheriff, who hired him out here and there for five dollars a month. Scott was in limbo, everybody’s slave and nobody’s slave; if he had any thoughts about this interminable process of determining his future, they were never recorded.

Meanwhile, things had been happening—not to Scott, but to the country that countenanced the institution that held him in slavery. The Mexican War had been fought and won, and the United States came into possession of a vast new area running all the way to the golden shores of California, one of the immediate results being that the whole slavery controversy became a dominant issue in national politics. Until now there had been a slightly unstable equilibrium, with the Missouri Compromise decreeing that new territories created lrom Louisiana Purchase lands lying north of the line that marked the southern boundary of Missouri should be free soil. This equilibrium vanished when the immense acquisitions of the Mexican War made it obvious that sooner or later many new states would be created, and the issue was pointed up when Congressman David Wilmot of Pennsylvania unsuccessfully tried to get Congress to pass a law providing that slavery be excluded from all the land that had been taken from Mexico. The question of slavery in the territories, by the early 1850's, had become the great, engrossing question in American politics.

It became important because the way this issue was settled would determine whether the institution of slavery could continue to expand or must be limited to the areas where it already existed. On the surface, it might seem to make very little difference to a planter in Alabama or a farmer in Ohio whether slaves could or could not be held in some such faraway place as New Mexico; actually, the future of slavery itself was at stake, and everybody knew it.

The Compromise of 1850 brought a temporary easing of the tension. Under this arrangement, California came in as a free state, a stronger fugitive slave law was enacted, and it was agreed that when new territories were organi/ed out of the empty lands that had been taken from Mexico the inhabitants of those territories would themselves decide whether slavery was to be permitted or prohibited. This was the famous principle of popular sovereignty; it looked like a fair, democratic way to settle things, and for a short time the nation relaxed.

It did not relax very long. Senator Stephen A. Douglas of Illinois in 1854 brought in his Kansas-Nebraska Act, a measure to organize the new territories of Kansas

and Nebraska. This area had been acquired through the Louisiana Purchase, and it lay north of the Missouri Compromise line of 36 degrees, 30 minutes, and hence these territories must be free soil. But Douglas was a Democrat, in a Democratic Congress, and the Democratic party was largely dominated by southerners, who were most unlikely to consent to the creation of two new free territories which would presently become free states. So Douglas, a firm believer in the principle of popular sovereignty, decided to extend that principle to Kansas and Nebraska. His act, which passed Congress after most heated debate, wiped out the Missouri Compromise line and provided that the settlers of Kansas and Nebraska could say whether slavery might exist there. Meanwhile, slaveowners and their chattels were free to move in.

When he introduced this bill Douglas commented that it would “raise [a] hell of a storm.” He was entirely right. It did; and the slavery controversy returned to the center of the stage, never to leave it until the papers were signed at Appomattox Courthouse.

Of all of this Dred Scott knew nothing. He continued to shift back and forth on the little jobs for which he was now and then farmed out, totally unaware of the new currents that were swirling about him. But lie suddenly became an important person because of that old lawsuit. Missouri slaveowners were moving into Kansas, taking their slaves with them; antislavery people from the North were also moving in, taking their antislavery convictions with them; and there were bitter clashes, with bloodshed and gunfire to focus national attention on the situation. The old question about the status of a slave whose owner took him into an area which the old Missouri Compromise called free soil had become a matter of vast consequence.

It was time, in other words, to get a ruling from the Supreme Court of the United States. The original lawsuit was revived. Mrs. Emerson transferred title to Scott to her brother, John F. A. Sanford of New York, and in 1854 the case, now known as Dred Scott T. Sandford , got on the docket in the federal circuit court for Missouri.

It was a bit complicated. If Scott was to sue Sanford in a federal court he had to show that he was a citizen of Missouri—that is, a federal case had to involve an action between citizens of different states. Sanlord’s lawyers argued that as a Negro slave Scott was not a citizen of Missouri and that the federal court therefore lacked jurisdiction. The circuit court eventually ruled that way, and Scott’s lawyers took the case to the Supreme Court on a writ of error. In 1856 the Supreme Court heard the arguments.

Bear in mind, again, that what happened to Scott in all of this was of no especial importance to anybody except Scott himself. What everybody wanted was a final ruling from the highest court

in the land—a finding which (it was innocently hoped) would settle once and for all the disturbing question of slavery in the territories.

Three issues were involved. Was Scott actually a citizen of Missouri and so entitled to sue in a federal court? Did his residence on free soil give him a title to freedom which Missouri was bound to respect? Finally, was the Missouri Compromise itself, which had made Wisconsin Territory free soil, constitutional? (That is, did Congress actually have the power to prohibit slavery in a territory?) A final ruling on all of these points might have much to do with the question of slavery in Kansas.

So the Supreme Court had been given a very hot potato to handle, and the rising tumult in Kansas made it all the hotter. So did the presidential election of 1856, in which the new Republican party—a sectional northern party, dedicated chiefly to the theory that slavery must not be allowed to expand—showed enormous growth and came respectably close to elec ting John C. Frémont President of the United States. The whole argument over slavery, which was fast becoming too explosive for American political machinery to handle, had come to center on this question of slavery in the territories, and the Dred Scott case brought the question into sharp relief.

The Supreme Court could have avoided most of the thorns in this case simply by declaring that it lacked jurisdiction. A somewhat similar case had been handled so in 1850, and in the beginning most of the justices seem to have been disposed to lollow that precedent. Justice Samuel Nelson prepared such an opinion: Missouri law controlled Scott’s status, Missouri law said that he was still a slave, and as a slave he could not sue in the federal courts. Yet the pressures were too great for such an easy solution. The justices at last concluded to handle all of the issues. A brief glance at the make-up of the Court is in order.

Of the nine justices, five came from slave states: Chief Justice Roger B. Taney of Maryland, and Justices fames M. YVayne of Georgia, John Catron of Tennessee, Peter V. Daniel of Virginia, and John A. Campbell of Alabama. Seven of the nine were Democrats—these five plus two northerners, Justices Samuel Nelson of New York and Robert C. Grier of Pennsylvania. Justice John McLean of Ohio was a Republican, and Justice Benjamin R. Curtis of Massachusetts was a Whig. All nine were men of integrity and repute, but everything considered, it might be hard for them to be completely objective about the issues that were presented to them.

It might be hard; and indeed it proved quite impossible for these men to limit themselves to the basic question about Scott’s actual status. They had to say something, not just about one slave, but about all slaves.

To begin with, it soon became apparent that Justices McLean and

Curtis were prepared to write dissenting opinions setting forth their views about the Missouri Compromise and the power of Congress to legislate about slavery in the territories. (They held that Scott had properly been made free by his sojourn on free soil, and that Congress had a constitutional right to outlaw slavery in the territories.) If these two dissenters were going to air their views on this latter point, those who disagreed with them would obviously do the same. In addition, many of the justices honestly believed that it was necessary to hand down a broad, definitive ruling that would stand as a landmark, settling the territorial problem once and for all. Finally, Mr. James Buchanan exerted a little pressure of his own.

James Buchanan was elected President in the fall of 1856, and during the following winter—after the arguments had been heard, but before the Court had handed down its opinion—he was composing the address which he would deliver when he took the oath ol office on March 4. He was bound to say something about popular sovereignty, and the issue was a tough one for a brand-new President to discuss, especially a President who owed his nomination and election largely to the fact that he had never been directly involved in the furious arguments over the territorial question. It occurred to him that it would be excellent if, in his inaugural, he could say that the question of Congress’ constitutional power to legislate on slavery in the territories would very shortly be decided by the Supreme Court and that all good citizens might well stop agitating the issue and prepare to abide by the Court’s ruling.

In February the President-elect wrote a letter to Justice Catron, setting forth his desire to say that the Supreme Court would presently settle this question. A bit later he wrote to Justice Grier in the same vein. Mr. Buchanan, clearly, was skirting the edge of outright impropriety; he was not exactly telling the justices what he wanted the Court to say, but he was making it clear that he wanted the Court to say something , and Justice Catron finally assured him that the Court would handle the matter anil that Buchanan could safely say that the country ought to wait for its decision.

This Mr. Buchanan proceeded to do. In his inaugural address he remarked that the whole question of legalizing or prohibiting slavery in the territories was “a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be.”

This set the stage. Two days later—on March 6, 1857—the Court handed down its decision, the gist of which was that Dred Scott was a slave and not a citizen, and hence could not sue in federal court,

and that the Missouri Compromise was unconstitutional because Congress had no power to prohibit slavery in the territories. To these basic findings there were just two dissents, those of Justices McLean and Curtis.

Thus the Supreme Court had (to use a police-court colloquialism) thrown the book at Dred Scott. But the case was most complicated. Each of the nine justices wrote an opinion; and although the majority agreed on the basic findings, they gave different reasons for their beliefs, and some of them remained silent on points which others considered highly important. In effect, the Court went beyond both Scott and the authority of Congress and discussed the whole rationale of slavery and the status of the Negro, and in all of this the sectional and political backgrounds of the justices were sharply emphasized. As Allan Nevins sums it up in his book, The Emergence of Lincoln: Three Southern judges declared that no Negro of slave ancestry could be entitled to citizenship: five Southern judges, with Nelson of New York, decided that Drcd’s status depended the the laws of Missouri; five Southern judges, with Grier of Pennsylvania, maintained that any law excluding slavery from a territory was unconstitutional: and two Northern judges, McLean and Curtis, held that Dred was a citizen, that Missouri law did not control his status, and that Congress had a constitutional right to pass laws debarring slavery from any Territory.

It was Taney’s opinion that went across the land like a thunderclap. Not only was Taney the Chief Justice; he was a man of immense prestige and learning, a veteran of Andrew Jackson’s famous fight with the Hank of the United States, named Chief Justice by Jackson in 1835 as successor to John Marshall, one of the most impressive figures in American life. Taney was eighty now, shrunken, wispy, with a heavy shock of iron-gray hair framing a deeply lined face. Fires burned in him, but he was physically frail, and as he read his momentous opinion his voice was so low that many of the people in the courtroom could not catch his words. Nevertheless, what he said was heard all across the country.

The Chief Justice addressed himself to the question of the constitutional power of Congress over the territories. It had been argued, he noted, that federal authority over the territories came from a clause permitting Congress to make rules and regulations for the government of the territories; but this, he held, was a mere emergency provision applying only to the lands ceded to the Confederation by the original states and did not apply to lands acquired after 1789. Properly, Congress had only those powers associated with the right to acquire territory and prepare it for statehood; it had no internal police authority, and while it might organixe local territorial government it could not “infringe upon local rights of person or rights of property.”

The right to hold slaves was a property right; since Congress

could not interfere with a man’s property rights, it could not prohibit slavery in the territories: “And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection, than property of any other description.” To exclude slavery would violate the due process clause of the Fifth Amendment. Congress had nothing more than the power—“coupled with the duty”—to protect the owner in his property rights. Thus all territorial restrictions on slavery were dead.

Therefore the Missouri Compromise was unconstitutional. Its provision prohibiting slavery north of the 36 degree, 30 minute line was “not warranted by the Constitution” and was void. It was idle to argue that Dred Scott’s residence on free soil had made him a free man, because slavery had not lawfully been excluded from Wisconsin Territory in the first place.

But that was not all. As a Negro of slave origins (said Taney) Scott could not be a citizen of the United States anyway. He anil all people like him were simply ineligible. The Founding Fathers who wrote the Declaration of Independence and framed the Constitution had been thinking only of white men. At the time the Constitution was adopted, and for a long time before that, there was general agreement that Negroes were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far interior that they had no rights which the white man was bound to respect.”

It is clear enough now that in making this remark the Chief Justice was in no sense laying down a rule of law tor his own day; he was simply expressing what he believed was the prevailing opinion of Americans in the latter part of the eighteenth century. But his use of these words, embedded in an opinion which antislavery people were going to object to in any case, was in the highest degree unfortunate. To many people in the North it seemed that the Chief Justice had officially declared that the colored man had no rights which the white man was bound to respect. President Buchanan’s pious hope that all good citizens would willingly accept the Court’s finding in the Drecl Scott case was bound to run onto this reef if on no other.

Only two other justices, Wayne and Daniel, joined with Taney in the opinion that no Negro could be a citizen. Justices Curtis and McLean dissented vigorously, and the remainder kept silent on this particular question. This made very little difference. The Missouri Compromise was unconstitutional—the first act of Congress to be declared unconstitutional since the famous Marbury v. Madison case in 1803 (see “The Case of the ‘Missing’ Commissions” in the June, 1963, A MERICAN H ERITAGE )—and Dred Scott was still a slave; the net effect of the decision was to

give an immense impetus to the furious arguments over slavery and to help materially to make this issue so acute and so emotion-laden that it was too explosive for political settlement.

To the rising Republican party the ruling was simply a challenge to renewed struggle. This party was dedicated to the conviction that slavery must not be allowed to expand; now the High Court was formally saying that there was no legal way by which it could be excluded from the territories. Congress could not do it; a territorial legislature, as a creature of Congress, could not do it either. Only when the people of a territory drafted a constitution and prepared to enter the Union as a state could they adopt an effective antislavery law. To many northerners it seemed that, logically, the next step would be for the Court to declare that no state could outlaw slavery and that the institution must be legalized all across the country.

Free-soil adherents in the North promptly accepted the challenge which they found implicit in the decision. They expressed profound contempt for the Court itself, asserting that it was wholly biased in favor of the southern sectional interest and that its decision in the Dred Scott case had no moral substance and could not be permanently binding. For the moment, to be sure, the ruling was legally valid, but in effect the antislavery people of the North defied the Court. Seeking to take the territorial issue out of politics, the Court had instead put itself squarely and disastrously into politics. Never before had there been such a profound and widespread revulsion against a finding of the nation’s highest judicial tribunal.

To the northern wing of the Democratic party—the wing that followed Senator Douglas—the ruling was equally disturbing, because it knocked the props out from under the doctrine of popular sovereignty. Douglas, to be sure, defended the Court against Republican criticism, declaring that “whoever resists the final decision of the highest judicial tribunal aims a deadly blow at our whole republican system of government,” and expressed the conviction that the decision must not be made a political issue. But he was breaking with the Buchanan administration on the Kansas issue—the administration was accepting a rigged election which would give Kansas a constitution permitting slavery even though a majority of the voters obviously were antislavery. Douglas was fighting hard for popular sovereignty, and the Dred Scott decision simply accentuated this issue by splitting the northern and southern wings of the Democratic party farther and farther apart.

For while the Douglas Democrats in the North continued to rely on popular sovereignty as the answer to the territorial problem, the southern Democrats were led by this decision to press forward in complete opposition to popular sovereignty. Now they demanded positive protection of the slaveowner’s right to take his chattels with him when he moved into a territory. The decision said that nobody could outlaw slavery in a territory: the

southerners felt it was only logical that the federal government act to protect slavery there by formal legislation. The northern and southern wings of the party could never agree on any such formula. In substance, the Court’s decision was a weighty factor in determining that no Democrat who had any chance to carry the North could also carry the South, which meant that the presidential election of 1860 would be won by the Republicans, after which the discordant sections would find themselves at the parting of the ways. The irreconcilable sectionalism which would bring the country to civil war was accentuated by this ruling of the High Court.

Perhaps the real trouble with the decision was that the general trend of events was moving in the other direction. The New York Herald , on March 9, 1857, summed it up: The Washington politicians who believe that it [the Dred Scott decision] settles anything must be afflicted with very severe ophthalmia indeed. For while these venerable judges are discoursing on theoretical expansions of slavery to North and West, free labor is marching with a very tangible step into the heart of the strongest slaveholds of slavery. Chief Justice Taney lays out on paper an infinitude of new slave states and territories; he makes all the states in a measure slave states; but while the old gentleman is thus diverting his slippered leisure, free carpenters and blacksmiths and farmers with hoe, spade and plough are invading Missouri, Kentucky, Delaware, Maryland and Virginia, and quietly elbowing the slaves further South. It will take a good many Supreme Court decisions to reverse a law of nature such as we here see in operation.

All in all, the Dred Scott decision did the Court profound and lasting harm. Many years later Chief Justice Charles Evans Hughes remarked that it was a case in which the Court suffered from a self-inflicted wound, and characterized the ruling as a “public calamity.” More than a century after the decision was handed down, a historian of the Court wrote of it as a “monumental indiscretion.” The Court’s prestige suffered immensely, and Justice Felix Frankfurter once remarked that after the Civil War, justices of the Supreme Court never mentioned the Dred Scott case, any more than a family in which a son had been hanged mentioned ropes and scaffolds.

In the end, the profound majority of people in the North, who, regardless of party labels, believed that slavery’s expansion into the territories must be checked, agreed that while the Court’s finding was binding it must eventually be reversed. A new administration would give the Court new justices and a new background, and in the course of time it would be shown that a nation whose majority did not want slavery to expand would be able to make its wish good. There was just one point on which Republicans, northern Democrats, and southern Democrats all agreed: the finding in respect to Dred Scott as

a person remained good. He was still a slave.

Their legal efforts to have him declared free having failed, Dred Scott’s owners manumitted him a few weeks later. On September 17, 1858, he died, in St. Louis, of tuberculosis. Henry Blow paid his funeral expenses.