(Appendix 17)

THE DRED SCOTT DECISION

When Is A Free Man Free?

The following article is derived from the Encyclopedia Britannica, Vol. 7 (1971):

A decision by the U.S. Supreme Court announced on March 6, 1857, that added fuel to
the bitter sectional controversy over slavery and pushed the nation further along the road
to civil war. The opinions of a majority of the justices covered three main points: 1)
Negroes were not citizens and therefore could not sue in the federal courts; 2) A slave's
residence on free soil did not make him a freeman upon his return to slave territory; 3)
the Missouri Compromise of 1820, which had forbidden slavery in that part of the
Louisiana Purchase (except Missouri)... was an unconstitutional exercise of congressional
power.

The case centered around the status of an illiterate Negro slave, Dred Scott, who had been
purchased in 1833 by a U.S. Army surgeon, John Emerson, then stationed at Jefferson
Barracks near St. Louis, Mo. The next year, Emerson took him from Missouri, which was
a slave state, to Rock Island in Illinois, which was a free state. Emerson later took him to
Ft. Snelling in the northern part of the Louisiana Purchase. In 1838 Emerson returned to
St. Louis with Dred Scott, who had meanwhile taken a wife and become the father of a
child.

In 1846, with the help of anti-slavery lawyers, Scott sued for his own and his family's
freedom in the Missouri state courts on the ground that his residence in a free state and a
free territory had made him a freeman. The lower court upheld his claim but the Missouri
Supreme Court ruled against him and the case was eventually taken into the federal
courts. Scott's owner by this time, Emerson having died, was a citizen of another state,
John F. A. Sanford of New York, the brother of Emerson's widow. (Sanford's name was
incorrectly spelled in the official record as "Sanford," and the case is usually cited as
Dred Scott v. Sanford.) Scott claimed that as a citizen of the state of Missouri he was
entitled to sue a citizen of another state in the federal courts.

The U.S. Supreme Court heard argument on the case in February 1856 and then, because
of disagreement among the justices, heard the case again in December of the same year.
The justices were well aware of the political implications of the case, for 1856 was a
presidential election year, the first in which the new Republican Party took part. The
Republicans opposed the extension of slavery into the Western territories while the
Southern Democrats insisted that slaveholders should be allowed to take their property
wherever they wished. Two years earlier, in 1854, Congress had passed the Kansas-
Nebraska Act providing that the residents of the territories would decide the slavery issue
for themselves, the doctrine of popular sovereignty. Civil war had broken out in Kansas
in the spring of 1856 between the proslavery and antislavery factions.
A majority of the justices at first planned to rule simply that residence in free territory did
not make a slave a freeman after he returned to slave territory, relying on a decision in a
similar case in 1850. But when two justices, John McLean and Benjamin Curtis, revealed
their intention to write dissenting opinions in which they would defend the validity of the
Missouri Compromise, the majority also decided to discuss the case in broader terms.
The justices hoped that an authoritative decision by the Supreme Court would help to
take the issue out of the realm of partisan politics. Two of the justices actually
corresponded with President-elect James Buchanan about the case and thus enabled him
in his inaugural address on March 4 to urge acceptance of whatever decision the Court
should hand down. This correspondence was a violation of judicial ethics but did not
amount to a conspiracy as some have charged.

Each member of the Court wrote a separate opinion so the printed record of the case
covers more than 200 pages. It is difficult to determine exactly what the Court decided.
Most of the justices agreed wholly or in part with the opinion written by the chief justice,
Roger B. Taney, and his opinion is usually referred to as the opinion of the Court. Taney
declared that Dred Scott was not entitled to sue in the federal courts because he was not a
citizen as that term was understood at the time the Constitution was adopted. He
contended that in 1788 neither slaves nor free Negroes had been classed as citizens. The
case might have been dismissed on this narrow ground, but Taney went on to make
further observations. It was these observations that stirred up violent reactions throughout
the country and have been the subject of controversy among constitutional historians ever
since.

Taney asserted that Dred Scott had not become a freeman by virtue of his residence in
territory declared free by the Missouri Compromise because in passing that legislation
Congress had exceeded its constitutional powers. (The Missouri Compromise was no
longer on the statute books as it had been repealed by the Kansas-Nebraska Act, but it
had been in effect while Dred Scott lived in the Wisconsin Territory.) According to
Taney, Congress had no power to forbid slavery in the territories for two reasons: 1) the
Constitution gave it only very limited power to legislate for the territories; and 2) slaves
were property, and property owners were protected by the due process of law clause of
the 5th Amendment to the Constitution. This decision was the first since Marbury v.
Madison (1803) in which the Supreme Court had declared an act of Congress
unconstitutional.

Justice Curtis, who was joined in dissent by Justice McLean, wrote a strong opinion
contending that, in the past, free Negroes had been recognized as citizens by some of the
states, that Congress was authorized by the Constitution to forbid slavery in the
territories, and that the Missouri Compromise had not been unconstitutional. He further
argued that Taney had exceeded his authority by discussing the merits of Scott's claim
after deciding that Scott had no right to sue in the federal courts.

The Dred Scott decision dealt a serious blow to the antislavery forces that had hoped to
keep slavery out of the territories, and particularly to Sen. Stephen A. Douglas' doctrine
of popular sovereignty. If the Congress of the United States lacked authority to forbid
slavery in a territory, how could a lesser body, the territory itself, do so? Douglas
answered this question in his so-called "Freeport Doctrine" during the Lincoln-Douglas
debates in 1858. He declared that slavery could not exist in any territory without local
police regulations to protect it. The people of a territory could bar slavery, if they wished,
by refusing to enact such regulations. This interpretation angered the Southern Democrats
and helped to split the party into Northern and Southern wings, thus leading to the
election of the Republican presidential candidate, Abraham Lincoln, in 1860.

Dred Scott did not live to see the full consequences of his famous case. Soon after the
announcement of the Court's decision, he was set free by his owner and earned a living as
a hotel porter in St. Louis until his death on Sept. 17, 1858. After the American Civil War
ended, some of the questions at issue in the Dred Scott case were settled by the 13th
Amendment to the Constitution that freed the slaves and the 14th Amendment that made
them citizens of the United States and of their state of residence.

(H.C.T.)

BIBLIOGRAPHY- Stanley Cutler (ed.), The Dred Scott Decision: Law or

Politics? (1967); Vincent C. Hopkins, Dred Scott's Case (1951); Carl B.
Swisher, Roger B. Taney (1935).
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