The History of the Dred Scott Decision
by Elbert William R. Ewing
In all history territorial expansion has been accompanied by bitter contests. Bloodshed and cruelty, strategem and unmasked force, shameless diplomatic rascality and dark governmental intrigues cloud the titles to the greater number of the world-political geographic divisions. As westward with an ever widening angle the American people poured in ceaseless streams across rivers, prairies and mountains, man's more savage nature burst forth into similar battle. The varied climate of the States from the bleak hills of northern New England down to tropical Florida and Louisiana, and the variety of natural resources, with intercommunications slow and expensive, determined industries and labor systems, producing antagonistic sectional interests. These natural conditions evolved from a labor system once common to the Union, two systems, and two more antagonistic it would be hard to imagine. Conscience and philanthropy had as little to do with the conversion of the slave system of the North into free-labor, as they have in throttling today monopolistic predatory invasions of vast wealth. Moving down from the North and reaching out from the South, in the days of our continental expansion these antagonistic systems, fundamental and in the vanguard of the two lines of march because of the basal and preeminent nature of labor, disputed with each other for supremacy in our new Territories. The grapple was relentless. The bowie-knife and the Sharps' rifle, the torch and the cutlass left their deep, gore-stained traces.
Having grown into manufacturing and shipping interests, the North found not only that the negro slave had not the intelligence to do the work of the mills, but that the slave system in the South to which the mills looked for buyers, did not furnish the markets essential to the highest prosperity. The white laborer from the North, having found the mills and ships overcrowded and agriculture unprofitable, shrank from contact with the slave-labor system because it monopolized the labor market and created for the white laborer a social odium. Slave labor placed the white laborer at a serious disadvantage. During its days of economic profit, the slave system, favored by nature, made the South affluent as a section, gave time for culture, the study of government, and the development of courtly qualities inherent in the white race of the South. So the politician of the North found in his southern competitor an able and dangerous obstacle, one both ambitious and competent to rule, and who in the administration of the affairs of government was opposed to government paternalism over the manufacturing interests of the North. Thus the labor system of the South found opposition in the combined labor, capital and politician of the North. In this opposition the fanatic and insanely conscientious found a fertile field.
The Constitution of the United States left to each State the right and power to legalize and continue the African slave labor. Having been established by the laws of a State, the Federal Government by the Constitution was pledged to protect and return fugitives from the system, such fugitives having escaped beyond the territorial limits of the slave-labor State. Hence the control of a Territory, which rapidly grew to Statehood with power to create or destroy domestic slavery, became important to the slave owner who wished to seek his fortune in the new West, and to the politician, to the white laborer, and to the manufacturer who coveted markets such only as free-labor would open. Thus between the North and the South antagonistic theories of government became constantly more pronounced.
The admission of the State of Missouri in 1820 brought to the front the most astute generals representing these different theories of government. Representatives from the North refused to admit the Territory to be known as Missouri as a State until she should by her constitution forbid domestic slavery, notwithstanding her many thousands of slaves recognized by the Federal Government as valuable property. The people of Missouri were clearly entitled to be recognized as a State, and to avoid the injustice threatened by the obstructionists, an adjustment was finally reached, known as the Missouri Compromise, by which the State was admitted, and a provision incorporated into the bill forbidding slavery in that Territory of Louisiana Purchase outside of Missouri and north of thirty-six degrees and thirty minutes north latitude.
The divergent views of the nature of the Federal Government and of the power of Congress over territory acquired by the United States, differences that had begun to manifest themselves in 1803 when Jefferson acquired the Louisiana Purchase, that became prominent in the dispute over the admission of Missouri, became more pronounced as each further acquisition of territory was made and each time Congress came to discuss or legislate for such domain.
In general propositions from Southern statesmen were charged with having the ulterior purpose of extending slavery for slavery's sake. While, in fact, in the main the issues had intrinsic value, and concerned the very life of the American government, regardless of whether the maintenance of the principles involved would favor either slavery or anti-slavery. Writers of today, as did those who lived through the more strenuous time of our history, too often make the mistake of measuring the contentions of those days by the slavery standard too exclusively. Had the views of those who, in the main, were anti-slavery because of geography and climate, prevailed, the most happy safeguard of what we call the American government would long since have perished.
After the battle over Missouri with its resulting Missouri Compromise law, the request of President Polk in his message of August 8, 1846, that Congress furnish money to adjust the boundary between Mexico and the United States by the purchase of certain Mexican territories outside of Texas, brought the antagonistic forces again to sharp issues. David Wilmot, a Democrat from Pennsylvania, offered an amendment to the bill appropriating money for the purchase of the country the proposed action would bring us. This is the famous Wilmot Proviso, which prohibited slavery in the territory thus proposed to be purchased. As thus amended the bill passed the House, but failed in the Senate; and in the next year another bill with a similar provision passed the House, but the amendment was omitted in the Senate.
It was this bill which gave the logic of John C. Calhoun another opportunity. He insisted that the Constitution, ex propio vigore, extended to the Territories. This is what Benton ironically called "the transmigration of the Constitution." Bitterly and with all his powerful sarcasm Benton opposed the doctrine, insisting that the Constitution was applicable alone to the States.(1)
In 1849 when Congress came to legislate for California and New Mexico, territory lately acquired from Mexico, the debate was renewed with great vigor, especially in the Senate. Berrien of Georgia, Dayton of New Jersey, Webster and Calhoun arose to their greatest heights. Said Webster:
Let me say that in the general sense there is no such thing as extending the Constitution. The Constitution is extended over the United States and over nothing else. It cannot be extended over anything except the old States and the new States that shall come in hereafter when they do come in. There is a want of accuracy of ideas in this respect that is quite remarkable among eminent gentlemen, and especially professional and judicial gentlemen. It seems to be taken for granted that the right of trial by jury, the habeas corpus and every principle designed to protect personal liberty, is extended by force of the Constitution itself over new territory. That proposition cannot be maintained at all....
"Altogether impractical," he concludes and "utterly impossible to extend the Constitution of the United States to the Territories."
In reply Calhoun said:
Well, then, the proposition that the Constitution does not extend to the Territories is false to that extent. How else does Congress obtain the legislative power over the Territories?... If the Constitution does not extend there, you have no right to legislate or to do any act in reference to the Territories.... [The Constitution] is the supreme law, in obedience to which and in conformity with which all legislative enactments must be made.
Douglas, later to become famous for his relation to the Kansas-Nebraska bill, explained that he did not believe that the Constitution ex propio vigore extended to the Territories, but that he believed that Congress had "the power to extend it in all its parts, over that country;" and that such extension, in his opinion, "made the Territory a State, entitled to representation in Congress, in a quasi condition until it could elect its representatives to Congress and organize its State government."(2)
There was no decision of the Supreme Court, the arbiter of last resort in such questions, by which it could be known which contention was the correct one, so the great party leaders reargued their respective positions with each new occasion. In the main the views of Calhoun and those who concurred with him obtained, and the supremacy of the Constitution saved us from degenerating from a democracy. Ever alert, the school of Webster and Benton watched for opportunities to sustain their contentions. So, Congress having refused to follow Webster, his forces turned to the courts as the last source from which it might be possible to retake the lost field.
However, before noticing the specific instance by which it was hoped to retrieve their losses, it is important to remember that as territorial expansion went rapidly westward with it developed on the part of the North, not an effort to destroy slavery because it was slavery, but a bitter antipathy to the negro, the free negro quite as much as the slave; and hence an antagonism to slavery because of the fact that it carried with it the negro. Nowhere was this feeling more implacable than in the newer Northwest States and in the Territories. This opposition to the negro, regardless of his condition, gathered its strength into what came to be known as the Free-Soil party. In 1848 this party nominated and supported Martin Van Buren for President and Charles Francis Adams for Vice-President. Later the anti-negro and anti-slavery forces assumed the name of Free-State party, and in 1859, furnished the bulk of the material for the Republican party which elected Mr. Lincoln. Those affiliated with these various parties opposed, as they had done in Kansas, and earlier in Oregon, to build governments for great States "for free white men only;" and to so safeguard these local governments, as they had done in Illinois and in Ohio, that free negroes would have no part and under which they would have few rights which the white man was bound to respect, and under which a free negro had no legal right to live as a citizen. Thus by local laws the free negro was debarred the right of immigration and of residence as he might choose.
This fight against the negro, it was foreseen, would be easier could the Federal Government be brought to protect the Territory, and so by 1859 the Republicans had grown insistent that the government not only should prohibit slavery in the Territories, but that under the Constitution the government could not do otherwise. At the same time, little concerned for the slave as such, it was proposed existing slavery be made express and irrevokable.(3)
From the ranks of these parties came the means for the prosecution and from their leadership came the men who instituted and who conducted to its conclusion the Dred Scott Case.
Dred Scott, of pure African descent, was born of slave parents in Virginia the slave of Captain Peter Blow. His master carried Dred to Missouri about 1827; and there, in 1834 and 1835, he was purchased as a slave by Dr. John Emerson. Dr. Emerson was a native of Pennsylvania, and from that State had been appointed as an assistant surgeon in the regular United States army. He was dishonorably discharged from the army in 1842, and died shortly thereafter.(4) But so far as the courts knew, and as appeared by the record, Emerson was a citizen of Missouri.(5)
In July, 1847, in the State circuit court for the country of St. Louis, Missouri, an action was instituted in which it was asked that Scott be adjudged a freeman. In this suit, brought against Emerson's widow, the administrator, and his surety, it was alleged that Emerson purchased Scott in 1835, and that about 1836 or 1837 he had been carried by the purchaser "from the State of Missouri to Fort Snelling, under the jurisdiction of the United States and in the Territory formerly known as Louisiana, and there held in slavery in violation of the Missouri Compromise."
In November, 1847, and while the first action was yet pending, a second suit in the same court and against the same parties was instituted. This is what is known as a trespass action, and its technical name has misled some authors to state that Scott had been whipped.(6) Nothing in the record anywhere indicates that Scott or any of his family was ever struck. In this later action it was alleged generally, being left to the trial to give specific grounds, that Scott was "a free person, and that the said defendants had held and still hold him in slavery, and other wrongs to the said plaintiff then and there did against the laws of the State of Missouri." In April, 1847, this action was tried before a jury who rendered a verdict against Scott. In December, 1847, this verdict was set aside and a rehearing ordered. At this hearing Scott offered as his evidence the facts of his original slavery, the purchase, and that from Missouri he had been carried to Rock Island, a military fort, in the State of Illinois; and from there to Fort Snelling, in a Territory of the United States (now Minnesota), and at each place detained in servitude about two years, his master being a sojourner and under orders from the government. Upon these facts the judge instructed the jury to bring in a verdict for Scott. Thereupon the defendants appealed to the supreme court of the State. In 1852, the matter resting purely upon questions of law, the case came up for hearing by the State supreme court. Of the three justices then composing the court, two concurred and one dissented. The majority held that the circuit judge was in error as to the law. Having been a slave under and pursuant to the laws of Missouri, having been temporarily out of Missouri, having been held as a slave while away, having been returned as a slave and having sued there, the higher court held that however valid any anti-slavery laws out of Missouri might be, they were not and could not be operative in Missouri, that they were penal in their nature, and would not be enforced by a Missouri court, because in conflict with her policy and laws. No one claimed that either law the benefit of which Scott invoked had any jurisdiction in Missouri. The first claim was based upon the old Ordinance of 1787, in so far as it was of force in Illinois. Historians since however, have enlarged upon the claims of the sojourn in Illinois.(7) Illinois was not, as has been said by some, "doubly protected against slavery;"(8) there was no law whatever of that State under which Scott could have been adjudged free even had he sued while there. Illinois was protected against the free negro; and at no time did she enact any law to enable a slave from any other State to assume the status of a freeman. Repeatedly her highest courts held the Ordinance of 1787 to be void and inoperative, upholding her local slave laws.(9) So as a question of law, the Missouri State trial court was in error, and therefore it was reversed and the case sent back for a new trial pursuant to law as laid down by the higher court.(10)
In 1848 the first and original action had been dismissed, and now it was agreed that the pending action should stand upon the court docket until a hearing could be had in the United States court in which Scott's lawyer said he wished also to sue. Accordingly R.M. Field, a well-known St. Louis attorney, representing Scott, in November, 1853, began an action in the Federal circuit court for the district in which St. Louis is located. In May, 1854, the cause went before a jury, who found against Scott and his family. Thereupon, a new trial having been refused, an appeal based upon exceptions to the rulings of the trial court, was taken to the Supreme Court of the United States. The facts of the State action, the nature of its decisions, and its abeyance until the decision of the Federal cause, were set out in the record which thus came before the highest Federal court.(11) When a final decision should have been reached in the State courts, an appeal to the Supreme Court of the United States could have been taken, Federal laws involved being ground of appeal. Such an appeal would have brought up every question of merit of the case before the highest court. But Field was a determined Free-Soiler,(12) and since Scott's case was not to be benefitted by a new action in a Federal court, Field must have had some political purpose in his move, especially since it was not probable the new action could be terminated more speedily than the action in the State court.
Remember that the jurisdiction of Federal courts is limited to cases defined by the Constitution. One such ground is where litigants are citizens of different States. There being no other ground for original Federal jurisdiction, it was declared that Scott was a citizen of Missouri, that he had been purchased and was being held in slavery by John F.A. Sandford (Sanford, as the name is usually spelled), and that Sandford was a citizen of the State of New York. This was a pure fiction; but Sandford was the brother of Dr. Emerson's widow, and all parties connived for the purpose of reaching the court with all questions they wished decided.
Too long it has been believed that "as the wily chiefs of Democracy were casting about for a feasible plan of action" in an alleged "effort to fasten slavery upon the Territories," they instituted and prosecuted the Dred Scott Case. Neither these "wily chiefs" nor any Southern leaders were directly or indirectly responsible for this case. That they were not and that the case was a political probe used by wily Northerners, aggressive free-soilers and Republicans, is the more clear when we remember that the collusion as to sale resorted to in order to reach the Federal court, was between Scott's lawyers and Sandford, of New York, all anti-Southern, Dr. Chaffee of Massachusetts, a Republican member of Congress being a party to the agreement. If there had ever been hope of recovering damages against Emerson's estate, in confirmation of which the evidence is entirely lacking, sometimes given as the early motive for the institution of the suit, this hope was abandoned in the interest of the desire entertained by Northern leaders to obtain some advantage against the South and the Democrats. Sandford could not have been held liable for damages alleged to have accrued prior to his purchase, and as no effort was made to show ownership for any time before the Federal action, nothing more than nominal damages could have been obtained against him. The claim that Scott had been by Sandford heavily damaged, set up in the declaration, was, therefore, no more than a blind to hide the real purpose of the politicians.
Of the questions involved in the case as presented to the Federal courts, that of the constitutionality of the Missouri Compromise was the greatest. Constantly stronger up to the institution of this Federal action had grown the conviction, North and South, that the prohibition imposed by the Missouri Compromise was contrary to both the letter and fair intendment of the Constitution; and, for that reason, at the very institution of the Federal suit, its repeal trembled in the balance. If the Supreme Court of the United States should declare such a measure warranted by the Constitution as many especially in the North confidently believed it would, then the great argument in favor of the repeal would be swept from the Democrats. The next year, 1854, and shortly after the institution of the Federal action, the Democrats having a majority in Congress, the Missouri Compromise was actually repealed; but the North was so determined on saving the Territories for her emigrating white laborers, for free white people only, that the next session of Congress found the Democratic majority reduced to a minority, and a crusade for the restoration of the prohibition relentlessly begun. So the power of Congress to enact such a prohibition remained a vital issue in the case, a case destined to become one of the most famous in American history.
The widow Emerson married Dr. C.C. Chaffee of Massachusetts. About the time the case was disposed of by the Supreme Court, Dr. Chaffee was representing his State in Congress. He was a radical Republican — a member of what was known as the "Black Republican Party." In May following the court's final decree, Dr. Chaffee conveyed Dred and his family to Taylor Blow of St. Louis, on condition that they be emancipated, and it is said that this was done on May 26.(13) May 27 the St. Louis Republic said, "Old and worn out" Scott "will have a hard time to make a living if he is forced to depend upon the charities of Black Republicans and abolitionists."
As I write this I have before me a letter from the circuit court clerk of the eight judicial circuit, St. Louis, saying that "after diligent search" he is unable to find the deed emancipating Scott. One evidently was made, since its mention is found in the index. But from all I am able to gather, I am confident that no provision was ever made for Scott's old age. His Massachusetts master and mistress simply turned him loose to wander the streets of St. Louis, get odd jobs when he could, and shift as circumstances permitted.(14) At one time, there seems to be no doubt, Dred offered to buy his freedom of Mrs. Emerson, tendering her his market value in cash and good security, but she refused the offer. A great anti-Southern party needed him, and he was not emancipated until he had served their purpose and was no longer of any personal or political value. The New Hampshire Patriot and State Gazette gives the Springfield, Illinois Argus the credit for discovering Scott's Northern slave-master. Says the Gazette: "That paper first exposed to the world that a Black Republican freedom-shrieking member of Congress from Massachusetts was the owner of that family of slavers, and that the suit for their freedom was in fact opposed for his benefit."(15) In the New York Tribune for March 17, 1857, there is a letter from Dr. Chaffee purporting to explain his relation to Dred. The letter shows his evident embarrassment; Chaffee feebly claims he did not own Scott, yet the doctor impeaches that claim by immediately manumitting the negro.
Upon the trial in the Federal circuit court H.A. Garland for Sandford and R.M. Field for Scott entered into a written statement which went to the court as "the facts of the case." So, at all times the questions for the courts were purely those of law arising upon the admitted facts. In the lower court Field was assisted by Francis P. Blair, also an eminent St. Louis lawyer, an active member of the Free-Soil party, and later a staunch Republican. After the case had reached the Supreme Court of the United States, it was argued from the standpoint of the party behind the case and that was furnishing funds for its prosecution, by Montgomery Blair, postmaster general under President Lincoln, a brother of Francis P. Blair, and George T. Curtis, a brother of Mr. Justice Curtis who delivered the stronger of the two dissenting opinions. Reverdy Johnson, the distinguished Maryland lawyer, and Henry S. Geyer, Senator from Missouri, represented the other side. Johnson volunteered out of consideration for the court.
Taking the view of the law as announced by the State supreme court, the trial Federal court held that upon the merits of the case neither Scott nor any of his family had become entitled to the status of a freeman. The facts of the case were the same before all of the courts.(16) These agreed facts, being those which went to the Supreme Court of the United States with the appeal from the result in the trial Federal court are:
Dr. Emerson, in the regular service of the United States army, purchased Scott in Missouri, where the latter was held in slavery under laws recognized by the Constitution of the United States as valid. In 1834, going from Missouri, and under army orders, Emerson carried Scott to the military post at Rock Island, Illinois, "and held him there as a slave until the month of April of May, 1836." Under government orders the doctor then moved, taking Scott, to the military post at Rock Island, Illinois, "and held him there as a slave until the month of April or May, 1836." Under government orders the doctor then moved, taking Scott, to the military post at Fort Snelling, "situated on the west bank of the Missouri rivers, in the Territory known as Upper Louisiana, acquired by the United States from France, and situated north of the latitude thirty-six degrees and thirty minutes north, and north of the State of Missouri." There Dr. Emerson held Scott in slavery until 1838, when he removed the negro, his wife and child back to Missouri.
In 1835 Major Taliaferro, also an army officer, owned a negro girl, Harriet, whom he carried to Fort Snelling, going there in discharge of army duty. At Fort Snelling in 1836, the major sold "Harriet and delivered her as a slave"(17) to Dr. Emerson. There she was held in slavery by the doctor until 1838, at which time she and Scott were returned to Missouri with the Emersons.
During the time Dr. Emerson and Major Taliaferro were thus at Rock Island and Fort Snelling they were acting under orders from the officials of the Federal army; they had not gone either to Illinois or to Fort Snelling in what was at that time Wisconsin for the purpose of remaining permanently. As with all our army officers, they were liable to be recalled and removed at any moment; their stay was temporary.
When the case at length, March 6, 1857, was decided by the Supreme Court of the United States, the result was taken to be a great victory for the principles of the Democratic party, and there was much rejoicing throughout the ranks, especially for the South. Democrats in Congress asked for the publication of several thousand copies of the opinion, which was ordered at a cost to the government of $6,5000. The appropriation for this expenditure had little opposition, though Republican members were careful to explain that their assent must not be taken to indicate approval of the court's decision.(18)
1. Thomas Hart Benton, Thirty Years View: A History of the Working of the American Government (New York: D. Appleton and Company, 1854), Volume II, page 713.
2. Congressional Globe (30th Congress, 2nd Session), Volume XX, pages 255ff.
3. See Republican platforms of 1856 and 1859; Edward Stanwood, A History of the Presidency (Boston, Massachusetts: Houghton, Mifflin and Company, 1906), page 293.
4. F.B. Heitman, Historical Register and Dictionary of the United States Army (Washington, D.C.: Government Printing Office, 1903); W.H. Powell, List of Officers U.S.A.: 1779 to 1900, page 301.
5. 19 Howard 527.
6. John Fiske, History of the United States For Schools (Boston: Houghton, Mifflin and Company, 1899), page 360; Francis Curtis, The Republican Party: A History of its Fifty Years' Existence and a Record of its Measures and Leaders (New York: G.P. Putnam's Sons, 1904), Volume II, page 376.
7. Francis Newton Thorpe, The Constitutional History of the United States (Chicago, Illinois: Callahan and Company, 1901), page 537.
8. Frederick Trevor Hill, Decisive Battles of the Law (New York: Harper and Brothers, 1907), page 247.
9. Elbert William R. Ewing, Northern Rebellion and Southern Secession (Richmond, Virginia: 1904), Chapters Five and Six.
10. 15 Mo. 582.
11. Transcript of Records (U.S. Supreme Court Clerk's Office, 1856), Volume I, Number 3, page 65.
12. Clesky's Political Textbook (1860), page 207; Benjamin's speech in the U.S. Senate, March 3, 1858.
13. Boston Courier, quoted in Providence (Rhode Island) Post, March 17, 1857; Washington City Union, June 2, 1857.
14. St. Louis News, April 8, 1857; New York Tribune, April 10, 1857.
15. New Hampshire Gazette, June 3, 1857.
16. 19 Howard 552.
17. Original Record (U.S. Supreme Court Clerk's Office), page 10. At the time Dr. Emerson was on duty at Fort Snelling quite a number of slaves of both sexes were held there by post officers. Taliaferro had several he had inherited in the State of his birth, Harriet being one (Warren Upham, Minnesota in Three Centuries: 1655 to 1908 [Mankato, Minnesota: The Publishing Society of Minnesota, 1908], Volume II, page 66.
18. Congressional Globe (35th Congress, 1st Session), pages 1069-1070; ibid., (36th Congress, 1st Session), page 293.
This article was extracted from Elbert William R. Ewing, The Legal and Historical Status of the Dred Scott Decision (New York: E.J. Hale and Son, 1867). Click HERE to order this book.