THE DRED SCOTT CASE
The Origin of the Dred Scott Case--Two Dred Scott Cases--The Facts of
the Cases--The Case in the Missouri Courts--The Case in the United
States Courts--The Case a Genuine Proceeding--The Decision by the
Supreme Court of the United States--The Dissenting Opinion of Mr.
Justice Curtis--Criticism of the Court's Opinion--The Obiter
Dictum--The Chief Justice and the President--Justice Curtis' Dissent
Continued--The Printing and Distribution of the Decision and the
Dissenting Opinion--The Doctrine of Popular Sovereignty in the
Territories Overthrown by the Opinion of the Court.
[Sidenote: The origin of the Dred Scott case.]
The time has come when the correct story of the Dred Scott case may be
told, and should be told. The author of this volume has been so
fortunate as to obtain from A. C. Crane, Esq., of St. Louis, an
account of the early history of the case, which is entirely original
and authentic. Mr. Crane was, at the time that the case was brought in
the Circuit Court of the United States, a clerk in the law office of
the great lawyer who espoused Dred Scott's case, and who freely gave
his legal services to the work of securing the negro's freedom,
Roswell M. Field. Mr. Field was a native of Vermont, and a strong
anti-slavery man. He was utterly incapable of any collusion with
slaveholders for the getting up of a case, through which the Supreme
Court of the United States might be brought to support the cause of
slavery in the Territories, the purpose charged by many of the
anti-slavery {450} men of the North for which this case was created.
Mr. Crane most emphatically declares that Mr. Field was influenced to
undertake the case only by humanitarian motives of the highest order.
[Sidenote: Two Dred Scott cases.]
There were, indeed, two Dred Scott cases, one in the courts of
Missouri, and one in the United States courts, but they had no
connection with each other. The case decided by the Supreme Court of
the United States originated in the Circuit Court of the United
States, and did not come up on a writ of error from the Missouri
court.
[Sidenote: The facts of the cases.]
The facts in the two cases were, however, the same. One Dr. Emerson,
the owner of Dred Scott, had taken Dred, as his slave, into Illinois,
a Commonwealth in which slavery was forbidden, and then into the
Louisiana territory above the latitude thirty-six degrees and thirty
minutes, where slavery was prohibited by the Congressional Act of
1820; had allowed Dred to marry in the free territory; had purchased
the woman he married from an army officer at a post within the same;
and had taken Dred back to Missouri, with his wife and a child born to
them on free territory, and held them as slaves in Missouri. Dr.
Emerson's return to Missouri was in 1838. In 1844 the Doctor died,
leaving Dred and his wife and child to Mrs. Emerson. According to the
statement of facts recited by the Chief Justice of the United States,
Dr. Emerson sold Dred and his family to a Mr. Sandford, a citizen of
New York, the defendant in the case before the Supreme Court, but Mr.
Crane says that Dr. Emerson's will, in the Probate Office at St.
Louis, shows that Dred and his family belonged to the Doctor at the
time of the latter's death, and that Dred told him that such was the
case. Mr. Crane also says that Dred told him that, after the Doctor's
death, Mrs. {451} Emerson hired him out to different persons, and that
he became dissatisfied with this treatment, and resolved to sue for
his freedom.
[Sidenote: The case in the Missouri courts.]
This first suit was brought in one of the inferior courts of Missouri,
and was decided in Dred's favor. Mrs. Emerson appealed the case to the
supreme court of Missouri, and two of the three judges upon that bench
held that the condition of slavery reattached to the negro upon his
being brought back into Missouri, and reversed the decision of the
lower court.
While the case in the Missouri courts was in progress Mrs. Emerson
made over the control of the Scotts to a relative of hers, a Mr.
Sandford, then a citizen of New York, who hired them out to residents
of Missouri. It was then, and for this reason, that Dred appealed to
Roswell M. Field for his powerful aid in bringing suit against
Sandford in the Courts of the United States.
[Sidenote: The case in the United States courts.]
The case in the Circuit Court of the United States was begun before
the case in the Missouri court was concluded. The defendant in the
Circuit Court of the United States first pleaded that Dred was not a
citizen of Missouri, and could not be, since he was a negro and
descended from slaves held in the United States, but the court
overruled the plea, that is, decided that Dred Scott could be party in
a suit in the courts of the United States.
The evidence in the case consisted simply of a statement of facts
agreed upon by the two parties. The pleas then put forward by the
defendant in bar of the action were argued, on the basis of this
statement, and the court ordered the jury to find for the defendant.
Judgment was rendered in his favor in the month of April, 1854.
Mr. Field then carried the case to the Supreme Court {452} of the
United States, upon a writ of error, and secured the services of his
friend, the Hon. Montgomery Blair, for the negro. Mr. Blair undertook
the management of the case at Washington, and, like Mr. Field, gave
his time and labor without pecuniary reward. The court costs incurred
by Dred in both cases were paid by Taylor Blow, son of the man who
sold Dred to Doctor Emerson.
[Sidenote: The case a genuine proceeding.]
There is certainly not the slightest evidence in this history of the
case that the case was anything but a genuine proceeding from
beginning to end, conducted by anti-slavery men, for the purpose of
securing the freedom of an intelligent and worthy African, who had
been taken voluntarily by his master upon free soil, and had thus been
made, by the principles of the common law, a free man.
[Sidenote: The decision by the Supreme Court of the United States.]
The case was argued twice with great learning before the Supreme
Court, and the decision finally reached was virtually acquiesced in by
seven of the nine Justices, although Justice Nelson did not give his
assent to any part of the opinion except that which decided that, on
the return of Dred to Missouri with his master, any effect upon his
slavery, which the taking of him into Illinois and the Louisiana
territory above the latitude thirty-six degrees and thirty minutes
might have had, disappeared. This seemed to Justice Nelson sufficient
to the decision of the case, and he was unwilling to go farther, but
some of his brethren, especially Justice Wayne, thought that the
entire record of the case in the Circuit Court was brought up for
examination by the Supreme Court, and that the Supreme Court ought to
decide every point contained in the record. Justice Nelson had been,
at first, selected by his colleagues to write the opinion, and it is
thought that this attitude of his was what moved the Chief Justice to
write the opinion himself.
{453} Justice Catron also thought that there was nothing before the
Supreme Court but the question whether, after the return of the Scotts
to Missouri, their temporary sojourn on free territory could be held
to have worked their emancipation. Justice Catron presided at the
trial in the Circuit Court and ruled, as we have seen, in favor of
Dred Scott on the point of his having a standing in the United States
Courts, and the Justice thought that Scott could not bring up to the
Supreme Court, on a writ of error, a point decided in his favor in the
court below.
The Chief Justice, Mr. Taney, held that there were two leading
questions presented by the record from the Circuit Court. The first
was the question whether the Circuit Court had jurisdiction over the
case, and the second was whether the judgment it gave was correct or
erroneous.
The Chief Justice was right in holding that the writ of error brought
up the entire record for examination by the Supreme Court, but it was
not necessary that the Supreme Court should include every point of the
record in its decision. And he was certainly wrong when he extended,
as is now generally conceded he did, the opinion of the court beyond
the points in the record of the case in the Circuit Court. The form of
the judgment pronounced by the Chief Justice as the opinion of the
Court, that is, of the majority of the Justices, was that the Circuit
Court did not have jurisdiction of the case, since the Scotts were not
citizens of Missouri, in the meaning of the Constitution of the United
States, and that the judgment of the Circuit Court for the defendant
must, therefore, be set aside, and a mandate be issued, directing the
suit to be dismissed by the Circuit Court for want of jurisdiction.
The Chief Justice undertook to sustain his opinion by a long argument,
{454} the principal propositions of which were, that negroes descended
from negro slaves held in this country were not citizens in any of the
"States" of the Union at the time of the formation of the Constitution
of 1787; that by that Constitution the "States" transferred all power
to make new classes of persons citizens to the Congress of the United
States, and limited the power of Congress in this respect to the
naturalization of persons born outside of the dominion of the United
States; and that, consequently, negroes born of negro slave parents in
the United States were not only not citizens of any of the "States" at
the time of the formation of the Constitution of 1787, but could not
be made such, either by the "States" or by Congress, subsequent to the
adoption of that Constitution.
[Sidenote: The dissenting opinion of Mr. Justice Curtis.]
In his powerful dissenting opinion, Mr. Justice Curtis demolished this
argument completely, by simply showing from the statute books and the
judicial decisions of several of the "States" that, at the time of the
formation of the Constitution of 1787, negroes descended from
Africans, who had been held as slaves in the country, were citizens,
even to the point of possessing the suffrage, in several of the
"States" of the Union. The great argument of the Chief Justice turned
out to be only a political essay, without fact, law, or jurisprudence
to sustain it. Mr. Justice Curtis, therefore, held that, as nothing
against Dred Scott's citizenship had been alleged by the defendant in
the Circuit Court, except that he was a negro, and descended from
negroes who had been held as slaves in this country, the jurisdiction
assumed by the Circuit Court ought to be sustained by the Supreme
Court.
[Sidenote: Criticism of the Court's opinion.]
But if the opinion of the Court should be accepted as correct upon
this point, it is difficult to see why the opinion should not have
ended with the decision upon {455} this point. Nothing further was
necessary in the determination of the case. And it is certainly most
difficult to see what connection the Act of 1820, prohibiting slavery
in the Louisiana territory, north of the latitude thirty-six degrees
and thirty minutes, had with the case. No decision upon that point was
rendered by the Circuit Court, whose record the Supreme Court was
reviewing.
If the Supreme Court had confirmed the jurisdiction of the Circuit
Court in the case, and had then ruled that the Circuit Court was in
error in holding that slavery reattached to the Scotts by Missouri
law, upon their return to Missouri, even if they had been made free by
their temporary sojourn upon free soil, probably the Supreme Court
should have decided the question as to what effect that sojourn may
have had, and, in this way, included the question of the
constitutionality of the slavery prohibition clause in the Act of
1820. But the majority of the Supreme Court approved the view of the
Circuit Court upon this point.
There is little doubt that the majority of the Justices thought that a
declaration from the Supreme Court in regard to the mooted question of
slavery in the Territories would aid in bringing quiet to the country,
and that they had persuaded themselves that it was necessary to the
decision of the point in issue. But they were certainly in error, as
to the first consideration, and it is difficult to see that they were
not as to the second.
[Sidenote: The obiter dictum.]
The Chief Justice advanced to his conclusion in this part of the
opinion through a most labored argument. He started with the dictum
that there was no clause in the Constitution which gave Congress any
power over territory acquired subsequently to the adoption of the
Constitution, interpreting the provision which vests in Congress "the
power to make {456} all needful rules and regulations concerning the
territory and other property of the United States," as applying only
to territory held by the United States at the time of the adoption of
the Constitution. He then founded the power to govern the territory
subsequently acquired upon the right to acquire territory; and
declared that in governing such territory, or providing for its
government, Congress was limited by all those provisions of the
Constitution which protect private rights against governmental power.
He claimed, finally, that that one of these provisions which ordains
that no person shall be deprived of life, liberty, or property without
due process of law protected property in slaves, taken into the
Territories by their masters, against both the power of Congress and
of the agents of Congress in the Territories, the Territorial
governments, to free them. The conclusion from this reasoning was that
anybody could take slaves into a Territory of the United States, and
hold them there in slavery, no matter what might be the disposition of
Congress or of the Territorial government in regard to the subject,
and that the question whether slavery was to be permanently
established in a Territory or not could not be determined until the
Territory should become a "State," and then only by an act of the
"State."
[Sidenote: The Chief Justice and the President.]
This was the point which the Kansas-Nebraska Act had not covered, and
which the President said, in his inaugural address, would be decided
in the forthcoming opinion on the Dred Scott case. The opinion was
pronounced several days after the inaugural, and it was later charged
by Mr. Seward, and intimated by Mr. Lincoln, and believed by a large
number of persons, that the Chief Justice imparted the opinion of the
Court to the President before it was pronounced. But this point,
though {457} not necessarily involved in the case, had been argued by
counsel, and the newspapers had declared that it would be decided, and
both Mr. Buchanan and Mr. Taney were men of the highest personal and
official integrity, and possessed the most delicate sense of the
requirements and proprieties of the great stations which they
occupied. It is almost certain that the charge was an unfounded
suspicion. The prevalence of the suspicion was, however, an ominous
sign of the danger impending over the land.
[Sidenote: Justice Curtis's dissent continued.]
Justice Curtis found no more difficulty in controverting these
propositions than those upon the first point treated in the opinion of
the Chief Justice. He first referred to the undoubted facts that not
all the territory claimed by the several "States" had been ceded to
the United States at the time that the Constitution of 1787 was
adopted, but that it was expected that what remained would soon be so
ceded, and that therefore the clause vesting in Congress "the power to
make all needful rules and regulations concerning the territory of the
United States" must have been framed with these future acquisitions in
view, and intended to apply to them also. He then demanded to know
why, if the Court could derive the power of Congress to govern
territory acquired from foreign states from a right which is not
expressed in the Constitution, but is itself implied, the right to
acquire, should it hesitate to derive it from a power in respect to
the territory of the United States which is expressed in the
Constitution. He contended that until Congress or the Territorial
legislature had legalized slavery in a Territory, no one could be said
to be deprived of his property in slaves in the given Territory,
either by a Congressional act forbidding the existence of such
property, or by the failure of Congress or the Territorial {458}
legislature to enact laws for the security of such property. He
repudiated the idea that a holder of slaves could take the law of the
place from which he emigrated, securing such property, into a
Territory with him as a monstrosity in jurisprudence, since it would
introduce into a given Territory as many slave codes as there were
slaveholding Commonwealths represented therein by their slaveholding
emigrants, and he indicated, finally, that the reasoning of the Court
must reach ultimately the proposition that Congress was required by
the Constitution to establish slavery in every Territory of the Union,
and consequently to make every new "State" a slaveholding "State."
[Sidenote: The printing and distribution of the decision and the
dissenting opinion.]
[Sidenote: The doctrine of popular sovereignty in the Territories
overthrown by the opinion of the Court.]
The slaveholders and the Douglas Democrats of the North were in high
glee over the decision, and hardly stopped to read the powerful
dissenting opinion which had shattered it to atoms. They caused
thousands upon thousands of copies of the decision to be printed and
distributed among the masses of the people. The Free-soilers did the
same thing with the opinion of Justice Curtis. It was not many weeks
before it became entirely manifest that the cause of slavery had lost
immensely by the decision, and the cause of free-soilism had gained in
the same degree. Justice Curtis had demonstrated that the decision had
cast the responsibility for the further extension of slavery upon the
nation, and the nation now began to show its resolution to meet its
responsibility by acquitting itself of any participation in this great
wrong, in the only manner now left to it, that is, by preventing it.
The nation could no longer deceive itself with the idea that it could
stand neutral. The Court had actually swept away the dogma of "popular
sovereignty" in the Territories. The nation must now {459} neither
prohibit, nor allow the Territorial governments to prohibit, slavery
within the Territories, as the decision would have it, or the nation
must itself prohibit it, as the dissenting opinion would have it. When
these alternatives were distinctly recognized as necessary and
exhaustive, it did not take the nation long to decide which course it
must pursue.
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