A People's History of the Supreme Court

by Peter Irons

  One thing we learn about Dred Scott is that, like most slaves, his identity and history are riddled with historical gaps. This fact tells us a great deal about an institution that robbed its victims not only of rights but often of their names. This was true of Dred Scott, who may have been known simply as “Sam” for most of his life, and acquired the name “Dred Scott” after his sale in 1833 to Dr. John Emerson in St. Louis, Missouri. His previous owner, Peter Blow, arrived in St. Louis from Alabama in 1830 with six slaves, five male and one female. He set up a boardinghouse but died in 1832, a year after his wife’s death. After Blow’s death, his executor sold two male slaves to settle claims against the estate, one named Sam and the other with no recorded name. No one knows which of these two slaves was purchased by Dr. Emerson, whether Sam became Dred Scott, or whether the unnamed slave was in fact named Dred Scott. No one even knows for sure when or where Dred Scott was born. He was literally a man without a past, or at least one known to white people.

  We do know that the Blow family remained close to their former slave and supported Dred Scott during his long struggle for freedom. Three months after the Supreme Court ruled in March 1857 that Scott was still a slave, Peter Blow’s son Taylor regained title to him and promptly freed him. But Dred lived only fifteen months as a free man, working as a hotel porter in St. Louis; he died of “consumption” in September 1858. He never sought the limelight, although he did talk with several newspaper reporters about his case. One report, published in 1857, described Dred Scott as “illiterate but not ignorant” and as a person with a “strong common sense.” An article in 1858 called him “a small, pleasant-looking negro” with an “imperial” beard, wearing a “seedy” black suit and looking “somewhat the worse for wear and tear.”

  Life imposed a great deal of “wear and tear” on Dred Scott, particularly after Dr. Emerson purchased him from the Blows. By all accounts, Emerson was a poor doctor and a chronic malcontent. He finagled a position in 1832 as an army medical officer and was posted in 1834 to Fort Armstrong in the “free” state of Illinois. Dred Scott—then in his early thirties—accompanied his new owner, who disliked life on the frontier and asked to return to St. Louis for treatment of a “syphiloid disease.” After several rebuffs by the army brass, Dr. Emerson, finally secured a new post in 1836 when Fort Armstrong was closed. He and Dred moved to Fort Snelling, located in Wisconsin Territory (later renamed Iowa Territory and now part of Minnesota).

  These chapters in Dred Scott’s life have great significance. Fort Armstrong and Fort Snelling both lay in “free” territory, north of the line drawn by the Missouri Compromise in 1820. Slavery was illegal in both Illinois and Wisconsin Territory, and Dred could not lawfully be held as a slave by Dr. Emerson in either place. While he lived at Fort Snelling, Dred met Harriet Robinson, a teenage girl, also held as a slave by the resident Indian agent, Major Taliaferro. He either sold Harriet to Emerson or gave her to Dred as a wife, and they were married by the major as a local justice of the peace. The Scotts had four children; two sons died in infancy, but two girls—Eliza and Lizzie—grew up and joined their parents’ suit for freedom.

  Dr. Emerson complained about the cold weather in the North (the weather never suited him) and secured a transfer back to St. Louis in 1837, only to find orders when he arrived that he report to Fort Jesup in Louisiana. The weather was too damp in the South for his taste, and he wangled a return to Fort Snelling in 1838. But during his stay in Louisiana, Emerson got married and Dred and Harriet Scott—who had remained at Fort Snelling—traveled down the Mississippi by steamboat to join them. The Emersons and the Scotts journeyed back to Fort Snelling by boat; Eliza Scott was born on this trip, north of the Missouri Compromise line in “free” territory.

  Emerson got into violent quarrels with the personnel at Fort Snelling, and he was ordered in 1840 to Florida, where the army was engaged in the Seminole War against the Indians. Emerson’s wife returned from Fort Snelling to St. Louis with the Scotts. Dr. Emerson’s complaints became too much for the army, and he was dismissed from service in 1842. He returned to St. Louis but could not build a private practice there. He moved to Davenport, Iowa, in 1843, and died there—most likely of syphilis—at the end of that year. The Scotts remained in Missouri, although where they lived at the time of Emerson’s death is unclear.

  The sad story of Dr. Emerson bears recounting largely because it shows that Dred Scott and his family lived at least twice in “free” territory where slavery was illegal. Did their residence on free soil in Illinois and Wisconsin Territory remove the chains of slavery? Surprisingly, this question had a fairly clear answer in 1846, when Dred and Harriet Scott filed identical suits for their freedom in Missouri state court in St. Louis.

  Their suits did, however, raise two puzzling questions. First, who actually owned the Scotts, or claimed ownership? Second, who encouraged them to file suit and put up the money to hire lawyers? In his exhaustive account of the Dred Scott case, Don Fehrenbacher concluded that the answer to both “remains a mystery.” John Sanford, the brother of Emerson’s wife, Eliza, claimed ownership during the lawsuits, but there are no records to support his claim. It is possible that Dred Scott himself decided to sue for his freedom, with help from his former owners, the blow family. Fehrenbacher notes that Dred Scott possessed “some measure of self-reliance, as well as a fund of practical knowledge, and suits for freedom occurred often enough to be common talk among St. Louis slaves.”

  Missouri law was on the Scotts’ side, at least when they filed their suits. The state’s highest court had repeatedly held that masters who took slaves into “free” territory thereby emancipated them, and that slavery did not reattach when they returned to Missouri. The legal doctrine of that time was “once free, always free.” But Dred and Harriet Scott had the misfortune to find their suits caught in the shifting currents of Missouri (and national) politics. That misfortune stemmed from the snail’s pace at which their cases proceeded through the state courts. More than a year passed between the time the Scotts filed their suits in 1846 and their first trial in June 1847. Dred’s complaint alleged that Dr. Emerson’s widow, Irene, had “beat, bruised, and ill-treated him” and then “imprisoned” him for twelve hours on April 4, 1846, two days before he filed suit against her for assault and false imprisonment, asking for damages of $10. Dred also claimed to be a “free person” in his complaint. His claims that Irene Emerson beat and imprisoned him may or may not have been true; she was apparently not a cruel or violent person, and may not even have seen Dred on April 4. But charges like these were necessary in suits for freedom. If the defendant had beaten or imprisoned a slave, those acts constituted lawful “chastisement” and slaves could receive no damages. But a “free person” could not be lawfully beaten or imprisoned, and juries could award them damages. So the jurors in Dred’s case. had to determine, before they reached the damage issue, whether he was a free man or a slave.

  Whoever put up the funds for the Scotts’ lawsuit picked a prominent lawyer in Samuel Bay, Missouri’s former attorney general. But prominent lawyers make mistakes just like obscure ones, and Bay made a serious error. Before he could argue that the Scotts’ residence in Illinois and Wisconsin Territory had freed them from slavery, he needed to show that Irene Emerson claimed their ownership and controlled them. Unfortunately, Bay’s witnesses failed to produce satisfactory evidence on this issue. A man named Samuel Russell testified that he “hired out” the Scotts from Mrs. Emerson and paid her father, Alexander Sanford, for their labor. But Russell had no personal knowledge that Mrs. Emerson owned the Scotts; he testified that his wife made, all the arrangements. Withtout evidence on the important—and disputed—issue of whether Irene Emerson “owned” Dred Scott, the jury returned a verdict in her favor.

  Hoping to correct his legal error, Samuel Bay filed a motion for a new trial, which the state judge granted after some delay. But Irene Emerson had a prominent lawyer as well, George Goode, a Virginian who held s
trong proslavery views. He opposed the judge’s order for a new trial, and the dispute came before the Missouri supreme court in April 1848. Although that court dismissed Mrs. Emerson’s claim two months later and sent the case back for a second trial, proceedings did not begin until January 1850. By this time, the Scotts’ cases were almost four years old, and the sectional battles over slavery in Congress—which produced the Compromise of 1850—had affected Missouri politics as well.

  The second time around, Dred Scott’s case went to the jury with testimony from Mrs. Russell that Irene Emerson had hired out the Scotts to the Russells, claiming “ownership” of her slaves. This testimony, along with evidence that the Scotts had lived in “free” territory, convinced the jurors that Dred Scott was a free man under Missouri law. But the law allows for appeals from jury verdicts, and appeals take time. And Mars. Emerson and her lawyers—hired by her brother, John Sanford—were determined to carry the issue to higher courts. They filed an appeal with the Missouri supreme court in March 1850, but that court did not decide the case until 1852. By that time, Missouri voters had placed two new judges on the state’s supreme court. One of them, William Scott, was a fervent proslavery Democrat, and he persuaded the court to reverse the trial jury’s decision that Dred Scott was a free man.

  The Missouri judges ruled that they were bound by an 1851 decision of the United States Supreme Court in a case called Strader v. Graham. This case began when two black musicians—both of them slaves—traveled from Kentucky to Ohio to perform in minstrel shows. They had been to Ohio many times and had always returned to Kentucky. But on this last trip they kept on traveling to Canada, where they reached freedom. Kentucky was a slave state and Ohio a free state, and the musicians’ owner in Kentucky brought a suit for damages against several Ohio residents who allegedly helped them escape from slavery. The defendants relied on the Northwest Ordinance of 1787, in which Congress banned slavery in the territories of the United States. Kentucky’s highest court rejected this argument, on the ground that Ohio was now a state, and no longer part of the Northwest Territory. Consequently, the Northwest Ordinance no longer governed the case and the dispute became purely a matter of state law. Not surprisingly, the Kentucky judges ruled that their state’s laws prevailed over those of Ohio. Because the escaped minstrels, had they been apprehended and returned to Kentucky, would have been slaves—and thus the “property” of their master—in that state, the master was entitled to damages against the Ohioans who helped them escape. The Kentucky judges, of course, dismissed the “once free, always free” doctrine in their ruling.

  When the Strader case reached the Supreme Court, the “states’ rights” decision of the Kentucky judges found a receptive audience. Chief Justice Roger Taney wrote for a unanimous Court, dismissing the case for lack of federal jurisdiction. However, he took sides in the dispute, writing that if the slave musicians had returned to Kentucky—willingly or not—their status would have “depended altogether upon the laws of that State and could not be influenced by the laws of Ohio”. Since they never returned to Kentucky, Taney’s opinion on this issue was the rankest form of dictum, the Latin term for judicial statements that go beyond—in this case far beyond—the question presented in the case. But the Chief Justice seemed determined in Strader to instruct state judges that the doctrine of “once free, always free” no longer applied in suits for freedom.

  The Missouri judges followed Taney’s instructions in Dred Scott’s case, which they finally decided in March 1852. Judge Scott—certainly no relation to Dred—echoed Taney in writing that Missouri was not “bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws.” And what enactment of hostile spirit did udge Scott have in mind? The Missouri Compromise of 1820, which banned slavery in the northern territories. Just as Chief Justice Taney ruled that the Northwest Ordinance no longer had effect, Judge Scott ruled that the Missouri Compromise had no effect in his state. And just as Taney wrote his racial views into the Trader opinion, Judge Scott added his to the Dred Scott decision. He rejected his court’s earlier rulings on the grounds that “circumstances” had changed. “Times arc not now as they were when the former decisions on this subject were made,” Scott wrote. “Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequences must be in the overthrow and destruction of our government.” After these ominous words, Scott offered praise to God for instituting slavery to raise men like Dred Scott above the level of miserable” Africans. He was convinced “that the introduction of slavery amongst us was, in the providence of God, who makes the evil passions of men subservient to His own glory, a means of placing that unhappy race within the pale of civilized nations.”

  Five years passed between this ruling in 1852 and the final decision of the United States Supreme Court in 1857. During these years, Dred Scott’s case moved from state to federal court, new lawyers appeared on both sides, the legal issues changed, and national politics once again affected judicial opinions. Irene Emerson’s brother, John Sanford, still claimed ownership of the Scott family, although he had supposedly moved to New York. After their defeat in state court, Dred’s lawyers filed suit against Sanford in federal court in St. Louis, claiming jurisdiction under the “Diversity of Citizenship” Clause of the Constitution, which gave federal courts jurisdiction over suits between citizen of different states. There is much doubt that Sanford actually resided in New York, and much speculation that the suit was contrived by lawyers on both sides to reach the Supreme Court. Nonetheless, the federal judge who presided at the trial in May 1854, Robert Wells, ruled that he was bound by the Supreme Court’s decision in Strader v. Graham and instructed the jury to return a verdict in Sanford’s favor.

  In his opinion, Judge Wells overlooked a crucial question. The Diversity Clause of the Constitution allows only “citizens” of one state to bring suit against those of another state in federal court. Wells did not decide this critical issue. He merely ruled that Dred Scott was a “resident” of Missouri, and allowed his suit to go before the jurors. But in ruling that Dred had always been a slave, Wells left open the question of whether Dred was a “citizen” of Missouri, a requirement for bringing suit in federal court. The judge’s failure—deliberate or not—to decide this issue made Dred’s “citizenship” the central question when the case reached the Supreme Court.

  After their defeat in federal district court, Dred’s lawyers filed an appeal with the Supreme Court in December 1854. They had little money, and little, chance of success. What they needed, most of all, was a lawyer of national renown to argue the case. John Sanford had already recruited a former United States attorney general, Reverdy Johnson of Maryland. Johnson was an old friend of Chief Justice Taney and a formidable lawyer. Dred’s supporters appealed for help in a twelve-page pamphlet he supposedly wrote, despite his illiteracy. Whether it was written by Dred or not, the pamphlet spoke volumes about his plight. “I have no money to pay anybody at Washington to speak for me,” he said. “My fellowmen, can any of you help me in my day of trial? Will nobody speak for me at Washington, even without hope of other reward than the blessings of a poor black man and his family?” On Christmas Eve of 1854, Dred Scott’s appeal for help reached Montgomery Blair, a prominent lawyers and former West Point cadet. After years of practice in St. Louis, Blair had moved to Washington (where he lived in Blair House, now the official guest house of the president) and established a legal practice before the Supreme Court. Blair gave Dred Scott the Christmas present of his services without fee.

  The case of Dred Scott v. Sandford (a clerk had misspelled John Sanford’s name, and the Court never corrected its error) reached the Supreme Court clerk’s office on December 30, 1854. And there it languished for more than a year, until oral arguments were scheduled in February 1856. Because the Court’s rules then required the ju
stices to hear appeals in any case from lower federal courts, its docket was crowded and cases moved slowly. The justices who took the bench to hear arguments in the Dred Scott case reflected the appointments of six presidents, from Andrew Jackson in 1829 to Franklin Pierce in 1853. This was a period in which the slavery issue dominated national politics, and during which not one president spoke out forcefully against the existence of slavery in the South, or its extension into the western territories. Just as both major parties—the Democrats and Whigs—became hostage to their southern wings, presidents made Supreme Court nominations with an eye on the Senate, aware that powerful southerners like John C. Calhoun of South Carolina could derail the confirmation of anyone suspected of “abolitionist” sentiments.

  Four of the nine justices who voted in the Drer Scott case owed their seats to Andrew Jackson. John McLean of Ohio and James Wayne of Georgia had joined the Court. before the death of Chief Justice John Marshall, and they remained on the beach under Roger Taney for more than two. Given the sectional nature of the slavery conflict, geography played an important role in Supreme Court selections during this period. Wayne and Taney were southerners, and both came from slave-owning families. Jackson’s nomination of John Catron of Tennessee (who was confirmed by the Senate four days after Martin Van Buren replaced Jackson as president in 1837) gave the South a third seat on the Court. Like his colleague Wayne, Catron supported the institution of slavery but remained on the Court during the Civil War as a staunch Unionist. He also left the Court after twenty-eight years without leaving any visible mark on constitutional law. Justice Peter V. Daniel of Virginia, nominated by President Van Buren, took his seat in 1842 and shifted the Court’s balance further to the South. A slaveholder and former federal judge, Daniel served for eighteen years and had “little lasting influence on the Supreme Court,” one biographer concluded.