G O V E R N M E N TA L L I A B I L I T Y
The
Dred Scott
Decision
A Legal Fight
for Freedom
By Phillip E. Friduss
and Charlotte Avant
An important reflection
As the 1840s arrived, the United States was barely 50 years
old and was facing its biggest internal challenge yet—
slavery. A lawful institution in many of the colonies since
before independence, slavery had become the hottest issue
on the decision widely
considered, to this
day, to be the worst
in U.S. history.
in decades, dominating national politics
and polarizing the nation. A schism split
the nation along geographical and ideological grounds. Antislavery leaders in
the North feared that the South wanted to
extend slavery throughout the nation and
ultimately, to rule the nation itself.
After independence from Great Britain,
slow but marked efforts eroded the modest
legal rights of free blacks. The right to vote
was one such right. In 1787, 10 of the 13 colonies granted free blacks the right to vote. By
the time of the Dred Scott decision in 1857,
less than half did. And for many, slavery was
not a “human rights” issue. While considered morally abhorrent to many abolitionists, widespread acceptance of the idea that
all individuals had human rights as we know
them, that is, rights due to individuals simply as human beings, is relatively modern.
At the same time laws prevented governments from taking actions that interfered
with a citizen’s property. In a “slave state,” a
state permitting slavery, slaves, as property,
were considered just that: property, as with
a car or a home today. Furthermore, cotton
was the major cash crop in the South, and
slave labor was integral to that industry. By
the time of the Civil War, cotton accounted
for almost 60 percent of American exports,
representing a total value in today’s money
of nearly $6 trillion annually.
The slavery debate had grown over the
decades, resulting in legislation such as the
1820 Missouri Compromise, which allowed
Missouri into the Union as a slave state. The
“compromise” in exchange for this right
was that no territory above parallel 36° 30'
north could subsequently enter the Union
as a slave state. Many states rights activists condemned Congress as not having
the lawful power to dictate the terms under
which territories could enter the nation.
Who Was Dred Scott?
Born to slaves of African descent in 1799,
Phillip E. Friduss is a founding partner of Landrum & Friduss LLC, with offices in Woodstock and Jasper,
Georgia. He is vice chair of DRI’s Governmental Liability Committee. Charlotte Avant is a writer and visual
artist living in Nashville, Tennessee. She is a graduate of Columbia University in New York. The authors
gratefully recognize the contributions of Lynn Jackson, President and Founder of the Dred Scott Heritage
Foundation (and great-great granddaughter of Dred Scott), Claire Luna of Jury Impact, and Chrissy Van Berkum of Landrum & Friduss for their significant contributions.
■ 30 For The Defense February 2011
n
n
© 2011 DRI. All rights reserved.
Dred Scott and his parents were the property of the well-­respected Peter Blow family from Virginia. The Blows moved over the
years to Alabama and, after a failed farming adventure, eventually to St.
Louis. Dred Scott, while notably
intelligent, never learned to read
or write. By all accounts he was
a versatile laborer, serving as a
farmhand, dockworker, craftsman, and general handyman.
While recordkeeping on
Dred Scott was spotty, it appears that in 1832 Scott was
sold to Dr. John Emerson, an
Army surgeon who was constantly on the move. Over the
next decade Scott married and
had children, all while following
his master across the country.
Along the way, the Scott family was stationed in Illinois, a
“free-soil” state, a state prohibiting slavery, and the Wisconsin Territory. The Scott family
lived in those areas long enough
so that they could have gained
their freedom by law, had they
been so inclined. Why Scott
did not choose to pursue freedom at these times is anything
but clear. Perhaps he did not
know the law. According to one
account, Dr. Emerson had allowed Scott and Harriet Robinson, also a
slave, but belonging to someone else, to
marry, even allowing them a rare church
ceremony. Marriage among slaves in most
slave states was unusual as slaves had no
right to contract. According to another account Dr. Emerson insisted that Scotts receive a small cast-iron stove to keep them
warm while stationed at Fort Snelling, an
area where the Missouri Compromise also
prohibited slavery, in the Minnesota Territory. Harriet Scott was pregnant at the time.
These stoves had been reserved for the officers and were in heavy demand. Emerson
argued with the quartermaster, the soldier
struck Emerson between the eyes, Emerson purportedly struggled to find his pistol, someone corralled him, and Emerson
was placed under house arrest until he regained his composure.
It appears that Scott’s life altered in 1843
when Dr. Emerson died, after Emerson
had returned with his family to Missouri,
and the Scotts became the property of Dr.
Emerson’s widow, Irene Sanford Emerson. Mrs. Emerson immediately hired the
Scotts out to an Army captain. It was then
that Scott made his first move towards
freedom, attempting to buy himself and
his own family from Mrs. Emerson with
his savings. She rejected his offer, presumably on financial grounds. In the open market, the Scott family would have fetched no
less than the equivalent of today’s $50,000,
many times above what Scott probably
would have ever been able to pay.
taken to a free-soil state, and the owner
had established residence in that state, conferring free status to the slave; (2) a slave
had been wrongfully held after being formally freed by will, purchase,
or otherwise; and (3) a slave
could prove his or her mother
was not legally a slave. Most
cases petitioned based on the
first ground because the young
nation’s growth had inevitably
led to greater and more common travel opportunities. In
Missouri, the “once free, always
free” doctrine, which conferred
free status upon slaves who had
lived in slavery-­free areas where
their owners had established
residency, evolved from an 1824
Missouri Supreme Court case.
While freedom suits were not
uncommon, by the time Scott
initiated his suit winning one
had become quite rare. A liberal
judiciary that had previously
granted nearly half of the petitions for freedom slowly gave
way to one with pro-­slavery sentiments. In the two years before Scott decided to sue, 1844
to 1846, the St. Louis Circuit
Court considered 25 freedom
suits. Only one slave obtained
freedom.
1846—Scott Files Suit
The Freedom Suits
It was just another day at the office in the
St. Louis Circuit Court in 1846 when Dred
Scott first petitioned for his family’s freedom. “Freedom suits,” as they were known,
were commonplace. Missouri was one of a
handful of states that permitted slaves to
petition the state for freedom through the
court system. Generally, these states recognized three grounds under which a slave
could gain freedom: (1) a slave had been
Unable to read or write, Scott and his wife
each signed their 1846 petition with an “X.”
The case got off to a rocky start. It was dismissed in 1847, but Judge Alexander Hamilton, an antislavery Pennsylvanian, granted
a new trial on an evidentiary technicality.
Before the new trial ensued, Irene Emerson, unwilling to part with such valuable
property, appealed to the Missouri Supreme
Court, which agreed with the trial judge
that the Scotts should receive a new trial.
However, due to two continuances, a cholera
outbreak, and a massive fire that crippled St.
Louis, the new trial was not held until three
years later. At the conclusion of that trial, 12
white jurors granted the Scotts their freedom. Mrs. Emerson immediately appealed.
Her lawyers’ appeal argument directly
targeted the “once free, always free” doctrine. Amid growing tensions regarding the
All images from the Library of Congress.
For The Defense February 2011 31
n
n
G O V E R N M E N TA L L I A B I L I T Y
expansion of slavery, the decision turned
political. In the nation’s most significant
civil rights case in more than 30 years,
the Missouri Supreme Court, holding that
“times are not now as they were
when the previous decisions on this
subject were made,” reversed its
earlier decision, and put the “once
free, always free” concept to rest
forever. It was 1852, and the Scotts
remained slaves.
The day after the decision, Irene
Emerson’s lawyers showed up to
take possession of the Scotts. They
also demanded the wages that that
the Scotts had earned while they
had been hired out by the St. Louis
County sheriff, who had custody of
them during the five years of the
suit, plus six percent interest. Judge
Hamilton denied the request for
compensation without comment.
While the Scotts had been in the
sheriff ’s custody, Irene Emerson
had married Calvin C. Chaffee and
moved to Massachusetts, a de facto
free-soil state. During the course of
the legal proceedings, ownership
rights of the Scotts reverted to Irene
Emerson Chaffee’s brother, John
Sanford, in Missouri. How exactly
this happened is undocumented,
and it remains a mystery to this day.
Up to that point, the Scotts had
seen several lawyers come and go
on their behalf. Some moved, one died, and
as the case began to garner more attention,
those behind the cause sought more and
more sophisticated counsel. Supporters
included Peter and Henry Blow, the children of Dred Scott’s original owner, who
had become abolitionists and financed
much of the legal costs. The lawyer who
would ultimately argue Scott’s case before
the United States Supreme Court, Montgomery Blair, was renowned, having served
as a U.S. attorney, judge, and regular counsel before the Supreme Court. Blair sued
Sanford for Scott’s freedom in federal
court. A clerk’s missed pen stroke identified the defendant as John F. Sandford, and
the spelling was never corrected. The case
is forever recorded as Dred Scott v. Sandford. Because Missouri was a slave state,
Scott lost yet again. Next time, he appealed
to the United States Supreme Court.
32 For The Defense February 2011
n
n
The Scotts were no longer simple slaves
involved in a standard freedom suit. They
now stood at the forefront of the most
tumultuous national debate in the coun-
try’s history. Dred Scott had become the
most famous slave in the world.
Buchanan and the Supreme Court
It was early 1857, and the implications
of a decision for or against Scott’s freedom were not lost on President-­Elect James
M. Buchanan, Jr. His March inauguration date was quickly approaching. Hoping
that word from the nation’s highest tribunal would take the slavery issue beyond
the realm of political debate, Buchanan
pressed Justice John Catron to learn the
proposed decision date on the Scott case.
The president-­elect wanted to know what
to say to the nation.
Meeting privately to discuss the case,
Catron and some of the other justices concluded that they did not need to address the
question of whether people of color of African ancestry were citizens of the United
States. Instead, they would simply defer to
the Missouri Supreme Court, ruling that
because the Missouri Supreme Court had
not deemed Dred Scott a citizen of that
state, he could not appear in federal court claiming that he was. In
this way, the Court could also sidestep ruling on the constitutionality
of the Missouri Compromise. The
Court planned to issue a short ruling, if they issued it in writing at all.
But, things did not go as planned.
Rumors spread that two of the justices intended to release dissenting
opinions addressing the very issues
that the rest of the Court wanted
to bypass. Instead of the rubber
stamp that Buchanan had hoped
for, the Court embarked on one of
the most prolific opinion-­writing
campaigns in Court history up to
that point. Each individual justice
issued a written opinion.
President-­elect Buchanan, catching wind of the about-face, again
secretly injected himself into
the inner workings of the Court.
Buchanan put intense pressure on
fellow Pennsylvanian, Justice Robert Cooper Grier, to vote with the
Southern appointees who dominated the Court to make the ruling
appear national rather than divided
along sectional lines. Grier was still
of a mind to sidestep the issue of
whether Scott was a United States citizen,
but he succumbed to pressure. Today, such
an act of political interference is considered criminal.
President Buchanan’s inaugural address
preceded the Dred Scott decision by just
two days. Naively believing that he could
sweep the slavery issue out of the political
limelight, he referred to the debate as
happily a matter of but little practical importance. Besides, it is 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… I shall
cheerfully submit.
The Dred Scott Decision
The Court’s 7–2 decision that the descendants of Africans, free and slave alike,
could not be U.S. citizens entitled to “the
rights, and privileges, and immunities”
granted by the U.S. Constitution, nor
could they ever, if the Constitution was
the arbiter of citizenship. Although
the Court granted that states did
have the power to confer state citizenship rights to whomever the
states deemed, state citizenship did
not confer federal citizenship to
a state’s citizens. The Court also
curbed congressional power, holding that Congress had no right to
prohibit slavery in the territories.
The Missouri Compromise was
deemed unconstitutional and was
struck down.
Chief Justice Roger Taney
crushed the hopes of descendants
of Africans everywhere by infamously proclaiming that the framers of the Constitution believed that
Africans imported as slaves and
their descendants
were beings of an inferior order,
and altogether unfit to associate with the white race, either in
social or political relations, and
so far inferior that they had no
rights which the white man was
bound to respect; and that the
negro might justly and lawfully
be reduced to slavery for his benefit. He was bought and sold and treated
as an ordinary article of merchandise
and traffic, whenever profit could be
made by it.
The editors of The Evening Journal of
Albany, New York, fired back:
The three hundred and forty-­seven thousand five hundred and twenty-­five Slaveholders in the Republic, accomplished
day before yesterday a great success—as
shallow men estimate success. They converted the Supreme Court of Law and Equity of the United States of America into a
propagandist of human slavery. Fatal day
for a judiciary made reputable throughout the world, … The conspiracy is nearly
completed. The Legislation of the Republic is in the hands of this handfull [sic]
of Slaveholders. The United States Senate
assures it to them. The Executive power
of the Government is theirs. Buchanan
took the oath of fealty to them on the
steps of the Capitol last Wednesday. The
body which gives the supreme law of the
land, has just acceded to their demands,
and dared to declare that under the charter of the Nation, men of African descent
released his dissent. The feud between the
Taney and Curtis grew over the summer
and led Curtis to resign from the bench
later in the year.
The Aftermath
are not citizens of the United States and
can [sic] not be ….
Dissenting, Justice John McLean noted
that historically some states in the country had granted the right to vote to men of
color, concluding that the majority decision was “more a matter of taste than of
law.” Further controversy surrounded Justice Taney’s refusal to release a written version of the majority opinion. He had only
read the majority opinion aloud, a droning
two-hour monologue, in open court. The
dissenters released their opinions in writing the next day, leaving the press with only
the dissenting opinions and what it could
pick up during Taney’s ramblings.
This infuriated dissenting Justice Benjamin Curtis, and he pushed for releasing
the written majority opinion for more than
two months. When it was finally released,
an incensed Curtis estimated that the opinion had been expanded by at least 18 pages
after the fact and after Curtis already had
To this day the Court’s legal
decision is widely considered
the worst in United States history. The effects were immediate and devastating.
Economically, opening the
western territories to slavery greatly diminished their
value. The nation’s economy
had been wed to westward
expansion, and significant
monies were tied up in the
railroads that were to pave
the way. The unanswered
question of whether new territories would permit slavery,
or become “free-soil” territories had already strained the
economy, and the Dred Scott
decision merely left the query
unresolved.
The uncertainty was too
much. East-west railroad
bonds collapsed. The ensuing run on New York banks
caused the Panic of 1857,
which led to economic troubles similar to those seen in 2008–2010.
Politically, President Buchanan’s belief
that slavery would no longer be of national
concern missed the mark. Instead, slavery
became the primary issue, dominating the
presidential debate between Abraham Lincoln and Stephen Douglas to the exclusion of
virtually all others. The country turned upon
itself. Nine years, the most catastrophic war
in U.S. history, and the loss of some 600,000
lives later, Congress reversed the Court’s decision in Dred Scott in 1866 with the 13th
Amendment. Slavery was abolished, and every African American in the United States
was granted full citizenship.
What Happened to Dred Scott?
Dred Scott’s trek to freedom through the
courts lasted 11 years. He had no political agenda whatsoever. He just wanted
to be free. The fate of the Scotts, though,
was not ultimately decided in the courts.
Dred Scott, continued on page 73
For The Defense February 2011 33
n
n
Dred Scott, from page 33
In a bizarre turn of events, just before
the Supreme Court’s decision, the Scotts’
owner, John Sanford, was committed to
an insane asylum. Ownership of the Scotts
reverted back to Irene Emerson Chaffee.
Mrs. Chafee had never told her husband, abolitionist Congressman Calvin
C. Chaffee, that she had ever owned the
most famous slave in America, nor that
she was once more in possession of him
and his family. Congressman Chaffee was
not to learn of his wife’s secret ownership
interests in the Scotts until just a month
before the Dred Scott decision. Public outcry against the lawmaker for owning the
Scotts prompted him to transfer them back
to their first owners, the Blows. Missouri
law dictated that only Missouri residents
could convey freedom to slaves within the
state. The Scotts received their freedom on
May 26, 1857, in the very courthouse where
they had originally filed suit. Irene Emerson Chaffee showed up to collect the back
wages earned by the Scotts. This time, the
sheriff was required to compensate her.
Freedom
Mr. Dred Scott lived his last 18 months as a
free man, working as a St. Louis hotel porter and rejecting large sums of money to
become a traveling, worldwide celebrity.
He died in 1858 of tuberculosis and was
buried by Taylor Blow in St. Louis, where
to this day, visitors place Lincoln pennies
on his grave.
Harriet Scott outlived her husband by
nearly 20 years. She worked as a laundress,
was listed in the census as owning her own
home, and appeared in the St. Louis directories for years. The family remained close,
daughter Lizzie Scott helping to raise her
daughter Eliza’s children.
Today, Dred and Harriet Scott’s greatgreat granddaughter, Lynne Jackson, preserves the couple’s legacy as the founder
and president of the Dred Scott Heritage
Foundation in St. Louis.
For The Defense February 2011 73
n
n