A Hard Shove for a “Nation on the Brink”—The
Impact of the Dred Scott Case by Lisa Cozzens
America in 1857 was, as Kenneth Stampp put it, "a Nation on the Brink." Relationships between the Northern
and Southern states had been strained for decades, but during the 1840's and especially the 1850's, the situation
exploded. The Compromise of 1850 served as a clear warning that the slavery issue, relatively dormant since
the Missouri Compromise of 1820, had returned. As territories carved out of the Mexican cessions of 1848
applied for statehood, they stirred a passionate and often violent debate over the expansion of the South's
"peculiar institution." Proslavery and antislavery forces clashed frequently and fatally in "Bleeding Kansas,"
while the presidential election of 1856 turned ugly when southern states threatened secession if a candidate
from the antislavery Republican party won. Into this charged atmosphere stepped a black slave from Missouri
named Dred Scott.
Scott's beginnings were quite humble. Born somewhere in Virginia, he moved to St. Louis, Missouri, with his
owners in 1830 and was sold to Dr. John Emerson sometime between 1831 and 1833. Emerson, as an Army
doctor, was a frequent traveler, so between his sale to Emerson and Emerson's death in late 1843, Scott lived for
extended periods of time in Fort Armstrong, Illinois, Fort Snelling, Wisconsin Territory, Fort Jessup, Louisiana,
and in St. Louis. During his travels, Scott lived for a total of seven years in areas closed to slavery; Illinois was
a free state and the Missouri Compromise of 1820 had closed the Wisconsin Territory to slavery. When Scott's
decade-long fight for freedom began on April 6, 1846, he lived in St. Louis and was the property of Emerson's
wife.
The famous Scott v. Sandford case, like its plaintiff, had relatively insignificant origins. Scott filed a declaration
on April 6, 1846, stating that on April 4, Mrs. Emerson had "beat, bruised, and ill-treated him" before
imprisoning him for twelve hours. Scott also declared that he was free by virtue of his residence at Fort
Armstrong and Fort Snelling. He had strong legal backing for this declaration; the Supreme Court of Missouri
had freed many slaves who had traveled with their masters in free states. In the Missouri Supreme Court's 1836
Rachel v. Walker ruling, it decided that Rachel, a slave taken to Fort Snelling and to Prairie du Chien in Illinois,
was free. Despite these precedents, Mrs. Emerson won the first Scott v. Emerson trial by slipping through a
technical loophole; Scott took the second trial by closing the loophole. In 1850, the case reached the Missouri
Supreme Court, the same court that had freed Rachel just fourteen years earlier. Unfortunately for Scott, the
intervening fourteen years had been important ones in terms of sectional conflict. The precedents in his favor
were the work of "liberal-minded judges who were predisposed to favor freedom and whose opinions seemed to
reflect the older view of enlightened southerners that slavery was, at best, a necessary evil." By the early 1850's,
however, sectional conflict had arisen again and uglier than ever, and most Missourians did not encourage the
freeing of slaves. Even judicially Scott was at a disadvantage; the United States Supreme Court's Strader v.
Graham decision (1851) set some precedents that were unfavorable to Scott, and two of the three justices who
made the final decision in Scott's appearance before the Missouri Supreme Court were proslavery. As would be
expected, they ruled against Scott in 1852, with the third judge dissenting. Scott's next step was to take his case
out of the state judicial system and into the federal judicial system by bringing it to the U.S. Circuit Court for
the District of Missouri.
In entering the federal judicial system, the Scott case underwent a metamorphosis that would prove to be very
important at the conclusion of the case. Most evident was the change in the defendant. Mrs. Emerson had
moved to Massachusetts and remarried, leaving Scott and his case to her brother, John F.A. Sanford, still living
in St. Louis. Also, the Scott v. Emerson case in the state judicial system was clearly a genuine suit between two
parties; each side's purpose was to win the case. The same cannot be said of Scott v. Sandford. "Dred Scott v.
Sandford," wrote Don Fehrenbacher, "was either a genuine suit, or a counterfeit designed for abolitionist
purposes, or part of a proslavery plot that succeeded." This uncertainty over the true purpose of the case later
made Republican charges that the case was a conspiracy designed to help the expansion of slavery even easier
to believe.
Whatever the true intents of the two parties were, they met in 1854 in the United States Circuit Court. Judge
Robert W. Wells, "a slaveholder who nevertheless regarded slavery as a barrier to progress," presided over the
trial. Sanford's first strategy was to prove that Scott was not a citizen of Missouri because he was the descendant
of African slaves, but Wells ruled that because he resided in Missouri, Scott was enough of a citizen to be able
to bring suit in a federal court. Sanford then used the same line of reasoning that had worked in front of the
Missouri Supreme Court, arguing that even if Scott had gained his freedom while residing in Illinois, he had
regained his slave status upon returning to Missouri. This defense proved successful once again, and the jury
decided in favor of Sanford.
The next step for Scott was to take his case to the highest tribunal in the country, the United States Supreme
Court. Before he did so, however, he needed to find a suitable attorney. Fortunately, Montgomery Blair--a
Missourian himself, a highly respected lawyer in Washington, and a supporter of the Free Soil party--agreed to
take Scott's case without expecting payment. The Supreme Court first heard the case of Scott v. Sandford in
early 1856, but ordered a reargument for the next term, perhaps because a decision would have come on the eve
of the 1856 presidential election and would have forced each candidate to agree or disagree with the Court on a
highly volatile issue. This would not be the last time politics intruded on the Dred Scott case.
Until it came before the Supreme Court, Scott's case had not attracted much attention, either public or within the
other branches of government. By early 1856, however, Congress had renewed the debate over Congressional
power to regulate slavery in the territories in light of the bloody conflicts in Kansas. Both sides began to view
the issue as a decision for the Supreme Court, and not for Congress, to make. As Senator Albert G. Brown, a
Democrat from Mississippi, said on July 2, 1856:
My friend from Michigan [Senator Lewis Cass] and myself differ very widely as
to what are the powers of a Territorial Legislature - he believing that they can
exercise sovereign rights, and I believing no such thing; he contending that they
have a right to exclude slavery, and I not admitting the proposition; but both of us
concurring in the opinion that it is a question to be decided by the courts, and not
by Congress.
A few weeks later, Abraham Lincoln, a Republican from Illinois agreed:
I grant you that an unconstitutional act is not a law; but I do not ask, and will not
take your [Democrats'] construction of the Constitution. The Supreme Court of
the United States is the tribunal to decide such questions, and we will submit to its
decisions; and if you do also, there will be an end of the matter.
"When reargument [of the case] before the Court began on December 15," wrote Kenneth Stampp, "the
potentially broad political significance of the case had become evident, and public interest in it had increased
considerably." Indeed, "by Christmas 1856, Dred Scott's name was probably familiar to most Americans who
followed the course of national affairs."
When the Court met for the first time since the reargument to discuss the case on February 14, 1857, it favored
a moderate decision that ruled in favor of Sanford but did not consider the larger issues of Negro citizenship and
the constitutionality of the Missouri Compromise. The majority chose Justice Nelson as the writer of a decision
that avoided these important but highly controversial issues, and Nelson went to work on it. When Nelson
presented his opinion to the majority, however, he discovered that his "majority" opinion turned out to be the
opinion of only himself. The Court elected to throw out Nelson's decision and instead chose Chief Justice Roger
B. Taney as the writer of the true majority opinion for the court, an opinion that would include everything under
consideration in the case, including Negro citizenship and the constitutionality of the Missouri Compromise.
According to Justice Catron, one of the members of the majority, "the court majority. . .had been `forced up' to
its change of plan by the determination of [Justices] Curtis and McLean to present extensive dissenting opinions
discussing all aspects of the case." The majority decided that if the dissenters covered all the issues, they must
also. Ironically, the two most antislavery justices may have forced a more proslavery opinion than what the
majority originally planned to decide.
By mid-February 1857, many well-informed Americans were aware that the conclusion of the Scott v. Sandford
case was close at hand. President-elect James Buchanan contacted some of his friends on the Supreme Court
starting in early February; he asked if the Court had reached a decision in the case, for he needed to know what
he should say about the territorial issue in his inaugural address on March 4. By inauguration day 1857,
Buchanan knew what the outcome of the Supreme Court's decision would be and took the opportunity to throw
his support to the Court in his inaugural address:
A difference of opinion has arisen in regard to the point of time when the people
of a Territory shall decide this question [of slavery] for themselves.
This is, 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, in common with all good citizens, I shall cheerfully
submit, whatever this may be.
Just two days after Buchanan's inauguration, on March 6, 1857, the nine justices filed into the courtroom in the
basement of the U.S. Capitol, led by Chief Justice Taney. Taney was almost 80 years old, always physically
feeble, and even weaker as a result of the effort he had put forth to write the two-hour-long opinion; therefore,
he spoke in a low voice that Republicans deemed appropriate for such a "shameful decision." He first addressed
the question of Negro citizenship, not only that of slaves but also that of free blacks:
Can a Negro, whose ancestors were imported into this country, and sold as slaves,
become a member of the political community formed and brought into existence
by the Constitution of the United States, and as such become entitled to all the
rights, and privileges, and immunities, guaranteed by that instrument to the
citizen?
One of the privileges reserved for citizens by the Constitution, argued Taney, was the "privilege of suing in a
court of the United States in the cases specified by the Constitution." Taney's opinion stated that Negroes, even
free Negroes, were not citizens of the United States, and that therefore Scott, as a Negro, did not even have the
privilege of being able to sue in a federal court. Taney then turned to the question of the constitutionality of the
Missouri Compromise. The territories acquired from France in the Louisiana Purchase of 1803, Taney stated,
were dependent upon the national government, and the government could not act outside its framework as set
forth in the Constitution. Congress, for example, could not deny the citizens of the new territory freedom of
speech. Similarly, Congress could not deprive the citizens of the territory of "life, liberty, or property without
due process of law," according to the Fifth Amendment. Taney continued:
And an act of Congress which deprives a citizen of the United States of his liberty
or property, merely because he came himself or brought his property into a
particular territory of the United States, and who had committed no offense
against the laws, could hardly be dignified with the name of due process of law.
The Constitution made no distinction between slaves and other types of property. Taney reasoned that the
Missouri Compromise deprived slaveholding citizens of their property in the form of slaves and that therefore
the Missouri Compromise was unconstitutional. Scott's case had one last hope: the Chief Justice could decide
that Scott was free because of his stay in the free state of Illinois. Taney made no such decision, instead stating
that "the status of slaves who had been taken to free States or territories and who had afterwards returned
depended on the law of the State where they resided when they brought suit." Scott had brought suit in Missouri
and hence he was still a slave because Missouri was a slave state. Taney ruled that the case be dismissed for
lack of jurisdiction and sent back to the lower court with instructions for that court to dismiss the case for the
same reason, therefore upholding the Missouri Supreme Court's ruling in favor of Sanford.
The next day, Justices McLean and Curtis read their dissenting opinions, both of which ruled in favor of Scott.
They immediately released the text of their decisions for publication in print, but Taney withheld his for
revising until late May; the only record the public had of the majority opinion was a short Associated Press
article. This gave the Republicans a decided advantage over the Democrats in the "war of words," because the
Republicans had the full text of the two pro-Scott dissents, while the Democrats had to rely on simply a
paragraph not even written by one of the Court's justices. The "Republican assault" began as early as March 7,
the day after Taney read the majority opinion, when the New York Tribune pronounced that "The decision, we
need hardly say, is entitled to just as much moral weight as would be the judgment of a majority of those
congregated in any Washington bar-room." The Chicago Tribune added on March 12:
We must confess we are shocked at the violence and servility of the Judicial
Revolution caused by the decision of the Supreme Court of the United States. We
scarcely know how to express our detestation of its inhuman dicta or fathom the
wicked consequences which may flow from it . . . . To say or suppose, that a Free
People can respect or will obey a decision so fraught with disastrous
consequences to the People and their Liberties, is to dream of impossibilities.
Democratic newspapers were as quick to defend the decision as Republicans were to assault it. On March 12,
the (Washington DC) Daily Union urged the country to respect the decision and unite under it:
We cherish a most ardent and confident expectation that this decision will meet a
proper reception from the great mass of our intelligent countrymen; that it will be
regarded with soberness and not with passion; and that it will thereby exert a
mighty influence in diffusing sound opinions and restoring harmony and fraternal
concord throughout the country . . . . It would be fortunate, indeed, if the opinion
of that court on this important subject could receive the candid and respectful
acquiescence which it merits.
The Cincinnati Daily Enquirer of March 8 was not as optimistic about how the antislavery public would receive
the decision:
While thus anticipating a general acquiescence in the decision of the Supreme
Court, it would be too much to expect that it will escape attack and censure from
disappointed and embittered partisans, whose political capital and hope of office
will wither before it.
The withholding of Taney's decision created two major other problems. First, it created a schism between Taney
and Justice Curtis, one of the dissenters. Curtis had the misfortune of being one of the youngest members of the
Court, as well as a native of Massachusetts, a state Taney detested because it epitomized Northern hypocrisy
over the issue of slavery. Curtis further angered Taney by requesting to see his majority decision as soon as he
released it. Curtis wanted to see the text of Taney's majority opinion because many parts of his dissent tied into
it. During the spring and the summer of 1857, Curtis and Taney exchanged angry letters, and by September
Curtis found the situation so uncomfortable that he handed in his resignation from the Court. The second
problem that the withholding of Taney's decision produced was that when he released it, he had obviously
added parts that were direct replies to the dissents of McLean and Curtis. Curtis estimated that Taney had
appended "upwards of eighteen pages" since he had read the decision in court and added that "No one can read
them without perceiving that they are in reply to my opinion." Relationships between Northerners and
Southerners were already tense, but the withholding of Taney's opinion served to further polarize the two sides.
Many northerners felt that parts of Taney's decision, specifically the invalidation of the Missouri Compromise
on constitutional grounds, were extrajudicial because they were not necessary for arriving at a decision in the
case. They charged that after Taney had shown that Scott, as a Negro, had no right to bring a case into a federal
court, he should have ended his decision, instead of going on to declare that the Missouri Compromise was
unconstitutional. Taney defended his decision by saying that the Supreme Court had the right to correct all the
errors committed during the Circuit Court trial, including the constitutionality of the Missouri Compromise and
the question of Negro citizenship:
It has been said, that as this court has decided against the jurisdiction of the
Circuit Court on the plea in abatement [which decided whether or not the Court
would consider the question of Scott's citizenship], it has no right to examine any
question presented by the exception; and that anything it may say upon that part
of the case will be extra-judicial, and mere obiter dicta.
This is a manifest mistake; there can be no doubt as to the jurisdiction of this
court to revise the judgment of the Circuit Court, and to reverse it for any error
apparent on the record, whether it be the error of giving judgment in a case over
which it had no jurisdiction, or any other material error; and this, too, whether
there is a plea in abatement or not.
This explanation was not satisfactory for many northerners, who became angry because Taney, by extending his
opinion to include issues that did not have much of a bearing on the case, had unjustly set new precedents.
Southerners, of course, stood firmly by the decision of the Court, refusing to concede that any part of Taney's
decision had been extrajudicial. This disagreement led to further division between North and South.
The decision placed the anti-slavery Republicans in a very difficult situation. They had the choice of either
agreeing to honor the decision, implying an acceptance of slavery, or refusing to respect it, which would go
against the Constitution's definition of Supreme Court's decisions as the "law of the land." Not surprisingly,
Republicans found ways to discount the opinion without disrespecting it outright, usually by reasoning that the
declaration of the unconstitutionality of the Missouri Compromise was not law. One of their main arguments
was that after Taney, speaking for the Court's majority, had decided that Scott was not a citizen and therefore
did not have the right to be in a federal court, anything else he said was obiter dictum and therefore not law.
Although this conceded the Democrats a small victory in upholding the non-citizenship of Negroes, this
argument threw out the Court's ruling that the Missouri Compromise was unconstitutional, a major victory for
the Republicans. One writer of the time declared that "the members of the most ultra school of that [Republican]
party . . . admit, that the question of the citizenship of persons of African descent was the only question
authoritatively decided, in the case of Scott." Following a similar line of reasoning, Republicans also argued
that a judicial majority had not decided on the unconstitutionality of the Missouri Compromise and that
therefore it was not law. George Curtis, one of Scott's attorneys, argued that”
. . . it appears that six of the nine judges expressed the opinion that the [Missouri]
Compromise Act was unconstitutional. But, in order to determine whether this
concurrence of six in that opinion constitutes a judicial decision or precedent, it is
necessary to see how the majority is formed . . . . If . . . the judicial function of
each judge who held that the Circuit Court was without jurisdiction [because
Scott, as a Negro, was could not be a citizen of the United States] . . . was
discharged as soon as he had announced that conclusion, and given his voice for a
dismissal of the case on that grounds, then all that he said on the question
involved in the merits was extrajudicial, and the so-called "decision" is no
precedent.
Republicans also attempted to portray the decision as a proslavery conspiracy, one that included members of the
Supreme Court. J.T. Brooke noted in his analysis of the case that "it has been repeatedly alleged that the Dred
Scott decision was a `got-up case,' contrived by interested politicians to secure a judicial decision of a political
question." Many Republicans noticed a brief intercourse at Buchanan's inauguration between the President and
the Chief Justice, who administered the oath of office, and took that as a sign of a conspiracy between the
executive and judicial branches. Senator William H. Seward, a New York Republican, noted in a widely
distributed speech that Scott "had played the hand of a dummy in this interesting political game." Senator
William Pitt Fessenden, a Republican from Maine, declared that”
. . . what I consider this original scheme to have been, was to assert popular
sovereignty in the first place with a view of rendering the repeal of the Missouri
compromise in some way palatable; then to deny it and avow the establishment of
slavery; then to legalize this by a decision of the Supreme Court of the United
States, and claim that it had become established. I sincerely believe that decision
of the Supreme Court of the United States was a part of the programme.
Some more radical Republicans simply invalidated the entire decision. One writer went so far as to say after the
case had been decided that the question of Negro citizenship "never has been judicially decided by any court of
competent jurisdiction." Statements such as this, however, generally "surprise[d] even Republicans."
Democrats, unwilling to let these Republican proclamations go unchallenged, mounted a strong defense of their
own, especially in response to the conspiracy charges. Senator Judah P. Benjamin of Louisiana refuted Senator
Fessenden's argument in a speech to President Buchanan:
Senator [Fessenden] . . . says the Constitution does not recognize slaves as
property, nor protect them as property, and his reasoning, a little further on, is
somewhat curious . . . . Nothing but my respect for the logical intellect of the
Senator from Maine [Fessenden] could make me treat this argument as serious,
and nothing but having heard it myself would make me believe that he ever
uttered it.
As for Senator Seward's cries of conspiracy, Senator Benjamin simply asked to see the facts that proved these
charges:
This man [Taney] has been charged by the Senator from New York [Mr. Seward]
with a corrupt coalition with the Chief Magistrate of the Union. He charges in fact
. . . that the Supreme Magistrate of the land and the judges of our highest court,
and the parties to the Dred Scott case, got up a mock trial; that they were all in
common collusion to cheat the country . . . . What are the facts? Men should be a
little careful in making such accusations as these; unless, indeed they care not
whether they be true or false . . . .
Democrats also sought to depict Republicans as anti-Constitutional because they refused to completely submit
to the decision of the Supreme Court, even though the Court's decision, according to the Democrats, had been
entirely within their jurisdiction as defined in the Constitution. Stephen Douglas especially used this technique
to vilify Abraham Lincoln during their debates in Illinois in 1858:
Mr. Lincoln goes for a warfare upon the Supreme Court of the United States,
because of their judicial decision in the Dred Scott case. I yield obedience to the
decisions in that court--to the final determination of the highest judicial tribunal
known to our constitution.
The Dred Scott decision served as an eye-opener to Northerners who believed that slavery was tolerable as long
as it stayed in the South. If the decision took away any power Congress once had to regulate slavery in new
territories, these once-skeptics reasoned, slavery could quickly expand into much of the western United States.
And once slavery expanded into the territories, it could spread quickly into the once-free states. Lincoln
addressed this growing fear during a speech in Springfield, Illinois on June 17, 1858:
Put this and that together, and we have another nice little niche, which we may,
ere long, see filled with another Supreme Court decision, declaring that the
Constitution of the United States does not permit a State to exclude slavery from
its limits. . . . We shall lie down pleasantly dreaming that the people of Missouri
are on the verge of making their State free, and we shall awake to the reality
instead, that the Supreme Court has made Illinois a slave State.
For many Northerners who had remained silent on the issue, this very real possibility was too scary to ignore.
Suddenly many Northerners who had not previously been against the South and against slavery began to realize
that if they did not stop slavery now, they might never again have the chance. This growing fear in the North
helped further contribute to the Civil War.
Four years after Chief Justice Taney read his infamous Scott v. Sandford decision, parts of the proslavery half of
the Union had seceded and the nation was engaged in civil war. Because of the passions it aroused on both
sides, Taney's decision certainly accelerated the start of this conflict. Even in 1865, as the long and bloody war
drew to a close with the Northern, antislavery side on top, a mere mention of the decision struck a nerve in the
Northern Congress. A simple and customary request for a commemorative bust of Taney, to be placed in a hall
with busts of all former Supreme Court Chief Justices, was blocked by the Republican-controlled Congress.
Charles Sumner, the leader of those who blocked the request, had strong words on the late Chief Justice and his
most notorious decision:
I speak what cannot be denied when I declare that the opinion of the Chief Justice
in the case of Dred Scott was more thoroughly abominable than anything of the
kind in the history of courts. Judicial baseness reached its lowest point on that
occasion. You have not forgotten that terrible decision where a most unrighteous
judgment was sustained by a falsification of history. Of course, the Constitution
of the United States and every principle of Liberty was falsified, but historical
truth was falsified also. . . .
Clearly Scott v. Sandford was not an easily forgotten case. That it still raised such strong emotions well into the
Civil War shows that it helped bring on the war by hardening the positions of each side to the point where both
were willing to fight over the issue of slavery. The North realized that if it did not act swiftly, the Southern
states might take the precedent of the Scott case as a justification for expanding slavery into new territories and
free states alike. The South recognized the threat of the Republican party and knew that the party had gained a
considerable amount of support as a result of the Northern paranoia in the aftermath of the decision. In the years
following the case, Americans realized that these two mindsets, both quick to defend their side, both distrustful
of the other side, could not coexist in the same nation. The country realized that, as Abraham Lincoln stated,
"`A house divided against itself cannot stand.' . . . This government cannot endure, permanently half slave and
half free." Scott's case left America in "shocks and throes and convulsions" that only the complete eradication
of slavery through war could cure.