Dred Scott


Dred Scott was born a slave in Virginia, in 1799. He was owned by the Blow family. The Blows moved to St Louis, Missouri, in 1830. Missouri had been acquired in 1804 under the Louisiana purchase. It had been admitted to the Union in 1820, as a slave State, as part of the Missouri Compromise. The Missouri Compromise allowed Missouri into the Union as a slave State, but otherwise prevented the admission to the Union of slave States above 36º30’ north latitude. In effect, it guaranteed that slavery would not spread to the other States in the Louisiana Purchase. It had been a hotly contested measure. Since Eli Whitney had invented the cotton gin in 1794, cotton had been a great source of wealth in the southern States, but its profitability depended on slave labour to pick the cotton.

In 1830, Blow sold Scott to Dr Emerson, an army surgeon. Emerson took Scott with him to his various postings. They spent the next 12 years in free States, principally Illinois. They returned to St Louis in 1842. Emerson died in 1846. His executors were his wife, and her brother John Sanford.

In 1846, Scott sued Mrs Emerson in the St Louis Circuit Court. In form, it was a petition for freedom, based on the fact that he had spent years in a free State, and was therefore released from slavery.

Judge Alexander Hamilton heard Scott’s case. A technicality in the evidence led to its failing. The Judge granted leave for a new trial. He won; but the decision was reversed by the Missouri Supreme Court in 1852.

By this time, Mrs Emerson had remarried. Her new husband was an abolitionist. She made over Scott to her brother and co-executor, John Sanford. Sanford lived in New York. Thus Scott was able to sue in the Federal jurisdiction, since the suit was between residents of different States. The action was for assault.

Sanford (erroneously called Sandford in the Court record) filed a plea in abatement on the basis that Scott was a slave and therefore not a citizen. Accordingly, so the argument went, there was no suit “between citizens of several States” and the Federal jurisdiction was not attracted.

The matter was argued in December 1855, and was re-argued in 1856. Powerful interests wanted to retain the institution of slavery: American plantation owners, as well as English manufactureres and merchants. Slavery had been abolished in Britain and its Colonies by the Emancipation Act 1834, but that did not prevent English commerce from benefitting from it indirectly. Such was still the position when Roger Casement undertook his tour of investigation in the Congo Free State (1901-04), and Brazil (1906-11).

The first question in issue resolved to this: was a slave capable of being a citizen under the Constitution, so as to enable him to sue in the Federal jurisdiction?

Chief Justice Taney and Justices Wayne, Nelson, Grier, Daniel, Campbell and Catron said that the answer to the first question was No. Taney J said:

“The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. …

They had for more than a century before been regarded as 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 a profit could be made by it.”

The ideas expressed, and the intensity of the language used, strike the ear as shocking, especially in light of the introductory words of the Declaration of Independence (1776):

” … We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Taney J dealt with those words in this way:

“The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included … for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted …”

McLean J (dissenting) did not agree in the result on this issue, but expressed himself in language not much more felicitous than that of Taney J:

“In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and, in this view, have recognised them as citizens, and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida …” (per McLean J at 533).

Curtis J (dissenting) found in the words of the Constitution ample authority for the proposition that a slave could be a citizen of the United States.

The second question was whether a slave could become a free man by entering a free State. The question had precedents in English case law. In 1678, it had been held that if a Negro slave came into England and was baptised, he thereupon became a free man. If he were not baptised, he remained “an infidel” and was not freed: Butts v. Penney 2 Lev 201. This rule was later relaxed. In Smith v. Brown & Cooper (1705) 2 Salk 666, Holt CJ had said:

“As soon as a Negro comes into England, he becomes free: one may be a villein in England, but not a slave.”

In Somerset v. Stewart (1772) 98 ER 499, Lord Mansfield had decided on a habeas corpus application that a Virginian slave who had arrived in London must be set free. Lord Mansfield’s decision is famous for its declamatory final sentence “The black must go free”. It is less well-remembered that his Lordship had tried to avoid having to decide the matter. He had said earlier in the case:

“… Contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches … The setting 14,000 or 15,000 men at once free … by a solemn opinion, is much disagreeable in the effects it threatens … An application to Parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method of settling the point for the future …”

The majority held that the English authorities had no application in the different constitutional framework of the American Union. Specifically, the 5th Amendment prevented the slave being freed by passing into a free State. So far as relevant it provides:

“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

To allow that a slave be freed by virtue of travelling to a free State would involve a deprivation of property without due process. It is an interesting irony that the slaves were deprived of liberty without due process; but they were not considered “people” for Constitutional purposes.

For good measure, 6 of the 7 judges in the majority held the Missouri Compromise to be unconstitutional, as contravening the 5th Amendment. Thus they struck down the measure which had, in effect, quarantined slavery to the southern States where the cotton industry was the principal source of wealth, and slave labour was the principal engine of that industry.

The Dred Scott case [sub nom Scott v Sandford 60 US 393] was decided by the US Supreme Court on 6 March 1857. It provoked bitter controversy. It was one of the precipitating causes of the American Civil War (1861-1865). Abolition was the great question over which the war was fought During that war, on 19 November 1863 Abraham Lincoln famously re-stated the founding proposition of the American Union:

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. …”

In so saying, he was unequivocally advancing the cause of abolition.

The Dred Scott case resulted in the resignation of Curtis J, and blighted the memory of Taney J. He was a decent man and a fine lawyer. He had voluntarily freed his own slaves, at great personal cost, and had 35 years earlier described slavery as “a blot on our national character”.

The decision was an exercise in strict construction which reached an unpalatable result by chaining the words of the Constitution to their historic origins. It is now regarded as a stain on the record of the US Supreme Court. In 1992 Scalia J. said that “ … the Court was covered with dishonour and deprived of legitimacy” by the Dred Scott decision. On 28 July 1868, in the aftermath of the Civil War, the effect of the decision was overturned by the 14th amendment.

Julian Burnside