McGinty Brian. Lincoln and the Court

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“Good,” he said at one point. “That’s so,” at another. “No coercion,” and

“Good again.”

Now Chief Justice Taney stepped forward, holding out a Bible. In a low

voice, he recited the prescribed words of the oath and asked Lincoln to repeat

them. Speaking in a “ﬁrm but modest voice,” the president proclaimed his

oath: “I, Abraham Lincoln, do solemnly swear that I will faithfully execute the

ofﬁce of President of the United States, and will to the best of my ability, pre-

serve, protect, and defend the Constitution of the United States.”

The chief justice was the ﬁrst person who shook hands with the new presi-

dent. Then came James Buchanan, Stephen A. Douglas, Salmon P. Chase, and

a host of minor ofﬁcials. After a brief delay, Lincoln and Buchanan, again arm

in arm, retreated from the platform into the Senate chamber, while the Marine

band outside played patriotic tunes, “Hail Columbia,” “Yankee Doodle,” and

“The Star-Spangled Banner.” In a little while another procession was formed

outside the Capitol. Dignitaries once again took seats in their carriages, and

the barouche with Abraham Lincoln and James Buchanan in it led the whole

party to the White House.

Lincoln now plunged into the work of the presidency. The day following

his inauguration, he received an urgent message from Major Robert Anderson

at Fort Sumter in South Carolina, advising him that it would take at least

20,000 men to reinforce the beleaguered fort in Charleston harbor, which state

ofﬁcials had demanded be turned over to them. The president conferred with

General in Chief Winﬁeld Scott, who agreed with Anderson’s assessment. The

Senate conﬁrmed the president’s cabinet nominations: William H. Seward of

New York as secretary of state, Salmon P. Chase of Ohio as secretary of the

treasury, Simon Cameron of Pennsylvania as secretary of war, Gideon Welles of

Connecticut as secretary of the navy, Caleb B. Smith of Indiana as secretary of

the interior, Montgomery Blair of Maryland as postmaster general, and Edward

Bates of Missouri as attorney general. These seven men, representing different

sections of the country and different factions of the Republican Party, had little

more in common than a commitment to preservation of the Union and a de-

sire to share in the spoils of Republican victory. Not surprisingly, however, ﬁve

of the seven were lawyers by profession, like the president himself (Cameron

was a printer and newspaper publisher, and Welles–originally a lawyer–was a

journalist). Whatever their other abilities (or shortcomings), Lincoln’s cabinet

Lincoln and the Court

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ofﬁcers shared the new president’s understanding of government as a legal pro-

cess. Even the process of waging war—if a war there must be—would be con-

ceived and carried out in the broad framework of legal rules and constitu-

tional precepts.

while the president worked in the White House, the justices of the Su-

preme Court carried on their duties in the Capitol. They had memorialized the

death of Associate Justice Peter V. Daniel of Virginia when they met for the

ﬁrst time in their new courtroom on December 4, 1860, then proceeded to con-

sider the cases on their docket, listening patiently to the oral arguments of the

lawyers (which sometimes seemed almost interminable), researching the con-

trolling precedents, and retiring to their conference room to discuss the cases,

assign the writing of opinions, and read the opinions in open court.

The

docket for the December term of 1860 (most of which extended into 1861)

contained a typical mix of cases, including land disputes, commercial disagree-

ments, and real or imagined controversies between citizens of different states.

Two cases, however, stood out from the rest, and decisions in both were an-

nounced on March 14, 1861.

Kentucky v. Dennison was one of many cases that had their origins in the

desire of slaves to seek freedom, oftentimes by escaping into free states or, if

brought by their masters into a free state while still in bondage, by running

away. As human as this desire certainly was, it was ﬁrmly prohibited by the Fu-

gitive Slave Clause. Although the clause did not explicitly authorize Congress

to enact enforcing legislation, it was assumed from an early date that it had the

power to do so, and Fugitive Slave Laws were enacted in 1793 and 1850, pre-

scribing procedures under which slave owners could go into free states and de-

mand the surrender of escaped slaves. When the constitutionality of the 1793

act was eventually challenged, it was upheld by the Supreme Court in Prigg v.

Pennsylvania in 1842.

In that case, Justice Joseph Story sustained the federal

law and condemned state “freedom laws” that attempted to interfere with it.

Not surprisingly, Chief Justice Taney concurred in Story’s 1842 opinion, while

Justice McLean dissented from it.

In October 1859, a slave girl owned by a Kentuckian had run away from

her master while he was traveling through Ohio on his way to Virginia. The

girl, identiﬁed in the court records as Charlotte, was helped in her bid for free-

A Solemn Oath

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dom by an Ohio resident named Willis Lago, described in the same records as a

“free man of color.” Back in Kentucky an indictment was returned accusing

Lago of the crime of “assisting a slave to escape.” A copy of the indictment,

certiﬁed and authenticated according to the Fugitive Slave Law of 1793, was

presented to Governor William Dennison of Ohio, with a demand that Lago

be turned over to the Kentucky authorities for trial. After conferring with his

attorney general, Dennison determined that Lago was not subject to extradi-

tion, for Ohio law provided that a prisoner could be extradited only for treason

or felony and, under Ohio law, Lago’s alleged offense was neither. The Com-

monwealth of Kentucky then petitioned the Supreme Court in Washington to

issue a writ of mandamus compelling Dennison to extradite Lago. Kentucky

pointed out that the 1793 act provided that “it shall be the duty” of the gover-

nor to surrender a fugitive under the speciﬁed circumstances.

The decision in Kentucky v. Dennison was announced on March 14 by

Chief Justice Taney. He ruled that Kentucky’s demand for Lago was plainly au-

thorized by the act of 1793 and that the duty of Ohio’s governor to surrender

the man was clear. “The exception made to the validity of the indictment,” he

stated, “is altogether untenable.” But Taney was more than usually sensitive to

claims of state’s rights. He knew that a writ of mandamus issuing from the Su-

preme Court to the governor of Ohio would signify that other states were also

subject to the compulsion of federal law. In the nation’s current secession crisis,

a writ of mandamus would be taken as a precedent that the federal government

could compel the states to act according to its dictates rather than theirs. It was

a precedent that Taney was not willing to lay down. And so he examined the

Fugitive Slave Law for any provision subjecting the governor of Ohio to a pen-

alty for failing to do his duty. He found none. “It is true that Congress may au-

thorize a particular State ofﬁcer to perform a particular duty,” Taney wrote,

“but if he declines to do so, it does not follow that he may be coerced, or pun-

ished for his refusal.” When the Constitution was framed, Taney said, “it was

conﬁdently believed that a sense of justice and of mutual interest would insure

a faithful execution of this constitutional provision by the Executive of every

State....ButiftheGovernor of Ohio refuses to discharge this duty, there is no

power delegated to the General Government, either through the Judicial De-

partment or any other department to use any coercive means to compel him.”

And upon that ground the Court overruled the motion for mandamus.

Char-

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lotte had achieved her freedom, and Lago was not subject to the tender mercies

of Kentucky justice.

The second case of special interest that was decided by the Supreme Court

on March 14, 1861, drew a crowd of spectators to the tribunal’s elegant new

courtroom to hear Justice Wayne read the court’s opinion. Gaines v. Hennen

gave signs of signaling an end to one of the most celebrated (and protracted)

legal struggles in American history. Usually referred to as the “Gaines case,”

the litigation involved the title to large tracts of land in New Orleans esti-

mated to be worth as much as $15 million.

A woman who called herself Myra Clark had appeared in New Orleans in

1834 with a New York–born husband and a claim that she was the legitimate

daughter of Daniel Clark, a wealthy Irishman who had died in New Orleans in

1813. After her birth, she said, her father had sent her off to be raised by a fam-

ily in Delaware. He had visited her there from time to time but taken precau-

tions to conceal his paternity (Myra’s mother was an exotic New Orleans

beauty who may or may not have been married to another man when she met

Clark and conceived Myra). Myra and her husband had recently investigated

the facts of Clark’s marriage to her mother and convinced themselves not only

that Myra was Clark’s legitimate daughter but also that, shortly before his

death, he had made a will leaving all of his New Orleans property to her. They

said his business partners had suppressed the will and begun selling off parts of

the property.

The legal wrangling over the Clark estate began in Louisiana state courts

but soon found its way into the federal courts in New Orleans. At issue were

the legitimacy of Myra Clark, the existence of Daniel Clark’s will, the jurisdic-

tion of the federal courts to become involved in the controversy, and the appli-

cability of equity rules in federal courts. The case came before the United

States Supreme Court more than a dozen times, where arguments were made

by Chief Justice Taney’s brother-in-law Francis Scott Key and by Taney’s friend

Reverdy Johnson. Even Daniel Webster, Henry Clay, and the future justice

Campbell of Alabama, while still a practicing lawyer, became involved in the

litigation. After the death of her ﬁrst husband, Myra Clark married Major Gen-

eral Edmund P. Gaines, a hero of the War of 1812, who had the ﬁnancial

means to continue the litigation and who gave the case the name by which it

would be remembered in the Supreme Court reports.

A Solemn Oath

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In this phase of her struggle, Mrs. Gaines, now represented by Caleb Cush-

ing, a Massachusetts lawyer who was attorney general under President Franklin

Pierce, was seeking to establish title to New Orleans land claimed by a man

named Douglas Hennen. Although the Hennen tract was only part of the

Clark estate, a newspaper reported that it covered “about two-thirds of the city

of New Orleans.” The Supreme Court case was argued in a crowded courtroom

in mid-February 1861, and on March 14, in a long and detailed opinion, Justice

Wayne sustained Mrs. Gaines’s position.

If she was not technically legitimate,

Wayne ruled, the evidence established that her father had married her mother

in good faith, so for purposes of inheritance she would be regarded as legitimate

and her claim to the Hennen property was valid. Justices McLean, Nelson, and

Clifford concurred in Wayne’s opinion. Chief Justice Taney and Justices Grier

and Catron dissented. Because of his previous involvement in the case, Justice

Campbell took no part in the decision. “Thus,” Justice Wayne stated at the end

of his opinion, “after a litigation of thirty years, has this Court adjudicated the

principles applicable to [Mrs. Gaines’s] rights in her father’s estate. They are

now ﬁnally settled. When, hereafter, some distinguished American shall retire

from his practice to write the history of his country’s jurisprudence, this case

will be registered by him as the most remarkable in the records of its Courts.”

Wayne was partly right and largely wrong. The legal principles established

in the Gaines case were not especially noteworthy, although the case’s fame

proved to be long-lasting. But the decision rendered in 1861 did not ﬁnally set-

tle the litigation. Mrs. Gaines went north after the decision, apprehensive that

the victory she had won in Washington might be disregarded in the new Con-

federate State of Louisiana. Her apprehension was well founded, for her case

was not ﬁnally settled until 1891, after the war that started in 1861 had been

fought to a Confederate surrender and Louisiana and the other Confederate

states had been subjected to the rigors of post-war reconstruction. But Mrs.

Gaines had died at the age of eighty in 1885. By 1891 both she and Justice

Wayne had long since been laid to rest in their graves.

following the announcement of its decisions in Kentucky v. Dennison

and Gaines v. Hennen, the Supreme Court adjourned. Their duties in Washing-

ton concluded, the judges left the capital city for their circuits, Justice McLean

heading home to Ohio, Justice Clifford to Maine, Nelson to New York, and

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Grier to Pennsylvania. It was more difﬁcult for the Southern justices to deter-

mine exactly when they would leave Washington, or if they would leave at all.

The federal courts were under siege in the states that had already seceded, and

the status of the courts in the border states was uncertain. Justice Catron, de-

termined to do his duty, announced that he was going home to Nashville. But

Justice Wayne showed no interest in leaving for Savannah, and Justice Camp-

bell decided to remain in Washington, at least for a while. Chief Justice Taney

had, in the late 1850s, closed his house in Baltimore and settled into a rented

house on Indiana Avenue in Washington. It was near enough to Baltimore that

he could go there on short notice, if and when he was needed in the circuit

court.

And so, ten days after Abraham Lincoln was inaugurated as sixteenth

president of the United States, the Supreme Court found itself in a quandary.

What were its duties in the looming sectional crisis, and how should those du-

ties be discharged? On March 4, before tens of thousands of witnesses, the pres-

ident had taken an “oath registered in Heaven” to “preserve, protect, and de-

fend” the Constitution. The Supreme Court justices had also taken oaths to

discharge their ofﬁcial duties “agreeably to the Constitution and laws of the

United States.”

Now each ofﬁcial—president and the Supreme Court jus-

tice—would have to decide how their oaths would govern their duties.

A Solemn Oath

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2 Dred Scott

nyone in washington in 1861 who doubted that the Supreme Court

would be an important player in the great drama then unfolding in the nation

had a very short memory. The Court, it is true, was a legal tribunal, a panel of

jurists selected by presidents and senators for their knowledge of the Constitu-

tion and the laws, their familiarity with judicial precedents, and their ability to

reﬂect soberly on conﬂicting claims of rights and privileges. The Founding Fa-

thers had believed that the Supreme Court justices would be passive actors in

the governmental process, unable to reach out into the body politic to impose

their will but instead obliged to wait for issues to come to them for resolution.

In the Federalist Papers, Alexander Hamilton had said that, of the three branches

of government authorized by the Constitution, the judiciary would “always be

the least dangerous to the political rights of the constitution; because it will be

least in a capacity to annoy or injure them.” While the executive, Hamilton

noted, “holds the sword of the community,” and the legislature “commands the

purse” and “prescribes the rules by which the duties and rights of every citizen

are to be regulated,” the judiciary “may truly be said to have neither Force nor

Will, but merely judgment; and must ultimately depend upon the aid of the ex-

ecutive arm even for the efﬁcacy of its judgments.”

In theory, of course, Ham-

ilton was correct—but nations do not live by theory alone for, as Oliver

Wendell Holmes, Jr., once noted, “The life of the law has not been logic, it has

been experience.”

Long before Abraham Lincoln took his oath to “preserve,

protect, and defend” the Constitution, the American experience had shown

that Congress, the president, and the Supreme Court all had the capacity to

damage the nation through improvident decisions and foolish acts, or failures

to act. Anyone who doubted that the high court could inﬂict wounds on the

republic had to look no further than its decision in the case of Dred Scott v.

Sandford, announced to an astonished courtroom and nation on March 6 and

7, 1857.

Dred Scott was the most highly publicized decision ever made by the Su-

preme Court, and one of its most ambitious. It was recognized throughout the

country as a decision of great importance, though observers differed sharply as

to whether it was incredibly wise or foolishly wrong. The verdict of history

would eventually settle on the side of those who believed it wrong, but before

that verdict was rendered, the social and economic life of the nation was dis-

rupted, its political parties were rearranged, its elections were inﬂuenced, and a

bloody war was fought. And all these consequences were attributable, at least

in part, to the pronouncement of the Supreme Court justices in the case of

Dred Scott v. Sandford. In the words of constitutional historian Paul Finkelman:

“It would be an exaggeration to say that the Dred Scott decision caused the

Civil War. But it certainly pushed the nation far closer to that war.”

the legal proceedings that gave rise to Dred Scott began on April 6,

1846, when an obscure “man of color” appeared before a justice of the peace in

St. Louis and swore to the truth of a petition ﬁled that day in the St. Louis Cir-

cuit Court. The man, who bore the peculiar name of Dred Scott, was required

to sign the petition at the same time that he swore to its truth. As a slave, how-

ever, he had never been taught to read or write, so the best he could do was

make an X in the space provided for his signature. Scott’s X would be repeated

many times over in the dozen or so years that remained in his life, becoming a

kind of symbol of one of the most sensational legal battles in the history of the

United States. It would also reﬂect the deep scars that chattel slavery, and Dred

Scott’s effort to free himself from it, left on that history.

Dred Scott ﬁrst saw the light of day in Virginia, on a plantation owned by

a man named Peter Blow. No record of his birth was made, but historians esti-

mate that it was around 1800, give or take ﬁve years. The slave boy grew up

with the four sons and three daughters of Peter Blow. The Blows were his mas-

ters, but they also became his friends, and their friendship would later play an

important role in his ﬁght to become a free man.

Around 1818, Peter Blow left Virginia, taking his family and slaves with

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him. They went ﬁrst to Alabama, where they remained for several years, and

then to St. Louis, where Blow became the proprietor of the Jefferson Hotel.

Blow died in 1832, and in the following year Dred Scott was sold, probably to

raise funds to pay debts. His new master was an army surgeon named John Em-

erson, who had been ordered to report for duty at Fort Armstrong, about two

hundred miles north of St. Louis.

While serving at his new post, Dr. Emerson

acquired some adjoining land and built a log cabin on it. Dred Scott probably

did much of the actual work of putting up the cabin, for Emerson himself was

almost chronically sick. Fort Armstrong was located on Rock Island, near the

conﬂuence of the Rock River and the Mississippi. More important, it was in Il-

linois, which had been admitted to the Union in 1818 as a state in which slav-

ery was prohibited both by the state constitution and by federal enactment.

Like all of the territory north and west of the Ohio River, Illinois had once

been governed by the Northwest Ordinance, passed by Congress in 1787 under

the old Articles of Confederation. This charter, which established the basic

framework for the American territorial system, provided that there should be

neither slavery nor involuntary servitude in that territory, “otherwise than in

the punishment of crimes, whereof the party shall have been duly convicted.”

If either Dr. Emerson or Dred Scott was aware in 1832 that the law of Illinois

forbade slavery, the record is silent on the point.

In 1836, Emerson was transferred to Fort Snelling, on the west bank of the

Mississippi, near the place where St. Paul, Minnesota, was later built. Then

part of Wisconsin Territory, Fort Snelling occupied land that had originally

been part of the Louisiana Purchase and that had been governed since 1820 by

the Missouri Compromise. Passed by Congress under the leadership of Ken-

tucky’s Henry Clay, the Missouri Compromise was the ﬁrst major attempt to

bridge the sectional differences that divided the Northern and the Southern

states. It provided that Missouri would enter the Union as a slave state and

Maine as a free state (thus preserving the North-South balance in Congress)

and that slavery would be “forever prohibited” in the remaining Louisiana

territory north of latitude 36° 30´ (the southern boundary of Missouri). At

Fort Snelling, Scott met a slave girl named Harriet, the property of the resi-

dent Indian agent. With the agent himself performing the ceremony, Dred and

Harriet were married. They proceeded to raise a family that eventually in-

cluded two sons (later deceased) and two daughters, Eliza and Lizzie. Dred and

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Harriet’s marriage may have indicated that they were considered free blacks at

Fort Snelling, for under the slave codes of the time, slaves were not permitted

to marry.

When Emerson was ordered back to Missouri in 1837, Dred and his new

family remained at Fort Snelling, apparently unsupervised. But when the doc-

tor received further orders to report to Fort Jesup in Louisiana, they came down

the Mississippi to join him and his new bride, the former Irene Sanford. Emer-

son was miserable in the damp climate of Louisiana, however, and requested a

transfer back to Fort Snelling. Once again, Dred and his family traveled north

into land where slavery was forbidden. By 1840, the ever-restless Dr. Emerson

had secured a new assignment, this time in Florida. His wife and slaves left Fort

Snelling with him but stayed behind in St. Louis when he went on to Florida.

Separated from the service in 1842, Emerson returned to St. Louis, then moved

on to Iowa Territory, where he died in December 1843, leaving his widow,

Irene, and his daughter, Henrietta, as his heirs.

For the next three years, Scott and his wife worked as hired slaves. Scott

lived for a while with Mrs. Emerson’s brother-in-law, an army captain named

Henry Bainbridge, who took him to Texas. But he was back in St. Louis in

1846 and thinking about obtaining his freedom. He offered to buy his own and

his family’s freedom from Mrs. Emerson, but she refused. He then sought the

assistance of an attorney named Francis B. Murdoch and, on April 6, 1846,

ﬁled suit in the St. Louis Circuit Court, reciting the facts of his residence in Il-

linois and the Wisconsin Territory and seeking a judgment establishing his and

his family’s status as free persons. Harriet Scott ﬁled a petition alleging similar

facts. After Mrs. Emerson ﬁled her pleas of “not guilty,” the attorneys began to

prepare for the trial of the Scotts’ lawsuit, which was set to be held at the St.

Louis Courthouse in June 1847.

At ﬁrst blush, the Scott case seemed eminently winnable. It was uncon-

tested that both Dred and Harriet had been taken to reside on free soil—ﬁrst in

Illinois, later in Wisconsin Territory—and that they had lived on that soil for

several years. The law of Missouri, established by the state’s Supreme Court as

early as 1824, was that residence in a free state like Illinois had the effect of

emancipating a slave who was taken there.

This was also the law in Kentucky,

Louisiana, and Mississippi.

The law was based on the principle, announced in

1772 in the English case of Somerset v. Stewart, that the status of a slave was “so

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