McGinty Brian. Lincoln and the Court

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odious, that nothing can be suffered to support it, but positive law.”

Where

there was no “positive [that is, statute] law” to support it, as in Illinois and the

Wisconsin Territory, slaves reverted to their “natural status” as free persons.

But the Scotts’ attorneys (they now had two) had not adequately prepared for

an essential part of their case, proving that Mrs. Emerson was holding Dred and

Harriet Scott in slavery. The one witness who testiﬁed on the issue had to ad-

mit that he had no personal knowledge as to whether Irene Emerson did or did

not claim to be the Scotts’ owner. So when the case was submitted to the jury,

a verdict was rendered in Mrs. Emerson’s favor. The judge granted a motion for

a new trial, but Mrs. Emerson appealed to the Missouri Supreme Court, which

sent the case back with a reminder that an order granting a new trial was not

subject to appeal. Meanwhile, valuable time had been lost.

It was January 1850 before the new trial got under way. This time the evi-

dence of Mrs. Emerson’s ownership was clear, and the jury’s verdict was that

Dred, Harriet, and their two daughters were free. But Mrs. Emerson appealed

again. By 1852, when the case reached the Missouri Supreme Court for the sec-

ond time, Missouri was in political turmoil, largely because slavery was becom-

ing a more and more explosive issue both in the state and nationally. The

state’s veteran U.S. senator Thomas Hart Benton (a moderate on the issue of

slavery) had been turned out of ofﬁce, and two new judges (one a proslavery

Democrat) had been elected to the three-member state Supreme Court. On

March 22, 1852, the new proslavery judge, William Scott, joined forces with

another proslavery judge and overturned long-standing Missouri precedents,

deciding that, despite their long residences in Illinois and Wisconsin Territory,

the Scotts were still slaves. Judge Scott said that the question of whether one

state (such as Missouri) was obliged to recognize the laws of another state (such

as Illinois) was to be answered according to principles of comity. “Every State

has the right of determining how far, in a spirit of comity, it will respect the

laws of other States,” Scott said. “Those laws have no intrinsic right to be en-

forced beyond the limits of the State for which they were enacted.” The judge

admitted that his ruling upset established Missouri precedent, but he explained

that “a dark and fell spirit in relation to slavery” had fallen across the country,

forcing changes in the law governing the institution.

Dred Scott and his fam-

ily might think they should be free; previous decisions of the Missouri Supreme

Court might indicate that they deserved to be free; and the jury impaneled to

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hear their case in St. Louis might have decided that they were in fact free—but

the Missouri Supreme Court, by a vote of two to one, decreed that they were

still slaves.

The Scotts were disheartened by the decision but probably not surprised.

They had already lived most of their lives as slaves, and slaves were used to dis-

appointment. The whites who were now helping them prosecute their case—

Dred Scott’s boyhood chum, Taylor Blow, and other members of the Blow fam-

ily—may have been more discomﬁted, for they were now paying the bills for

the Scotts’ attorneys, and thus far there was little to show for the money spent.

The Scotts’ attorneys could have decided at this point to pursue an appeal

from the Missouri Supreme Court to the United States Supreme Court. Sec-

tion 25 of the Judiciary Act of 1789 gave the U.S. Supreme Court jurisdiction

to review the decisions of state supreme courts under writs of error, but only in

speciﬁed circumstances. Those circumstances generally required a showing that

the state decision denied the validity of a federal statute or constitutional pro-

vision, or applied a state law in such a way as to deny the validity of a federal

statute or constitutional provision.

But there was little in the record of the

Dred Scott case that would support such a showing. Further, the U.S. Supreme

Court had only the previous year decided a case that could be applied to deny

any claim to freedom the Scotts might assert under the law of Illinois.

In that Supreme Court case, Strader v. Graham (1851), three slaves owned

by a Kentuckian named Christopher Graham had escaped to freedom aboard

an Ohio River steamboat owned by Jacob Strader. The slaves were musicians

who had previously been permitted to travel in Ohio and Indiana to give per-

formances. Under Kentucky law, if slaves escaped aboard a boat, the boat

owner was liable to the slaveholder for the value of the slaves. When Graham

sued Strader in a Kentucky court, Strader argued that the musicians were not

slaves but free men, for Graham had previously allowed them to travel to Indi-

ana and Ohio, parts of the old Northwest Territory, where slavery was prohib-

ited. But the Kentucky courts sided with Graham, held that the musicians were

still slaves, and entered judgment against Strader. The case was taken to the

Kentucky Court of Appeals, where the judgment was afﬁrmed, and then to the

United States Supreme Court on a writ of error. Announcing a unanimous de-

cision in the case, Chief Justice Taney had declared that “every State has an

undoubted right to determine the status or domestic condition, of the persons

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domiciled within its territory.” Thus Kentucky was fully within its rights in de-

ciding that the three musicians were still slaves when they escaped on Strader’s

boat. Further, Taney asserted that the Northwest Ordinance no longer had any

force and could not be used to free a slave. Even if it had been in force, he

added, congressional legislation for a particular territory could have no power

beyond the limits of that territory.

Strader was distinguishable in important

particulars from Dred Scott’s case (Graham’s slaves had been in Ohio and Indi-

ana only temporarily, while the Scotts had been in Illinois and the Wisconsin

Territory as residents and for an extended time), but it was nonetheless a dis-

couraging precedent.

In the meantime, the human landscape of the Dred Scott case changed dra-

matically. Mrs. Emerson moved to Massachusetts and married a man named

Calvin Chaffee, and her brother, a St. Louis businessman named John F. A.

Sanford, took control of the Scotts. Sanford, too, left Missouri for New York,

leaving the Scotts behind in St. Louis, where they were hired out for work and

their pay was collected by the sheriff to be turned over to the person or persons

ultimately determined to be entitled to them (Dred and Harriet Scott if they

were free, Irene Chaffee or John Sanford if they were still slaves). To add to the

complications of the case, one of the attorneys who had been representing the

Scotts died, another left the state, and a new attorney was retained. The new

attorney was Roswell M. Field, a native of Vermont who had practiced law in

St. Louis since 1839. Field was inexperienced in the intricacies of Missouri

slave law (his specialty was land titles), and he was not an abolitionist. But he

was opposed to slavery. More important, perhaps, he was concerned about the

misapplication of Missouri law to Dred Scott’s case.

Field decided to ﬁle a new lawsuit, this time in the U.S. Circuit Court for

the District of Missouri. His allegations, ﬁled in St. Louis on November 2,

1853, were, ﬁrst, that John Sanford was wrongfully holding Dred Scott, his

wife, Harriet, and their daughters, Eliza and Lizzie, as slaves, to their damage in

the sum of $9,000; and, second, that the Scotts were citizens of Missouri and

that Sanford was a citizen of New York. The latter allegation, if true, would es-

tablish the federal court’s jurisdiction to hear the case under Article III, Sec-

tion 2, of the U.S. Constitution, which provides (in relevant part): “The judi-

cial power [of the United States] shall extend...tocontroversies...between

citizens of different states.” Congress implemented this provision in the Judi-

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ciary Act of 1789 by providing that “the circuit courts shall have original cog-

nizance, concurrent with the courts of the several States, of all suits of a civil

nature at common law or in equity, where the matter in dispute exceeds, ex-

clusive of costs, the sum or value of ﬁve hundred dollars, and...thesuit is

between a citizen of the State where the suit is brought and a citizen of another

State.”

The constitutional provision is known as the Diversity Clause, and it is

customarily used to bring suits into the federal courts that might otherwise be

ﬁled and tried in state courts. The statutory provision added the further re-

quirement of a minimum amount in controversy (if the minimum amount was

not in controversy, the suit would be tried in a state court, even though it was

between citizens of different states). By claiming $9,000 damages, the Scotts

had met the requirement that the amount in controversy exceed ﬁve hundred

dollars. But Sanford was not prepared to concede that the circuit court had ju-

risdiction. His attorneys ﬁled a plea in abatement, arguing that Dred Scott was

not a citizen of Missouri because his ancestors were “of pure African blood, and

were brought into this country and sold as negro slaves.” If sustained, this plea

would remove the case from the operation of the Diversity Clause and require

the circuit court to dismiss the suit for lack of jurisdiction. The federal district

judge for Missouri was Robert W. Wells, a former Virginia slaveholder who had

long experience in the federal court in Missouri. After the Scotts’ attorney ﬁled

a demurrer to Sanford’s plea in abatement, Wells ruled in favor of the Scotts,

saying that, for the purpose of bringing suit in federal court, citizenship meant

nothing more than residence in the designated state and the legal capacity to

own property. Wells did not determine that the Scotts were entitled to all of

the beneﬁts of citizenship, merely that if, as they alleged, they were not slaves,

they were entitled to bring suit in the federal courts under the Diversity

Clause.

Judge Wells’s ruling on the plea in abatement forced Sanford to reply to

the merits of the Scotts’ lawsuit, and he did so, admitting that he had “re-

strained” the Scotts “of their liberty,” but for good reason, for they were his

slaves. The case was submitted to a jury in May 1854, under instructions from

Judge Wells that the law “is with the defendant” (a recognition that the Mis-

souri Supreme Court had already decided that the Scotts were still slaves).

Since they were slaves, they were not “citizens” for purposes of diversity juris-

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diction, even under Judge Wells’s concept. At this point, the judge should have

dismissed the case for lack of jurisdiction. But he did not, thus making it possi-

ble to take the case on to the United States Supreme Court.

It has been speculated that the federal suit was not ﬁled for the purpose of

obtaining relief in the circuit court in St. Louis, but to establish a record that

could be submitted to the Supreme Court in Washington. The speculation

seems plausible, although evidence supporting it is murky. Which side (the

Scotts or Sanford) was most anxious to obtain a hearing in the Supreme Court?

Did the Scotts ever have a realistic hope that the court presided over by Roger

Taney would grant them relief? They must have known that the Supreme

Court tilted heavily toward the South and that its recent opinion in Strader v.

Graham did not favor them.

Missouri had already ruled that the Scotts were slaves under Missouri law.

If that position had been afﬁrmed in the United States Supreme Court, no one

would have been surprised, and no explosion of public opinion could have

been expected. At some point, however, the attorneys and parties realized that

the case had broader implications than merely establishing the status of a sin-

gle slave and his family. Congress was now involved in an angry debate over

the Kansas-Nebraska Bill, which would repeal the part of the Missouri Com-

promise that prohibited slavery north of 36° 30´ and erect in its place the doc-

trine of “popular sovereignty.” This would authorize the people of each terri-

tory to decide for themselves whether the territory would permit or prohibit

slavery. Popular sovereignty was championed by the “Little Giant” of Illinois

politics, Democratic Senator Stephen A. Douglas, who believed its passage

would defuse tensions between the North and South and, in the process, fur-

ther his own presidential ambitions. The Kansas-Nebraska Act became law on

May 30, 1854, just days after Dred Scott’s trial ended in the federal circuit

court in St. Louis. But it did not calm the troubled waters. Agitation on the is-

sue of slavery continued, though much of the force of the argument was now

directed toward Kansas, where pro- and antislavery forces, energized by the

promise of popular sovereignty, were jostling for control of the territorial gov-

ernment.

following the federal circuit court’s decision against them, Dred

Scott’s friends took steps to appeal the case to the United States Supreme

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Court. On July 4, 1854, they published a pamphlet summarizing the history of

the now eight-year-old litigation and voicing a personal plea from Scott that

someone come forward to “speak for me at Washington, even without hope of

other reward than the blessings of a poor black man and his family.”

There

had been no reply by Christmas, when Roswell Field wrote to a Washington at-

torney named Montgomery Blair, asking if he or some other lawyer in the cap-

ital city might serve “the cause of humanity” by taking up the case. Blair was

one of Washington’s best-known lawyers, but he also had strong ties to Mis-

souri. His father was the Virginia-born Francis P. Blair, Sr., a close friend and

adviser of President Andrew Jackson and a longtime publisher, ﬁrst of the

Washington Globe (1830–1854) and later of the Congressional Globe (1837–

1872), predecessor of the Congressional Record. Montgomery Blair’s younger

brother, Francis P. (Frank) Blair, Jr., was also an attorney and one of the politi-

cal leaders of Missouri.

Born in Kentucky in 1813, and educated at the U.S. Military Academy at

West Point and at Kentucky’s Transylvania College, Montgomery Blair moved

in 1837 to Missouri, where he began his legal career. With the support of Sena-

tor Benton, he served as the U.S. district attorney for Missouri, mayor of St.

Louis, and judge of the Court of Common Pleas. He moved to Washington in

1853 and took up residence in the family-owned Blair House, across the street

from the White House. His wife was the daughter of Levi Woodbury of New

Hampshire, an associate justice of the Supreme Court from 1845 to 1851.

Once ardent Democrats, the Blairs were not strongly opposed to slavery, but

they believed that the institution should not be extended into the western ter-

ritories, and the violence that was now racking “Bleeding Kansas” was pushing

them in the direction of the new Republican Party. Responding to Field’s let-

ter, Montgomery Blair agreed to take up the Dred Scott case in Washington,

with Field preparing legal documents in St. Louis and Blair working on a

Washington brief. Blair also agreed to present the oral argument in the Su-

preme Court.

Opposing Blair when the case ﬁnally reached the Supreme Court were two

prominent attorneys in Washington: Henry S. Geyer, a proslavery Democrat

recently elected to the United States Senate from Missouri, and Reverdy John-

son, a friend of Chief Justice Taney who had been a U.S. senator from Mary-

land from 1845 to 1849 and attorney general of the United States (appointed

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by Zachary Taylor) from 1849 to 1850. The eminence of the lawyers attested to

the political signiﬁcance that had attached to the case. Johnson, in particular,

was a veteran of many important court battles, a supporter of slavery, and one

of the ablest appellate attorneys in the country.

The Court heard oral arguments from February 11 through 14, 1856.

Montgomery Blair led off by arguing that Judge Wells had correctly ruled that a

person of African descent who was not a slave could be a citizen for purposes of

commencing a lawsuit under the Diversity Clause, but in error when he in-

structed the jury that the Scotts’ status had been ﬁnally determined by the Mis-

souri Supreme Court. Geyer and Johnson argued that a person of African de-

scent was never intended to be included within the term citizen as used in the

Diversity Clause. Further, they advanced a new (and potentially explosive) ar-

gument: that the Missouri Compromise provision prohibiting slavery north of

36° 30´ was unconstitutional. They referred to Article IV, Section 3, of the

Constitution, the so-called Territories Clause, which provides (in relevant

part): “The Congress shall have power to dispose of and make all needful rules

and regulations respecting the territory or other property belonging to the

United States.” This power, Geyer and Johnson argued, applied only to “land

or other property” belonging to the United States. It did not include the power

to make laws for the government of federal territories; certainly it did not in-

clude the power to prohibit slavery in the territories, or to prevent slaveholders

from taking their slaves there from slaveholding states. Southern politicians

had made similar arguments in Congress over a period of years, although never

successfully, but they were now beginning to put this view forward with in-

creasing vehemence.

The arguments concluded, the Court retired to confer on the case. The

justices apparently were undecided as to exactly how to proceed, for they con-

ferred a second time, then declared a month-long recess before returning for

another series of conferences. Meanwhile, political arguments about slavery in

the territories were becoming more and more heated. Violence was escalating

in Kansas—evidence, many thought, that popular sovereignty was a poor an-

swer to the great political issue that confronted the nation. And the political

parties were gearing up for another presidential election in November. Recog-

nizing that the issue was politically explosive, the Court decided on May 12 to

put the whole matter over to the following term, ordering new arguments with

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special attention to the issue of whether a person of African descent could

bring a lawsuit in federal court under the Diversity Clause.

The second round of arguments began on December 15, 1856, and contin-

ued again for four days. By this time, the lame-duck president Franklin Pierce,

a doughface from New Hampshire, was preparing to turn over his executive

power to the newly elected James Buchanan, a doughface from Pennsylvania

who had just won election in a three-way race with the Know-Nothing candi-

date, Millard Fillmore, and the Republican nominee, John C. Frémont. Geyer

and Johnson were on hand again to represent John F. A. Sanford (although it

was increasingly clear that their real client was not Sanford but the slave-

holding interests of the South). Montgomery Blair was there on behalf of Dred

Scott and his family, but this time he was assisted by George T. Curtis of Massa-

chusetts, who had agreed to present a short argument on Congress’s power to

exclude slavery from the western territories. Curtis was the brother of Associ-

ate Justice Benjamin R. Curtis of Massachusetts, one of the justices who would

decide the Scotts’ fate. Obviously, neither personal friendships (Taney’s with

Johnson) nor blood ties (Benjamin Curtis’s with George Curtis) were consid-

ered sufﬁcient grounds for the recusal of a Supreme Court justice in the middle

of the nineteenth century.

Montgomery Blair spoke at length on the right of persons of African de-

scent to be considered citizens under the Diversity Clause. He pointed out that

the word citizen had been used in both state and federal laws over the years to

mean “inhabitant” or “free inhabitant.” A person who was a citizen for the pur-

pose of bringing suit, he said, was not necessarily a citizen for other purposes,

such as voting, holding ofﬁce, or serving on a jury. Africans were relegated to a

“caste in society,” he said, by reason of “manners and customs” but not by law.

Blair also argued that the Scotts’ long residence in Illinois and the Wisconsin

Territory had made them free persons. The Missouri Supreme Court’s ruling to

the contrary was not binding on the United States Supreme Court, he said, for

freedom from slavery was a matter of general law, on which the opinion of

the highest court of a state was not conclusive. Further, the Missouri decision

had been made in deﬁance of a long line of Missouri precedents and for purely

political reasons. Missouri had never before evidenced hostility to suits for

freedom.

Geyer and Johnson repeated the arguments they had made the previous

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year, but this time they stressed Congress’s lack of authority to legislate for

the territories. The word territory as used in the Territories Clause meant noth-

ing more than “land,” they said; it could not be converted into general author-

ity to legislate on the issue of slavery. What’s more, the Missouri Compromise

restriction on slavery north of 36° 30´ violated the spirit of the Constitution

by disparaging the domestic institutions of some states and denying their citi-

zens the right to move into the western territories with whatever property they

might chose to bring there (such as slaves). Slavery, a deﬁant Reverdy Johnson

declared, was an institution that would last “through all time.”

In reply, George T. Curtis argued that it was well within Congress’s power

under the Territories Clause to prohibit (or, if it chose, to permit) slavery in

federal territories. Congress had done just this in the Missouri Compromise of

1820 and again in the Compromise of 1850. Even the Kansas-Nebraska Act, by

authorizing voters in the western territories to exercise their “popular sover-

eignty” to decide whether they wished to permit or prohibit slavery, was evi-

dence of this congressional power, although in the case of popular sovereignty,

Congress’s authority was not exercised directly but delegated to the voters.

By the conclusion of the argument, newspapers all over the country were

reporting on the impending decision in Dred Scott v. Sandford (John Sanford’s

name was misspelled in the ofﬁcial reports of the case). It was increasingly clear

that the issues before the Court corresponded closely with political questions

then being debated in Congress, and that nine men in Washington could, if

they chose, issue a pronouncement with broad implications for the nation. Al-

exander H. Stephens, a congressman from Georgia (later to be vice president

of the Confederate States of America), had already referred to the litigation as

a “great case.” Even the president-elect, James Buchanan, was concerned about

the upcoming pronouncement and what, if anything, he should say about it in

the inaugural address he was to deliver on March 4, 1857. Buchanan had writ-

ten Justice John Catron of Tennessee in February, asking how the justices were

going to vote, and Catron had asked Buchanan to use his inﬂuence with Penn-

sylvania’s Justice Robert Grier to urge him to join in an opinion declaring the

Missouri Compromise invalid. Buchanan (quite improperly) did so, and Grier

(equally improperly) responded to the pressure by assuring the president-elect

that he would join with Taney and other justices to strike down the Compro-

mise. On inauguration day, Buchanan appeared at the Capitol in Washington

to take his oath of ofﬁce from Taney and blandly inform the assembled specta-

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tors that a “difference of opinion” had arisen “in regard to the point of time

when the people of a Territory” could exercise their right (under the doctrine

of popular sovereignty) to decide whether to permit or prohibit slavery in the

territory. Buchanan assured his listeners that the question was “of but little

practical importance.” It was “a judicial question,” he said, “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.” He further

assured his listeners that he would “cheerfully submit” to the Court’s decision

“whatever this may be.”

On the inaugural platform, before the new president delivered his address,

Buchanan was seen to exchange a few whispered words with Chief Justice

Taney. They were probably only pleasantries, but they raised suspicions that

the two men were discussing the Dred Scott decision. Of course Buchanan

would “cheerfully submit” to a decision if the chief justice had told him in ad-

vance what it would be. But Buchanan did not need Taney to tell him what the

Supreme Court would decide, for Justice Grier (and possibly other sources) had

already done so.

on march 6, two days after Buchanan’s inauguration, the justices took

their seats in a crowded courtroom in the Capitol and announced their deci-

sion. Chief Justice Taney was old and feeble (he would celebrate his eightieth

birthday in just eleven days), but he seemed to be invigorated by the occasion.

He spoke for two hours, reading from the draft of an “opinion of the Court.”

Taney might have avoided the thorny political issues of the case by simply de-

ciding that Dred Scott was not a citizen for purposes of the Diversity Clause

and thus not entitled to bring his suit in federal court. If that had been the de-

cision, the federal courts would have had no jurisdiction to hear his appeal, and

the whole case would have been dismissed. Alternatively, Taney might have

decided that the issue of Scott’s freedom was foreclosed by the Supreme Court’s

1851 decision in Strader v. Graham, under which the status of a person domi-

ciled within a state was to be determined by that state alone, without any in-

terference from other states or the federal courts. Such a holding would have

avoided the more explosive question of whether Congress had power under the

Territories Clause to prohibit slavery in the western territories. But, as James

Buchanan knew, Taney had already decided to meet that question head-on.

Taney announced his decision, ﬁrst, that persons of African ancestry could

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