DRED

SCOTT

— A CENTURY AFTER

by F R E D R O D E L L

“ The Dred Scot I case of 1857 is the most fam ous — or notori­
ous — in all of our judicial history,” says F r e d R o d e ix , pro­
fessor o f law al ) ale University. Mr. RodelTs latest book,
n in e m e n , is a political history of the t ..S'. Supreme Court.

A
1 V r e s p o n s ib l e ii som ew hat sectionally slanted
jo u rn al was com m enting on a controversial deci­
sion of the Suprem e C ourt of the U nited States.
“ T h e m ost sacred a n d binding com pacts of form er
years,” it grow led, “ were annulled to m ake way
for it; and the ju d icial d ep a rtm en t of the govern­
m ent was violently hauled from its sacred retreat,
into the political arena, to give a gratuitous coup-
de-grd.ee to th e old opinions an d the a p p a re n t sanc­
tion of law to the new do g m a.” And in a la te r
issue: “ W h atev er the . . . judges of the Suprem e
C ourt m ay seek to m ain tain , they can n o t upset
the universal logic of the law, nor extinguish
the fu n d am en tal principles of our political sys­
tem .”
Plus qa change, plus e’est la meme chose. This was
not a S outhern new spaper or m agazine protesting
the anti-school-segregation decision of 1954. I t
was New E n g land’s own Atlantic Monthly, protest­
ing early in 1858 the D red Scott decision.
T h e D red Scott case of 1857 is the m ost famous
— or notorious — in all of our ju d icial history.
It is the only one th a t every schoolboy knows by
nam e, th o u g h rarely by its full nam e, which was
Dred Scott v. Sandjord. It is the only one th at
helped b rin g on a m ajor w ar. It is one of only
three decisions in 168 years of Suprem e C ourt a n ­
nals th a t were eventually reversed, not by th e
C o u rt itself, not even, legally speaking, by w ar,
but by am en d m en t of the C onstitution. (T h e
o th er two were Chisholm v. Georgia, a m in o r insult
to state sovereignty reversed by A m en d m en t X I,
and the Pollock incom e-tax case of 1895 reversed
by A m endm ent X V I.) A nd w hen the anti-segre­
gation ruling of three years ago was called by sev­
eral com m entators “ a second D red Scott case,”
they did no t m ean to lum p together, ideologically,
the CCourt’s greatest an ti-N eg ro and pro-N egro d e­
cisions; the m e ta p h o r m erely p u t the new case b e­
side the old at the pin n acle of political im p o rtan ce.
Yet, for all the fam iliarity of its n am e an d of
the bare fact th at it bestow ed ju d ic ia l blessing on
the institution of slavery, the full story of the D red
Scott case is not w idely know n, even am o n g law ­
yers. Indeed, the off-stage scenario did n o t com e
to light u ntil well into the tw en tieth century, w hen
the papers of P resident B u ch an an an d , later, of
Ju stice M cL ean w ere published. H a d th a t story
been contem porarily know n, the n ew born Atlantic
Monthly m ight h av e used still h arsh er lan g u ag e
th an it did when it spoke of “ a C o u rt whose m em ­
bers are selected, not for uprightness of ch a ra c te r
or b re ad th of m ind, b u t by the inverse test of th e ir
capacity for cringing subservience to p a rty .”

60

For, w hen else has the S uprem e C ourt been
chivvied into m aking a m ajo r an d explosive po­
litical p ro n u n ciam en to o u t of a case it could have
h an d led , and originally plan n ed to handle, on a
m ild an d m in or ground — chivvied by the de­
clared in ten t of one Justice, who was openly am ­
bitious for the presidency, to tu rn his dissent into
a stu m p speech in behalf ot his fu tu re candidacy?
W hen else has a President-elect (or a President)
used his influence to change the vote of a S uprem e
C o u rt Justice? W hen else has a President, in his
in au g u ra l address, blandly adjured the nation to
accept in good p a rt an an ticip ated S uprem e C ourt
decision, "w h a te v e r this m ay be ’ as though he
were n o t fully aw are ot how th at decision w ould
go, of how each ]usticc h ad voted, and th a t the
ru ling w ould be han d ed dow n in exactly two days?
A nd w hen else have the echoes of a Suprem e
C o u rt decision reverberated dow n the decades and
com e out, a century later, precisely in reverse?
T h e Negro question, w ith its orato rical overtones
of states’ rights against n atio n al power, is still
very m uch w ith us, though on a slightly m ore
civilized level. But today it is the N o rth th a t lauds
the C ourt, the S outh th a t dam ns. T o d ay it is the
S o u th th a t talks of im peachm ent and nullification;
after D red Scott — u ntil L incoln w ent to the
W hite H ouse — these nostrum s were bruited
ab o u t in the N orth. II lor no o th er reason th an
its im m ediacy as political paradox, th at old case
w hich was cooked up in the nam e of an illiterate
N egro slave deserves centennial recollection.
J L h e flavor of the case an d of the times is perhaps
best re cap tu red by a v erb atim transcription of
p a rt of the “ agreed statem ent of facts” w hich op­
posing counsel subm itted to the C ourt. T he
problem of N egro slavery — or, m ore accurately,
of S o u th ern p lanters against N o rth ern m erchants
an d trad ers — had been sim m ering a t a slow boil
th ro u g h o u t the first half of the century. By the
m id-1850s the S outh was in the saddle in W ash­
ington. A hell-for-leather D em ocratic Congress
h ad passed the K ansas-N ebraska Act, repealing
th e M issouri C om prom ise of 1820 and letting
K ansas, N ebraska, and any o th er future states
n o rth of th e old C om prom ise line com e into the
U nion as slave states if they chose. W eak D em o­
cratic P resident Pierce, although a N ew Eng­
lan d er, had h alfheartedly supported the act. O n
the S uprem e C ourt, C hief Ju stice Taney could
co u n t on four S outhern colleagues to m ake a
m ajority, and one of his N o rth ern brethren, J u s­
tice G rier, was not u nsym pathetic tow ard the
South. In to this atm osphere cam e for decision the
D red Scott case, started in a federal district court
61
I)R E 0 S C O T T — A CENTURY AFTER
in M issouri while the K ansas-N ebraska Act was
w inging its w ay through Congress, b u t dealing
w ith events of tw enty years before:
“ In the year 1834, the plaintiff was a negro
slave belonging to D r. Em erson, who was a su r­
geon in the arm y of the U nited States. In th a t
year, 1834, said D r. Em erson took the plain tiff
from the State of M issouri to the m ilitary post at
R ock Island, in the State of Illinois, and held him
there as a slave until the m onth of A pril or M ay,
1836. At the tim e last m entioned, said Dr. E m er­
son rem oved the plaintiff . . . to the m ilitary
post at F ort Snelling, situate on the west bank of
the Mississippi R iver, in the T errito ry known as
LTpper Louisiana, acquired by the U nited States
of France, and situate north of the latitu d e of
thirty-six degrees th irty m inutes n o rth [this was
the M issouri C om prom ise line] and n o rth of the
S tate of M issouri. Said Dr. Em erson held the
plaintiff in slavery at said F ort Snelling, from said
last m entioned d ate until the year 1838.-
“ In the year 1835, H a rriet . . . was the negro
slave of M ajor T aliaferro, who . . . sold and d e­
livered h er as a slave at said F o rt Snelling u nto
the said Dr. Em erson hereinbefore nam ed. . . .
“ In the year 1836, the plaintiff and said H arriet
a t said F ort Snelling, w ith the consent of said Dr.
Em erson, who then claim ed to be their m aster
an d ow ner, in term arried , and took each other lor
husband and wife. Eliza and Lizzie . . . are the
fruit of th at m arriage. Eliza is ab o u t fourteen
years old, and was born on board the steam boat
Gipsey, n o rth of the north line of the S tate ol M is­
souri, an d upon the river Mississippi. . . .
“ In the year 1838, said Dr. Em erson rem oved
the plaintiff and said H a rriet and their said d au g h ­
ter Eliza, from said F ort Snelling to the S tate ol
M issouri, w here they have ever since resided.”
But it took eight years before said plaintiff sud­
denly started suit in the courts ol Missouri to win
the status of freem an for him self (and his family)
on the ground that, by having once lived in a free
state, Illinois, and a free territory, now M innesota,
he had autom atically and perm anently severed
the bonds of slavery. And it took eight Vnore years,
after he lost in the M issouri courts, before the
federal D red Scott case got under way.
M eanw hile, “ m aster” Em erson had died and
his widow h ad m arried an abolitionist congress­
m an from M assachusetts, nam ed Chaffee. T w itted
on all sides for his wife’s ow nership of slaves, C haf­
fee soon fixed up a technical transfer of the D red
Scott fam ily to his wife’s New York brother, Jo h n
Sandford, who thus becam e the D red Scott case
defendant. T h a t both Chaffee and Sandford en­
couraged, if they did not actually assist, Scott's
suit — after the aging Negro had been a bit lacka­
daisical about seeking his own freedom — and
The Atlantic Monthly
th a t Scott was prom ised th a t freedom beforehand
(and later got it) no m atter w hich w ay the case
should be decided, m ake clear th a t this was one
of those contrived “ test cases” law yers delight in.
Died Scott v. Sandjord reached the high tribunal,
on appeal, early in 1856. T he C o u rt was then
m ade up, along w ith C hief Ju stice T aney from
M ary lan d , of four other S outhern Justices —-
C am pbell of A labam a, C atron of Tennessee, D a n ­
iel of V irginia, an d W ayne of G eorgia — and four
Justices representing (and the w ord is accurate)
the N o rth — C urtis of M assachusetts, G rier of
Pennsylvania, M cL ean of Ohio, a n d Nelson of
New York. These nine, after they h eard the case,
decided in conference to dispose of it on a narrow
and unexplosive ground. T h ey w ould simply say
th a t w h eth er D red Scott, once back in M issouri
from his sojourn on free soil, was a slave or a free­
m an was the business of the M issouri courts, not
of the federal courts; case dismissed. H ad this
plan of procedure been carried out, N ortherners
G rier an d Nelson would have gone along to m ake
the vote seven to two — Nelson was even prepared
to w rite th e C o u rt’s opinion — an d the D red
Scott case would have d ropped into oblivion. But
at this point personal and partisan politics began
to seep, then to flood, into the case, until there
was no stopping a ju d icial deluge on the whole
seething subject of Negro slavery.
It was Ju stice M cL ean of O hio who started it.
His eye firm ly focused on the W hite House com e
1861, or even 1857, he bluntly inform ed his col­
leagues th a t if they w ent through w ith their plan
of shucking the case off on a m atter of m inor m o­
m ent, he w ould deliver a ringing dissent, n o t so
m uch against the decision itself as against slavery,
blasting the C ourt for supporting the evil practice
by indirection. T h en G eorgia’s Ju stic e W ayne
co u n terth reaten ed a treatise in reply, w hich would
defend slavery while chiding his colleagues for
sliding aw ay from the real issue; and Justice C urtis
of M assachusetts got read y to answ er W ayne and
back M cL ean with an abolitionist tra c t of his own.
Faced w ith this forensic free-for-all, the C o u rt
voted to p u t off decision u n til after extended re ­
arg u m en t next term .
Postponem ent m eant th a t a presidential election
would intervene before the Dred Scott finale. A nd
this accidental fact opened the case still wider to
political influences and pressures. F or D em o­
cratic President-elect Jam es B uchanan, though a
P ennsylvanian, was m ore th a n m ildly sym pathetic
tow ard the S outhern view and angrily im patient
w ith the troublem aking abolitionists. Thus, with
Congress safe for slavery, as for som e time past,
and a new President com ing in whose sentim ents
were at least acceptable to the South, the S outhern
m ajority of th e S uprem e C o u rt were em boldened
62
to p u t the third b ra n c h of th e federal g o v ern m e n t
in the sam e cam p — an d in a su b stan tial w ay.
T h e result was the full-blow n an d in fla m m a to ry
decision, holding th a t Negroes, p er se, w ere n o t
U.S. citizens (and so could not sue in U .S. co u rts)
an d th a t the M issouri C om prom ise (on w hich
Scott had based his claim to freedom after living
above the line) h a d been u n co n stitu tio n a l from th e
start, since no C ongress h ad pow er to b a n slavery
on any W estern soil, before o r after stateh o o d .
As they p re p are d to an n o u n c e to the n atio n th a t
slavery or no slavery w as strictly a state (or te rri­
torial) question, constitu tio n ally o u t of th e re a c h
of congressional control, the five S o u th ern Ju stices
w ere well aw are th a t they w ere a b o u t to spike the
biggest gun of the fledgling a n d fast-grow ing R e ­
p u blican P arty. B ut the T a n e y q u in te t w ere also
aw are th a t if such a ukase should com e from a
C ourt split five to four on solidly sectional lines,
any du n ce w ould see th e n ak ed ly political n a tu re
of a supposedly n o n p a rtisa n p ro c la m atio n of law .
So in F eb ru ary , 1857, ju s t before B u c h a n a n ’s in ­
au g u ratio n , the behind-the-scenes finagling beg an .
First, Justice C atro n of Tennessee sent off a
note to B uchanan, inform ing him th a t the C o u rt
was re ad y to hand dow n its D red S cott decision,
revealing th at the ru lin g w ould be based on b ro a d
grounds involving the co n stitu tio n ality of th e M is­
souri C om prom ise (C atro n did no t have to specify
w hich w'ay the case w ould go), a n d u rg in g th e
President-elect to use his influence w ith fellow
P ennsylvanian G rier to w ard a strong decision, to
“ settle th e a g ita tio n .” B u ch an an im m ed iately
com plied. W h ereu p o n G rier w rote back, telling
B uchanan “ in confidence” precisely how a n d by
w hom the case h ad been decided a n d assuring
him th a t the decision w ould n o t be an n o u n ced
u ntil M arch 6, tw o days after the in au g u ra tio n .
G rier did not actu a lly prom ise in w ritin g to
sw itch his own vote a n d so c reate a m ore im p res­
sive m ajority. B ut he m ad e it safe for B u ch an an ,
in his in au g u ral, to ex h o rt his co u n try m e n , N o rth
and S outh — w ith an air of in n o cen t im p a rtia lity
— to accept w ith good grace w h a te v er decision
cam e dow n. A nd w hen it did com e dow n, th e
vote was six to tw o against the M issouri C o m p ro ­
mise, w ith Justice G rie r ad d e d to the S o u th e rn
five. (Justice N elson alone stuck to his guns, re ­
fused to consider th e C om prom ise, an d filed th e
brush-off opinion w hich w ould have been th e
C o u rt’s h ad the case been disposed of th e te rm
before.)
E xcept for N elson’s, an d for G rie r’s tw o brief
p a rag ra p h s, all the opinions w ere long po litical
tracts, for o r against slavery. T ak e n to g eth er, they
filled 234 sm all-p rin t pages in th e C o u rt’s official
reports. The opinion of the C o u rt was, o f course,
w ritten by C hief Ju stic e T an ey .

F o r fervor of feeling, for sectional chauvinism ,
not even the M cL ean dissent th a t had sparked the
fireworks could m atch T a n e y ’s pseudo-judicial
d iatrib e. W ith obvious relish, he castigated the
h o lier-th an -th o u preachm ents of the N orth, “ w here
the lab o r of the negro race was found to be u n ­
suited to the clim ate and unprofitable to the m as­
te r.” H e spewed special scorn at coastal New
E ngland for professing a pious concern for the
N egro while its bankers and shipow ners pros­
pered from “ the slave trade, procuring cargoes on
the coast of Africa and tran sp o rtin g them for sale”
in the South. O n a legal level, not satisfied to
label the old Missouri C om prom ise unconstitu­
tional and let it go at th at, he insisted on adding
gratu ito u sly th a t no Negro, slave or free, could be
a U .S. citizen, so th a t D red Scott h ad no standing
to sue in a federal court. (By proper ju d icial pro­
cedure, this last holding actually m ade the M is­
souri C om prom ise arg u m en t gratuitous; if Scott
had no rig h t to sue, the case should have been
dismissed w ith o u t further ado, on th a t ground.)
As soon as news of the decision was announced,
the n atio n was rocked from top to bottom . O ne
of the protestants, though his first reaction was
m ilder th an most, was A b ra h a m Lincoln. Q u o t­
ing Jefferson, he rem arked th at “ our judges are
as honest as o ther men a n d not m ore so. T hey
have, w ith others, the sam e passions for party,
for pow er, and the privilege of their corps.” L in­
coln also expressed his belief, as a law yer, th at u n ­
p o p u la r S uprem e C ourt decisions could — and
should — be reversed by a m ajority vote of C on­
gress. H e could no t then know th a t it would take
a civil w ar to reverse Dred Scott- v. Sandjord.
Plus qa change, plus Pest la mettle chose. T o d ay
again, th o u g h from the opposite point of the com ­
pass, com e in d ig n an t denunciations of the Su­
prem e C o u rt and its highhanded declarations of
law . T o d ay again come plans and proposals —
no less th a n seventy such bills were introduced at
the 1956 session of Congress — to clip the C o u rt’s
wings. T o d ay again, the old cry of “ states’ rights”
is in the air. T o d ay again, it is our N egro com ­
p atrio ts who arc the innocent cause of it all.
And yet, it is not the sam e th in g today. T h e
N egro is no longer a piece of property b u t a hum an
being and a citizen, albeit too often a second-class
citizen. T h e Suprem e C o u rt th at called for an
end to public-school segregation in 1954 did not
do so by a scctionally split decision bu t u n a n i­
mously, th o u g h its m em bership included Justices
Black of A lab am a, Reed of K entucky, and C lark
of Texas. No one in his rig h t m ind rem otely sup­
poses th a t P resident Eisenhower had to urge any
of these gentlem en, or could have persuaded any,
to vote as they did. And for all the fuss an d the
63
B R E D S C O T T ----A C E N T U R Y A F T E R
fury, the decision will result in no civil war. T h e
nation has grow n up a little since 1857.
But the nation has not grow n up enough to dis­
tinguish clearly and consider separately the two
basic and basically disparate issues th a t underlay
the post-decision dispute in the last century and
that underlie the post-decision dispute today. O ne
is the status of the N egro — especially, though not
exclusively, in the South. T he other is the political
pow er to be accorded to the nine m en appointed
for life who happen to m ake up the Suprem e
C ourt of the U nited States.
O n the first issue, by every canon of dem ocracy
and hum anity, the N orth was right in 1857 and
is now rig h t again. This is not to say there is not
still, as T aney charged the last time, an elem ent
of hypocrisy in the N orthern view — w hat w ith
segregation in housing, discrim ination in jobs, and
a w ealth of available private schools above the
M ason-D ixon line. N or is it to say th a t the S ou th ­
ern m oderates do not have some sense on their
side when they ask a little tim e to reorganize a
sizable chunk of their social order. But in 1957,
with the eyes of the nation tu rn ed anxiously o u t­
w ard tow ard a world peopled m ainly by men
whose skins are not white, it could be suicidal as
well as inherently indecent to trea t our own N e­
groes as less than com plete equals.
O n the second big issue — the pow er of the Su­
prem e C o u rt — the answ er is not so clear. W hat
is clear is only th at the issue ought to be consid­
ered quite a p a rt from the heated partisanship en ­
gendered, in 1857 and in 1954 (and also before
and betw een), by a controversial decision. T here
is som ething to be said for the notion th at the nine
Justices hold, or a t least wield, too m uch arb i­
trary political power, and it has been said in the
past by such solid citizens as Jefferson, Lincoln,
both Roosevelts, and Justices Holm es and Stone
(in dissent). But to rest such a conclusion or its
opposite — leave the C ourt alone — on the boiled-
up em otions of the m om ent is to invite trouble in
the long perspective of tim e.
This is the least we m ight learn from the Dred
Scott case, looking backw ard over one hundred
years. Southerners of today m ay chortle at the
old Atlantic Monthly's anti-S uprcm c C ourt stric­
tures, but they will find cold S outhern com fort in
the paeans of praise th at em anated from their own
political ancestors. N ortherners m ay smile th a t
the South once waved the ban n er of C ourt su­
prem acy, bu t the words of Lincoln ought to give
them pause. Let both sides ponder their present
m otives in the light of w hat they would have felt
an d said — not about the status of Negroes but
ab o u t the Suprem e C o u rt — had they been alive
when the nine Justices denied D red Scott his sim ­
ple plea a cen tu ry ago.
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