The Case of Dred Scott
Paul Craig Roberts
Never before have I seen the case of Dred Scott as completely and accurately presented as John Remington Graham presents it in his monograph, Blood Money: The Civil War and the Federal Reserve ( www.turningthetidepublishing.com ), republished below with permission.
Dred Scott was a slave who belonged to a United States Army officer, an army surgeon, John Emerson. In 1834 Emerson took Scott with him when assigned duty at Fort Snelling, which was located in Wisconsin Territory, a part of the Louisiana Purchase where slavery had been prohibited by the Missouri Compromise of 1820.
Under established law and precedent at the time, law and precedent acknowledged and upheld by southern courts, an owner who took his slave into a non-slave area was regarded as having freed the slave. Dred Scott loved Dr. Emerson and did not press his case until years after Dr. Emerson’s death.
Scott brought his case against Emerson’s widow, Irene, years after Emerson’s death and won. Irene Emerson appealed the court’s ruling. This began an inexplicable legal process that lasted 11 years. Graham raises the obvious question: Who financed it?
Scott was a poor black with no resources. Irene Emerson was not wealthy, neither was John Sandford, her eventual successor in title. Both Irene and John were ordinary folks unable to afford major litigation. The established law was in favor of Dred Scott and against Irene and John. The southern circuit court of Missouri kept to the established law and freed Dred Scott. There was no known legal basis for appealing the court’s decision to free Dred Scott.
Dred Scott would not have brought a price that could come close to paying for Irene Emerson’s appeal of the southern court’s ruling. It is inexplicable why she appealed when it was completely clear that the law was settled against her. She had no money to pay for the appeal and neither did John Sandford who continued the appeal. As Graham points out, “it was the kind of case which would have to aim at reversing judicial trends going back hundreds of years” and “was certain to be expensive and time-consuming.” Moreover, Mrs. Emerson “was too old to weather the experience.”
The Missouri Supreme Court overturned Dred Scott’s freedom in a 2-1 ruling. The dissenting judge provided overwhelming evidence that there was no basis in law for the ruling of his two colleagues.
The suit eventually reached the U.S. Supreme Court where Chief Justice Roger B. Taney and a majority of the court in 1857 upheld that Scott was still a slave. Taney avoided all known precedent that supported the southern court’s ruling that Scott was a freed slave by ruling that under the US Constitution negroes were not citizens. Thus Dred Scott had no standing to bring a case.
It was the United States Supreme Court that kept Dred Scott a slave by overturning the southern court’s ruling that had freed him, but the white liberals of the time, as they do today, falsely heaped all the blame on the South. Having re-enslaved Dred Scott, the US Supreme Court used the case to overturn the entire Missouri Compromise, declaring it to be an unconstitutional limitation on slavery that exceeded the legislative power.
This decision is said to be the worst decision in the entire history of the Supreme Court. Dred Scott aside, certainly a terrible decision that flew in the face of established precedent, the ruling against the Missouri Compromise was probably correct legally and constitutionally, but disastrous politically. Under the US Constitution of the time, slavery was a state’s rights issue outside the purview of US legislation. Only states could decide the issue of slavery within their borders. Thus federal legislation, such as the Missouri Compromise, which divided up states between slave and non-slave, was unconstitutional. Nevertheless, the Missouri Compromise was put into place to keep the Union together and prevent separation and any war that might accompany separation. Thus repealing the Missouri Compromise opened a path to war.
Graham asks, who financed the costly 11-year legal fight? He raises the question: were the two judges on the Missouri Supreme Court bribed and if so, by who, and who bribed Taney and by what means?
These are honest and valid questions. The law suit that made no legal sense prevailed, and Taney’s overturning of the Missouri Compromise which made no political sense (except for those who wanted war) was thrown on top.
To drive home the point, after being used for 11 years, Scott and his wife and two daughters were freed by Sandford upon Taney’s ruling that Scott and his family remained Sandford’s slaves. Clearly Sandford was not a party to the legal struggle in order to hold on to Scott. Moreover, Graham points out that Scott’s freedom could have been purchased by those financing both sides of the 11 years of stupendous litigation for a fraction of the cost of the litigation. Obviously, neither side of the case had any interest in Scott’s freedom.
The dark implications of the Dred Scott case are too much for emotionally weak Americans. They simply cannot entertain the thought that banks intent on their power and profit were able to use the justice system and the Supreme Court as agents of Satan to kill three quarters of a million soldiers—more than the US lost in all other of its wars combined—and who knows how many southern civilians, and physically destroying as well the South, by fomenting a war. Hats off to John Remington Graham for placing this question before us, but I am certain that our historians will not dare to investigate it.
The Case of Dred Scott
John Remington Graham
As troubles in the Kansas Territory continued, a fateful case arose before the United States Supreme Court. Some background concerning this litigation will be in order here.
In 1834 an army surgeon, John Emerson, M. D., took his slave Dred Scott on a tour of duty to Fort Snelling, then part of the Wisconsin Territory within the limits of the Louisiana Purchase where slavery had been prohibited by the Missouri Compromise. While at Fort Snelling, Scott married a female slave named Harriet whom Dr. Emerson had purchased from an army officer there stationed. From this union two daughters Eliza and Lizzie were born.
Some years later, after the death of his master whom he loved, Dred Scott sued Dr. Emerson’s heir and widow before the circuit court of Missouri, seeking title to his freedom, and the freedom of his wife and daughters. Scott’s case was open and shut.
For in Rachael v. Walker, 4 Mo. 350 at 351-354 (1836), the Missouri Supreme Court had held that, when even a military officer of the United States took his slave into territory made free by the Missouri Compromise, there to reside during a tour of duty, the slave became forever free, and was entitled to judgment accordingly. That case was based on previous decisions of the Missouri Supreme Court going back to the earliest days of statehood, in which slaves were adjudged forever free after their masters took them to reside where slavery was prohibited by Northwest Ordinance of 1787, or by constitutions of States formed out of the Northwest Territory. These decisions of the Missouri Supreme Court were like countless others handed down by eminent judges and high courts throughout the South. During the antebellum period, more slaves were emancipated in the South than in the North, and freedmen in the South were incomparably better off than freedmen in the North.
The law governing the emancipation of slaves can be traced to Sommersett’s Case, 20 Howell’s St. Tr. 1 at 80-82 (K. B. 1771), wherein Lord Mansfield held that slavery was contrary to natural law, therefore not protected by the common law, and sustainable only under a positive act of Parliament, and that, therefore, when a slave was brought by his master to England untouched by any statute allowing such bondage, the slave became forever free. Transportation by the master onto free soil meant freedom to a slave.
Mansfield’s judgment was in turn based on earlier judgments of the King’s Bench. From and after the Norman Conquest, the feudal system became entrenched in England, and part of this social and legal structure was the institution of villeinage under which white Anglo-Saxon people of the realm were for hundreds of years held in bondage not materially different from the bondage of the black African race in North America. Villeinage was phased out by the judges of the common law, faithful to the demand in the 29th article of the Magna Carta of King Henry III, “Nullus liber homo disseisietur de liberis consuetudinibus suis,” — No freeman shall be denied the benefit of customs which make him free.
By ancient custom, every statute, rule, and plea was construed and applied, whenever possible, in favor of liberating a man from bondage and making him free. If a lord conveyed a freehold to his villein, the grantee automatically became a freeman. If a villein sued his lord in a court of common law, and the lord answered to the merits without first interposing a plea to disability on account of bondage, the villein automatically became a freeman. And so it went. In the case of Pigg v. Caley, Noy 27 (K. B. 1618), villeinage felt the frowns of the common law for the last time, and disappeared in history without an emancipation proclamation, civil war, or constitutional amendment.
When Thomas Jefferson penned language first appearing in the Northwest Ordinance of 1787, and later used in the Missouri Compromise and 13th Amendment, he wrote that “neither slavery nor involuntary servitude” should be lawful, because he meant to prohibit villeinage as well as slavery, and to spare whites as well as blacks from any capitalization of labor on any pretext ancient or modern.
In any event, the circuit court of Missouri granted Scott and his family their freedom as a matter of course on established law and rudimentary principle. A Southern judge, in a Southern court, on Southern jurisprudence, freed these slaves effortlessly and quickly.
It is hard to understand why Irene Emerson took an appeal. The facts were clear. The law was settled against her. The appeal was certain to be expensive and time-consuming. Assuming honest administration of justice, it was obvious that she could not prevail. Mrs. Emerson was getting on in years, and she was too old to weather the experience. Especially after the judgment of the circuit court which was a cloud on the master’s title, the fair market value of Scott and his family as slaves was probably less than the cost of taking the cause up to the Missouri Supreme Court. The wager was plainly not worth the risk.
Dred Scott was a poor black with no resources to speak of. He was evidently represented before the circuit court by a lawyer doing him an act of kindness, a member of the bar doing his ethical duty to render some services to the needy at reduced or no fees, especially where rights were manifest and in need of vindication. Irene Emerson was not wealthy, neither was John Sandford, her eventual successor in title. The parties in this dispute were ordinary folks, unable to afford major litigation.
The case was of a kind which, if pushed, would have to aim at reversing judicial trends going back hundreds of years. It was the kind of case that could consume prime years in the careers of high-powered and expensive lawyers, and such lawyers started to come aboard for Mrs. Emerson after the initial routine encounter before the circuit court of Missouri. As things turned out, the cause was pending before one tribunal or another over eleven strenuous years.
The history of the case after the judgment of the circuit court of Missouri is exceedingly long and tortured. A routine affair hardly worth notice was dilated by straining the legal system into a production as inflammatory as Uncle Tom’s Cabin. The case was obviously bankrolled by wealthy interests — on both sides by the time the case found its way into Federal courts –, for there is no other plausible way to explain what happened. The investors in this cause must have aimed at exciting passions violent enough to ignite a civil war. Certainly, nobody pouring funds into the affair cared about Dred Scott. Had philanthropy been the concern, the freedom of Scott and his family could have been quickly purchased for much less than what it cost to mount subsequent rounds of this stupendous litigation. It is impossible to believe that those funding this very expensive venture did not understand the political dynamite involved and the fuse they were lighting. And their barratry achieved the kind of mischief which they must have foreseen.
Mysteriously, two of the three members of the Missouri Supreme Court wholly disregarded a massive corpus of Southern jurisprudence which they did not even cite, then held that Scott and his family were still slaves, and reversed the circuit court which had liberated them.
Yet as appears in Dred Scott v. Emerson, 15 Mo. 576 at 587-592 (1852), Chief Justice Hamilton Gamble wrote a learned dissent, copiously laying down the law as given by the Emperor Justinian and Lord Coke up to the very recent past. He protested, “In this State, it has been recognized, from the beginning of the government, as a correct position in law, that a master who takes his slave to reside in a State or territory where slavery is prohibited, thereby emancipates his slave.” He then cited and expounded no less than eight reported decisions of the Missouri Supreme Court, all cited by Scott’s counsel and directly on point. He expounded the first case, Winney v. Whitesides, 1 Mo. 473 (1824), then observed, “The principle thus settled runs through all the cases subsequently decided, for they were all cases in which the right to freedom was claimed in our courts, under a residence in a free State or territory, and where there had been no adjudication upon the right to freedom in such State or territory.” He added that the Missouri Supreme Court, “so far from standing alone on this question, is supported by the decisions of other slave States, including those in which it may be supposed there was the least disposition in favor of emancipation.” Thereupon, he discussed reported decisions in Louisiana, Mississippi, Virginia, and Kentucky, all concurring with the reported decisions in Missouri which unequivocally demanded the freedom of Scott and his family.
Even counsel for Mrs. Emerson conceded all the decisions of the Missouri Supreme Court under which Scott and his family were entitled to their freedom. As if it were an argument for slavery, counsel lamented one Mr. Justice Thompkins who “was a great apostle of freedom,” and thought “the evil should be restricted as much as possible.” The same observation could have been made concerning the judges of the King’s Bench who had ordained, on the basis of Magna Carta, that villeins and slaves should be deemed free whenever any fair legal reason could be advanced in their behalf.
The majority of the Missouri Supreme Court were not confused, and had not overlooked the unambiguous precedents which established the applicable law. All questions of property in slaves and conflict of laws had been definitively settled, nor was there any honest way to distinguish or overrule the precedents before them. The problem was not prejudice or ignorance, because a trained lawyer or judge knows how to read a dozen or more cases all going the same way, and apply them to facts admitted on the record. There is only one plausible explanation for the misconduct of the two appellate judges who ruled against Scott and his family. Raw corruption, induced by bribery or otherwise, was nothing new in their day, and has not since ceased to trouble mankind. This perennial flaw in temporal justice is condemned in holy scripture, and over passing centuries judges have been impeached and even hanged for it, yet never has the problem been eradicated.
By a winding and fantastic path which defied res judicata and other basic principles, the case of Dred Scott was recommenced before a circuit court of the United States, and finally reached the highest court of the land on writ of error, and there it was twice argued. It was decided in Dred Scott v. Sandford, 19 Howard 393 (U. S. 1857), on a vote of 7-2, that Scott and his family were, after all, slaves. And they were slaves, said the majority incredibly, because the Missouri Compromise was unconstitutional. The Missouri Compromise was simply an extension of the Northwest Ordinance, as reenacted by Congress in 1789 in exercise of undoubted constitutional powers, to territory west of the Mississippi River. In his “opinion of the court,” Chief Justice Roger B. Taney ignored the judgment of Lord Mansfield in 1771, and the decisions of high courts across the Southern States following Lord Mansfield’s judgment. Chief Justice Taney was fully aware of the judgments of the King’s Bench, the cases given reference by Judge Gamble of Missouri, and a good many other like cases reported from judicial records in the Dixie States, yet he did not even mention them.
Oddly enough, Taney was one of the greatest lawyers of his age. As attorney general of the United States, he had written the message of President Andrew Jackson accompanying the veto of the bill to extend the charter of the Second Bank of the United States. His last formal opinion in Ex Parte Merryman, 17 Fed. Cas. 144 (U. S. Cir. Ct. Md. 1861), forbidding Presidential suspension of the writ of habeas corpus, was one of the most courageous and magnificent judicial acts in American history.
It seems difficult to imagine how such an extraordinary man could be corrupted. But Sir Francis Bacon, as Lord Chancellor of England, was impeached and convicted of bribery, and, if a philosopher so great could be corrupted, so too could Chief Justice Taney. And a judge can be led astray by inducements subtler than cash in envelopes or promises of favor. Even a great man on the bench can be secretly and privately flattered, cajoled, or duped into doing what is expected of him, or his political passions can be inspired into rendering a dubious judgment, without an actual offer of consideration.
In genteel circumstances rich, powerful, and influential men could have made known their wishes to Taney in refined language, accompanied by deference to his high station. It could have been done so smoothly that the stink of corruption might not have been apparent even to some of those participating. In this way cases have been “fixed” to suit ends other than justice.
An indignant admirer of Taney might protest that surely this great Chief Justice was not bribed. And the answer to such a protest must be that Taney was probably not bribed. He had all the money he needed, and he was too old for other allurements. But the case surely was discussed by great men in his presence, suggestions must have been dropped, and he must have understood what was desired by men whom he respected on account of their wealth or standing. For there can be no doubt that rich, powerful, and influential men in the United States thought that it would be a good thing to get rid of the Missouri Compromise, not only by legislative repeal but also by judicial holding. And it is now known and no longer concealed that, during the deliberations of the court on the fate of Dred Scott and his family, at least two members of the court were actively lobbied by President-Elect James Buchanan. It is no longer the well-kept secret it once was that the President-Elect communicated first with Justice John Catron, and then urged Justice Robert Grier to be sensible in joining with others on the court in finding the Missouri Compromise unconstitutional. Others on the court must also have been told what was expected on them. In any event, Taney, Catron, Grier, and others on the court did exactly what such rich, powerful, and influential men wanted them to do.
The anticlimax was that, after they had been used like pieces of furniture on the legal stage over more than a decade, and found to be slaves, Scott and his family were all freed by their master Sandford. It is, therefore, obvious that the soul of the case had been collusion for dark ulterior motives.
The effect of the judgment was outrage across the North, including accusations of corruption which were surely not far from the truth, and hatred of the South for enslaving Dred Scott which rather missed the mark, for the South had actually freed Scott, his wife, and his daughters. The situation was by then agitated to the point at which people from the two sections could joyfully kill each other, — perfect for the civil war soon to begin. It is impossible to believe that those who created this situation with their boundless resources did not foresee and desire the trouble they had produced by persistent effort over some years.