Dred Scott v. Sandford 19 Howard 393 (1857)

Author:Don E. Fehrenbacher

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Closely associated with the coming of the CIVIL WAR, DRED SCOTT V. SANDFORD remains one of the most famous decisions of the United States Supreme Court. It is certainly the prime historical example of judicial power exercised in the interest of racial subordination, and, as such, it stands in sharp contrast with BROWN V. BOARD OF EDUCATION (1954), handed down almost a century later. Scott was a Missouri slave owned by an army medical officer named John Emerson, who took him to live at military posts in Illinois and in federal territory north of 3630 where SLAVERY had been prohibited by the MISSOURI COMPROMISE. In 1846, Scott brought suit against Emerson's widow in St. Louis, claiming that he had been emancipated by his residence on free soil. Missouri precedent was on his side, and after two trials he won his freedom. In 1852, however, the state supreme court reversed that judgment. By a 2?1 vote and in bitterly sectional language, it declared that the state would no longer enforce the antislavery law of other jurisdictions against Missouri's own citizens. Scott's residence elsewhere, it held, did not change his status as a slave in Missouri.

Normally, the next step should have been an APPEAL to the United States Supreme Court, but a recent decision in the somewhat similar case of STRADER V. GRAHAM (1851) may have persuaded Scott's legal advisers that the Court would refuse to accept JURISDICTION. They decided instead to initiate a brand new suit for freedom in the federal CIRCUIT COURT for Missouri against Mrs. Emerson's brother, John F. A. Sanford of New York, who had been acting as her agent in the Scott litigation and may even have become the slave's owner. Sanford's New York CITIZENSHIP provided the foundation for DIVERSITY JURISDICTION. So began the case of Dred Scott v. Sandford (with Sanford's name misspelled in the official record).

Up to this point, the principal issue in Scott's suit had been how residence on free soil affected the legal status of a slave. It was a familiar issue that dated back to the noted British case of Somerset v. Stewart (1772) and had been dealt with in a number of state court decisions. (See SOMERSET ' SCASE.) During the early decades of American independence, a tacit sectional accommodation had prevailed. Southerners accompanied by slaves were generally able to travel and sojourn in free states without interference. At the same time, southern courts joined in upholding the rule that a slave domiciled in a free state became

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forever free. Beginning in the 1830s, however, this arrangement broke down under antislavery pressure. State after state in the North withdrew the privilege of maintaining slaves while sojourning, and there was growing judicial acceptance of the view that any slave other than a fugitive became free the moment he set foot on free soil. (See COMMONWEALTH V. AVES.) To Southerners the change meant not only inconvenience but also insult, and by the 1850s they were retaliating in various ways.

Dred Scott v. Sandford raised an additional issue. In order to maintain a suit in federal court, Scott had to aver that he was a citizen of Missouri. Sanford's counsel challenged this assertion with a plea in abatement arguing that Negroes were not citizens and that the Court therefore lacked jurisdiction. The trial judge ruled that any person residing in a state...

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