Thursday, July 12, 2018

Dred Scott v. Sanford (Part I)

The Dred Scott case, in 1857, primarily decided the citizenship status of slaves and free-Negroes as well as the Constitutionality of the Missouri Compromise. This case is historically called the worst decision in Supreme Court history and for good reason. Let’s evaluate the arguments and precedent which tells us why this case was wrongly decided.


Both the majority and dissenting Justices cited slave cases from English law. In 1827, the Slave Grace Case held that a slave named Grace was free when she was in England with her owner and reverted back to being a slave once she returned to Antigua. This case was most often cited by the majority. In the 1772 case Sumerset v. Stewart the English Court said that a slave became a free person once they entered England. This case was most often cited by the dissent in the Dred Scott Case. However, the majority held that Grace overruled Sumerset. But the cases were fairly different and therefore it was difficult to make that assumption.

Prigg v. Pennsylvania (1842) was probably the most publicly known slave case before Dred Scott in United States history. The Taney Court ruled the 1793 Fugitive Slave Act trumped Pennsylvania law that prohibited Negroes from being removed from the state and forced into slavery. However, one could debate whether Congress had the authority to pass such a law since the “Fugitive (Slave)” clause (slave is never mentioned in the Constitution but it may be inferred in the clause) in the Constitution was written as an agreement between the states since it was in Article IV and not Article I Section 8 which enumerated Congress’s powers. This case had little bearing on the Dred Scott decision, but its outcome may have foreshadowed how the Taney Court would rule on Dred Scott.

Some may find this hard to believe, but prior to the Dred Scott case many Southern and slaveholding state courts generally ruled in favor of slaves who lived in free-states and territories for a substantial time before returning back to slave-states. Slaves who lived in free-areas (states or territories) and returned home to slave-areas were generally granted their freedoms. Judges believed slavery was a necessary evil, so they tended to have some sympathy towards slaves. In Missouri there were eight cases prior the Dred Scott case which provided relevant precedent for slaves becoming free after being moved into a free-area. For instance, in Rachel v. Walker (1834) the Missouri courts granted a slave, Rachel, her freedom after she was held in a free territory (Michigan) by an Army officer for a temporary period of time. This precedent should have boded well for Dred Scott who had a similar situation. Scott was moved to both a free-state (Illinois) and Territory (Wisconsin) also by an Army officer temporarily. The Taney Court held that the Missouri precedent was for slaves moved permanently into a free-state or territory. But this is not true. In Rachel she was temporarily moved into Michigan Territory like Dred Scott was temporarily moved into Illinois and Wisconsin Territory. However, Dred Scott had another interesting aspect in his case that should have played to his advantage. Dred Scott was allowed by his master to officially be married while he resided in a free-territory. This act proves that Scott had rights not given to slaves and that he was therefore a free-Negro (slaves were not allowed to be officially married). Justice Curtis argued in his dissent the act of marriage in a free-territory was in itself an act of emancipation.

One case that a strong negative bearing on the Dred Scott outcome was Strader v. Graham (1851). In this case the Taney Supreme Court held the ruling of the Kentucky Supreme Court was valid because the Court claimed to have no jurisdiction in the case. The Kentucky Court ruled against abolitionists who helped slaves escape to Canada. The slaves in question were brought from Kentucky to Ohio to perform in a musical before going back home when they were freed by the abolitionists. The abolitionist held that the slaves were free because they were brought to a free-state (Ohio). Many thought the Court’s decision favored the “reversion” principle where Slaves may be free in a free-state, but revert back to being a slave once they return home. This is not true because Scott’s defense rightly proclaims “This ruling therefore affirmed only the finality, and not the legal soundness, of the decision rendered in the supreme court of Kentucky.” In other words, the decision of the Kentucky Supreme Court should have no bearing on the Dred Scott case since Strader provides no legal precedent. Besides, Justice Curtis argues in his dissent that international law between Missouri and Wisconsin territory would force Missouri to recognize Wisconsin law as part of common law. Hence, Dred Scott was emancipated and a free-person because the reversion principle would play no role in the decision. The Missouri Supreme Court and the Taney Court would incorrectly hold that the reversion principle of Strader made Scott a slave when he returned back to Missouri.

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