Dred Scott vs. Sandford part 2

When Dred Scott v. Sandford was decided in 1857, the court decision ruled that enslaved Africans and their descendants weren’t and could never be citizens of the United States, whether they were free or not. But before that, Scott and his family had been free by a jury in 1850.

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Episode Transcript

Speaker 1 (00:01):
Welcome to Stuff You Missed in History Class from how
Stuff Works dot Com. Hello, and welcome to the podcast.
I'm Tracy B. Wilson and I'm Holly Frying. We are
picking up today where we left off in the story
of dread Scott, his wife Harriet, and their daughters Eliza

(00:23):
and Lizzie, who were at the heart of one of
the most notorious Supreme Court decisions of all time. Last time,
we talked about dread Scott and Harriet and how they
met and what their lives were like before petitioning for
their freedom and a St. Louis Court in eighteen forty six.
Today we are starting with what happened after the jury
found them to be free in eighteen fifty This will

(00:47):
probably make the most sense if you have listened to
part one. I mean, this's like, this is a narrative story.
We're gonna be building on several things that we talked
about in that episode. In eighteen forty five, the state
of Missouri was increasingly concerned about the impact of free
black people on the state and on the state's enslaved population,

(01:09):
so the state passed a law that year intended to
prevent freed people from burdening society, which also discouraged people
from emancipating their slaves. By law, if you emancipated someone,
you were often still responsible for supporting and maintaining that person.
This applied to enslaved people over the age of forty

(01:30):
five who were considered elderly, as well as men under
twenty one and girls under eighteen, along with anyone else
deemed not able to work. When Dread Scott and his
wife Harriet filed their petitions for freedom in eighteen forty six,
Dread was probably already over the age of forty five.
By January twelve of eighteen fifty, when a jury and

(01:51):
the St. Louis Circuit Court ruled that he was free,
he was about fifty and he also had tuberculosis, and
Eliza and Lizzie Scott were both under the age of eighteen.
This meant that of the Scott family, Harriet would be
the only person that Irene Emerson, who claimed to be
their owner, would not be legally obligated to support, so

(02:13):
from Emerson's point of view, she was not only losing
her valuable enslaved property and all of the profits from
their labor, but she was also incurring a huge financial
obligation in the form of the support and maintenance of Dread,
Eliza and Lizzie Scott. It seems as though Irene Emerson
could have had illegal out in this whole situation. Her

(02:34):
late husband, doctor John Emerson, had purchased Dread Scott in
about eighteen thirty three. It's not totally clear whether Harriet's owner,
Major Lawrence Tolliver, had transferred her ownership over to Dr
Emerson or whether he had freed her. But neither Dread
nor Harriet were mentioned in Dr Emerson's will, nor were
their children. But by hiring out their labor, Irene had

(02:58):
been acting as though she owned them, so she had
the responsibility to support them now, whether she liked it
or not. So when a jury found that the Scots
were free, Emerson went to the Missouri Supreme Court with
an appeal. The reasoning quote First, the verdict was contrary
to law. Second, the verdict was not supported by the evidence. Third,

(03:19):
the instructions asked for by the plaintiffs Council and given
by the Court were not according to the law and
the evidence. Fourth, the court aired in refusing the instructions
asked by the defendants counsel. Emerson's attorneys, Hugh Garland and
Lyman Norris, tried to make the argument that during those
twelve years that Scott had spent in free territory, the

(03:40):
late doctor Emerson had been under military jurisdiction, which meant
that dread Scott was too. So this wasn't a matter
for a civil court. It was a military issue. And
on top of that, according to these attorneys, Scott's presence
in free territory was a military necessity, not something that
Dr Emerson chose to do, so, in their argument, Emerson

(04:04):
should not be penalized for doing what he had to
do by losing his enslaved property. This was one of
the many aspects of this case in which Harriet had
a stronger case for freedom than her husband did. Major
Tolliver was no longer in the military when he was
working as the Indian agent at Fort Snelling. He was,

(04:24):
as you may recall from the first episode, still called Major,
but he was a civilian and this whole this was
under military jurisdiction and a matter of military necessity argument
did not really apply. The Missouri Supreme Court, which was
at this point stacked with pro slavery judges allowed Emerson's appeal,

(04:44):
and they also folded Harriet's case into Dreads. Previously they had,
but these have been two different cases that were being
heard at the same time. But now they would hear
Dread's case and whatever verdict they came to would also
apply to Harriet and then, by extension, their children. Attorneys
on both sides agreed to combining the cases, but a

(05:04):
motivating factor on Emerson's side was that if Dread Scott's
case was the only one being examined, they would have
no reason to include any testimony from Lawrence Tolliver or
to resolve questions about Harriet's status when she married Dread.
Tolliver was still living, and he certainly could have cleared
up this whole question about whether or not he had

(05:24):
considered Harriet to be free when he officiated at her wedding.
But by removing Harriet from this equation entirely, they did
not have to address that subject at all. That took
more than two years for Irene Emerson's appeal to be
heard by the Missouri Supreme Court, and in the NRM
she moved to Springfield, Massachusetts, and she married Dr Calvin

(05:45):
Clifford Chaffee. Chaffee was an outspoken abolitionist and a doctor,
and Irene Emerson apparently did not tell him about owning
the Scots when they got married. Seems to be like
a pattern with her husband's where they're not of this
same mindset as her. That would seem like a recipe
for not a great marriage, but what do I know.

(06:07):
On March twenty eight, fifty two, the Missouri Supreme Court
issued its decision. The court reversed the jury's earlier verdict,
declaring that Scott was still enslaved. This throughout the long
held standard of once free, always free in Missouri. It's
likely that the opportunity to overthrow that standard was one

(06:28):
of the reasons that the court agreed to hear the appeal.
The reasons for it were actually pretty flimsy. Yeah, you
don't get to have an appeal just because, like, there
has to be a reason for something in the in
the previous trial that needs to be addressed. And the
reasons that Emerson's attorneys built their appeal requests around were

(06:48):
not great, But the court did it anyway. So, with
the help of anti slavery lawyers, the Scott family once
again tried to appeal their case, this time by going
to the US Federal Circuit Court in St. Louis. But
according to the Circuit Court's decision, the state of Missouri
had already declared the Scots to be enslaved. This was
already settled by the state, so the federal court did

(07:11):
not have a reason to hear the case. But when
Irene Emerson left Missouri for Massachusetts, she had turned over
management of her late husband's estate to her brother, John F. A. Sandford.
His name is spelled s A N F O R D,
but it is recorded with an extra D in it
thanks to a clerical error in court documents. Sandford was

(07:32):
living in New York while the Scots were still in Missouri,
and this became the grounds for the Scott family's final
appeal to the U. S Supreme Court. Their lawyers argued
that the Scots were citizens of Missouri, but Sandford was
a citizen of New York and was enslaving them. This
made it a federal case rather than one for the
state of Missouri. We're going to talk about the Supreme

(07:54):
Court case after we first have a little sponsor break.
Before the dread Scott Families case made its way to
the Supreme Court. Congress was hoping for some judicial guidance
on the constitutional question of whether it had the right
to outlaw slavery. Although Congress had outlawed slavery in various

(08:19):
parts of you as territory under things like the Northwest
Ordinance and the Missouri Compromise, both major parties had been
reluctant to take any clear legislative direction on the matter
of slavery when it came to the states. Instead, it
had passed the Kansas Nebraska Act in eighteen fifty four,
which overturned the Missouri Compromise and allowed a territory as

(08:40):
settlers to decide whether to allow slavery when that territory
became a state. The question of whether Congress had the
right to outlaw slavery was both a genuine constitutional question
and a way of passing the buck. If the Supreme
Court decided that Congress did not have the authority to
outlawst slavery, then Congress wouldn't ever have to address it,

(09:01):
and a bunch of legislators would breathe a huge sigh
of relief. President elected James Buchanan also pressured the justices
to take an unified stance on this matter, one that
would take slavery off the table of political debate and
would show the public that the Court's opinion wasn't divided
along geographic or ideological lines. But the makeup of the

(09:22):
Supreme Court at this time made it really likely that
any unified decision they might release would be in favor
of slavery. Of the nine Supreme Court justices, five of
them had been appointed by pro slavery presidents. Several of
them were also from families that owned slaves. Dread Scott
versus Sandford was argued from February two through the eighteenth

(09:43):
of eighteen fifty six. Dread Scott was represented by Montgomery
Blair and George Ticknor Curtis and John F. A. Sandford
was represented by Henry S. Geyer. The arguments included all
the same points that we've already talked about, although based
on the Court summary, the Court was under the impression
that Lawrence Tolliver was in the military when he was

(10:04):
at Fort Snelling with Harriet Scott. If you remember from
part one, he was not. The Supreme Court issued its
decision on March sixth of eighteen fifty seven, and in
a seven to two ruling, the court ruled in favor
of John Sandford. Dred Scott and the rest of the
Scott family had lost their case for freedom, and they
had no other way to appeal it. In the Supreme

(10:25):
Court's opinion, dred Scott's case was outside its jurisdiction. This
wasn't an interstate dispute because dred Scott was not a
citizen of any state. Quote, a free Negro of the
African race whose ancestors were brought to this country and
sold as slaves is not a citizen within the meaning
of the Constitution of the United States. The opinion went

(10:48):
on to say, quote, and not being citizens within the
meaning of the Constitution, they are not entitled to sue
in that character in a court of the United States,
And the Circuit Court has no jurisdiction in such a suit. So,
not only did dread Scott not have the right to
sue for his freedom and federal court, but under the

(11:08):
terms of this ruling, no enslaved African and no descendant
of an enslaved African had any right to sue in
federal court about anything. Ever, because enslaved Africans and their
descendants were not citizens of the United States. I'm repressing
a growl. The court recognized that a state might make
an African a citizen of that state, but it also

(11:31):
argued that states had no power to grant U S citizenship.
This contradicts Article for of the Constitution, which reads, in
part quote, the citizens of each State shall be entitled
to all privileges and immunities of citizens in the several States.
Citizens of the several States had the right to sue
in federal court. The court's decision also reinforced the fact

(11:53):
that the U. S. Constitution condoned slavery, saying, in part quote,
the only two clauses in the Constitution which point to
this race treat them as persons whom it was morally
lawful to deal in as articles of property and to
hold as slaves. According to the Court, the original framers
of the Constitution had seen Africans as inferior and had

(12:15):
not intended to give them any citizenship rights, so the
Constitution did not apply to Africans apart from the portions
that allowed for slavery. And continuing this argument, if Africans
were allowed to become citizens, that would place an undue
burden on society by forcing society to grant Africans all
the other constitutional rights that white people had. The court's

(12:38):
decision also spelled out that it did not matter that
people's attitudes about Africans had changed since the Constitution was written. Quote,
the change in public opinion and feeling in relation to
the African race which has taken place since the adoption
of the Constitution cannot change its construction and meaning. And
it must be construct and administered now all and according

(13:00):
to its true meaning and intention when it was formed
and adopted. This is not a term that was coined
yet when this was written. But today we call this
way of interpreting the Constitution originalism. But the court went
on to explain that just because dread Scott's case wasn't
within its jurisdiction, that didn't mean it wouldn't go on

(13:21):
to examine all the other aspects of the case. The
result was an incredibly far reaching decision that was definitely
not just about whether dread Scott was free, and the
process of this examining all the various aspects of the
case that it did not have the decision to say
anything about. The court ruled that the federal government did
not have the right to outlaw slavery in its territories

(13:43):
because slave states had as much right to make use
of the territories as free states did. Slaves were also
considered to be property, and under the Fifth Amendment, the
federal government could not deprive people of property. Following this
line of argument, even though them as a recompromise had
already been repealed by the Kansas Nebraska Act in eighteen

(14:04):
fifty four, it was also declared unconstitutional under the dread
Scott decision. The court also ruled that this whole once free,
always free precedent in Missouri law was unconstitutional because it
denied slave owners their right to do process. Chief Justice
Robert B. Taney authored the court's majority opinion, and the

(14:24):
six justices who agreed with him also wrote their own
supporting or separate opinions. These justices were James Moore, Wayne
John Catron, Peter Vivian Daniel, Samuel Nelson, Robert Cooper Greer,
and John Archibald Campbell. Although they had all voted with Teney,
some of them followed very different lines of thought about

(14:44):
how they arrived at their decisions. There are a lot
of contradictions among all of these opinions. Justices Benjamin Robbins
Curtis and John McLean were the only two who voted
in favor of Scott. Both wrote their own dissenting opinions,
which are both very long. Yes, they are incredibly long. Curtis,

(15:06):
who was the brother of one of the Scots attorneys,
went on at length about the citizenship question. He examined
how citizenship is determined from a lot of different angles,
going all the way back to the Articles of Confederation
and the original constitutions of several of the states that
had been part of the thirteen Original Colonies. He wrote, quote,
at the time of the ratification of the Articles of Confederation,

(15:28):
all free native born inhabitants of the states of New Hampshire, Massachusetts,
New York, New Jersey, and North Carolina, though descended from
African slaves, were not only citizens of those states, but
such of them as had the other necessary qualifications, possessed
the franchise of electors on equal terms with other citizens.

(15:48):
Curtis also wrote that while they were living in Wisconsin Territory,
the Scots quote were absolutely free persons, having full capacity
to enter into the civil contract of marriage, and disagreed
completely that the Missouri Compromise was unconstitutional. For McLean's part,
he tore into the idea that non citizens did not
have the right to sue in federal court, saying, quote,

(16:10):
it has never been held necessary to constitute a citizen
within the Act that he should have the qualifications of
an elector. Females and miners may sue in the federal courts,
and so may any individual who has a permanent donosile
in the state under whose laws his rights are protected
and to which he owes allegiance. He also tossed out
the idea that Scott would have needed to go through

(16:31):
some kind of naturalization process to become a citizen, as
he had been born in the United States. He flatly
dismissed the idea that the Missouri Compromise was unconstitutional as well,
citing previous decisions that gave the United States jurisdiction to
govern territories that did not yet have the ability to
self govern by having become states. McLean's descent also brought

(16:55):
up the Somerset case, which we talked about when we
discussed Dido Elizabeth Bell. The Somerset case involved an enslaved
man who was brought to England, which rendered him free,
but was then captured and put on a ship to
be returned into slavery. Although the Somerset case didn't end
slavery in Britain, it was often interpreted as though it did. Altogether,

(17:16):
there were two hundred forty pages of opinions issued in
the dread Scott decision, and its impact on the nation
was enormous. And we're going to get into that after
we pause for a sponsor break. The decision in dread
Scott versus Sandford was praised in pro slavery circles and

(17:40):
announced by abolitionists. Charles Sumner, who had been caned on
the Senate floor on May eighteen fifty six and retaliation
for an anti slavery speech, said quote, I declare that
the opinion of the Chief Justice in the case of
dread Scott was more thoroughly abominable than anything of the
kind in the history of courts. Judicial baseness reached its

(18:02):
lowest point on that occasion. This appeared in the New
York Daily News on March tenth, eighteen fifty seven. Quote.
The Court has rushed into politics voluntarily and without other
purpose than to subserve the cause of slavery. They were
not called, in the discharge of their duties to say
a word about the subject. They consented, with unseemly haste,

(18:25):
to dabble in the dirty waters of political corruption. On
the other hand, newspapers in the South were overjoyed. The
Richmond Inquirers celebrated with quote, A prize for which the
athletes of the nation have often wrestled in the halls
of Congress has been awarded at last by the proper
umpire to those who have justly won it. The nation

(18:46):
has achieved a triumph. Sectionalism has been rebuked, and abolitionism
has been staggered and stunned. Congress and the President, who
was inaugurated just days before this decision was released, had
hoped that some judicial clarity on the subject of slavery
would help hold the country together. Instead, it did the opposite.

(19:08):
Abolitionists worried that the decision would lead to the rampant
spread of slavery into what had been free territory. Free
black residents of the United States became terrified about whether
they would be captured and sold back into slavery, similar
to what happened after the passage of the Fugitive Slave Acts.
The fact that the Court issued such a broad and

(19:29):
divisive decision, which took on so many issues outside of
the question of dred Scott's freedom, also undermined confidence in
the Court's abilities and its purpose. All this together reinvigorated
the Republican Party, which had been founded by anti slavery
whigs in eighteen fifty four, and the decision became a
huge part of the Lincoln Douglas debates when Stephen A.

(19:52):
Douglas and Abraham Lincoln were running for one of Illinois
seats in the U. S. Senate. Lincoln lost this election,
but these bates helped make him a national name and
positioned him for a presidential run in eighteen sixty. As
we've talked about on the show before, several states threatened
to seed from the Union if Republican won that election,

(20:13):
and when Lincoln was elected, they made good on that threat,
which started the nation towards the Civil War. The dread
Scott decision wasn't overturned until after the war was over,
with the passage of the thirteenth and fourteenth Amendments to
the Constitution. The thirteenth outlawed slavery and involuntary servitude accept
in punishment for a crime, and the fourteenth outlined rights

(20:36):
of citizenship, including who had the right to be a
citizen and what that right entailed. To return to the
Scott family. As we said earlier, Irene Emerson's husband, Calvin Chaffee,
was against slavery, and Irene had not told him that
she owned slaves at all before they married. When he
finally learned that his wife not only owned slaves, but

(20:59):
specific the owned dread Scott, which he apparently learned about
from a newspaper, he was mortified. He had also been
elected to the House of Representatives and had taken office
on March fourth of eighteen fifty five, so people, of
course pointed this out as a massive hypocrisy. This is
one of those big like question marks in my head

(21:20):
of like really no idea, but I understand how these
things happen. There's some like conjecture that he really did
know and that he sort of tried to manipulate behind
the scenes to to get this move through the courts,
but like that's completely speculation. It's fascinating. Once the Supreme

(21:41):
Court issued its decision, Calvin insisted that Irene make provisions
to free the Scots. He arranged for the Scots to
be sold to a member of the Blow family, who
would then free them, and Irene did ultimately agree to this,
but only if she could collect all of the back
pay that the Scots had earned while in the custody
of the St. Louis County Sheriff. That amounted to roughly

(22:04):
seven hundred and fifty dollars. The Scots were formally liberated
in a St. Louis court on May seven. That is
the part of the outline where my original note taking
became all capital letters of she would only agree to
free them if she got all their back pay? Are
you kidding me? This terrible perth Like all capital lots

(22:28):
of exclamation points. It took me a while to then
make that be intelligible sentences. Once they were free, Dred
Scott worked as a porter at Barnum's Hotel in St.
Louis and Harriet Tick in laundry. But Dredd died of
tuberculosis after less than eighteen months of freedom on September
seventeenth of eighteen fifty eight. Taylor Blow arranged for his

(22:50):
burial at Wesleyan Cemetery, and then when that cemetery was abandoned,
had his remains exhumed and reburied at Calvary Cemetery. Harriet
Scott lived to see the end of the Civil War
and the abolition of slavery. She died on June seventeenth,
eighteen seventy six, and she was buried at Greenwood Cemetery
in St. Louis. Although a headstone was placed in the

(23:11):
cemetery to commemorate her in recent years, her exact resting
place is not known. Today, there is a statue of
Dread and Harriet Scott outside the courthouse where their case
was tried. Today, Dread Scott has become kind of a
political shorthand for any court decision that someone thinks is
egregiously bad for whatever reason, It's been brought up as

(23:33):
a comparison for everything from Oberfeld versus Hodges, in which
the court ruled that same sex couples have the right
to marry two citizens United versus Fec, which ruled that
corporations have a right to free speech in the form
of political donations. Anti abortion groups and legislators also frequently
compared dread Scott to Row versus Wade. Just as one example,

(23:55):
Senator or in Hatch characterized the two cases as indistinguishable
during Ruth Bader Ginsburg's confirmation hearings to be a Supreme
Court justice. In Senator Carol Moseley Braun, at the time,
the only black senator, objected to that comparison at the
time as personally offensive dread Scott versus Sanford. I wish

(24:18):
more people remembered that it was also dread Scott's family,
because I know that when I UH first study this
case in American history class, it was definitely framed as
dread Scott was enslaved and he sued for his freedom,
and there was no mention of the fact that there
was an entire family involved in the whole situation. Yeah. Same.
It was definitely the very simplified and paired down version

(24:40):
of the story that I got. I have some listener
mail to close us out. It's from Karen and it
is about Operation Babylift, and Karen says, I've just listened
to the latest six Impossible Episodes podcast about evacuating children.
I was a young adult when Operation Babylift occurred at
the end of the Vietnam War, and remember hearing about
the crash news You never mentioned the type of aircraft

(25:02):
that crashed, or that it was the military cargo plane.
It was a C five, a Galaxy manufactured by Lockheed
and the largest cargo aircraft in the world. The cargo
area is large enough to load the biggest cargo that
the military has, and the passenger area sits at the
top of the plane. I believe it has around seventy
permanently installed passenger seats. I'm a retired Air Force load master.

(25:25):
I was assigned to THEE B, also made by Lockheed,
and the C seventeen A. I have flown as deadhead
crew on the C five a few times. What didn't
come across very well in the podcast was that the
cargo area of the C five and all military cargo
aircraft is large and can be configured for use by passengers.
In addition their procedures and the manuals for emergency evacuation

(25:47):
that direct the load masters to seat evacuees on the
floor and secure cargo tie down straps across them and
keep them in place. Tied on straps are long nylon
straps with a ratchet device to tighten it, a little
wider and thicker than the car seatbelt that we use
every day, there were likely no seat palettes available, so
the crew used the evacuation procedures to secure the passengers.

(26:07):
They were headed to Clark Air Base in the Philippines,
so it would have only been a two and a
half hour to three hour flight to set on the
floor like that. I just thought I'd do that out there.
You may have made a conscious decision to leave out
the details of the type of aircraft and that the
crew was military. I agree that the operation was politically
motivated from the very top level of the government, and
given the disaster that the war had become by that time,
it can also be called a poorly thought out publicity scent.

(26:30):
But the air crew and the medical crew were following orders.
We take an oath to obey the lawful orders of
the officers appointed above us. Thanks for letting me vent
a little. In twenty two years as an aircraft crew member,
I felt gutted by every crash and still do and
have lost friends and some of them. This particular crash
is part of the history of the relatively small Cargo
Holler community, and although it happened before my time in

(26:51):
the Air Force, that is so keenly felt by those
of us who haven't benefited from the lessons learned Karen.
Thank you Karen for sending this note. UM. I had
thought it it was clear in the episode that that
was a military aircraft and a military mission. UM. I
didn't include the specific type of the plane because I
feel like for the majority of our listeners that is

(27:12):
not going to help paint the picture at all, Like,
I don't think most people know what specific uh military
cargo planes look like. Um. And to clarify something that's
in here in in regards to evacuating children and adults,
people would have been sitting on the floor and and
secured down with cargo straps. But in this case, these

(27:35):
were babies. Like they were babies that were laying on
the floor in groups. UM. So it wasn't quite as
as simple as um, okay, this thing is sort of
like a seat belt and we have a few hours
of trip on the floor. It was like, here are
groups of babies that are being secured with cargo netting.
Uh So, anyway, thank you for that clarification, Karen. If

(27:56):
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have worked on together, rather including and this one links

(28:18):
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