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Black Pawn On A Field Of Peril
DRED SCOTT v. SANFORD
December 1963 | Volume 15, Issue 1
Bear in mind, again, that what happened to Scott in all of this was of no especial importance to anybody except Scott himself. What everybody wanted was a final ruling from the highest court in the land—a finding which (it was innocently hoped) would settle once and for all the disturbing question of slavery in the territories.
Three issues were involved. Was Scott actually a citizen of Missouri and so entitled to sue in a federal court? Did his residence on free soil give him a title to freedom which Missouri was bound to respect? Finally, was the Missouri Compromise itself, which had made Wisconsin Territory free soil, constitutional? (That is, did Congress actually have the power to prohibit slavery in a territory?) A final ruling on all of these points might have much to do with the question of slavery in Kansas.
So the Supreme Court had been given a very hot potato to handle, and the rising tumult in Kansas made it all the hotter. So did the presidential election of 1856, in which the new Republican party—a sectional northern party, dedicated chiefly to the theory that slavery must not be allowed to expand—showed enormous growth and came respectably close to elec ting John C. Frémont President of the United States. The whole argument over slavery, which was fast becoming too explosive for American political machinery to handle, had come to center on this question of slavery in the territories, and the Dred Scott case brought the question into sharp relief.
The Supreme Court could have avoided most of the thorns in this case simply by declaring that it lacked jurisdiction. A somewhat similar case had been handled so in 1850, and in the beginning most of the justices seem to have been disposed to lollow that precedent. Justice Samuel Nelson prepared such an opinion: Missouri law controlled Scott’s status, Missouri law said that he was still a slave, and as a slave he could not sue in the federal courts. Yet the pressures were too great for such an easy solution. The justices at last concluded to handle all of the issues. A brief glance at the make-up of the Court is in order.
Of the nine justices, five came from slave states: Chief Justice Roger B. Taney of Maryland, and Justices fames M. YVayne of Georgia, John Catron of Tennessee, Peter V. Daniel of Virginia, and John A. Campbell of Alabama. Seven of the nine were Democrats—these five plus two northerners, Justices Samuel Nelson of New York and Robert C. Grier of Pennsylvania. Justice John McLean of Ohio was a Republican, and Justice Benjamin R. Curtis of Massachusetts was a Whig. All nine were men of integrity and repute, but everything considered, it might be hard for them to be completely objective about the issues that were presented to them.
It might be hard; and indeed it proved quite impossible for these men to limit themselves to the basic question about Scott’s actual status. They had to say something, not just about one slave, but about all slaves.
To begin with, it soon became apparent that Justices McLean and Curtis were prepared to write dissenting opinions setting forth their views about the Missouri Compromise and the power of Congress to legislate about slavery in the territories. (They held that Scott had properly been made free by his sojourn on free soil, and that Congress had a constitutional right to outlaw slavery in the territories.) If these two dissenters were going to air their views on this latter point, those who disagreed with them would obviously do the same. In addition, many of the justices honestly believed that it was necessary to hand down a broad, definitive ruling that would stand as a landmark, settling the territorial problem once and for all. Finally, Mr. James Buchanan exerted a little pressure of his own.
James Buchanan was elected President in the fall of 1856, and during the following winter—after the arguments had been heard, but before the Court had handed down its opinion—he was composing the address which he would deliver when he took the oath ol office on March 4. He was bound to say something about popular sovereignty, and the issue was a tough one for a brand-new President to discuss, especially a President who owed his nomination and election largely to the fact that he had never been directly involved in the furious arguments over the territorial question. It occurred to him that it would be excellent if, in his inaugural, he could say that the question of Congress’ constitutional power to legislate on slavery in the territories would very shortly be decided by the Supreme Court and that all good citizens might well stop agitating the issue and prepare to abide by the Court’s ruling.
In February the President-elect wrote a letter to Justice Catron, setting forth his desire to say that the Supreme Court would presently settle this question. A bit later he wrote to Justice Grier in the same vein. Mr. Buchanan, clearly, was skirting the edge of outright impropriety; he was not exactly telling the justices what he wanted the Court to say, but he was making it clear that he wanted the Court to say something , and Justice Catron finally assured him that the Court would handle the matter anil that Buchanan could safely say that the country ought to wait for its decision.