Dred Scott question

Paul Finkelman Paul-Finkelman at UTULSA.EDU
Wed Jan 10 00:08:12 PST 2001

Scott sued in St. Louis Circuit court, a trial court, lost on a technicality,
was given a right to a new trial by the State Supreme Court, and then won his
case.  A jury declared him free.

Mrs. Emerson then appealed to the Mo. Sup. Ct. which reversed, in _Scott v.
Emerson_ (1852) with the famous line of Justice Scott (no relation to the
plaintiff), declaring "times are not now as  they were when the former
decisions on this subject were made.  Since then not only individuals but
States have been possessed of a dark and fell spirit in relation to

The federal issue is this, as I understand it. Scott had two claims to
freedom, one based on residence in Illinois.  Under Strader v. Graham (1850)
the US Supreme Court held that a slave state did not have to recognize freedom
gained by living in a free state.  Thus, on the question of Ill. residence
Missouri was entitled to reject its own precedents and declare Scott to still
be a slave.   The theory here, I suppose, is that common the law of one state
(absent a judicial decree) have no power in another except by comity and that
Missouri was not obligated to respect Illinois common or even statutory law.
[Had Scott won his freedom in an Illinois court and then returned to Missouri
and been reenslaved in Missouri presumably Full Faith and Credit would have
barred Missouri from denying his free status).

The Second issue was the Missouri Compromise.  Today this would be a simple
issue of a "federal question."  *If* the Missouri Compromise freed all slaves
brought into what became Minnesota and Iowa, then did the Missouri Supreme
Court was in error in interpreting the  federal law because Scott was free
under federal law.  The Missouri Court had the right to declare a federal law
unconstitutional, but of course the Supreme Court had the right to reverse
that.  In fact, this is what happened a year later, in _Ableman v. Booth_ when
the Wisconsin Supreme Court declared the Fug. Slave Law of 1850
unconstitutional and the US Supreme Court reversed.  Thus, it would seem that
the Taney court _had_ to decide the Missouri compromise question _if_ the
Supreme Court had jurisdiction.

As I understand things (and here I hope someone who knows federal question
doctrine better than I will respond), there was no general federal question
jurisdiction at this time, and so Scott had to bring his case in diversity.
This allowed Taney to rule that he had no standing, and that should have ended
the case without getting to the Missouri Compromise issue.  Another test case,
perhaps one between two whites over the sale of a slave, would have eventually
brought the Mo. Comp. question back to the Court.  Taney decided to end the
issue all at once, miscalculated, and the whole thing blew up in his face.

Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu

Stephen Siegel wrote:

> Please correct me if I'm wrong, but I have the following
> recollection which I'm not able to immediately check out.  I seem to
> recall that Dred Scott first sued for his freedom in the Missouri state
> courts.  Under the precedent that Paul mentioned, he should have expected
> to win because he had been in free territory and, therefore, was
> freed.  However, perhaps reflecting the increasing tensions of the time,
> when Dred Scott reached the state Supreme Court, the state Supreme Court,
> in a reversal of the prior precedent, held that if a slave had traveled to
> a free state he or she was free should that (now former) slave return to
> Missouri (a slave state) he or she would be re-enslaved.  If this is true,
> then in the federal Dred Scott case, wouldn't the question of whether Dred
> Scott had been freed be irrelevant unless there was some federal
> constitutional problem with his re-enslavement?
> Taney, of course, never had to reach any issue dealing with Dred Scott's
> re-enslavement because he held that even if Dred Scott were free, free
> blacks were not citizens and, therefore, Dred Scott could not sue in
> federal court under diversity of citizenship.
> I dimly recall that this was the posture of the case, but certainly stand
> ready to be corrected.
> Stephen Siegel
> DePaul University College of Law

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