Dred Scott question

Thu Jun 23 15:05:32 PDT 2005

Another possible reason for suing in federal court would be to obtain a
federal forum on the choice of law question that was at the heart of
Dred Scott's lawsuit - that is whether Missouri (slave state) law  or
Illinois law , the or law in effect in the Missouri territory,  or maybe
even federal common law (pre-Erie) governed his status as slave or free.
This way free blacks who had been removed to slave jurisdictions would
have a more neutral federal forum to adjudicate their status.  This was
a matter of particular concern because the common law  (which had been
fairly stable in the past) regarding when slaves (non-fugitive) were
emancipated by residence in a free state was in a great state of flux  -
a victim of the increasingly polarized slave state/free state battles. 

Traditionally, there was a basic rule that although temporary sojourns
did not change slave status, significant residence in a free state would
be a shift in domicile which would liberate a slave.  However, as the
slavery battle progressed, some free states (NY? for example) ultimately
claimed, that a slave's mere momentary territorial presence in a free
state, even during a transit layover, would liberate a slave. In
retaliation (or perhaps in instigation - chicken or egg), many slave
states refused to recognize the free status even of  persons who were
long term residents of free states.  A more neutral federal forum would
likely have been helpful here, both for choice of law and for fact
finding.

Also Dred Scott's suit was not brought by Southern sympathizers - my
understanding is that the suit was heavily supported, if not brought by,
abolitionists.

yb
***/////////////////////////////////////////***

Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct. 
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)

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-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Freedman
Sent: Thursday, June 23, 2005 9:23 AM
To: emaltz at camden.rutgers.edu; conlawprof at lists.ucla.edu
Subject: Re: Dred Scott question

I would think they would be seeking a ruling that a state can define a
citizen of its own state any way it likes, but the question of what
constitutes a citizen of a state for federal
diversity purposes is a federal question.  So if Missouri sold state
citizenships by 
mail order to raise money, that would be fine for all Missouri purposes,
but, as a
matter of federal law, would not make a resident of NJ who received such
a 
certificate a citizen of Missouri for diverity purposes.  Thus the
Missouri ruling that Dred Scot was a slave as a matter of state law (and
therefore could not maintain a suit under Missouri law) would both have
been irrelevant.  The federal court could have independently decided
that the residence in Minnesota removed from him any disability to sue
in federal court that might have existed, either on a construction of
the language of the Compromise or on the constitutional point.  This
would presumably be a much more politically attractive way in which to
succeed on the merits, since it would have explicitly paved the way
towards a federalist solution to the overall slavery problem.
 -  Best. -E.

             ***********
      Eric M. Freedman
Maurice A. Deane Distinguished Professor
 of Constitutional Law
      Hofstra Law School
      Hempstead, NY  11550
      LAWEMF at Hofstra.edu
      Tel. 516-463-5167
      Fax 516-463-5129
  Home Office:
   Tel. 212-665-2713
    Fax 212-665-2714
            ***********

>>> Earl Maltz <emaltz at camden.rutgers.edu> 06/23/05 9:28 AM >>>
A question for Dred Scott afficianados (probably spelled wrong)

I'm trying to figure out what Dred Scott's lawyers thought that they
could 
gain by filling their diversity action after losing in the Missouri
Supreme 
Court

If his lawyer had been a Southern sympathizer, the case could in theory 
have seen as vehicle for obtaining a declaration that the Missouri 
Compromise was unconstitutional.  But that could been done by appealing 
directly from the Missouri decision.  (Although Taney later claimed that

Strader v. Graham would have been a jurisdictional bar to the appeal, it
is 
more accurate to say that his dictum about the extraterritorial effect
of 
the Northwest Ordinance might be characterized as dispositive on the 
merits).  Moreover, as Fehrenbacher points out, Scott's lawyer was a
native 
of Vermont--an unlikely candidate for pursuing such a radical proslavery

agenda).

The only thing that I can think of is that the attorney saw the
diversity 
action as a means of launching a collateral attack on the Missouri
holding 
that Scott remained a slave under the common law of Missouri--either 
through the use of the doctrine of Swift v. Tyson (which probably
doesn't 
work in this case) or, as Curtis and McLean later concluded in dissent, 
that the conclusion of the Missouri Supreme Court was wrong as a matter
of 
Missouri law.  These arguments would not have been available on a direct

appeal, which would have been based on federal question jurisdicition.

Anyone else got any ideas?

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