The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law

twelve Lessons for Judges from Scott v. Emerson

฀193 t w e lv e p Lessons for Judges from Scott v. Emerson Duane Benton THE U.S. Supreme Court’s Dred Scott decision1 has been examined extensively , from 1857 until today.2 The predecessor decision of the Missouri Supreme Court in Scott v. Emerson3 has not been analyzed as comprehensively, although Chief Justice Roger B. Taney concluded the Court’s opinion by invoking the state decision.4 The Missouri opinion is crucial; a different result by the state court would have foreclosed review by the highest court. This essay analyzes Scott v. Emerson, emphasizing its lessons for judges. The Missouri Opinion Dred and Harriet Scott sued Irene Emerson for their freedom in state court. Because the Scotts did not prove that Emerson owned them, the jury ruled for her. As this could be rectified, the trial judge ordered a new trial.5 The new jury ruled for the Scotts. The Missouri Supreme Court reversed, declaring the Scotts were still slaves despite living in free territory. The court—Judge William Scott 194 p Duane Benton writing, John F. Ryland concurring—reasoned that Missouri was not obligated to recognize other states’ laws or federal territorial laws. The States of this Union, although associated for some purposes of government, yet, in relation to their municipal concerns have always been regarded as foreign to each other. . . . So of the laws of the United States, enacted for the mere purpose of governing a territory. These laws have no force in the States of the Union, they are local, and relate to the municipal affairs of the territory. Their effect is confined within its limits, and beyond those limits they have no more effect, in any State, than the municipal laws of one State would have in any other State.6 Scott posited, “No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws.” After quoting Justice Joseph Story’s treatise on conflicts of law, Scott continued, “It is a humiliating spectacle, to see the courts of a State confiscating the property of her own citizens by the command of a foreign law . . . the constitution of the State of Illinois, or the territorial laws of the United States . . . commonly called the Missouri Compromise.”7 And it was unjust to free a slave, Scott wrote, when the owner “very naturally supposed he had a right” to take the slave on free land without freeing him. “To construe this into an assent to his slave’s freedom would be doing violence to his acts.”8 According to the court, in “states and kingdoms in which slavery is the least countenanced,” a slave cannot sue for permanent freedom, as slavery reattaches upon return to slave territory.9 The opinion closed with appeals to the changing times and God’s will.10 Judge Hamilton R. Gamble dissented, relying on previous Missouri decisions and counseling calm detachment.11 He concluded: Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my judgment, there can be no safe basis for judicial decisions, but in those principles, which are immutable. It may be observed, that the principle is either expressly declared or tacitly admitted in all these cases, that where a right to freedom has been acquired, under the law of another State or community, it may be enforced by action, in the courts of Lessons for Judges from Scott v. Emerson p฀195 a slaveholding State; for, in every one of these cases, the party claiming freedom had not procured any adjudication upon his right in the country where it accrued.12 Lessons for Judges While there are various styles of appellate judging, a consensus on fundamentals has existed since the nation’s founding. The Missouri Supreme Court in Scott v. Emerson violated many basic principles of appellate review. “The conventional theory is that an opinion should determine points raised by the parties and that it is wrong to inject new issues or apply legal principles neither urged nor mentioned by counsel.”13 This was the rule in the nineteenth century, as Taney stated: “This court must affirm or reverse upon the case as it appears in the record. We cannot look out of it, for testimony to influence the judgment of this court sitting as an appellate tribunal. And, according to the practice of the court of chancery...