Transcripts For CSPAN3 Dred Scott And The Supreme Court 20141227

Cspan. Org history. And we would like to tell you about some of our other American History tv programs. Be with us every saturday 8 00 p. M. And 12 00 a. M. With lectures in history. Hear lectures on topics ranging from the American Revolution to the 9 11 terrorist attacks. Thats lectures in history, every saturday at 8 00 p. M. And 12 00 a. M. Eastern here on American History tv on cspan3. Up next on American History tv, history professor Lea Vandervelde talking about the Supreme Court case of 1857. Dread scott was a slave attempted to sue his owner for his familys freedom after they were moved to a free state by their former master. The court ruled that slave or free blacks could not sue in federal court because they could not be u. S. Citizens. Professor is vandervelde talks about the repercussions of the decision and why its location in missouri was important. Here is the introduction. The Supreme Court Historical Society hosted this hourlong event. Good evening. I am glad to be here with you for the first lecture in;6 aju Supreme Court Historical Societys series. The Supreme Court and the civil war revisited. The timing is just right. For this year marks the 150th anniversary of the war between the states. A bit about the society which i joined many years before i got this good job. And i remain among the le johns of supports of the societys many endeavors, some of them dorothy mentioned. The society has been a key player in improving public understanding of the court and its role in the constitutional framework of our government. Regular attendees of these th have been. And i appreciate something too dorny mentioned the societys Training Program for high school teachers. And the books produced by the society are works well conceived andd÷ 1n good to read. Among my favorites, court watches eyewitness accounts in Supreme Court history. It is a collection of welltold an tech dotes of people and events in the life of the court. Also, the second edition of Supreme Court decisions and womens rights, milestones to equality, the book r÷designed f secondary school and college age readers. In 2012, the society updated the Supreme Court justices illustrated biographies so that now that volume includes four the last i cannot resist again speaking of chef supreme. Its a collection of my late husbands recipes created with from all of the current Supreme Court spouses. Tonights lecture, the dred scott family and the civil war could not be presented by a better informed lecturer, author of mrs. Dred scott, a life on slaverys frontier, published in 2009 by Oxford University press. Lea vandervelde holds the chair at the university of iowa college of law. She served on that faculty since 1985 and has published articles. She regularly lectures in the United States and abroad on topics drawn from her teaching specialties, employment law, rlaw, legal history and she has served as visiting professor or scholar, scholar and residence at the law facu y faculties of law, university of pennsylvania, nyu and university of vienna. Her Current Research centers on the law of the frontier, 1800 to 1857. And she uses in her work the most modern electronic tools. Her next book titled redemption songs suing for freedom is based on a discovery in which she participated in, the discovery of nearly 300 freedom suits brought by slaves in the st. Vandervelde was, as dorothy just announced, the awardee of the prestigious fellowship 2011. 2011 and 2012, she was a visiting scholar at the American Bar Foundation and during that time she convened a meeting of experts on the american law institutes proposed restatement of employment law. Her works in progress include the master narrative of 19th century american law, the significance of slavery and its abolition for the law of employment. Professor vandervelde is a graduate of the university of Wisconsin Law school where she had a near perfect academic record and before beginning her law teaching career she served as senior law clerk to Southern District of iowa u. S. District judge harold d. Vitor. I invite you now to join me in welcoming e ining professor van and asking her to tell us about dred scotts family. [ applause ]. Im going to adjust this a little. Fcg6 im honored to be here in this eminent place. I want to thank justice againstberg not only for her remarks but for the inspiration that shes been to me for my life. I was telling her that she was one of only two women lawyers who i even knew the name of when i went to law school. I want to thank mrs. Goldman for her devotion and commitment to preserving Historical Documents of the court and the constitution. I thank the Supreme Court Historical Society for the invitation and, of course, Jennifer Lowe for her thoughtful assistance in organizing this event this evening. My topic today is dred scott in context. Today the dred scott case is universally condemned. In preparation for this talk, i viewed some of my predecessors at this lecturn and i noted how very often it came up in history and lectures about the courts history. Justice sandra day oconner described it as thatmrnxn terri case and other justices in this series spoken about it similarly. Dred scott is the case that symbolizes injustice. It is the most discredited case decided by this court and one of the cases most widely invoked in making comparisons about failures of justice. Scholars count the ways that the decision went wrong. As you will recall, the case contained three rulings, blocking dreds scott claim to be a free man. There was a pair of rulings about the congressional power to prohibit slavery in the territories and third very cto8 holding that as a black person dred skolt was precluded from utilizing the federal courts to assert his freedom regardless of the validity of his claim under diversity jurisdiction to be heard in federal court he had to be the citizen of some state. Or perhaps some foreign jurisdiction, such that the diversity ofnbn citizenship exd between the parties thus justifying federal jurisdiction. In the 72 decision, the court decided that as a black man, d dread scott was not a citizen of missouri indeed of any state. Recall that the decision0ale stressed dread scotts african ancestry, paraphernalia thetically, had his african ancestry given him citizenship in some foreign state, he would have satisfied diversity jurisdiction as well. But the court ruled that dred scott was a man without citizenship anywhere. The scotts based their case on a fairly common rule at the time, freedom by residence. This rule maintained that if the slaves lived for a time on free soil where the bonds of slavery were band, that residence freed the slave and changed the persons status unat bli, such that if the slave entered a jurisdiction again where slavery was legal, the irreparably broken bonds would not reattach. Once free, forever free. Freedom by residence was widespread in its acceptance, particularly in the Missouri Courts for three decades until the missouri Supreme Court reversed itself in dreds very case. In 1852 the missouri Supreme Court declared that no longer would it follow the rule of freedom by residence and the scotts had only one option, to file suit in federal court in st. Louis. On appeal with the United States Supreme Court issued these three rulings that blocked dred scott on every possible basis. Even if he had had had some valid claim to freedom, he had no standing to get into federal court to make such an argument. And although he had lived in two places purportedly free by congressional designation, neither designation was constitutional. Congress had no power to outlaw slavery in the territories. Now, one might think that this is a case of antecare yan interest, but then we would lose the lessons that this case offers us and perhaps be unaware of the consequences of the events that remain with us today. The 13th amendment would be 150 and the dred scott case was a catalyst in that constitutional ref formation. The scott decision not only catapulted lincolns rise to prominence in his house divided speech but also served as spring board for the reconstruction amendments. The 13th and 14th amendments were legally necessary not only to validate the emancipation proclamation but also repudiate the arm that had been reaped by the dred scott decision and fix the flaws that our constitution had revealed in the by process of the decision. Now, my wish today is to set the case in context in order to more clearly understand some of its lessons. Given the limitations of time, i will not address how the case led to the civil war except to note that it not only further po larized the sides, the decision implied that any future congressional moves towards emancipation would be futile. Because the court had signaled that congress had no such power under the constitution, even in given this topic, i will not address the many divisions among the members of the court, although there were very many. Given this topic, i will not adjust address chief justice views on slavery, except to note that he was not completely unfamiliar with freedom suits. Marylanders will know that his law partner was Francis Scott key andg several freedom suits. Each of us here tonight has some imagine of the contest in the dread scott case that it involves a slave suing its master who loss. Yet even for very close readers of the 241page opinion, the dispute are unclear. That is slave would lose does not seem surprising. That a slave would sue at all does. After all, what could slaves do any way . They had no agency. They were born, died, had children and worked for others game but far more often they were persons who were acted upon. They were bought, sold, transported, sent, bekeithed and inherited. They did not buy, sell, contract, send or inherit themselves and most importantly, slaves did not sue. Slafs inhabit their masters agendas during enslavement. The subject and subjective quality of their lives was overtaken as objects. As objects that belonged to someone else with the subject of life. As slaves, they were often unnoticed and usually described in the passive voice as having the characteristics of octobers but in this case and an enslaved man filed a lawsuit. One cannot overstate how rare this is in this species of cases particularly in this court. This court decided other slavery cases but those cases took place between free persons suing over dred scott is the only case to reach this high court that pits a slave directly against his master. The case that comes closest is yet that case it concerns a shift in its cargo and the issue of freedom was derivative. A slave sues his master. Ironically paying close attention to the stipulated facts does not bring the image into focus, it renders the image less clear that a missouri slave would sue a new york master for freedom is baffling to say the least. Even more perplexing is the question of how the case ever happened at all, among the famous and1bu famously that tor youly cases the circumstances of dred scott are the least understood. The facts are stipulated on appeal. Reading them leaves the unsettling sense that there was something missing. Several justices in the opinions written by each of them repeat the fact statement verbatim. In texts of their several opinions and this choice to repeat the stipulated facts verbatim in the texts signaled that perhaps the justices themselves found the facts somewhat incongress because they did not para phrase the salient features, they simply repeated the whole. By the time that this case reached the United States Supreme Court, it had been screened and studio worked by the advocates to the point that the facts had become cartoon representations of the realities of the dispute. The surrounding circumstances were bleached out. The actual parties motives were so blunted by the trial and appeals so as to prevent such starkly highlighted competing claims. This happens to a certain extent in every appeal. The point that i am makingdiffe effect that each viewers reads facts and circumstances from experience. A more singular claim can be made about this case. That is the stipulated fact is so opaque and seems so incongruous to make any sense from any perspective. If the justices could not condense or isolate the salient facts then the results picture that one draws from the case is necessarily incoharnt. Relying on the stipulated facts alone its hard to see why the parties would continue to fight for 11 years. The chain of events that brought dred scott and john f. A. Sanford into conflict doesnt ring true. Why and how did this litigation ever k stayafgg on the rails as long a did without meeting some other sort of ending . Theres no way to see the behind dynamic. The dispute only makes since if its stripped down a primitive dynamic that slaves will always seek freedom from their masters and masters in turn will always wish to control slaves who represent wealth for them and hence resist and at that level the case is so overdrawn as to make it only about exploitation pure and simple. Why did this enslaved man ever had lived in free land . Was he drugged and kidnapped . Was he strong armed andqqus shackled . Was he tricked . Or was he a fool . The answer is none of the above. There were extenuating circumstances that one cannot read in the case. Winter was coming. The troops with whom dred could have found employment were being withdrawn from minnesota, but in advance of their removal, the troops were ordered to engage in a scorched earth policy. Stripping the roofs off and burning down the remaining cabins in order to evict squatters from all the surrounding land. Dred returned to st. Louis as any reasonable man would have because he could not survive the winter and because there was no place on the upper mississippi for him to fall back too, all steamboats led to st. Louis. Second, why would a slave ever hold fast why would a slave owner ever hold fast to a slave who suffered from illness and productive life . And how could a slave owner ever hold on to a resistant slave from the distance of 1,000 miles away . The logistics are baffling and the motives incomprehensible. Furtheran if dreds value was s reduced by his anyodiminished capacity, why didnt the case simply set . Could it be that the litigants were id logically driven by Strong Political views on the subject of slavery . Or on the other hand, was this a grudge suit between parties whose personal relationships had degenerated to such a point that neither would settle . And the answer is none of the above. Neither the parties were id logically driven and thew not know each other well enough to make the lawsuit personal. John f. A. Sanford was a successful financial businessman. He was a washington lobbyist extremely affective at obtaining lucrative government contracts and government franchises that benefitted his familyowned company. He was ceo of one of the nations largest and most globally integrated companies for the time. The american fur company. John jacob aster made a fortune in that company before him and sanford was on his way to making a sizable fortune himself. But with the exception of lobbying congress to benefit his investments in both the indian trade and the illinois central railroad, he appears to have had little interest and no participation in the policy politics of the day. I should add that neither plaintiff nor defendant was supported by ideologic factions until the very day that the appeal was filed to the United States Supreme Court when it drew public attention. Nor could this case have been based on a personal grudge. It is highly unlikely that the two named parties ever met. And certainly not at any time when their personalities co]p0 have collided because they were almost never in the same place at the same time. While sanford was in st. Louis, dred was serving masters in military outposts far away. And by the time dread scott returned to st. Louis, st. Lou lived almost exclusively in new york city. Eliminating ideology and grudge suit as the motives sustaining litigation for 11 years, one must consider the economics. But that factor is no more telling. Paradoxically, each focus drilling down into the particular details of the circumstances of these two men leads to further cases about the incongruity of it all. Economic theory would predict the case to have settled. Dred did attempt to buy his freedom before filing suit yet his offers were refused and dred was not a particularly valuable slave. Young, strong, healthy and skilled slave men were highly valued at the time. Y yet, dred had none of those attributes. Aging male slaves without strength or specialized skills, he had only ever worked as a valet. Were seen by masters as more of a financial liability, an extra mouth to feed and an extra body to clothe and someone not worth their keep. Dred also suffered from tuberculosis. He almost died before the Supreme Court decision sand the longer and the longer the 9 the got. He did die within 18 months of the decision. With a master in new york and he living inside of free soil just across the river from the free state of illinois, why didnt he make his move by attempting escape raerm than going to court rather than going to court . At the time he chose to sue, he might have been caught but there was no fugitive slave act. And third, what did he expect to be the outcome of this case . Was it a lawsuit by a slave against a master doomed to fail. Even if dred scott didnt know the law, certainly members of the bar would. So who would take his case . And yet, he did get a lawyer. In fact, he got several. How did he get even one lawyer to represent him . To find the answer to this case, it must be said in three broader contexts. First, national geography, second, local law, and third, personal relationships. The first context is geography on the national scale. Slaves played a larger role in the nations expansion and western migration during the period of the antebellum frontier than we may have thought. And for slaves, geography was destiny. The second context is local law. As pects of the missouri statute authorizing freedom suits were not invoked in the case once it was filed in federal court but they affected this case by creating effectatixpectations i local community that slaves ,bv could sue for freedom. And third, the context is to focus on the supplemental people involved in the case that changes the incentives and could influence whether the case settled. First, setting the case in geography. There was a steady stream of slave petitioners who satisfied the criteria for freedom by residents, by having lived on free soil before arriving in the st. Louis courts in a slave state. Persons moving west often stopped along the walk to spend time on free soil. The great majority of those persons suing for freedom in st. Louis based their claim just as the scots did on the rule of freedom by residents. The ohio river was the main corridor of traffic with ports in louisville andc3,w a short stretch up the Mississippi River which was the main steamboat termin us. With the nation free north of the ohio river, western travelers routinely traversed the lines and remained a while on northern free soil before reaching their destination. Travelers moving west stopped often, putting slaves to work to earn extra money before moving on. Some slaves moved west with military officers, statesmen, lawyers, pioneers and anyone with sufficient wealth to afford a slave found it desirable to have one, to have an extra pair of hands. With a surplus of better to move west where labor was in high demand. But it had to be done along the Ohio River Corridor and geography was destiny. Many of the slave litigants continued to serve the same masters they traveled west with for weeks and months upon reaching st. Louis before a trigger compelled them to sue. These slaves usually stayed with the masters until some incident changed the security of their lives. Their master died, fell upon hard times, and moved to sell them or their children. Or perhaps they were foreclosed upon by the masters creditors an then they file for freedom in the st. Louis courts. As the transportation hub, st. Louis was the National Cash place for slaves that had experienced a mixed pattern of residence in the territory. In that vast area, where judges only rode circuit, one could find a justice of the peace in st. Louis. These courts cited at connect sited at connectioning functions served as people of transport with legal difficulties. St. Louis was the perfect storm. So consider the odds. Imagine a black servant suing the white master before a jury men, many of whom were slave holders themselves, was suing for freedom a lost cause . Was it a foregone conclusion that the slave would lose in a slave state . What were the odds of success . Surprisingly good. Slaves petitioning for freedom in st. Louis won more than 100 contested cases. Why . Because of a second remarkable feature. The unique missouri statute enacted during missouri Territory Days and reenacted immediately after statehood specifically enabled slaves to sue for their freedom w. This missouri statute as the basis, more than 300 slaves had sued before in similar circumstances in st. Louisu 7balone. And the majority who persevered through the obstacles inherited such a lawsuit usually won. Some historical treatment of the lawsuit claim this was a novel claim. Not only was the scots law not a foregone conclusion, the scots should have won the case and8if easily so under missouri law in the Missouri Courts. By the numbers, roughly 300 cases were filed in st. Louis involving 239 litigants. Slightly more lawsuits than litigants because some filed suit more than once. Ive assembled 170 signatures of the freedom litigants here from the case files that weve been able to discover in the store rooms. St. Louis of the st. Louis courtroom. Moving because of what these signatures represent they were made by persons for bid ep to read or right by missouri law and this was the first time they had ever held a pen. This is their signature indicating their agency. More than 100 times, the st. Louis Circuit Court responded to their claims with the prerks words declaring that the plaintiff was forever free from their putative master and all claiming under him. For the most part they were familym v affairs. Whether the litigants jointly in tandem or succession, most were clusters of families. A total of 160 of the 239 were clustered in 38 identifiable families and house mate groups. In terms of gender, women were more apt to serve than men and most were mothers. So how did they get to court and acquire a lawyer . Under the procedure set out by the missouri statute the slave began the lawsuit by presenting their lawsuit orally before a justice of the peace or even a lawyer and that affidavit told the slaves story. I tell 12 of the stories in my forthcoming book, redemption song, pursuing before dred scott. The clerk wrote the story down and the slave signed with the x customary for illiterate persons. One remarkable feature of the missouri statute was that such affidavits, if approved, allows slaves to be declared poppers and to be appointed lawyers by the judges who reviewed the affidavits. Slave freedom suits were unique in missouri because no other segment of the impoverished public was given a lawyer by simply filing suit and asking for one. Fmy4bz but the slave was assigned a lawyer. This meant they didnt need to find legal representation themself. If they brought a recognizable claim, they would find an attorney for them. Some lawyers assisted them in filing the affidavit and other slaves have proceeded to an official on their own. It should be noted that slaves had considerable freedom of movement within st. Louis because such freedom was needed for them to accomplish the masters chores. Gathering water took them through the city and thus it was not difficult to reach a justice of the peace. The judge could assign almost any lawyer, sometimes someone who was justdnxn present in cou that day or some lawyer who was routinely assigned the freedom suits. The statute did not provide compensation for the attorneys, but nor did it require, like the virginia statute, that had to be done probonoe[ for free. Lawyers could not expect compensation but that didnt mean they did not attempt sometimes to extract compensation from their  ensld client in one way or another. Slaves were sometimes hired out to their lawyers. Dred scott was. And given the other option was to be auctioned to a stranger or sit out the delay in jail, well, working for ones lawyer was probably not a bad choice. There appears to be little evidence of causelawyering among the lawyers representing slaves. Missouri freedom suits were not broad or advanced by abolitionist societies as they were in northeastern states. Advocating abolitionism in missouri was a crime after 1837. And even before advocacy was outlawed, abolitionism was extremely unpopular. You may recall that in 1836 Elijah Lovejoys Printing Press was burned out after which he moved across the river to alton where it was burned out again. Among the lawyers who represented slaves in the suits, there is no direct evidence of antislavery sentiment at all. Most continued to own slaves and representing lucy delanie, he proudly stated, i am a slave ho holder myself in court. Instead, the lawyers who represented slaves most often seemed to be trial lawyers. Just that. Men who supported themselves by arguing cases on a number of issues and who were sometimes assigned by the judge before whom they practiced to represent a slave petition. So if these cases are to be considered civil rights cases, and indeed, i believe they should be, there is no evidence of a civil rights bar here at all. How did a statute with these relatively unique features ever come about in the slave state of missouri . It is because missouri took its role as part of the missouri compromise very seriously. Designatedqcm n to be the slave state, to balance the entry of the state of maine, as the free state, missouri saw itself as preserving the balance upon entering the United States. The missouri statute sorted things out. It separated those entitled to freedom from those who were not. The statute recognized the Jurisdictional Division between free and slave territories and missouri saw that keeping of the balance as the covenant upon which they had entered the union. Now the interesting second and third order legal questions here have to do with rules of law. And how it is that the rule of law that recognized slaves. u claims to freedom held up in the face of contrary social norms and the pressures of a slave statew3n of missouri. Conventionally, one of the most important purposes of law is to protect the weak from the strong. The rule of law is expected to hold that line. The rule of law is going to be in greatest tension when it is not supported by surrounding i x structures. In st. Louis, the emancipation rule ran at odds not only with the prevalent social norm that slavery was legal and desirable, but also with the legal presumption favoring slavery over freedom for black persons. Acknowledging pardon me. Now this conflicting tension in the rule of law tested the strength of the rule of law in protecting vulnerable populations. Hence, it is all the more remarkable that the statute lasted as long as it did and function as effectively it did of granting freedom in more than 100 times. And no precedent that can run squarely against social norms hold without experiencing larger background pressures that are mounting about its core. And when the case cannot hold, when the rule cannot hold, it can be broken abruptly in a single case. Like dred scotts case. And when it collapsed, it silenced a great many other tenuous protections for vulnerable populations. The dred scott decision reverberated not only in st. Louis and missouri, but other parts of the nation as well. And rights held oren joyed by black persons were more fragile after the dred scott decision than they had been before. There is still yet a third context. Persons. Hidden parties. In 19th century american legal history there are many hidden parties. Persons of diminished circumstance are systematically overlooked. Persons of diminished circumstance like slaves, poppers, married women are consciously excluded or unconsciously neglected. Oq many of the recent advances in history have come by way of looking for these individuals, looking for their influence on legal processes and court cases, in the ohulimpattern mosaic, th were not merely place holders in the american landscape, they were not furniture even if they were chattel. They were human actors with individual agendas an ideas of their own, like sub atomic particles in physics, not observed they are first noted by the effect they are exert on the dynamics of events. In this case, the three hidden parties were the plaintiffs mrs. Dred scott, harriet and the scotts daughters aliza and lilly. Acknowledging their existence is relative to the lawsuit and recognizing they had interest, perhaps independent of and perhaps supplemental to dreads interest changed the terrain and the incentive structure it. Reconstitutes this case in many important ways. Harriette was married to dread on free soil in a ceremony performed by her own master where he relinked all interest in her and left the territory. Simultaneously, it should be noticed that harriotts master abandoned his need to file for her. Years later, she filed suit in her own name, the same day as but her lawsuit was repeatedly overlooked unconsciously and on a conscious level. The clerk failed to enter a judgment the first time the case was tried. He failed to record her name in the day book until that error was noticed and cleaned up six months later at the end of the term of court. After that oversight, the cases were consolidated. Lawyers stipulated her case into his agreeing the result in her case would follow the ultimate outcome of his. This turned out to be a strategic error because the case of the plaintiffs the case that the plaintiffs lawyers chose was the weaker one. Harriotts was the stronger one and she should have been the lead plaintiff. Not only could she argue as dred did, freedom by residence, her master relinquished her when he married her and promptly left the territory. This gave her an additional claim. That she had been manu mated on free soil and abandoned by him. She would have won on this basis in the Missouri Court as loan yet she was married to dred, a man whose claim was braced on freedom by residence and her case was subordinated into his as they were consolidated. The lawyers had reason to expect by long precedent that freedom by residence would hold up. It had held up for 30 years. But when it crumbled and brought down dred, it brought down harriott as well. Her other bases had been jettisoned for convenience. The Lawyers Choice was in some ways predictable. The practice of subordinating the wife to the husband, drew structure and support from the covered the wife in marriage, abrogating her interest to his. It would have been surprising if the lawyers hadnt chose the husband as the legal plaintiffs. But it hit a remarkable array of complex realities and interesting dynamics with explanatory power. It hid this by nullifying the wifes legal presence in the case in which she might have had a substantial interest and even practical influence. Recovering the facts is difficult for legal historians because the very recording practices are viewed with the notion of coveture, until the 1850 census, married women, children and servants were count t ed but never named. Yet harriotts position as a mother rendered her more legally relevant to the family stability than she was in her position as wife of dred. The legal rule of mate real linearity was determined by the status of the8o mother meant t childrens fates would follow the mothers designation in the lawsuit outcome. The status of the scott daughters hinged on the determination of the status of harriott, their mother n. This paired and parallel litigation, the rule had considerable significance for their children. The status of their father was legally irrelevant to their claim of freedom. Dreds victory or loss was only relative to the status of the three other members of his family because the lawyers joint stipulation to treat them as such made it relevant. So recognizing harriott and the children provides some extenuating circumstances that explain the lawsuits out come and the incentive structure. And yet by the principal of coveture and custom, her rights were as his, and the children followed the mother and the wife was subordinated to the husband. Recognizing the familys influence in the case explains why drid sued rather than ran. If he ran away, it would mean separating his family that he demonstrated he would wish to remain with. He had opportunities to escape before. He spent nearly 18 months assigned to an officer in louisiana and texas in advance of the mexicanamerican war before returning to his family. He traveled alone by steamboat to reach his family in st. Louis and the family had sued within weeks of being reunited. Suing for freedom had two advantages for him. First, it permitted him to remain in the company of his family. And second, delivering freedom to his family would put them beyond the clutches of anyl v1zr with the authority and delivering freedom papers would protect the girls against any kidnapper who illegally tried to strongarm them. Yet dred as their father could not deliver them from that evil, even if he had won. Only harriotts victory could do that. It would provide the girls freedom papers. What the plaintiffs hoped to achieve by the litigation was not merely dreds freedom from chattel slavery, it was preserving their liberty to remain together as a family and to give their children a future in freedom. Adding harriott and the girlsry reconfigures the incentives as well. The valuable human assets in the economic equation were the Young Healthy girls growing to womanhood and their mother. By connecting dred to the children through control of harriott, the value of the human property at issue increased substantially. One can speculate that when widow emerson claimed to have inherited dred refused to sell him his freedom, she was looking past dred to see the value his daughters would bring to her own daughter when she came of age. Slavery children were considered masters of the owner. With harriott, aliza and lizzy, making the dreds desire to pursue the case kept the family unit as well. Among all of the defendant masters, in the some 300 lawsuits, one family of slave holders was the most active. The st. Louis chateau family. Patriarchs from this closeknit family owned numerous slaves. More than anyone else in the city. And in the freedom suits as slave holders, the chateaus were repeat placers in the words of markle lanter. And john f. A. Sanford was the familys loyal soninlaw. Sanford was the defendant who dred scott hardly knew, hardly could have known. Yet sanford had fallen into the role as executor of an estate that dred was part of. Years later, in a New York Times interview, mrs. Emerson chaffee was asked why the case didnt settle. Mrs. Emerson chaffee agreed the case would have settled if it hadnt been for the chateaus. They wanted the rule changed and pressed sanford to pursue the case as far as it would go. If dred scott would not give us because the freedom of his entire family was on the line, sanford did not give up. Even though he seemed to care very little about the lawsuit because his in laws wanted a win. So how did this all come to bear on the scott family . The precedent was well established, the scotts had witnesses, a lawyer. They met the elements of the state court under Missouri State law as a hundred litigants had before them. Suing for freedom was difficult, make no mistake about it. These enslaved persons exposed themselves to risks in suing their masters. They had to publicly declare that their masters were acting in violation of the law by keeping them enslaved. Some were kidnapped and hussled aboard steamboats as soon as they filed suit. Anticipating trouble, the judges routinely admonished the defendants not to remove the slave or retaliate against him some did. So by filing suit, enslaved litigants risked it all. They couldnt be expected to be granted freedom immediately, it would require a lengthy trial. Although never as long as the scotts trial. And if they lost, they could expect some kind of retribution for bringing trouble to their masters. Going to trial brought increased anxiety and intense anxiety to the scotts went to trial three times. They lost the first case in a mistrial. They won the second trial in a jury verdict only to have it reversed by the missouri Supreme Court changing the rules. And then they went to trial in forwa federal court a third time. Even though the statute entired them an attorney, they were passed off to seven attorneys during the course of the litigation. Each time there was a transfer, there was a delay. In the Missouri Courts though, the scotts had very bad luck. They could not have foreseen the missouri Supreme Court would change the rules on them. In 1852, the missouri Supreme Court reversed the rule of freedom by residence. The state Supreme Court had been relatively stable until that point, a threejudge bench had held for years. But they then went they then underwent a changed electoral process. The new judges elected seemed to be less committed to the 30year precedent than the Supreme Court had followed since statehood. Court changed the rules on them after their case had already been in litigation for six years and they had won a jury verdict. This reversal was applied retroactively to the scotts in their cases. The scotts experienced the years of litigation by time spent in jail, auctioned by a the sheriff on the courthouse steps to temporary masters, generating wages they could not reach and dreds near death from tuberculosis one cold winter after the appeal had been docketed with the United States Supreme Court. Im sorry to say there is even more. They were subjected to the 6ny trials of job. Devastations of almost lib biccal proportion occurred in st. Louis during the decade the scotts case was in limbo. Confla g vc rju e city residents. Where others could leave town to avoid the devastation, the scotts were under court order to remain. A massive cholera outbreak swept the city with the citys worst epidemic. Like the plagues of europe, people had to be con scripted to bury the dead. No one could be found to impanel a jury because no one would respond to the call. And the courtsrbqn went on indefinite suspension for an entire year. If that werent bad enough, a massive fire burned several dozen steamboats at the wharves, consuming them. The warehouses along the shore andgp÷ spreading to consume 16 square blocks in the core of the city. Persons in the city were again con scripted, this time to clear the charred remains of what was the citys main buildings. During the months and years of continuances, delays, institutions, fires and epidemics, uw missouri changed around them. Or rather the nation changed around missouri. With the slave law, a civil war in kansas and must militants on both sides, missouri, the compromise state that had regarded itself as part of the national balance, became swept up in the National Debate over slavery. For years missouri had regarded this turmoil somewhat detachedly as occurring at some distance. After all there were no abolitionists in missouri. News reached missouri slowly by steamboat. But with the telegraph, alarming messages pummelled the city with news that the pro and antishriver anti antislavery were growing at the scotts were caught up in the storm. And the daughters were sent into hiding for their own protection. In march, 1856, the United States Supreme Court ruled against dred scott. From the context of missouri laws you can see that chief justjust justin chief justice tauny was wrong, that white persons werem0 n obligated to respect. In missouri, black persons had been ti0 vled to freedom by residence for 30 year. Furthermore, black persons had the right to an attorney to redeem that entitlement. And the rule of law had held. That small degree of protection alone had been a remarkable thing. In the face of resistance from white slave holders, st. Louis courts sustained a law for a vulnerable and friendless population. The chief justices statement was hyperbole but danger hyperbole. After that no black persons could use the federal courts. Did they have any legal rights at all . ayx chief Justice Taney saidy]mz no. It enshrined a concept of racial inequality that was not present in the racial terms in the constitutions language, despite passages about slaves and slavery that were pivotal to chief Justice Taneys argument. The sentence provided greater legal stability imposed on black persons through law and several state legislatures responded accordingly. There was pushback almostx2u]n immediately. The senator henry wilson of massachusetts, becoming one of the most prominent advocates of the amendments, publicly tested the limits the day after the lrn decision. The senator attempted to procure a passport for his friend. A black massachusetts doctor who wished to travel abroad. Senator wilson told the press that he wanted to see whether the federal government would issue one. The state department refused, citing dred scott. John f. A. Sanford probably never knew he had won. By the time of the decision, sanford had gone mad and was confined to a mental institution. The st. Louis chateau family sent mrs. Emerson in massachusetts some money related to the litigation. Most likely it was the wages that dred and harriott earned those years impounded by the sheriff. It came as an embarrassment to congress chaffee to learn that by coveture he was the owner of the nations most famous slave. He owned the scotts because he had married john emersons widow. Dred and harriott were haste illy transferred by quitclaim deed to someone in missouri because only a missouri resident could free a slave. Thus we were granted their freedom not by operation of law, but by the embarrassment of a congressman from massachusetts. Though dred lived two years after the case and the family remained together, harriott and her daughters survived the civil war. Lizzy married and had children of her own. Aliza never did but she stayed with her mother and did laundry. It was not simply chief Justice Taneys writing for the court that bears responsibility for the outcome, even though his written decision certainly worsened the result. The United States constitution failed to provide redress for this most basic human right and left citizenship and access to the federal courts up to the states. Our constitution, 1789, with all of its brilliance, could not protect them. The United States Supreme Courts most discredited opinion was not overturned by the court, it was overturned by constitutional amendment. Undering the scotts lawsuit understanding the scotts lawsuit is seeing the arc of the reconstruction amendments, but today in the limited time i can only point out a few stars in that constellation. First theuhnz scotts lawsuit sharpened the sides. It became the rallying point in Lincoln Douglas and in the halls of congress and in newspapers and conversations throughout the nation. Secession prompted the civil war but the case lit the fuse. Second, the Supreme Court decision cattalized the process of constitutional amendment. President lincolnsd . Q emancin proclamation was a start to ending dlaslavery, but many questioned its legality but it only applied in states with rebellion which did not include missouri. It was necessary to abolish slavery and erase the cloud of the dred scott decision. Third, the opinion not only highlighted the constitutions deficiencies, it also highlighted the texts and structures by which to fix it. Those remarkable amendments, particularly the 13th and the 14th, draw on the language of those subjects of the dred scott case. The 13th amendment language that neither slavery or involuntary servitude should exist was taken from the northwest earp ordinance that chief Justice Taney had declared invalid and if there was any doubt that the congress had the authority to supplement of the amendment, section two provided that. Section one granted citizenship to all persons born on american soilc n rather than leaving citizenship up to the states. Granting citizenship did more than ensure the use of federal courts and once it got started there was more equal protection and due process, many of the the right to vote, the anna pleaa of civil rights, all that came in reconstruction litigation, registration arks mendment. Bringing back the details of the case allows us to see the humanity of the persons behind the famous suit and i would like to say that i think we should remember what the scotts stood for because then p . We can see m not as victims, but as heroes who lost the fight. Knowing their story connects us to them, it allows us to recognize that they sought an objective that is universal and transcendently human. They were denied access to the court but satisfaction was never what they were seeking. They were seeking a much more fundamental right. The right to protect the stability of their family and to provide a future and freedom for their children. These are the rights that all persons seek from their government and from their÷tn courts. They sought protection for more powerful private propertied interest, their slave holders, their slave owners, who exploit them, separate them so they could no longer enjoy each others company, protection and support. They could be assigned to labor without their consent and threaten what all parents fear, that their children might be abused. Formally slavery has been abolished but the interest in the scotts are enduring. The rule of law is still most at risk in protecting vulnerable populations which is where it is most needed. Taken together, the constitution created a minimal sphere of protection for the least well off, the most vulnerable and the most friendless. There is room in the remarkable reconstruction amendments to harbor this family from the storm. Thank you. [ applause ] youve been catching cspans American History tv. We want to hear from you. Follow us on twitter or connect on facebook at maybe. Com cspan history or leave comments and check out our upcoming programs at our website, cspan. Org history. And wed like to tell you about our mother American History tv programs. Join us saturday at 4 00 p. M. Eastern for a look at history bookshelf. Watch as the countries best known American History writers of the past decade talk about their books. Again, that is history bookshelf every saturday at 4 00 p. M. Eastern here on American History tv on cspan3. Here are some of our featured programs youll find this Holiday Weekend on the cspan networks. On saturday night on cspan, ellen a kagen at princeton university. Sunday evening at 8 00 on the q a, fact checker author Glenn Kessler on the end of the year, biggest pinocchios of 2014 awards. On saturday night at 10 00 on book tv afterwards, damon root on the long standing battle on judicial restraint. And sunday at 10 00 p. M. Eastern, book critic jonathan yardly who recently retired from the post. And on saturday at 6 00 p. M. Eastern on the civil war, historians and authors discuss president lincolns 1864 reelection campaign. And sunday afternoon at 4 00 on real america, tried by fire. A 1965 film that chronicles the infantry during the battle of the bulge. Find more at cspan. Org and let us know the programs you are watching. Call us at 2026263400. Email us at comment at cspan. Org. Join the cspan conversation. Like us on facebook and follow us on twitter. Roger taney served as chief