History Erased in the Dred Scott Decision

Dred Scott, Slave Denied his FreedomDred Scott, Slave Denied his Freedom (Photo: NYPL Digital Collections)

Less than two weeks before he celebrated his eightieth birthday on March 17, 1857, Roger Brooke Taney handed down what is still considered among the most notorious decisions in the long history of the United States Supreme Court. In Dred Scott v. Sanford, a freedom suit filed by an enslaved man living in St. Louis, Taney declared that neither slaves nor the descendants of slaves were or ever could be citizens. As such, he argued, they lacked standing to sue for their freedom. Black Americans had always been, and would always be, denied the rights that white Americans enjoyed, Taney wrote. Taney’s account, however, was wrong. And he knew it.

To read Taney’s ruling, one might easily imagine that none of the privileges associated with American citizenship had ever been extended to black people. In fact, a significant portion of his lengthy opinion was dedicated to proving that, in colonial America and, later, the United States, those of African descent had been entirely excluded from exercising the kinds of rights white people often took for granted. English settlers in North America, he argued, were regarded “as an article of property, and held, and bought and sold as such.” When the Constitution was adopted, moreover, Taney asserted that black people were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority.” As such, he famously concluded that throughout American history whites had viewed black people as “so far inferior, that they had no rights which the white man was bound to respect.”

Taney was not wrong about the defining role racism played in shaping the black image in the white mind. But the notion that black people in America had always and everywhere been excluded from exercising the privileges of citizenship, and specifically the privilege of filing a freedom suit, just as Dred Scott had done, was patently false.

In truth, freedom suits had long flourished. In colonial Virginia, scores of Afro-Indian slaves sued for their freedom in the king’s courts. Shortly after the American Revolution, cases initiated by Elizabeth Freeman, Quock Walker, and two enslaved women named Brom and Bett in Massachusetts led to the abolition of slavery in the Bay State. A generation later, the floodgates truly opened up: thousands of enslaved people sued for their freedom during the early national and antebellum eras. Such cases were most often filed in southern towns and cities, where enslaved people were often hired out and exercised greater autonomy. Urban slaves also enjoyed better access to money and attorneys, both of which were necessary to succeed in pressing one’s claims to freedom. In New Orleans, hundreds of enslaved people sued for their freedom in just the decade and a half that preceded the Civil War, and local courts in places such as St. Louis and Washington, D.C. saw substantial filings of freedom suits as well. To be sure, the odds of obtaining one’s freedom through the courts remained long. Failure remained more likely than not. That said, significant numbers of people—as many as two-fifths of those who filed suit in some jurisdictions—won their cases and their freedom.

Freedom suits proliferated largely because of the actions of state supreme courts. Those courts regularly handed down judgments that affirmed local verdicts in favor of those who sued for their freedom. State supreme courts also expanded the grounds upon which enslaved people might base their claims. Although natural law arguments were only briefly accepted as a legitimate basis by a handful of courts shortly after the American Revolution, courts throughout the nation accepted claims of Indian ancestry; descent from a white woman; prior emancipation through will, deed, or self-purchase; or residence on free soil as valid legal grounds upon which to establish one’s right to freedom throughout much of the colonial, early national, and antebellum eras.

Roger Taney, of course, knew as much. As a student of the law and the son of a wealthy slaveholding family, he could hardly have missed the surge of freedom suits that were filed in his native Maryland during the last decade of the eighteenth century, a development that led the state’s attorney general to protest that “hundreds of negroes [had] been set loose upon the community.” Nor, it seems, could he have remained ignorant of the role his own brother-in-law, Francis Scott Key, played in propagating freedom suits in the Chesapeake by representing enslaved plaintiffs. Taney’s years of service as a member of the United States Supreme Court further belied his claim that black people had been entirely forbidden from pressing their legal claims. Just four years after he was appointed chief justice by Andrew Jackson in 1836, the United States Supreme Court ruled in Choteau v. Marguerite, a freedom suit, like Dred Scott v. Sanford, that originated in St. Louis, and just six years before he penned the Dred Scott decision Taney dismissed Strader v. Graham, another freedom suit, this time on appeal from Kentucky, for want of jurisdiction.

Both the historical and legal record as well as his own experience may have flatly contradicted Taney’s assertions about the extent to which black people had been denied the rights of citizenship, but those assertions nevertheless served an important function. By maintaining that black people had, at all times, been the most abject, degraded, and powerless class within American society—by claiming that they had always existed outside the body politic—Taney reinforced what by 1857 had become proslavery dogma: that the miserable status of black people at midcentury was their natural, immutable condition. By writing the history of freedom suits out of his decision, Taney erased a long tradition of black efforts to assert one of the most fundamental privileges of citizenship. He also hid the radical contradiction inherent in the legal system’s fraught, partial, but no less real attempts to extend a modicum of rights to those whose enslavement it simultaneously sanctioned.

About the Author

Anne Twitty

Anne Twitty is an assistant professor of history at the University of Mississippi, where she specializes in the history of slavery, law, and nineteenth-century America more broadly. Her forthcoming book with Cambridge University Press, Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787-1857, uses the collection of nearly 300 freedom suits filed in the St. Louis circuit court to construct a legal history of slavery and slaveholding in the Ohio, Mississippi, and Missouri river valleys. Her next project will explore the efficacy of gradual emancipation statutes adopted in the aftermath of the American Revolution.

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1 Comment

  1. It was more than just freedom suits, though in Massachusetts Hutchison ruled in one such case that slavery was incompatable with the Massachusetts constitution — and that four years before the US constituiton was written.

    African-Americans could vote in much of the United States in the early national period. Not just in most of New England, New York, and Ohio (the latter two with certain exta limitations) as in 1857, but in most of the country, south as well as north — free blacks could vote in North Carolina as late as the 1830s if they met the state’s property qualifications. Taney was flat-out lying when he said blacks had never been regarded as citizens.

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