In the Federal Judicial System

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In entering the federal judicial system, the Scott case underwent a metamorphosis that would prove to be very important at the conclusion of the case. Most evident was the change in the defendant. Mrs. Emerson had moved to Massachusetts and remarried, leaving Scott and his case to her brother, John F.A. Sanford [*] , still living in St. Louis. Also, the Scott v. Emerson case in the state judicial system was clearly a genuine suit between two parties; each side's purpose was to win the case. [5] The same cannot be said of Scott v. Sandford. "Dred Scott v. Sandford," wrote Don Fehrenbacher, "was either a genuine suit, or a counterfeit designed for abolitionist purposes, or part of a proslavery plot that succeeded." [6] This uncertainty over the true purpose of the case later made Republican charges that the case was a conspiracy designed to help the expansion of slavery even easier to believe.

Whatever the true intents of the two parties were, they met in 1854 in the United States Circuit Court. Judge Robert W. Wells, "a slaveholder who nevertheless regarded slavery as a barrier to progress," presided over the trial. [7] Sanford's first strategy was to prove that Scott was not a citizen of Missouri because he was the descendant of African slaves, but Wells ruled that because he resided in Missouri, Scott was enough of a citizen to be able to bring suit in a federal court. Sanford then used the same line of reasoning that had worked in front of the Missouri Supreme Court, arguing that even if Scott had gained his freedom while residing in Illinois, he had regained his slave status upon returning to Missouri. This defense proved successful once again, and the jury decided in favor of Sanford.

The next step for Scott was to take his case to the highest tribunal in the country, the United States Supreme Court. Before he did so, however, he needed to find a suitable attorney. Fortunately, Montgomery Blair--a Missourian himself, a highly respected lawyer in Washington, and a supporter of the Free Soil party--agreed to take Scott's case without expecting payment. The Supreme Court first heard the case of Scott v. Sandford in early 1856, but ordered a reargument for the next term, perhaps because a decision would have come on the eve of the 1856 presidential election and would have forced each candidate to agree or disagree with the Court on a highly volatile issue. This would not be the last time politics intruded on the Dred Scott case.

Until it came before the Supreme Court, Scott's case had not attracted much attention, either public or within the other branches of government. By early 1856, however, Congress had renewed the debate over Congressional power to regulate slavery in the territories in light of the bloody conflicts in Kansas. Both sides began to view the issue as a decision for the Supreme Court, and not for Congress, to make. As Senator Albert G. Brown, a Democrat from Mississippi, said on July 2, 1856:

My friend from Michigan [Senator Lewis Cass] and myself differ very widely as to what are the powers of a Territorial Legislature - he believing that they can exercise sovereign rights, and I believing no such thing; he contending that they have a right to exclude slavery, and I not admitting the proposition; but both of us concurring in the opinion that it is a question to be decided by the courts, and not by Congress.

A few weeks later, Abraham Lincoln, a Republican from Illinois agreed:

I grant you that an unconstitutional act is not a law; but I do not ask, and will not take your [Democrats'] construction of the Constitution. The Supreme Court of the United States is the tribunal to decide such questions, and we will submit to its decisions; and if you do also, there will be an end of the matter. [8]

"When reargument [of the case] before the Court began on December 15," wrote Kenneth Stampp, "the potentially broad political significance of the case had become evident, and public interest in it had increased considerably." [9] Indeed, "by Christmas 1856, Dred Scott's name was probably familiar to most Americans who followed the course of national affairs." [10]

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