Abraham Lincoln: a History Volume Ii Part 5

In an evil hour they yielded to the demands of "public interest," and resolved to "fulfill public expectation." Justice Wayne "proposed that the Chief-Justice should write an opinion on all of the questions as the opinion of the court. This was a.s.sented to, some reserving to themselves to qualify their a.s.sent as the opinion might require.

Others of the court proposed to have no question, save one, discussed."

The extraordinary proceeding was calculated to touch the pride of Justice Nelson. He appears to have given it a kind of sullen acquiescence. "I was not present," he wrote, "when the majority decided to change the ground of the decision, and a.s.signed the preparation of the opinion to the Chief-Justice; and when advised of the change I simply gave notice that I should read the opinion I had prepared as my own, and which is the one on file." From this time the pens of other judges were busy, and in the inner political circles of Was.h.i.+ngton the case of Dred Scott gradually became a shadowy and portentous _cause celebre_.

The first intimation which the public at large had of the coming new dictum was given in Mr. Buchanan's inaugural. The fact that he did not contemplate such an announcement until after his arrival in Was.h.i.+ngton[5] leads to the inference that it was prompted from high quarters. In Congressional and popular discussions the question of the moment was at what period in the growth of a Territory its voters might exclude or establish slavery. Referring to this Mr. Buchanan said: "It is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be."

The popular acquiescence being thus invoked by the Presidential voice and example, the court announced its decision two days afterwards--March 6, 1857. The essential character of the transaction impressed itself upon the very form of the judgment, if indeed it may be called at all by that name. Chief-Justice Taney read the opinion of the court.

Justices Nelson, Wayne, Daniel, Grier, Catron, and Campbell each read a separate and individual opinion, agreeing with the Chief-Justice on some points, and omitting or disagreeing on others, or arriving at the same result by different reasoning, and in the same manner differing one from another. The two remaining a.s.sociate justices, McLean and Curtis, read emphatic dissenting opinions. Thus the collective utterance of the bench resembled the speeches of a town meeting rather than the decision of a court, and employed 240 printed pages of learned legal disquisition to order the simple dismissal of a suit. The opinion read by Chief-Justice Taney was long and elaborate, and the following were among its leading conclusions:

That the Declaration of Independence and the Const.i.tution of the United States do not include nor refer to negroes otherwise than as property; that they cannot become citizens of the United States nor sue in the Federal courts. That Dred Scott's claim to freedom by reason of his residence in Illinois was a Missouri question, which Missouri law had decided against him. That the Const.i.tution of the United States recognizes slaves as property, and pledges the Federal Government to protect it; and that the Missouri Compromise act and like prohibitory laws are unconst.i.tutional. That the Circuit Court of the United States had no jurisdiction in the case and could give no judgment in it, and must be directed to dismiss the suit.

This remarkable decision challenged the attention of the whole people to a degree never before excited by any act of their courts of law.

Multiplied editions were at once printed,[6] scattered broadcast over the land, read with the greatest avidity, and earnestly criticised.

The public sentiment regarding it immediately divided, generally on existing party lines--the South and the Democrats accepting and commending, the North and the Republicans spurning and condemning it.

The great anti-slavery public was not slow in making a practical application of its dogmas: that a sweeping and revolutionary exposition of the Const.i.tution had been attempted when confessedly the case and question had no right to be in court; that an evident partisan dictum of national judges had been built on an avowed partisan decision of State judges; that both the legislative and judicial authority of the nation had been trifled with; that the settler's "sovereignty" in Kansas consisted only of a Southern planter's right to bring his slaves there; and that if under the "property" theory the Const.i.tution carries slavery to the Territories, it would by the same inevitable logic carry it into free-States.

But much more offensive to the Northern mind than his conclusions of law were the language and historical a.s.sertions by which Chief-Justice Taney strove to justify them.

[Sidenote] 19 Howard, p. 407.

In the opinion of the court [said he] the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the cla.s.s of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Const.i.tution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to a.s.sociate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.

Quoting the provisions of several early slave codes, he continued:

[Sidenote] Ibid., p. 409.

They show that a perpetual and impa.s.sable barrier was intended to be erected between the white race and the one which they had reduced to slavery and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.

Referring to the phrase in the Declaration of Independence, which a.s.serts that all men are created equal, he remarked:

[Sidenote] 19 Howard, p. 410.

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they a.s.serted, and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

He then applied the facts thus a.s.sumed as follows:

[Sidenote] Ibid., pp. 425-6.

The only two provisions which point to them and include them treat them as property, and make it the duty of the Government to protect it; no other power in relation to this race is to be found in the Const.i.tution.... No one, we presume, supposes that any change in public opinion or feeling in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Const.i.tution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.... It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States.

This cold and pitiless historical delineation of the bondage, ignorance, and degradation of the unfortunate kidnaped Africans and their descendants in a by-gone century, as an immutable basis of const.i.tutional interpretation, was met by loud and indignant protest from the North. The people and press of that section seized upon the salient phrase of the statement, and applying it in the present tense, accused the Chief-Justice with saying that "a negro has no rights which a white man is bound to respect." This was certainly a distortion of his exact words and meaning; yet the exaggeration was more than half excusable, in view of the literal and unbending rigor with which he proclaimed the const.i.tutional disability of the entire African race in the United States, and denied their birthright in the Declaration of Independence. His unmerciful logic made the black before the law less than a slave; it reduced him to the status of a horse or dog, a bale of dry-goods or a block of stone. Against such a debas.e.m.e.nt of any living image of the Divine Maker the resentment of the public conscience of the North was quick and unsparing.

Had Chief-Justice Taney's delineation been historically correct, it would have been nevertheless unwise and unchristian to embody it in the form of a disqualifying legal sentence and an indelible political brand. But its manifest untruth was clearly shown by Justice Curtis in his dissenting opinion. He reminded the Chief-Justice that at the adoption of the Const.i.tution:

[Sidenote] 19 Howard, p. 582.

In five of the thirteen original States colored persons then possessed the elective franchise, and were among those by whom the Const.i.tution was ordained and established. If so, it is not true in point of fact that the Const.i.tution was made exclusively by the white race, and that it was made exclusively for the white race is in my opinion not only an a.s.sumption not warranted by anything in the Const.i.tution, but contradicted by its opening declaration that it was ordained and established by the people of the United States for themselves and their posterity; and as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Const.i.tution was ordained and established.

Elsewhere in the same opinion he said:

[Sidenote] Ibid., pp. 574-5.

I shall not enter into an examination of the existing opinions of that period respecting the African race, nor into any discussion concerning the meaning of those who a.s.serted in the Declaration of Independence that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. My own opinion is, that a calm comparison of these a.s.sertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they a.s.serted on that solemn occasion they were ready and anxious to make effectual; wherever a necessary regard to circ.u.mstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race exclusively with the great natural rights which the Declaration of Independence a.s.serts.

Justice McLean, in his dissenting opinion, completed the outline of the true historical picture in accurate language:

[Sidenote] 19 Howard, pp. 537-8.

I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Const.i.tution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Const.i.tution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.

Many of the States on the adoption of the Const.i.tution, or shortly afterwards, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the inst.i.tution of slavery would gradually decline until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests. But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles white men were made slaves. All slavery has its origin in power and is against right.

To the const.i.tutional theory advanced by the Chief-Justice, that Congress cannot exercise sovereign powers over Federal Territories, and hence cannot exclude slave property from them, Justices McLean and Curtis also opposed a vigorous and exhaustive argument, which the most eminent lawyers and statesmen of that day deemed conclusive. The historical precedents alone ought to have determined the issue. "The judicial mind of this country, State and Federal," said McLean, "has agreed on no subject within its legitimate action with equal unanimity as on the power of Congress to establish Territorial governments. No court, State or Federal, no judge or statesman, is known to have had any doubts on this question for nearly sixty years after the power was exercised."

[Sidenote] 19 Howard, p. 619.

And Curtis added: "Here are eight distinct instances, beginning with the first Congress, and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States; and six distinct instances in which Congress organized governments of Territories by which slavery was recognized and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Was.h.i.+ngton, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Const.i.tution was adopted. If the practical construction of the Const.i.tution, contemporaneously with its going into effect, by men intimately acquainted with its history from their personal partic.i.p.ation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be ent.i.tled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to."

[Ill.u.s.tration: SAMUEL NELSON.]

[1] The declaration in the case of Dred Scott vs. John F.A. Sandford was filed in the clerk's office of the Circuit Court of the United States for the district of Missouri on the second day of November, 1853. The trespa.s.s complained of is alleged to have occurred on the first day of January, 1853.--Ma.n.u.script Records of the Supreme Court of the United States.

[2] At the first hearing Montgomery Blair argued the case for Dred Scott, and Senator Geyer, of Missouri, and ex-Attorney-General Reverdy Johnson, of Maryland, for the claimant. At the second hearing Mr.

Blair and George Ticknor Curtis, of Boston, argued the case on behalf of Dred Scott, and Mr. Greyer and Mr. Johnson again made the argument for the claimant. All of them performed the service without compensation.

[3] "The court will not decide the question of the Missouri Compromise line--a majority of the judges being of opinion that it is not necessary to do so. (This is confidential.) The one engrossing subject in both Houses of Congress and with all the members is the Presidency; and upon this everything done and omitted, except the most ordinary necessities of the country, depends."--[Letter of Justice Curtis to Mr. Ticknor, April 8, 1856. G.T. Curtis, "Life of B.R. Curtis," Vol.

I., p. 180.]

[4] A striking example may be found in the utterance of Attorney-General Caleb Cus.h.i.+ng, of the retiring Pierce Administration, in a little parting address to the Supreme Court, March 4, 1857:

"Yours is not the gauntleted hand of the soldier, nor yours the voice which commands armies, rules cabinets, or leads senates; but though you are none of these, yet you are backed by all of them.

Theirs is the external power which sustains your moral authority; you are the incarnate mind of the political body of the nation. In the complex inst.i.tutions of our country you are the pivot point upon which the rights and liberties of all, government and people alike, turn; or, rather, you are the central light of const.i.tutional wisdom around which they perpetually revolve. Long may this court retain the confidence of our country as the great conservators, not of the private peace only, but of the sanct.i.ty and integrity of the Const.i.tution."--"National Intelligencer," March 5, 1857.

[5] "Mr. Buchanan was also preparing his inaugural address with his usual care and painstaking, and I copied his drafts and recopied them until he had prepared it to his satisfaction. It underwent no alteration after he went to the National Hotel in Was.h.i.+ngton, except that he there inserted a clause in regard to the question then pending in the Supreme Court, as one that would dispose of a vexed and dangerous topic by the highest judicial authority of the land."--Statement of James Buchanan Henry (President Buchanan's private secretary) in the "Life of James Buchanan," by George Ticknor Curtis, Vol. II., p. 187.

[6] "It may not be improper for me here to add that so great an interest did I take in that decision, and in its principles being sustained and understood in the Commonwealth of Kentucky, that I took the trouble at my own cost to print or have printed a large edition of that decision to scatter it over the State; and unless the mails have miscarried, there is scarcely a member elected to the Legislature who has not received a copy with my frank."--Vice-president Breckinridge, Frankfort Speech, December, 1859.

CHAPTER V

DOUGLAS AND LINCOLN ON DRED SCOTT

Manifestly, when the educated intellects of the learned judges differed so radically concerning the principles of law and the facts of history applicable to the Dred Scott question, the public at large could hardly be expected to receive the new dogmas without similar divergence of opinion. So far from exercising a healing influence, the decision widened immensely the already serious breach between the North and the South. The persons immediately involved in the litigation were quickly lost sight of;[1] but the const.i.tutional principle affirmed by the court was defended by the South and denounced by the North with zeal and acrimony. The Republican party did not further question or propose to disturb the final judgment in the case; but it declared that the Dred Scott doctrines of the Supreme Court should not be made a rule of political action, and precisely this the South, together with the bulk of the Northern Democrats, insisted should be done.