————— [1] For David Wilmot, of Pennsylvania, 43; Preston King, of New York, 9; Charles Sumner, of Massachusetts, 36; Thomas H. Ford, of Ohio, 7; Cassius M. Clay, of Kentucky, 3; Jacob Collamer, of Vermont, 15; William F. Johnston, of Pennsylvania, 2; Nathaniel P. Banks, of Massachusetts, 46; Henry Wilson, of Massachusetts, 7; William Pennington, of New Jersey, 1; —— Carey, of New Jersey, 3; S.C. Pomeroy, of Kansas, 8; J.R. Giddings, of Ohio, 2. The vote in detail for Lincoln was: Maine, 1; New Hampshire, 8; Massachusetts, 7; Rhode Island, 2; New York, 3; Pennsylvania, 11; Ohio, 2; Indiana, 26; Illinois, 33; Michigan, 5; and California, 12.

[2] Mr. T.S. Van Dyke, son of one of the delegates, kindly writes us: "Nothing that Mr. Lincoln has ever written is more characteristic than the following note from him to my father just after the convention—not for publication, but merely as a private expression of his feelings to an old acquaintance:

"SPRINGFIELD, ILL., "June 27, 1856. "Hon. JOHN VAN DYKE.

"MY DEAR SIR: Allow me to thank you for your kind notice of me in the Philadelphia Convention.

"When you meet Judge Dayton present my respects, and tell him I think him a far better man than I for the position he is in, and that I shall support both him and Colonel Fremont most cordially. Present my best respects to Mrs. V., and believe me,

"Yours truly,

"A. LINCOLN."

[3] On the sixteenth ballot Buchanan received 168 votes, of which 121 were from the free-States and 47 from the slave-States; Douglas received 122 votes, of which 49 were from the free-States and 73 from the slave-States; Cass received 6 votes, all from the free-States; Pierce had been finally dropped on the previous ballot.—"Proceedings of the Cincinnati Convention," p. 45.

[4] The vote more in detail was as follows:

For Buchanan, slave-States, Alabama, 9; Arkansas, 4; Delaware, 3; Florida, 3; Georgia, 10; Kentucky, 12; Louisiana, 6; Mississippi, 7; Missouri, 9; North Carolina, 10; South Carolina, 8; Tennessee, 12; Texas, 4; Virginia, 15. Free States, California, 4; Illinois, 11; Indiana, 13; New Jersey, 7; Pennsylvania, 27. Total, 174.

For Fremont, free-States, Connecticut, 6; Iowa, 4; Maine, 8; Massachusetts, 13; Michigan, 6; New Hampshire, 5; New York, 35; Ohio, 23; Rhode Island, 4; Vermont, 5; Wisconsin, 5. Total, 114.

For Fillmore, slave-State, Maryland, 8.

[5] For President, Buchanan (Democrat), 105,344; Fremont (Republican), 96,180; Fillmore (American), 37,451. For Governor, Richardson (Democrat), 106,643; Bissell (Republican), 111,372; Morris (American), 19,241.



CHAPTER III

CONGRESSIONAL RUFFIANISM

The official reports show that the proceedings of the American Congress, while in the main conducted with becoming propriety and decorum, have occasionally been dishonored by angry personal altercations and scenes of ruffianly violence. These disorders increased as the great political struggle over the slavery question grew in intensity, and reached their culmination in a series of startling incidents.

Charles Sumner, one of the Senators from the State of Massachusetts, had become conspicuous, in the prevailing political agitation, for his aggressive and radical anti-slavery speeches in the Senate and elsewhere. The slavery issue had brought him into politics; he had been elected to the United States Senate by the coalition of a small number of Free-soilers with the Democrats in the Massachusetts Legislature.

The slavery question, therefore, became the dominant principle and the keynote of his public career. He was a man of liberal culture, of considerable erudition in the law, of high literary ability, and he had attained an enviable social eminence. Of large physical frame and strength, gifted with a fine presence and a sonorous voice, fearless and earnest in his opposition to slavery, Charles Sumner was one of the favorite orators of the early declamatory period of the Republican party.

He joined unreservedly in the exciting Senate debates, provoked by the rival applications from Kansas for her admission as a State. On the 19th and 20th of May, 1856, he delivered an elaborate speech in the Senate, occupying two days. It was one of his greatest efforts, and had been prepared with his usual industry. In character it was a philippic rather than an argument, strong, direct, and aggressive, in which classical illustration and acrimonious accusation were blended with great effect.

It described what he called "The Crime against Kansas"; and the excuses for the crime he denominated the apology tyrannical, the apology imbecile, the apology absurd, and the apology infamous. "Tyranny, imbecility, absurdity, and infamy," he continued, "all unite to dance, like the weird sisters, about this crime."

In the course of his speech he alluded, among others, to A.P. Butler, of South Carolina, and in reply to some severe strictures by that Senator during preceding debates, indulged in caustic personal criticism upon his course and utterance, as well as upon the State which he represented.

With regret [said Sumner], I come again upon the Senator from South Carolina [Mr. Butler], who, omnipresent in this debate, overflowed with rage at the simple suggestion that Kansas had applied for admission as a State; and with incoherent phrases discharged the loose expectoration of his speech, now upon her representative and then upon her people. There was no extravagance of the ancient parliamentary debate which he did not repeat; nor was there any possible deviation from truth which he did not make, with so much of passion, I am glad to add, as to save him from the suspicion of intentional aberration. But the Senator touches nothing which he does not disfigure—with error, sometimes of principle, sometimes of fact. He shows an incapacity of accuracy, whether in stating the Constitution or in stating the law, whether in details of statistics or the diversions of scholarship. He cannot open his mouth but out there flies a blunder.



Butler was not present in the Senate on either day; what he might have said or done, had he been there, can only be conjectured. The immediate replies from Douglas and others were very bitter. Among pro-slavery members of both Houses there was an under-current of revengeful murmurs. It is possible that this hostile manifestation may have decided a young member of the House, Preston S. Brooks, a nephew of Senator Butler, to undertake retaliation by violence. Acquainting Henry A. Edmundson, another member, with his design, he waited on two different occasions at the western entrance to the Capitol grounds to encounter Mr. Sumner, but without meeting him.

[Sidenote] 1856.

On the 22d of May, two days after the speech, Brooks entered the Senate Chamber on the same errand. The session had been short, and after adjournment Sumner remained at his desk, engaged in writing. The sessions were at that time held in the old Senate Chamber, now occupied by the Supreme Court. The seats were arranged in semicircles, with a railing to separate them from a narrow lobby or open space next the wall; a broad aisle ran from the main door to the desk of the presiding officer. Mr. Sumner's seat was in the outside row next to the railing, at the second desk to the right from the entrance and the main aisle. Occupied with his work, Mr. Sumner did not notice Mr. Brooks, sitting across the aisle to his left, and where in conversation with a friend he was manifesting his impatience that a lady seated near Mr. Sumner did not take her departure from the chamber. Almost at that moment she arose and went out; quickly afterwards Brooks got up and advanced to the front of Sumner's desk. The act attracted the attention of Brooks's friend; he was astonished, amid the bitterness of party feeling, to see a South Carolina Representative talk to a Massachusetts Senator. His astonishment was quickly corrected. Leaning upon the desk and addressing Sumner with a rapid sentence or two, to the effect that he had read his speech, that it was a libel upon his absent relative, and that he had come to punish him for it, Brooks began striking him on the head with a gutta-percha walking-cane, of the ordinary length and about an inch in diameter.

Surprised, blinded and stunned by the blows, Sumner's first instinct was to grapple with his assailant. This effort, however, was futile; the desk was between them, and being by his sitting posture partially under it, Sumner was prevented from rising fully to his feet until he had by main strength, in his struggles, wrenched it from its fastenings on the floor. In his attempt to follow Brooks they became turned, and from between the desks moved out into the main aisle. By this time, through the repetition of the heavy blows and loss of blood, Sumner became unconscious. Brooks, seizing him by the coat-collar, continued his murderous attack till Sumner, reeling in utter helplessness, sank upon the floor beside the desk nearest the aisle, one row nearer the center of the chamber than his own. The witnesses variously estimated the number of blows given at from ten to thirty. Two principal wounds, two inches long and an inch deep, had been cut on the back of Sumner's head; and near the end of the attack, Brooks's cane was shivered to splinters.

There were perhaps ten or fifteen persons in the chamber, and after the first momentary pause of astonishment half a dozen started to interfere. Before they reached the spot, however, Lawrence M. Keitt, another South Carolina Representative, came rushing down the main aisle, brandishing his cane, and with imprecations warning lookers-on to "let them alone." Among those hastening to the rescue, Mr. Morgan arrived first, just in time to catch and sustain the Senator as he fell. Another bystander, who had run round outside the railing, seized Brooks by the arm about the same instant; and the wounded man was borne to an adjoining room, where he was cared for by a hastily summoned physician.

Among Mr. Sumner's friends the event created a certain degree of consternation. The language which provoked the assault, whatever might be thought of its offensive character, was strictly parliamentary, uninterrupted either by the chair or by any member. The assault itself was so desperate and brutal that it implied a vindictiveness deeper than mere personal revenge. This spirit of bullying, this resort to violence, had recently become alarmingly frequent among members of Congress, especially as it all came from the pro-slavery party. Since the beginning of the current session, a pro-slavery member from Virginia had assaulted the editor of a Washington newspaper; another pro-slavery member, from Arkansas, had violently attacked Horace Greeley on the street; a third pro-slavery member, from California, had shot an unoffending waiter at Willard's Hotel. Was this fourth instance the prelude of an intention to curb or stifle free Congressional debate? It is probable that this question was seriously considered at the little caucus of Republican Senators held that night at the house of Mr. Seward. The Republicans had only a slender minority in the Senate, and a plurality in the House; they could do nothing but resolve on a course of parliamentary inquiry, and agree on an attitude of defense.

Sumner's colleague, Henry Wilson, made a very brief announcement of the occurrence to the Senate on the following day, and it at once became apparent that the transaction would assume an almost strictly party character. As no Democratic Senator proposed an inquiry, Mr. Seward moved for a committee of investigation; upon which James M. Mason, of Virginia, proposed that the committee should be elected by ballot. The result was that no Republican was chosen upon it; and the committee reached the conclusion that it had no power in the premises, except to report the occurrence to the House. In the House the usual committee from the three parties was raised, resulting in two reports. The minority, sustained by the vote of sixty members, pleaded a want of jurisdiction. The majority recommended the expulsion of Brooks, and expressed disapprobation by the House of the course of his colleague, Edmundson, in countenancing the assault, and of the act of Keitt in his personal interference. But the necessary two-thirds vote for the expulsion of Brooks could not be obtained; a vote of censure was therefore passed by a large majority. The discussion of the report and resolutions occupied the House several days, and whatever effort members made to disguise their motives, their actions, either of condemnation or of excuse, arose in the main clearly enough from their party relations. Under the forms of parliamentary debate, the South and the North were breathing mutual recrimination and defiance.

The public of both sections took up the affair with equal party zeal. From the North came resolutions of legislatures, outbursts of indignation in meetings and addresses, and the denunciation of Brooks and his deed in the newspapers. In the South the exactly opposite sentiment predominated. Brooks was defended and eulogized, and presented with canes and pitchers as testimonials to his valor. When the resolution of censure had been passed, he at once resigned his seat in the House, and going home to his constituents, was immediately reelected. Within three weeks he reappeared at the bar of the House, with a new commission from his Governor, and was sworn in and continued his service as before. The arrogant address which preceded his resignation contained the remarkable intimation that much more serious results might have grown out of the incident. "No act of mine," he said, "on my personal account, shall inaugurate revolution; but when you, Mr. Speaker, return to your own home, and hear the people of the great North—and they are a great people—speak of me as a bad man, you will do me the justice to say that a blow struck by me at this time would be followed by a revolution; and this I know."

Under the state of public sentiment then prevailing at the South, it would have been strange if the extraordinary event and the succeeding debate had not provoked other similar affairs. Mr. Sumner's colleague, Senator Henry Wilson, of Massachusetts (afterwards Vice-President of the United States), in his speech characterized the assault as "brutal, murderous, and cowardly." For this language Brooks sent him a challenge. Wilson wrote a reply declining the encounter, but in the same letter announcing that "I religiously believe in the right of self-defense, in its broadest sense."

One of the sharpest denunciations of the assault was made by Anson Burlingame, a Massachusetts Representative (afterwards United States Minister to China, and still later Chinese Minister to the United States). "I denounce it," he said, "in the name of the Constitution it violates. I denounce it in the name of the sovereignty of Massachusetts, which was stricken down by the blow. I denounce it in the name of humanity. I denounce it in the name of civilization, which it outraged. I denounce it in the name of that fair-play which bullies and prize-fighters respect." For this, after some efforts had been made by friends to bring about an amicable understanding, Brooks sent him also a challenge. Mr. Burlingame accepted the challenge, and his second designated the Clifton House in Canada as the rendezvous and rifles as weapons. Burlingame at once started on the journey; but Brooks declined to go, on the excuse that his life would not be safe on such a trip through the North.

Broadened into national significance by all these attendant circumstances, the Sumner assault became a leading event in the great slavery contest between the South and North. It might well rank as one of the episodes of the civil war then raging in Kansas, out of which it had in reality grown, and with which it was intertwined in motive, act, and comment. In result the incident was extremely damaging to the South, for it tended more than any single Border-Ruffian crime in Kansas to unite hesitating and wavering opinion in the North against the alarming flood of lawlessness and violence, which as a rule found its origin and its defense in the ranks of the pro-slavery party. Certainly no phase of the transaction was received by the North with such popular favor as some of the bolder avowals by Northern Representatives of their readiness to fight, and especially by Burlingame's actual acceptance of the challenge of Brooks.

The shock of the attack, and the serious wounds received by Mr. Sumner, produced a spinal malady, from which he rallied with great difficulty, and only after severe medical treatment and years of enforced abstinence from work. As the constituents of Brooks sent him back to the House, so also the Legislature of Massachusetts, in January, 1857, with but few dissenting votes, reelected Sumner to a new senatorial term, beginning the 4th of March. He came to Washington and was sworn in, but within a few days sailed for Europe, and during the greater part of the long interim between that time and the succeeding Presidential campaign his seat in the Senate remained vacant.

It was on the 4th of June, 1860, that he again raised his voice in debate. Some changes had occurred: both Butler and Brooks were dead;[1] the Senate was assembled in its new hall in the north wing of the Capitol extension. But in the main the personnel and the spirit of the pro-slavery party still confronted him. "Time has passed," he said, "but the question remains." A little more than four years before, he had essayed to describe "The Crime against Kansas"; now, in an address free from offensive personalities but more unsparing in rhetoric and stronger in historical arraignment, he delineated what he named the "Barbarism of Slavery." Picturing to ourselves the orator, the circumstances, and the theme, we can comprehend the exaltation with which he exclaimed in his exordium: "Slavery must be resisted not only on political grounds, but on all other grounds, whether social, economical, or moral. Ours is no holiday contest; nor is it any strife of rival factions—of White and Red Roses; of theatric Neri and Bianchi; but it is a solemn battle between Right and Wrong, between Good and Evil.... Grander debate has not occurred in our history, rarely in any history; nor can this debate close or subside except with the triumph of Freedom."

With this speech Sumner resumed his place as a conspicuous figure and an indefatigable energy in national politics and legislation, tireless in attacking and pursuing slavery until its final overthrow.

————— [1] Preston S. Brooks died in Washington, January 27, 1857; Andrew P. Butler died in South Carolina, May 25, 1857.



CHAPTER IV

THE DRED SCOTT DECISION

[Sidenote] 1854.

[Sidenote] March 6, 1857.

Deep and widespread as hitherto had been the slavery agitation created by the repeal of the Missouri Compromise and by the consequent civil war in Kansas, an event entirely unexpected to the public at large suddenly doubled its intensity. This was the announcement, two days after Buchanan's inauguration, of the decision of the Supreme Court of the United States in the Dred Scott case. This celebrated case had arisen as follows:

Two or three years before the Nebraska bill was thought of, a suit was begun by a negro named Dred Scott, in a local court in St. Louis, Missouri, to recover the freedom of himself and his family from slavery. He alleged that his master, one Dr. Emerson, an army surgeon, living in Missouri, had taken him as his slave to the military post at Rock Island, in the State of Illinois, and afterwards to Fort Snelling, situated in what was originally Upper Louisiana, but was at that time part of Wisconsin Territory, and now forms part of Minnesota. While at this latter post Dred Scott, with his master's consent, married a colored woman, also brought as a slave from Missouri, and of this marriage two children were born. All this happened between the years 1834 and 1838. Afterwards Dr. Emerson brought Dred Scott and his family back to Missouri. In this suit they now claimed freedom, because during the time of residence with their master at these military posts slavery was there prohibited by positive law; namely, at Bock Island by the ordinance of 1787, and later by the Constitution of Illinois; at Fort Snelling by the Missouri Compromise acts of 1820, and other acts of Congress relating to Wisconsin Territory.

The local court in St. Louis before which this action was brought appears to have made short work of the case. It had become settled legal doctrine by Lord Mansfield's decision in the Somersett case, rendered four years before our Declaration of Independence, that "the state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only positive law.... It is so odious that nothing can be suffered to support it but positive law." The learned chief-justice therefore ordered that Somersett, being claimed as a Virginia slave brought by his master into England, when it was attempted to carry him away against his will, should be discharged from custody or restraint, because there was no positive law in England to support slavery. The doctrine was subsequently modified by another English chief-justice, Lord Stowell, in 1827, to the effect that absence of positive law to support slavery in England only operates to suspend the master's authority, which is revived if the slave voluntarily returns into an English colony where slavery does exist by positive law.

The States of the Union naturally inherited and retained the common law of England, and the principles and maxims of English jurisprudence not necessarily abrogated by the change of government, and among others this doctrine of Lord Mansfield. Unlike England, however, where there was no slavery and no law for or against it, some of the American States had positive laws establishing slavery, others positive laws prohibiting it. Lord Mansfield's doctrine, therefore, enlarged and strengthened by American statutes and decisions, had come to be substantially this: Slavery, being contrary to natural right, exists only by virtue of local law; if the master takes his slave for permanent residence into a jurisdiction where slavery is prohibited, the slave thereby acquires a right to his freedom everywhere. On the other hand, Lord Stowell's doctrine was similarly enlarged and strengthened so as to allow the master right of transit and temporary sojourn in free-States and Territories without suspension or forfeiture of his authority over his slave. Under the complex American system of government, in which the Federal Union and the several States each claim sovereignty and independent action within certain limitations, it became the theory and practice that towards each other the several States occupied the attitude of foreign nations, which relation was governed by international law, and that the principle of comity alone controlled the recognition and enforcement by any State of the law of any other State. Under this theory, the courts of slave States had generally accorded freedom to slaves, even when acquired by the laws of a free-State, and reciprocally the courts of free-States had enforced the master's right to his slave where that right depended on the laws of a slave-State. In this spirit, and conforming to this established usage, the local court of Missouri declared Dred Scott and his family free.

The claimant, loath to lose these four human "chattels," carried the case to the Supreme Court of the State of Missouri, where at its March term, 1852, it was reversed, and a decree rendered that these negroes were not entitled to freedom. Three judges formed the court, and two of them joined in an opinion bearing internal evidence that it was prompted, not by considerations of law and justice, but by a spirit of retaliation growing out of the ineradicable antagonism of freedom and slavery.

[Sidenote] Scott, J., 15 Mo. Reports, pp. 582-6.

Every State [says the opinion] has the right of determining how far, in a spirit of comity, it will respect the laws of other States. Those laws have no intrinsic right to be enforced beyond the limits of the State for which they were enacted. The respect allowed them will depend altogether on their conformity to the policy of our institutions. No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws.... 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.... Times now are not as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures whose inevitable consequence must be the overthrow and destruction of our Government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence slavery within her limits, nor does she seek to share or divide it with others.

To this partisan bravado the third judge replied with a dignified rebuke; in his dissenting opinion he said:

[Sidenote] Gamble, J., 15 Mo. Reports, pp. 589-92.

As citizens of a slave-holding State, we have no right to complain of our neighbors of Illinois, because they introduce into their State Constitution a prohibition of slavery; nor has any citizen of Missouri who removes with his slave to Illinois a right to complain that the fundamental law of the State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave. It is as much his own voluntary act as if he had executed a deed of emancipation.... There is with me nothing in the law relating to slavery which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary public excitements which are gathered around it.... In this State it has been recognized from the beginning of the government, as a correct position in law, that a master who takes his slave to reside in a State or Territory where slavery is prohibited thereby emancipates his slave. [Citing cases.] ... But the Supreme Court of Missouri, so far from standing alone on this question, is supported by the decisions of other slave-States, including those in which it may be supposed there was the least disposition to favor emancipation. [Citing cases.] ... 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 decision but in those principles which are immutable.

These utterances, it must be remembered, occurred in the year 1852, when all slavery agitation was supposed to have been forever settled. They show conclusively that the calm was superficial and delusive, and that this deep-reaching contest was still, as before the adjustment of 1850, actually transforming the various institutions of society. Gradually, and as yet unnoticed by the public, the motives disclosed in these opinions were beginning to control courts of justice, and popular discussion and excitement were not only shaping legislation, but changing the tenor of legal decisions throughout the country.

Not long after the judgment by the Supreme Court of Missouri, Dred Scott and his family were sold to a man named Sandford, who was a citizen of New York. This circumstance afforded a ground for bringing a similar action in a Federal tribunal, and accordingly Dred Scott once more sued for freedom, in the United States Circuit Court at St. Louis.[1] The case was tried in May, 1854, and a decree rendered that they "were negro slaves, the lawful property" of Sandford. As a final effort to obtain justice, they appealed by writ of error to the Supreme Court of the United States, the highest judicial tribunal of the nation.

Before this court of last resort the case was argued a first time in the spring of 1856. The country had been for two years in a blaze of political excitement. Civil war was raging in Kansas; Congress was in a turmoil of partisan discussion; a Presidential election was impending, and the whole people were anxiously noting the varying phases of party politics. Few persons knew there was such a thing as the Dred Scott case on the docket of the Supreme Court; but those few appreciated the importance of the points it involved, and several distinguished lawyers volunteered to take part in the argument.[2] Two questions were presented to the court: First, Is Dred Scott a citizen entitled to sue? Secondly, Did his residence at Rock Island and at Fort Snelling, under the various prohibitions of slavery existing there, work his freedom?

The Supreme Court was composed of nine justices; namely, Chief-Justice Taney and Associate Justices McLean, Wayne, Catron, Daniel, Nelson, Grier, Curtis, and Campbell. There was at once manifested among the judges not only a lively interest in the questions presented, but a wide difference of views as to the manner of treating them. Consultations of the Supreme Court are always shrouded in inviolable secrecy, but the opinions afterwards published indicate that the political aspects of slavery, which were then convulsing the country, from the very first found a certain sympathy and reflection in these grave judicial deliberations. The discussions yet turned upon certain merely technical rules to be applied to the pleadings under review; and ostensibly to give time for further examination, the case was postponed and a re-argument ordered for the next term. It may, however, be suspected that the nearness of the Presidential election had more to do with this postponement than did the exigencies of the law.[3]



The Presidential election came, and Mr. Buchanan was chosen. Soon after, the court met to begin its long winter term; and about the middle of December, 1856, the Dred Scott case was once more elaborately argued. Again occupying the attention of the court for four successive days, as it had also done in the first hearing, the eminent counsel, after passing lightly over mere technical subtleties, discussed very fully what was acknowledged to be the leading point in the controversy; namely, whether Congress had power under the Constitution to prohibit slavery in the Federal Territories, as it had done by the Missouri Compromise act and various other laws. It was precisely the policy, or impolicy, of this and similar prohibitions which formed the subject of contention in party politics. The question of their constitutional validity was certain to take even a higher rank in public interest.

When after the second argument the judges took up the case in conference for decision, the majority held that the judgment of the Missouri Federal tribunal should simply be affirmed on its merits. In conformity to this view, Justice Nelson was instructed to prepare an opinion to be read as the judgment of the Supreme Court of the United States. Such a paper was thereupon duly written by him, of the following import: It was a question, he thought, whether a temporary residence in a free-State or Territory could work the emancipation of a slave. It was the exclusive province of each State, by its Legislature or courts of justice, to determine this question for itself. This determined, the Federal courts were bound to follow the State's decision. The Supreme Court of Missouri had decided Dred Scott to be a slave. In two cases tried since, the same judgment had been given. Though former decisions had been otherwise, this must now be admitted as "the settled law of the State," which, he said, "is conclusive of the case in this court."

This very narrow treatment of the points at issue, having to do with the mere lifeless machinery of the law, was strikingly criticised in the dissenting opinion afterwards read by Justice McLean, a part of which, by way of anticipation, may properly be quoted here. He denied that it was exclusively a Missouri question.

[Sidenote] 19 Howard, pp. 555-64.

It involves a right claimed under an act of Congress and the Constitution of Illinois, and which cannot be decided without the consideration and construction of those laws.... Rights sanctioned for twenty-eight years ought not and cannot be repudiated, with any semblance of justice, by one or two decisions, influenced, as declared, by a determination to counteract the excitement against slavery in the free-States.... Having the same rights of sovereignty as the State of Missouri in adopting a constitution, I can perceive no reason why the institutions of Illinois should not receive the same consideration as those of Missouri.... The Missouri court disregards the express provisions of an act of Congress and the Constitution of a sovereign State, both of which laws for twenty-eight years it had not only regarded, but carried into effect. If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford?

[Sidenote] Campbell to Tyler, Samuel Tyler. "Life of Taney," pp. 383-4.

Had the majority of the judges carried out their original intention, and announced their decision in the form in which Justice Nelson, under their instruction, wrote it, the case of Dred Scott would, after a passing notice, have gone to a quiet sleep under the dust of the law libraries. A far different fate was in store for it. The nation was then being stirred to its very foundation by the slavery agitation. The party of pro-slavery reaction was for the moment in the ascendant; and as by an irresistible impulse, the Supreme Court of the United States was swept from its hitherto impartial judicial moorings into the dangerous seas of polities.

[Sidenote] Campbell to Tyler, Tyler, p. 384.

Before Judge Nelson's opinion was submitted to the judges in conference for final adoption as the judgment of the court a movement seems to have taken place among the members, not only to change the ground of the decision, but also greatly to enlarge the field of inquiry. It is stated by one of the participants in that memorable transaction (Justice Campbell) that this occurred "upon a motion of Mr. Justice Wayne, who stated that the case had created public interest and expectation, that it had been twice argued, and that an impression existed that the questions argued would be considered in the opinion of the court." He further says that "the apprehension had been expressed by others of the court, that the court would not fulfill public expectation or discharge its duties by maintaining silence upon these questions; and my impression is, that several opinions had already been begun among the members of the court, in which a full discussion of the case was made, before Justice Wayne made this proposal."

The exact time when this movement was begun cannot now be ascertained. The motives which prompted it can be inferred by recalling contemporaneous political events. A great controversy divided public opinion, whether slavery might be extended or should be restricted. The Missouri Compromise had been repealed to make such an extension possible. The terms of that repeal were purposely couched in ambiguous language. Kansas and Nebraska were left "perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States." Whether under the Constitution slavery could be excluded from the Federal Territories was affirmed by Northern and denied by Southern Democrats. Northern and Southern Democrats, acting together in the Cincinnati National Convention, had ingeniously avoided any solution of this difference.

A twofold interpretation had enabled that party to elect Mr. Buchanan, not by its own popular strength, but by the division of its opponents. Notwithstanding its momentary success, unless it could develop new sources of strength the party had only a precarious hold upon power. Its majority in the Senate was waning. In Kansas free-State emigration was outstripping the South in numbers and checkmating her in border strife. According to the existing relative growth in sectional representation and sectional sentiment, the balance of power was slowly but steadily passing to the North.

Out of this doubt and difficulty there was one pathway that seemed easy and certain. All the individual utterances from the Democratic party agreed that the meaning of the words "subject to the Constitution" was a question for the courts. This was the original compact between Northern and Southern Democrats in caucus when Douglas consented to repeal. Douglas, shorn of his prestige by his defeat for the Presidential nomination, must accept conditions from his successful rival. The Dred Scott case afforded the occasion for a decision. Of the nine judges on the Supreme Bench seven were Democrats, and of these five were appointed from slave-States. A better opportunity for the South to obtain a favorable dictum could never be expected to arise. A declaration by the Supreme Court of the United States that under the Constitution Congress possessed no power to prohibit slavery in the Federal Territories would by a single breath end the old and begin a new political era. Congress was in session and the political leaders were assembled at Washington. Political topics excluded all other conversation or thought. Politics reddened the plains of Kansas; politics had recently desecrated the Senate chamber with a murderous personal assault; politics contended greedily for the spoils of a new administration: politics nursed a tacit conspiracy to nationalize slavery. The slavery sentiment ruled society, ruled the Senate, ruled the Executive Mansion. It is not surprising that this universal influence flowed in at the open door of the national hall of justice—that it filtered through the very walls which surrounded the consulting-room of the Supreme Court.

[Sidenote] Wayne, J., Opinion in the Dred Scott case, 19 Howard, pp. 454-5.

The judges were, after all, but men. They dined, they talked, they exchanged daily personal and social courtesies with the political world. Curiosity, friendship, patriotism, led them to the floors of Congress to listen to the great debates. Official ceremony called them into the presence of the President, of legislators, of diplomats. They were feasted, flattered, questioned, reminded of their great opportunity, tempted with the suggestion of their supreme authority.[4] They could render their names illustrious. They could honor their States. They could do justice to the South. They could perpetuate their party. They could settle the slavery question. They could end sectional hatred, extinguish civil war, preserve the Union, save their country. Advanced age, physical feebleness, party bias, the political ardor of the youngest and the satiety of the eldest, all conspired to draw them under the insidious influence of such considerations. One of the judges in official language frankly avowed the motive and object of the majority of the court. "The case," he wrote, "involves private rights of value, and constitutional principles of the highest importance, about which there had become such a difference of opinion that the peace and harmony of the country required the settlement of them by judicial decision." This language betrays the confusion of ideas and misconception of authority which tempted the judges beyond their proper duty. Required only to decide a question of private rights, they thrust themselves forward to sit as umpires in a quarrel of parties and factions.

[Sidenote] Campbell to Tyler, Tyler, p. 384.

[Sidenote] Nelson to Tyler, Tyler, p. 385.

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 assented to, some reserving to themselves to qualify their assent 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 assigned 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 Washington 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 Washington[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 associate 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 Constitution 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 Constitution 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 unconstitutional. 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 Constitution 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 Constitution 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 assertions 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 class 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 Constitution 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 associate 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 impassable 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 asserts 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 asserted, 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 assumed 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 Constitution.... 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 Constitution 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 constitutional 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 constitutional 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 debasement 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 Constitution:

[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 Constitution was ordained and established. If so, it is not true in point of fact that the Constitution was made exclusively by the white race, and that it was made exclusively for the white race is in my opinion not only an assumption not warranted by anything in the Constitution, 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 Constitution 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 asserted 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 assertions 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 asserted on that solemn occasion they were ready and anxious to make effectual; wherever a necessary regard to circumstances, 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 asserts.

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 Constitution 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 Constitution 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 Constitution, 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 institution 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 constitutional 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 Washington, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Constitution was adopted. If the practical construction of the Constitution, contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be entitled 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."



————— [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 trespass complained of is alleged to have occurred on the first day of January, 1853.—Manuscript 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 Cushing, 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 institutions 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 constitutional 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 sanctity and integrity of the Constitution."—"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 Washington, 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 constitutional 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.

[Sidenote] 19 Howard, pp. 460-1.

A single phase of the controversy will serve to illustrate the general drift of the discussion throughout the Union. Some three months after the delivery of the opinion of the court, Senator Douglas found himself again among his constituents in Illinois, and although there was no political campaign in progress, current events and the roused state of public feeling seemed to require that he should define his views in a public speech. It marks his acuteness as a politician that he already realized what a fatal stab the Dred Scott decision had given his vaunted principle of "Popular Sovereignty," with which he justified his famous repeal of the Missouri Compromise. He had ever since argued that Congressional prohibition of slavery was obsolete and useless, and that the choice of slavery or freedom ought to be confided to the local Territorial laws, just as it was confided to local State constitutions. But the Dred Scott decision announced that slaves were property which Congress could not exclude from the Territories, adding also the inevitable conclusion that what Congress could not do a Territorial Legislature could not.

Difficult as this made his task of reconciling his favorite theory with the Dred Scott decision, such was his political boldness, and such had been his skill and success in sophistry, that he undertook even this hopeless effort. Douglas, therefore, made a speech at Springfield, Illinois, on the 12th of June, 1857, in which he broadly and fully indorsed and commended the opinion of Chief-Justice Taney and his concurring associates, declaring that "Their judicial decisions will stand in all future time, a proud monument to their greatness, the admiration of the good and wise, and a rebuke to the partisans of faction and lawless violence. If unfortunately any considerable portion of the people of the United States shall so far forget their obligations to society as to allow the partisan leaders to array them in violent resistance to the final decision of the highest judicial tribunal on earth, it will become the duty of all the friends of order and constitutional government, without reference to past political differences, to organize themselves and marshal their forces under the glorious banner of the Union, in vindication of the Constitution and supremacy of the laws over the advocates of faction and the champions of violence."

Proceeding then with a statement of the case, he continued: "The material and controlling points in the case, those which have been made the subject of unmeasured abuse and denunciation, may be thus stated: 1st. The court decided that under the Constitution of the United States, a negro descended from slave parents is not and cannot be a citizen of the United States. 2d. That the act of March 6, 1820, commonly called the Missouri Compromise act, was unconstitutional and void before it was repealed by the Nebraska act, and consequently did not and could not have the legal effect of extinguishing a master's right to his slave in that Territory. While the right continues in full force under the guarantees of the Constitution, and cannot be divested or alienated by an act of Congress, it necessarily remains a barren and a worthless right, unless sustained, protected, and enforced by appropriate police regulations and local legislation, prescribing adequate remedies for its violation. These regulations and remedies must necessarily depend entirely upon the will and wishes of the people of the Territory, as they can only be prescribed by the local legislatures. Hence the great principle of popular sovereignty and self-government is sustained and firmly established by the authority of this decision."

It is scarcely possible that Douglas convinced himself by such a glaring non sequitur; but he had no other alternative. It was a desperate expedient to shield himself as well as he might from the damaging recoil of his own temporizing statesmanship. The declaration made thus early is worthy of historical notice as being the substance and groundwork of the speaker's famous "Freeport doctrine," or theory of "unfriendly legislation," to which Lincoln's searching interrogatories drove him in the great Lincoln-Douglas debates of the following year. Repeated and amplified at that time, it became in the eyes of the South the unpardonable political heresy which lost him the Presidential nomination and caused the rupture of the Democratic National Convention at Charleston in the summer of 1860. For the moment, however, the sophism doubtless satisfied his many warm partisans. He did not dwell on the dangerous point, but trusted for oratorical effect rather to his renewed appeals to the popular prejudice against the blacks, so strong in central Illinois, indorsing and emphasizing Chief-Justice Taney's assertion that negroes were not included in the words of the Declaration of Independence, and arguing that if the principle of equality were admitted and carried out to its logical results, it would necessarily lead not only to the abolition of slavery in the slave-States, but to the general amalgamation of the two races.

The Republican party of Illinois had been greatly encouraged and strengthened by its success in electing the State officers in the previous autumn; and as their recognized leader and champion, Lincoln made a reply to this speech some two weeks later, June 26, 1857, also at Springfield. Though embracing other topics, the question of the hour, the Dred Scott decision, was nevertheless its chief subject. The extracts here presented from it will give the reader some idea of its power of statement and eloquence:

And now [said Mr. Lincoln] as to the Dred Scott decision. That decision declares two propositions—first, that a negro cannot sue in the United States courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court—dividing differently on the different points. Judge Douglas does not discuss the merits of the decision, and in that respect I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney. He denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him? Judicial decisions have two uses—first, to absolutely determine the case decided, and, secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use they are called "precedents" and "authorities." We believe as much as Judge Douglas (perhaps more) in obedience to and respect for the judicial department of government. We think its decisions on constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this. We offer no resistance to it. Judicial decisions are of greater or less authority as precedents according to circumstances. That this should be so, accords both with common sense and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and reaffirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, not to acquiesce in it as a precedent. But when, as is true, we find it wanting in all these claims to the public confidence, it is not resistance, it is not factions, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.

Rising above all questions of technical construction to the broad and universal aspects of the issue, Mr. Lincoln continued:

The Chief-Justice does not directly assert, but plainly assumes as a fact, that the public estimate of the black man is more favorable now than it was in the days of the Revolution. This assumption is a mistake. In some trifling particulars the condition of that race has been ameliorated; but as a whole, in this country, the change between then and now is decidedly the other way; and their ultimate destiny has never appeared so hopeless as in the last three or four years. In two of the five States—New Jersey and North Carolina—that then gave the free negro the right of voting, the right has since been taken away; and in a third—New York—it has been greatly abridged; while it has not been extended, so far as I know, to a single additional State, though the number of the States has more than doubled. In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then such legal restraints have been made upon emancipation as to amount almost to prohibition. In those days, legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State constitutions to withhold that power from the legislatures. In those days, by common consent, the spread of the black man's bondage to the new countries was prohibited; but now Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed and hawked at, and torn, till if its framers could rise from their graves they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him, ambition follows, philosophy follows, and the theology of the day is fast joining the cry. They have him in his prison house, they have searched his person and left no prying instrument with him. One after another they have closed the heavy iron doors upon him; and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can he produced to make the impossibility of his escape more complete than it is....

There is a natural disgust in the minds of nearly all white people at the idea of an indiscriminate amalgamation of the white and black races; and Judge Douglas evidently is basing his chief hope upon the chances of his being able to appropriate the benefit of this disgust to himself. If he can by much drumming and repeating fasten the odium of that idea upon his adversaries, he thinks he can struggle through the storm. He therefore clings to this hope as a drowning man to the last plank. He makes an occasion for lugging it in, from the opposition to the Dred Scott decision. He finds the Republicans insisting that the Declaration of Independence includes all men, black as well as white, and forthwith he boldly denies that it includes negroes at all, and proceeds to argue gravely that all who contend it does, do so only because they want to vote, and eat, and sleep, and marry with negroes. He will have it that they cannot be consistent else. Now I protest against the counterfeit logic which concludes that because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either. I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands, without asking leave of any one else, she is my equal and the equal of all others.

Chief-Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family; but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once actually place them on an equality with the whites. Now this grave argument comes to just nothing at all by the other fact that they did not at once or ever afterwards actually place all white people on an equality with one another. And this is the staple argument of both the Chief-Justice and the Senator, for doing this obvious violence to the plain, unmistakable language of the Declaration.

I think the authors of that notable instrument intended to include all men; but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral development, or social capacity. They defined with tolerable distinctness in what respects they did consider all men created equal—equal with "certain inalienable rights, among which, are life, liberty, and the pursuit of happiness." This they said, and this they meant. They did not mean to assert the obvious untruth that all were then actually enjoying that equality, nor yet that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting; the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that but for future use. Its authors meant it to be, as, thank God, it is now proving itself, a stumbling-block to all those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should reappear in this fair land and commence their vocation, they should find left for them at least one hard nut to crack.

————— [1] The ownership of Dred Scott and his family passed by inheritance to the family of a Massachusetts Republican member of Congress. The following telegram, copied from the "Providence Post" into the "Washington Union," shows the action of the new owner: "St. Louis, May 26 [1857]. Dred Scott with his wife and two daughters were emancipated to-day by Taylor Blow, Esq. They had been conveyed to him by Mr. Chaffee for that purpose."



CHAPTER VI

THE LECOMPTON CONSTITUTION

The year 1857 brings us to a decided change in the affairs of Kansas, but with occurrences no less remarkable. Active civil war gradually ceased in the preceding autumn—a result due to the vigorous and impartial administration of Governor Geary and the arrival of the inclement winter weather.

[Sidenote] Geary to Marcy, Jan. 19, 1857. Senate Ex. Doc. No. 17, 1st Sess. 35th Cong. Vol. VI., p. 131.

[Sidenote] Geary, Veto Message, Feb. 18, 1857. Senate Ex. Doc. No. 17, 1st Sess. 35th Cong. Vol. VI., p. 167.

On the evening of the day the Legislature met (January 12, 1857), the pro-slavery party held a large political convention, in which it was confessed that they were in a hopeless minority in the Territory, and the general conclusion was reached that it was no longer worth while to attempt to form a slave-State in Kansas.[1] Many of its hitherto active leaders immediately and definitely abandoned the struggle. But the Missouri cabal, intrenched in the various territorial and county offices, held to their design, though their labors now assumed a somewhat different character. They denounced Governor Geary in their resolutions, and devised legislation to further their intrigues. By the middle of February, under their inspiration, a bill providing for a convention to frame a State constitution was perfected and enacted. The Governor immediately sent the Legislature his message, reminding them that the leading idea of the organic act was to leave the actual bona fide inhabitants of the Territory "perfectly free to form and regulate their domestic institutions in their own way," and vetoing the bill because "the Legislature has failed to make any provision to submit the constitution when framed to the consideration of the people for their ratification or rejection." The Governor's argument was wasted on the predetermined legislators. They promptly passed the act over his veto.

The cabal was in no mood to be thwarted, and under a show of outward toleration, if not respect, their deep hostility found such means of making itself felt that the Governor began to receive insult from street ruffians, and to become apprehensive for his personal safety. In such a contest he was single-handed against the whole pro-slavery town of Lecompton. The foundation of his authority was gradually sapped; and finding himself no longer sustained at Washington, where the private appeals and denunciations of the cabal were more influential than his official reports, he wrote his resignation on the day of Buchanan's inauguration, and a week later left the Territory in secrecy as a fugitive. Thus, in less than three years, three successive Democratic executives had been resisted, disgraced, and overthrown by the political conspiracy which ruled the Territory; and Kansas had indeed become, in the phraseology of the day, "the graveyard of governors."

The Kansas imbroglio was a political scandal of such large proportions, and so clearly threatened a dangerous schism in the Democratic party, that the new President, Buchanan, and his new Cabinet, proceeded to its treatment with the utmost caution. The subject was fraught with difficulties not of easy solution. The South, to retain her political supremacy, or even her equality, needed more slave-States to furnish additional votes in the United States Senate. To make a slave-State of Kansas, the Missouri Compromise had been repealed, and a bogus legislature elected and supported by the successive Missouri invasions and the guerrilla war of 1856. All these devices had, however, confessedly failed of their object. Northern emigration and anti-slavery sentiment were clearly in possession of Kansas, and a majority of voters stood ready upon fair occasion to place her in the column of free-States. It had become a game on the chess-board of national politics. The moving pieces stood in Missouri and Kansas, but the players sat in Washington. In reality it was a double game. There was plot and under-plot. Beneath the struggle between the free-States and the slave-States were the intrigue and deception carried on between Northern Democrats and Southern Democrats. The Kansas-Nebraska act was a double-tongued statute, and the Cincinnati platform a Janus-faced banner. Momentary victory was with the Southern Democrats, for they had secured the nomination and election of President Buchanan—"a Northern man with Southern principles."

[Sidenote] Walker to Cass, July 15, 1857. Senate Ex. Doc. No. 8, 1st Sess. 35th Cong. Vol. I., p. 32.

[Sidenote] Walker to Cass, Dec. 15, 1857. Ibid., p. 122.

Determined to secure whatever prestige could be derived from high qualification and party influence, Buchanan tendered the vacant governorship of Kansas to his intimate personal and political friend, Robert J. Walker, of Mississippi, a man of great ability and national fame, who had been Senator and Secretary of the Treasury. Walker, realizing fully the responsibility and danger of the trust, after repeated refusals finally accepted upon two distinct conditions: first, that General Harney should be "put in special command in Kansas with a large body of troops, and especially of dragoons and a battery," and retained there subject to his military directions until the danger was over; and second, that he "should advocate the submission of the constitution to the vote of the people for ratification or rejection."

[Sidenote] March 7, 1856. June 25, 1856.

This latter had now become a vital point in the political game. The recent action of the Territorial Legislature and Geary's already mentioned veto message were before the President and his Cabinet.[2] But much more important than these moves in Kansas was the prior determination of prominent Washington players. During the Kansas civil war and the Presidential campaign of the previous year, by way of offset to the Topeka Constitution, both Senator Douglas and Senator Toombs wrote and introduced in the Senate bills to enable Kansas to form a State constitution. The first by design, and the second by accident, contained a clause to submit such constitution, when formed, to a vote of the people. Both these bills were considered not only by the Senate Committee on Territories, of which Douglas was chairman, but also by a caucus of Democratic Senators. Said Senator Bigler: "It was held, by those most intelligent on the subject, that in view of all the difficulties surrounding that Territory, [and] the danger of any experiment at that time of a popular vote, it would be better that there should be no such provision in the Toombs bill; and it was my understanding, in all the intercourse I had, that that convention would make a constitution and send it here without submitting it to the popular vote."[3]

[Sidenote] Douglas, Milwaukee Speech, October 13, 1860.

This Toombs bill was, after modification in other respects, adopted by Douglas, and duly passed by the Senate; but the House with an opposition majority refused its assent. All these preliminaries were well known to the Buchanan Cabinet, and of course also to Douglas. It is fair to assume that under such circumstances Walker's emphatic stipulation was deliberately and thoroughly discussed. Indeed, extraordinary urging had been necessary to induce him to reconsider his early refusals. Douglas personally joined in the solicitation. Because of the determined opposition of his own family, Walker had promised his wife that he would not go to Kansas without her consent; and President Buchanan was so anxious on the point that he personally called on Mrs. Walker and persuaded her to waive her objections.[4] Under influences like these Walker finally accepted the appointment, and the President and Cabinet acquiesced in his conditions without reserve. He wrote his inaugural address in Washington, using the following language: "I repeat then as my clear conviction that unless the convention submit the constitution to the vote of the actual resident settlers, and the election be fairly and justly conducted, the constitution will be and ought to be rejected by Congress."

[Sidenote] Douglas, Milwaukee Speech, October 13, 1860.

He submitted this draft of his inaugural to President Buchanan, who read and approved the document and the promise. Secretary Cass wrote his official instructions in accordance with it. On Walker's journey West he stopped at Chicago and submitted his inaugural to Douglas, who also indorsed his policy. The new Governor fondly believed he had removed every obstacle to success, and every possibility of misunderstanding or disapproval by the Administration, such as had befallen his predecessors. But President Buchanan either deceived him at the beginning, or betrayed him in the end.

[Sidenote] Walker, Testimony, Covode Committee Report, p. 109.

With Governor Walker there was sent a new Territorial secretary. Woodson, who had so often abused his powers during his repeated service as acting Governor, was promoted to a more lucrative post to create the vacancy. Frederick P. Stanton, of Tennessee, formerly a representative in Congress, a man of talent and, as the event proved, also a man of courage, was made secretary. Both Walker and Stanton being from slave-States, it may be presumed that the slavery question was considered safe in their hands. Walker, indeed, entertained sentiments more valuable to the South in this conjuncture. He believed in the balance of power; he preferred that the people of Kansas should make it a slave-State; he was "in favor of maintaining the equilibrium of the Government by giving the South a majority in the Senate, while the North would always necessarily have a majority in the House of Representatives." Both also entered on their mission with the feelings entertained by the President and Democratic party; namely, that the free-State men were a mischievous insurrectionary faction, willfully disturbing the peace and defying the laws. Gradually, however, their personal observation convinced them that this view was a profound error.

[Sidenote] Walker to Buchanan, June 28, 1857. Ibid., p. 115.

[Sidenote] Walker, Testimony. Ibid., p. 107.

[Sidenote] Walker, Inaugural, May 27, 1857. Senate Ex. Doc. No. 8, 1st Sess. 35th Cong. Vol. I., p. 11.

Governor Walker arrived in the Territory late in May, and it required but short investigation to satisfy him that any idea of making Kansas a slave-State was utterly preposterous. Had everything else been propitious, climate alone seemed to render it impossible. But popular sentiment was also overwhelmingly against it; he estimated that the voters were for a free-State more than two to one. All the efforts of the pro-slavery party to form a slave-State seemed to be finally abandoned. If he could not make Kansas a slave-State, his next desire was to make her a Democratic State. "And the only plan to accomplish this was to unite the free-State Democrats with the pro-slavery party, and all those whom I regarded as conservative men, against the more violent portion of the Republicans." He, therefore, sought by fair words to induce the free-State men to take part in the election of delegates to the constitutional convention. His inaugural address, quoting the President's instructions, promised that such election should be free from fraud and violence; that the delegates should be protected in their deliberations; and that if unsatisfactory, "you may by a subsequent vote defeat the ratification of the constitution."



[Sidenote] Walker, Topeka Speech, June 6, 1857, in "Washington Union" of June 27, 1857.

This same policy was a few weeks later urged at Topeka, where a mass meeting of the free-State men was called to support and instruct another sitting of the "insurrectionary" free-State Legislature elected under the Topeka Constitution. The Governor found a large assemblage, and a very earnest discussion in progress, whether the "Legislature" should pursue only nominal action, such as would in substance amount to a petition for redress of grievances, or whether they should actually organize their State government, and pass a complete code of laws. The moderate free-State men favored the former, the violent and radical the latter, course. When their mass meeting adjourned, they called on the Governor at his lodgings; he made a speech, in which he renewed the counsels and promises of his inaugural address. "The Legislature," said he, "has called a convention to assemble in September next. That constitution they will or they will not submit to the vote of a majority of the then actual resident settlers of Kansas. If they do not submit it, I will join you, fellow-citizens, in lawful opposition to their course. And I cannot doubt, gentlemen, that one much higher than I, the Chief Magistrate of the Union, will join you in that opposition." His invitation to them to participate in the election of a convention produced no effect; they still adhered to their resolve to have nothing to do with any affirmative proceedings under the bogus laws or Territorial Legislature. But the Governor's promise of a fair vote on the constitution was received with favor. "Although this mass convention," reports the Governor, "did not adopt fully my advice to abandon the whole Topeka movement, yet they did vote down by a large majority the resolutions prepared by the more violent of their own party in favor of a complete State organization and the adoption of a code of State laws."

[Sidenote] Walker to Cass, July 15, 1857. Senate Ex. Doc. No. 8, 1st Sess. 35th Cong. Vol. I., p. 27.

[Sidenote] Ibid., p. 29.

[Sidenote] Walker to Cass, July 15, 1857. Senate Ex. Doc. No. 8, 1st Sess. 35th Cong. Vol. I., p. 30.

If the Governor was gratified at this result as indicative of probable success in his official administration, he rejoiced yet more in its significance as a favorable symptom of party politics. "The result of the whole discussion at Topeka," he reported, "was regarded by the friends of law and order as highly favorable to their cause, and as the commencement of a great movement essential to success; viz., the separation of the free-State Democrats from the Republicans, who had to some extent heretofore cooperated under the name of the free-State party." Another party symptom gave the Governor equal, if not greater, encouragement. On the 2d and 3d of July the "National Democratic" or pro-slavery party of the Territory met in convention at Lecompton. The leaders were out in full force. The hopelessness of making Kansas a slave-State was once more acknowledged, the Governor's policy indorsed, and a resolution "against the submission of the constitution to a vote of the people was laid on the table as a test vote by forty-two to one." The Governor began already to look upon his counsels and influence as a turning-point in national destiny. "Indeed," he wrote, "it is universally admitted here that the only real question is this: whether Kansas shall be a conservative, constitutional, Democratic, and ultimately free-State, or whether it shall be a Republican and abolition State; and that the course pursued by me is the only one which will prevent the last most calamitous result, which, in my opinion, would soon seal the fate of the republic."

[Sidenote] F.P. Stanton's Speech, Philadelphia, February 8, 1858. Pamphlet.

In his eagerness to reform the Democratic party of Kansas, and to strengthen the Democratic party of the nation against the assaults and dangers of "abolitionism," the Governor was not entirely frank; else he would at the same time have reported, what he was obliged later to explain, that the steps taken to form a constitution from which he hoped so much were already vitiated by such defects or frauds as to render them impossible of producing good fruit. The Territorial law appointing the election of delegates provided for a census and a registry of voters, to be made by county officers appointed by the Territorial Legislature. These officers so neglected or failed to discharge their duty, that in nearly half the organized counties of the interior no attempt whatever was made to obtain the census or registration; and in the counties lying on the Missouri border, where the pro-slavery party was strong, the work of both was exceedingly imperfect, and in many instances with notorious discrimination against free-State voters. While the disfranchised counties had a comparatively sparse population, the number of voters in them was too considerable to be justly denied their due representation.[5] The apportionment of delegates was based upon this defective registration and census, and this alone would have given the pro-slavery party a disproportionate power in the convention. But at the election of delegates on the 15th of June, the free-State men, following their deliberate purpose and hitherto unvarying practice of non-conformity to the bogus laws, abstained entirely from voting. "The consequence was that out of the 9250 voters whose names had been registered ... there were in all about 2200 votes cast, and of these the successful candidate received 1800."

[Sidenote] Walker to Buchanan, June 28, 1857. Report Covode Committee, p. 118.

"The black Republicans," reported the Governor, "would not vote, and the free-State Democrats were kept from voting by the fear that the constitution would not be submitted by the convention, and that by voting they committed themselves to the proceeding of the convention. But for my inaugural, circulated by thousands, and various speeches all urging the people to vote, there would not have been one thousand votes polled in the Territory, and the convention would have been a disastrous failure."

But this was not the only evil. The apportionment of the members of the Territorial Legislature to be chosen the ensuing autumn was also based upon this same defective registry and census. Here again disproportionate power accrued to the pro-slavery party, and the free-State men loudly charged that it was a new contrivance for the convenience of Missouri voters. Governor Walker publicly deplored all these complications and defects; but he counseled endurance, and constantly urged in mitigation that in the end the people should have the privilege of a fair and direct vote upon their constitution. That promise he held aloft as a beacon-light of hope and redress. This attitude and policy, frequently reported to Washington, was not disavowed or discouraged by the President and Cabinet.

The Governor, however, soon found a storm brewing in another quarter. When the newspapers brought copies of his inaugural address, his Topeka speech, and the general report of his Kansas policy back to the Southern States, there arose an ominous chorus of protest and denunciation from the whole tribe of fire-eating editors and politicians. What right had the Governor to intermeddle? they indignantly demanded. What call to preach about climate, what business to urge submission of the constitution to popular vote, or to promise his own help to defeat it if it were not submitted; what authority to pledge the President and Administration to such a course! The convention was sovereign, they claimed, could do what it pleased, and no thanks to the Governor for his impertinent advice. The Democratic State Convention of Georgia took the matter in hand, and by resolution denounced Walker's inaugural address, and asked his removal from office. The Democratic State Convention of Mississippi followed suit, and called the inaugural address an unjust discrimination against the rights of the South, and a dictatorial intermeddling with the high public duty intrusted to the convention.