Battle Cry of Freedom: The Civil War Era (36 page)

Congress now had two referenda to choose from. Fire-eaters below the Potomac heated up their rhetoric to ensure the correct choice. Yan-cey in Alabama talked of forming committees of public safety to "fire the Southern heart" and "precipitate the cotton states into a revolution." Governors and legislatures stood by to call conventions to consider secession if Congress refused to admit Kansas under the "duly ratified" Lecompton constitution. "If Kansas is
driven out of the Union for being a Slave State,"
asked South Carolina's Senator James Hammond, "can any Slave State remain in it with honor?" The southern people, declared

43
. Milton,
Eve of Conflict
, 270–71.

44
. Robert W. Johannsen,
Stephen A. Douglas
(New York, 1973), 581–86.

a Georgia congressman, intended "to have equality in this Union or independence out of it."
⁴⁵
These threats stiffened Buchanan's backbone. On February 2, 1858, he sent the Lecompton constitution to Congress with a message recommending admission of a sixteenth slave state. Kansas, proclaimed the president, "is at this moment as much a slave state as Georgia or South Carolina."
⁴⁶

The Lecompton issue gripped Congress for several months. It evoked more passion than even the initial Kansas-Nebraska Act four years earlier. The lineup was the same now as then—with two significant differences: this time Douglas led the opposition; and the new Republican party dominated northern representation in the House. Douglas's political future hung in the balance. If he had supported Lecompton, southern backing for his presidential nomination in 1860 would have been assured. But in those circumstances the nomination would have been worth little. The millstone of Lecompton would sink Democratic chances of carrying any northern state. Douglas did not hesitate in his choice. He could never vote, he told the Senate, to "force this constitution down the throats of the people of Kansas, in opposition to their wishes and in violation of our pledges."
⁴⁷
Telegrams and letters by the bushel poured into Washington praising Douglas's stand. "You have adopted the only course that could save the Northern Democracy from annihilation at the next election," ran a typical letter.
⁴⁸
Douglas even had the novel experience of seeing himself lionized by such members of the opposition as Horace Greeley, who wanted to adopt him as a good Republican.

From the South, however, came little but eternal damnation. Southerners professed "astonishment" that the Illinoisian had turned against them. "Douglas was with us until the time of trial came," said a Georgian, "then he deceived and betrayed us." A South Carolinian lamented that "this defection of Douglas has done more than all else to shake my confidence in Northern men on the slavery issue, for I have long regarded him as one of our safest and most reliable friends." As the controvercy

45
. Yancey quoted in Craven,
Growth of Southern Nationalism
, 289; Hammond in Johannsen,
Douglas
, 600; Georgia congressman in Don E. Fehrenbacher,
The Southand Three Sectional Crises
(Baton Rouge, 1980), 54.

46
. James D. Richardson, ed.,
Compilation of the Messages and Papers of the Presidents
, 20 vols. (Washington, 1897), VII, 3010.

47
.
CG
, 35 Cong., 1 Sess., 14–19.

48
. Don E. Fehrenbacher,
The Dred Scott Case: Its Significance in American Law and Politics
(New York, 1978), 466.

sharpened, southern rhetoric toward Douglas became more heated: he was "at the head of the Black column . . . stained with the dishonor of treachery without a parallel . . . patent double dealing . . . detestable heresies . . . filth of his defiant recreancy . . . a
Dead Cock
in the Pit . . . away with him to the tomb which he is digging for his political corpse."
⁴⁹

With its southern-dominated Democratic majority, the Senate approved admission of Kansas as a slave state on March 23, 1858. In the House the administration could count on at least half of the northern Democrats, as in 1854. But this time that was not enough to win the battle. "Battle" was not too strong a word for events in the House. On one occasion during an all-night session Republican Galusha Grow of Pennsylvania walked over to the Democratic side to confer with a few northern Democrats. Lawrence Keitt of South Carolina shouted at him: "Go back to your side of the House, you Black Republican puppy!" Replying with a sneering remark about slave drivers, Grow grappled with Keitt and knocked him down. Congressmen from both sides rushed into the melee. "There were some fifty middle-aged and elderly gentlemen pitching into each other like so many Tipperary savages," wrote a reporter describing this 2:00 a.m. free-for-all, "most of them incapable, from want of wind and muscle, of doing each other any serious harm." But Alexander Stephens believed that "if any weapons had been on hand it would probably have been a bloody one. All things here are tending my mind to the conclusion that the Union cannot and will not last long."
⁵⁰
On April 1, in a dramatic roll call, 22 (of 53) northern Democrats joined the Republicans and a handful of Americans to defeat Lecompton by a vote of 120 to 112. "The agony is over," wrote a Douglas Democrat, "and thank God, the right has triumphed!"
⁵¹

To save face, the administration supported a compromise by which Kansans would vote again on acceptance or rejection of Lecompton under the guise of a referendum on an adjustment in the size of the customary land grant to be received upon admission to statehood. Rejection of the land grant would defer statehood for at least two years.

49
. Alexander H. Stephens to ––––– Pritchard, Dec. 9, 1857, Stephens Papers, Louis A. Warren Lincoln Library and Museum; Fehrenbacher,
Dred Scott Case
, 466, 468, 483; Johannsen,
Douglas
, 599.

50
.
New York Weekly Tribune
, Feb. 13, 1859, quoted in Nevins,
Emergence
, I, 288; Stephens quoted in Rawley,
Race and Politics
, 239–40.

51
. Johannsen,
Douglas
, 610.

Spurning this subterfuge as a bribe, Kansans defeated it on August 2 by a vote of 11,300 to 1,788. During this time Kansas had resumed bleeding from a number of wounds. Jayhawkers and border ruffians raided and ambushed each other with considerable ferocity. In May 1858, almost on the second anniversary of the Pottawatomie massacre, a pro-slavery band evened the score by seizing nine free-state settlers from their cabins and shooting them by firing squad (four survived their wounds). John Brown himself reappeared in the territory. His band invaded Missouri, killed a slaveholder, and liberated eleven slaves and a good many horses and took them to Canada.

Free-state Kansans organized a Republican party and elected two-thirds of the delegates to a new constitutional convention in 1859. Kansas finally came in as a free state in January 1861, joining California, Minnesota, and Oregon, whose entry since the Mexican War had given the North a four-state edge over the South. Kansas also became one of the most Republican states in the Union. Though most of the free-state settlers had originally been Democrats, the struggle with the slave power pushed them into the Republican party, which regularly rolled up two-or three-to-one majorities during the early years of statehood.

With enemies like the Democrats, Republicans scarcely needed friends. As if Kansas were not enough, the Buchanan administration, the Supreme Court, and southern Democrats ventured several other actions seemingly designed to assure Republican victory in the presidential election of 1860.

6
Mudsills and Greasy Mechanics for A. Lincoln

I

Dred Scott lived all but two of his sixty-odd years in obscurity. The fame he achieved late in life was not for himself but for what he represented. Scott had been a slave of army surgeon John Emerson, who had taken him from Missouri to posts in Illinois and at Fort Snelling in the northern part of the Louisiana Purchase (now Minnesota) for several years in the 1830s. At Fort Snelling, Scott married a slave also owned by Emerson. She gave birth to a daughter in territory made free by the Missouri Compromise while Emerson was returning the Scotts to Missouri. After Emerson died and his widow inherited the Scotts, white friends of Dred Scott in St. Louis advised him in 1846 to sue for freedom on grounds of prolonged residence in a free state and a free territory. Scott did so. Thus began an eleven-year saga that started as a simple freedom suit and escalated into the most notorious
cause célèbre
in American constitutional history.

Scott first lost his suit but then won it on re-trial in St. Louis county court in 1850. On appeal the Missouri supreme court overturned this decision in 1852 and remanded the Scotts to slavery. The case was beginning to acquire political significance. Missouri courts had previously granted freedom to slaves in cases similar to Scott's. In overturning those precedents and asserting that Missouri law prevailed despite Scott's residence in free territory, the state supreme court was reacting to proslavery pressures. Scott's lawyers, who now included a Vermontborn resident of St. Louis, thought they could win the case if they could get it before a federal court. Scott's owner having moved to New York, the lawyers appealed to federal circuit court under the diverse-citizenship clause of the Constitution which gives federal courts jurisdiction over cases involving citizens of different states. In 1854 the circuit court for Missouri accepted the case (thereby affirming Scott's status as a citizen) but upheld the Missouri court's denial of his suit for freedom. Scott's lawyers appealed to the U.S. Supreme Court. Proslavery elements welcomed this move. The potential of the case for resolving crucial constitutional issues had become clear. And the Supreme Court had a southern majority.

The justices first heard arguments on the case in 1856 and held it over for reargument in the 1856–57 session—perhaps to avoid rendering a decision before the presidential election. Three main questions were before the Court: 1) As a black man, was Scott a citizen with a right to sue in federal courts? 2) Had prolonged residence (two years in each place) in a free state and territory made Scott free? 3) Was Fort Snelling actually free territory—that is, did Congress in 1820 have the right to ban slavery in the Louisiana Purchase north of 36° 30'? The Court could have ducked questions one and three by merely reaffirming the decisions of the Missouri supreme court and the federal circuit court that Missouri law governed Scott's status. Precedents existed for doing so; the Supreme Court itself in
Strader v. Graham
(1851) had refused to accept an appeal from the Kentucky supreme court which had ruled that slaves from Kentucky taken temporarily to Ohio remained slaves under Kentucky law. And indeed, for a time it appeared that the Court would take this way out. On February 14, 1857, a majority of justices voted to reaffirm the
Strader
principle and let it go at that. Justice Samuel Nelson of New York began to write the decision. But a few days later the majority reversed itself and decided to issue a comprehensive ruling covering all aspects of the case.

Why did the Court take this fateful step? Answers to this question have been uncertain and partisan. Only fragmentary accounts of the justices' confidential discussions leaked out, some of them years later. One interpretation of this evidence maintains that the two non-Democrats on the Court, John McLean of Ohio and Benjamin Curtis of Massa-chusets, stated their intention to dissent from the narrow decision prepared by Nelson. Their dissent would not only uphold Scott's freedom but would also affirm black citizenship and endorse the right of Congress to prohibit slavery in the territories. Not wishing these dissents to stand as the Court's only statement on such contentious issues, the southern majority reconsidered its decision to ignore them and voted to have Chief Justice Roger B. Taney write a comprehensive ruling. Thus, according to this interpretation, McLean and Curtis were responsible for provoking the vexatious Dred Scott decision that superseded Nelson's innocuous opinion.
¹

But the truth appears to be more complex. For a decade the question of slavery in the territories had threatened the Union. Politicians had been trying to pass the buck to the courts since the Compromise of 1850, which had provided for expedited appeal to the Supreme Court of any suit concerning slave property in the territories of Utah and New Mexico—a provision repeated verbatim in the Kansas-Nebraska Act of 1854. The problem was that because these territories did not prohibit slavery, no such suit materialized. But here, conveniently, came a suit from another part of the Louisiana Purchase. The yearning for settlement of this question by "judicial statesmanship" was widespread in Washington during the winter of 1856–57, especially among southerners. Alexander Stephens, a friend of Justice James M. Wayne of Georgia and a distant cousin of Justice Robert Grier of Pennsylvania, wrote privately in December 1856: "I have been urging all the influence I could bring to bear upon the Sup. Ct. to get them no longer to postpone the case on the Mo. Restriction. . . . I have reason to believe they will [decide] that the restriction was unconstitutional." Other southerners exerted similar pressures on the Court. They seemed to be succeeding. Two weeks later Stephens reported that "from what I hear
sub rosa
[the decision] will be according to my own opinions upon every point. . . . The restriction of 1820 will be held to be unconstitutional. The Judges are all writing out their opinions I believe
seriatim
. The Chief Justice will give an elaborate one."
²