Battle Cry of Freedom: The Civil War Era (37 page)

The five southern justices did want to rule against Congress's right to ban slavery from the territories. Some of them had indeed begun writing opinions to that effect. But the difficulty was in getting the two northern Democratic justices, Grier and Nelson, to go along with them. This was why the southerners had reluctantly decided to sidestep the issue

1
. This was long the standard interpretation; its foremost exponent was Frank H. Hod-der, "Some Phases of the Dred Scott Case,"
MVHR
, 41 (1929), 3–22.

2
. Alexander Stephens to Linton Stephens, Dec. 15, 1856, in Richard M. Johnston and William H. Browne,
Life of Alexander H. Stephens
, rev. ed. (Philadelphia, 1883), 326; letter from Stephens dated Jan. 1, 1857, quoted in Nevins,
Emergence
, I, 108.

with Nelson's narrow ruling. Word that McLean and Curtis would raise the broader questions in their dissents gave southern justices the pretext they needed to change their minds. They approved a motion by Wayne that Taney should prepare a decision covering all aspects of the case.
³

There still remained the problem of cajoling a concurrence from at least one northern justice to avoid the appearance of a purely sectional ruling. Nelson could not be persuaded—he had already written his opinion and was probably miffed by his colleagues' intent to bypass it. But Grier was pliable. He was also from Buchanan's home state. The president-elect was anxious to have the territorial question resolved. In response to a suggestion from Justice John Catron of Tennessee, Buchanan brought highly improper but efficacious influence to bear on Grier, who succumbed. Taney had his northern justice and could proceed with his ruling.
⁴

It was an opinion he had long wanted to write. Eighty years old, the chief justice was frail and ill. The death of his wife and daughter two years earlier in a yellow fever epidemic had left him heart-stricken. Yet he clung to life determined to defend his beloved South from the malign forces of Black Republicanism. In his younger days Taney had been a Jacksonian committed to liberating American enterprise from the shackles of special privilege. As Jackson's secretary of the treasury he had helped destroy the Second Bank of the United States. His early decisions as chief justice had undermined special corporate charters. But the main theme of his twenty-eight year tenure on the Court was the defense of slavery. Taney had no great love of the institution for its own sake, having freed his own slaves. But he did have a passionate commitment "to southern life and values, which seemed organically linked to the peculiar institution and unpreservable without it."
⁵
In private letters Taney expressed growing anger toward "northern aggression.

3
. This analysis is based on the accounts in Don E. Fehrenbacher,
The Dred Scott Case: Its Significance in American Law and Politics
(New York, 1978), 305–11; James A. Rawley,
Race and Politics: "Bleeding Kansas" and the Coming of the Civil
War (Philadelphia, 1969), 275–81; and Nevins,
Emergence
, I, 107–10, II, 473–77.

4
. The correspondence between Buchanan, Catron, and Grier in February 1857 was discovered in the Buchanan papers by his biographer Philip Auchampaugh, who presented the evidence in "James Buchanan, the Court and the Dred Scott Case,"
Tennessee Historical Magazine
, 9 (1926), 231–40. See also Fehrenbacher,
Dred ScottCase
, 311–13.

5
. These are the words of Don E. Fehrenbacher, in
Dred Scott Case
, 559. See also Fehrenbacher, "Roger B. Taney and the Sectional Crisis,"
JSH
, 43 (Nov. 1977), 555–66.

"Our own southern countrymen" were in great danger, he wrote; "the knife of the assassin is at their throats."
⁶
Taney's southern colleagues on the Court shared this apprehension, according to historian Don Fehrenbacher; Justice Peter Daniel of Virginia was "a brooding proslavery fanatic" and the other three were "unreserved defenders of slavery." Because of this "emotional commitment so intense that it made perception and logic utterly subservient," the Dred Scott decision was "essentially visceral in origin . . . a work of unmitigated partisanship, polemical in spirit [with an] extraordinary cumulation of error, inconsistency, and misrepresentation."
⁷

Taney's opinion took up first the question whether Dred Scott, as a black man, was a citizen with the right to sue in federal courts. Taney devoted more space to this matter than to anything else. Why he did so is puzzling, for in the public mind this was the least important issue in the case. But southern whites viewed free blacks as an anomaly and a threat to the stability of slavery; Taney's own state of Maryland contained the largest free Negro population of any state. The chief justice's apparent purpose in negating U.S. citizenship for blacks, wrote Fehrenbacher, was "to launch a sweeping counterattack on the antislavery movement and . . . to meet every threat to southern stability by separating the Negro race absolutely from the federal Constitution and all the rights that it bestowed." To do so, however, he had to juggle history, law, and logic in "a gross perversion of the facts."
⁸
Negroes had not been part of the "sovereign people" who made the Constitution, Taney ruled; they were not included in the "all men" whom the Declaration of Independence proclaimed "created equal." After all, the author of that Declaration and many of the signers owned slaves, and for them to have regarded members of the enslaved race as potential citizens would have been "utterly and flagrantly inconsistent with the principles they asserted." For that matter, wrote Taney, at the time the Constitution was adopted Negroes "had for more than a century before been regarded as beings of an inferior order . . . so far inferior, that they had no rights which a white man was bound to respect."
⁹

6
. From letters written by Taney in 1856 and 1860, quoted in Fehrenbacher, "Taney and the Sectional Crisis,"
loc. cit
., 561, 556.

7
. Fehrenbacher,
Dred Scott Case
, 234, 3, 559.

8
.
Ibid
., 341, 349.

9
. The question of Negro citizenship occupies pp. 403–27 of Taney's opinion in
Dred Scott v. Sandford
19 Howard 393.

This was false, as Curtis and McLean pointed out in their dissents. Free blacks in 1788 and later had many legal rights (to hold and bequeath property, make contracts, seek redress in courts, among others). In five of the thirteen states that ratified the Constitution black men were legal voters and participated in the ratification process. No matter, said Taney, these were rights of state citizenship and the question at issue was United States citizenship. A person might "have all of the rights and privileges of the citizen of a State," opined the chief justice, and "yet not be entitled to the rights and privileges of a citizen in any other State"—a piece of judicial legerdemain that contradicted Article IV, Section 2 of the Constitution: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

Having established to his satisfaction that blacks were not citizens,
¹⁰
Taney could have stopped there and refused jurisdiction because the case was not properly before the Court. That he did not do so rendered the remainder of his decision, in the opinion of many contemporaries and the earliest generations of historians,
obiter dictum
—a statement in passing on matters not formally before the Court and therefore without force of law. But Taney insisted that because the circuit court had considered all aspects of the case and decided them "on their merits," the whole case including the constitutionality of the Missouri Compromise restriction on which Scott based part of his suit for freedom
was
properly before the Court. Modern scholars agree. Whatever else Taney's ruling was, it was not
obiter dictum
.

Taney and six other justices (with only Curtis and McLean dissenting) concurred that Scott's "sojourn" for two years in Illinois and for a similar period at Fort Snelling,
even if the latter was free territory
, did not make him free once he returned to Missouri.
¹¹
To this matter Taney devoted only one of the 55 pages of his opinion. The constitutionality of the Missouri Compromise received 21 pages of labored prose arguing that Congress never had the right to prohibit slavery in a territory. That the Constitution (Article IV, Section 3) gave Congress the power to "make all needful rules and regulations" for the territories was

10
. Two justices explicitly concurred with Taney's opinion on this matter, while Curtis and McLean dissented. Because the other four justices did not discuss this issue in their concurring opinions, their silence was an implicit acceptance of Taney's opinion as the ruling of the Court. See Fehrenbacher,
Dred Scott Case
, 324–30, for an analysis of this matter.

11
. Ten weeks after the decision Scott's owner manumitted him. Scott died a year later.

not relevant, said the chief justice in a typical example of hair-splitting, because rules and regulations were not laws. The Fifth Amendment protected persons from being deprived of life, liberty, or property without due process; slavery was no different from other property, and a ban on slavery was therefore an unconstitutional deprivation of property. "And if Congress itself cannot do this," continued Taney in what he intended as a blow against popular sovereignty, "it could not authorize a territorial government to exercise" such a power. This clearly was
obiter dictum
, since the question of the power of a territorial government over slavery was not part of the case.

Republicans adopted the dissents by Curtis and McLean as their official position on the case. Not only was Scott a free man by virtue of his prolonged residence in free territory, said the dissenters, but he was also a citizen under the Constitution. And that Constitution did empower Congress to prohibit slavery in the territories. "
All
needful rules and regulations" meant precisely what it said. The first Congress under the Constitution had reaffirmed the Northwest Ordinance of 1787 banning slavery in the Northwest Territory. Subsequent Congresses down through 1820 excluded slavery from specific territories on four additional occasions. Many framers of the Constitution were alive during this period, and none objected to these acts. Indeed, several framers served in Congress and voted for them or, as presidents of the United States, signed them into law! If the exclusion of slavery from a territory violated due process, asked Curtis, what of the 1807 law ending importation of slaves from Africa? Indeed, what of laws in
free states
banning slavery? In any case, to prevent a slaveowner from taking his slaves into a territory did not deprive him of that property.
¹²

Instead of removing the issue of slavery in the territories from politics, the Court's ruling became itself a political issue. Northern Democrats gloated that Taney's opinion was "the funeral sermon of Black Republicanism . . . crushing and annihilating . . . the anti-slavery platform . . . at a single blow." Southerners congratulated themselves that "Southern opinion upon the subject of Southern slavery . . . is now the supreme law of the land." The decision "crushes the life out of that miserable . . . Black Republican organization."
¹³
But the Republican

12
. Curtis's dissent was fuller and more powerful than McLean's. It can be found on pp. 564–633 of 19 Howard.

13
.
Cincinnati Enquirer
, March 8, 1857, quoted in Stanley I. Kutler, ed.,
The Dred Scott Decision: Law or Politics?
(Boston, 1967), 54–55;
Philadelphia Pennsylvanian
, March 10, 1857,
New York Herald
, March 8, 1857,
Augusta Constitutionalist
, March 15, 1857,
New Orleans Picayune
, March 20, 1857, all quoted in Feh-renbacher,
Dred Scott Case
, 418–19.

party declined to die. Its press condemned this "Jesuitical decision" based on "gross historical falsehoods" and a "willful perversion" of the Constitution. If this ruling "shall stand for law," wrote William Cullen Bryant, slavery was no longer the "peculiar institution" of fifteen states but "a Federal institution, the common patrimony and shame of all the States. . . . Hereafter, wherever our . . . flag floats, it is the flag of slavery. . . . Are we to accept, without question . . . that hereafter it shall be a slaveholders' instead of the freemen's Constitution? Never! Never!" In this spirit several Republican state legislatures passed resolutions asserting that the ruling was "not binding in law and conscience."
¹⁴