Battle Cry of Freedom: The Civil War Era (38 page)

The
New York Tribune
declared contemptuously that this decision by "five slaveholders and two doughfaces"
¹⁵
was a "
dictum
. . . entitled to just as much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room." The
dictum
theory justified Republican refusal to recognize the ruling as a binding precedent. They proclaimed an intent to "reconstitute" the Court after winning the presidency in 1860 and to overturn the "inhuman dicta" of
Dred Scott
. "The remedy," said the
Chicago Tribune
, was "the ballot box. . . . Let the next President be Republican, and 1860 will mark an era kindred with that of 1776."
¹⁶

It soon dawned on northern Democrats that Taney had aimed to discomfit them as well as the Republicans. Although the question of popular sovereignty had not been directly before the Court, the principle of
Dred Scott
was not merely that Congress had no power to exclude slavery from a territory, but that slave property
could not be excluded
. Douglas grasped this nettle fearlessly. Yes, he said in a speech at Springfield, Illinois, in June 1857, the Dred Scott decision was law and all good citizens must obey it. A master's right to take slaves into any territory was irrevocable. BUT—citizens of a territory could still control this matter. How? The right of property in slaves "necessarily remains a

14
. The Republican press quoted in Charles Warren,
The Supreme Court In United States History
, rev. ed., 2 vols. (Boston, 1926), II, 302–9; Bryant quoted in Nevins,
Emergence
, I, 96; action of legislatures described in Fehrenbacher,
Dred Scott Case
, 431–35.

15
. All five southern justices had been slaveowners, though only three of them still owned slaves in 1857.

16
.
New York Tribune
, March 7, 1857;
Chicago Tribune
, March 12, 19, 1857.

barren and worthless right," said Douglas, "unless sustained, protected and enforced by appropriate police regulations and local legislation" which depended on "the will and the wishes of the people of the Territory."
¹⁷

This anticipated the famous Freeport doctrine enunciated by Douglas more than a year later in his debates with Lincoln. It was an ingenious attempt to enable both northern and southern Democrats to have their cake and eat it. It might have worked had not Lecompton crumbled Democratic unity. When that happened, southern Democrats insisted on another dessert. They agreed with Douglas that the Dred Scott decision would not enforce itself. "The Senator from Illinois is right," conceded Senator Albert G. Brown of Mississippi. "By non-action, by unfriendly action . . . the Territorial Legislature can exclude slavery." But that would amount to a denial of the "right of protection for our slave property in the Territories. The Constitution as expounded by the Supreme Court, awards it. We demand it; we mean to have it." Congress must pass a federal slave code for the territories, said Brown, and enforce it with the United States army if necessary. If pirates seized ships owned by citizens of Massachusetts, senators of that state would demand naval protection. "Have I, sir, less right to demand protection for my slave property in the Territories?" If you of the North "deny to us rights guarantied by the Constitution . . . then, sir . . . the Union is a despotism [and] I am prepared to retire from the concern."
¹⁸

Thus instead of crippling the Republican party as Taney had hoped, the Dred Scott decision strengthened it by widening the sectional schism among Democrats. Republicans moved quickly to exploit their advantage by depicting the decision as the consequence of a slave-power conspiracy. Seward and Lincoln were two of the foremost advocates of a conspiracy theory. Citing "whisperings" between Taney and Buchanan at the inaugural ceremony plus other unnamed evidence, Seward charged collusion between the president-elect and the chief justice. One day after the inauguration and one day before announcing the decision, said Seward, "the judges, without even exchanging their silken robes for courtiers' gowns, paid their salutations to the President, in the Executive palace. Doubtlessly the President received them as graciously as Charles I did the judges who had, at his instance, subverted the statutes of English liberty." Seward's accusations provoked an uproar. Some historians have echoed Democratic opinion that they were "venomous" and "slanderous."
¹⁹

17
. Fehrenbacher,
Dred Scott Case
, 455–56.

18
.
CG
, 35 Cong., 2 Sess., 1242–43.

But in fact Seward hit uncomfortably close to the mark. He might almost have read the letter from Buchanan to Grier urging the Pennsylvania justice to go along with the southern majority.

Seward's insinuations enraged Taney. The chief justice said later that if the New Yorker had won the presidency in 1860 he would have refused to administer the oath. Ironically, Taney did administer the oath to a man who had made a similar accusation. In a speech after his nomination for senator from Illinois in 1858, Abraham Lincoln reviewed the process by which Democrats had repealed the Missouri Compromise in 1854 and then declared it unconstitutional in 1857. We cannot
know
that all of this was part of a conspiracy to expand slavery, conceded Lincoln. "But when we see a lot of framed timbers . . . which we know have been gotten out at different times and places by different workmen—Stephen, Franklin, Roger and James, for instance—and when we see these timbers joined together, and see they exactly make the frame of a house . . . we find it impossible to not
believe
that Stephen and Franklin and Roger and James . . . all worked upon a common
plan
."
²⁰

The same speech included a more famous house metaphor. " 'A house divided against itself cannot stand,' " said Lincoln quoting Jesus. "I believe this government cannot endure, permanently half
slave
and half
free
." The opponents of slavery hoped to stop the spread of the institution and "place it where the public mind shall rest in the belief that it is in the course of ultimate extinction." But advocates of slavery—including those conspiring carpenters—were trying to "push it forward, till it shall become lawful in
all
the States . . .
North
as well as
South
." How could they do this? "Simply [by] the next Dred Scott decision. It is merely for the Supreme Court to decide that no State under the Constitution can exclude it, just as they have already decided that . . . neither Congress nor the Territorial Legislature can do it." Article VI of the Constitution affirms that the Constitution and laws of the United States "shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding." If, therefore, the U.S. Constitution protected "the right of property in a slave," noted Lincoln, then "nothing in the Constitution or laws of any State

19
. Warren,
Supreme Court
, II, 326. The quotation from Seward is in
CG
, 35 Cong., I Sess., 941.

20
.
CWL
, II, 465–66. The discerning reader will recognize the four carpenters as Stephen Douglas, Franklin Pierce, Roger Taney, and James Buchanan.

can destroy the right of property in a slave." Lincoln himself believed that "the right of property in a slave is
not
distinctly and expressly affirmed in the Constitution." But Democrats including Douglas believed that it was. If they had their way, Lincoln told Illinois Republicans in June 1858, "we shall
lie down
pleasantly dreaming that the people of
Missouri
are on the verge of making their State
free
; and we shall
awake
to the
reality
, instead, that the
Supreme
Court has made
Illinois
a
slave
State."
²¹

Did Lincoln and other Republicans really believe that the Dred Scott decision was part of a conspiracy to expand slavery into free
states
? Or were they creating a bugaboo to frighten northern voters? Stephen Douglas presumed the latter. "A school boy knows" that the Court would never make "so ridiculous a decision," said Douglas. "It is an insult to men's understanding, and a gross calumny on the Court." A good many historians have echoed Douglas's words.
²²
But was the Republican claim ridiculous? In November 1857 the
Washington Union
, organ of the Buchanan administration, carried an article asserting that the abolition of slavery in northern states had been an unconstitutional attack on property. In private correspondence and in other contexts not conducive to propaganda, Republicans expressed genuine alarm at the implications of
Dred Scott
. "The Constitution of the United States is the paramount law of every State," Senator James Doolittle of Wisconsin pointed out, "and if that recognizes slaves as property, as horses are property, no State constitution or State law can abolish it." Noting that Scott had lived as a slave in Illinois for two years, the New York legislature denounced the doctrine that "a master may take his slave into a Free State without dissolving the relation of master and slave. . . . [This] will bring slavery within our borders, against our will, with all its unhallowed, demoralizing, and blighting influences."
²³

The legislature's concern was not abstract. Pending in the New York courts was a case concerning a slaveholder's right to retain ownership of his slaves while in transit through a free state.
Lemmon v. The People
had originated in 1852 when a New York judge upheld the freedom of

21
.
Ibid
., II, 461–62, 467, III, 27, 230–31.

22
. Douglas in
ibid
., III, 53, 267–68. For historians' comments see especially Nevins,
Emergence
, I, 362, and James G. Randall,
Lincoln the President
, 4 vols. (New York, 1945–55), I, 116.

23
.
Washington Union
, Nov. 17, 1857;
CG
, 35 Cong., 1 Sess., 385; Nevins,
Emergence
, I, 86;
New York Assembly Documents
, 80th Session (1857), no. 201.

eight slaves who had left their Virginia owner while in New York City on their way to Texas. Most northern states had earlier granted slaveowners the right of transit or temporary sojourn with their slaves. But by the 1850s all except New Jersey and Illinois had laws on the books offering freedom to any slave brought by a master within their borders. The Dred Scott decision challenged the principle of these laws. Virginia therefore decided to take the Lemmon case to the highest New York court (which upheld the state law in 1860) and would undoubtedly have appealed it to Taney's Supreme Court had not secession intervened. The Lemmon case might well have become Lincoln's "next Dred Scott decision." Recent scholarship sustains Lincoln's apprehension that the Taney Court would have sanctioned "some form of slavery in the North."
²⁴
Even the right of transit or temporary sojourn was, from the antislavery point of view, an ominous foot in the door. "If a man can hold a slave one day in a free state," asked a Republican newspaper, "why not one month, why not one year? Why could not his 'transit' be indefinitely lengthened, his 'visit' a practical permanency?"
²⁵

II

Thus in the context of
Dred Scott
, Lincoln's "warning that slavery might become lawful everywhere was . . . far from absurd." His attempt to identify Douglas with this proslavery conspiracy ("Stephen and Franklin and Roger and James") was part of Lincoln's campaign for the Senate in 1858.
²⁶
During the Lecompton debate Douglas had said that he cared not whether slavery was voted down or up in Kansas—his concern was that Kansas have a fair vote. This "care not" policy, said Lincoln, had been prolific of evil, for it enabled the proponents of slavery to push forward their program of expansion without effective opposition. The only way to stop them was to elect Republicans "whose hearts are in the work—who do
care
for the result," who "consider slavery a moral,