The Fiery Trial (17 page)

Between 1854 and 1856, unforeseen developments—the Kansas-Nebraska Act, bleeding Kansas, the rise and fall of Know-Nothingism—had shattered the old party system and impelled Lincoln to articulate far more fully and forcefully than in the past his views about slavery and its place in American life and politics. Beginning in 1857 another cascade of events, among them the
Dred Scott
decision, the Buchanan administration’s attempt to force slavery into Kansas, and his Senate race against Stephen A. Douglas, would propel Lincoln to address directly questions he had until then touched on only tangentially—the rights and future status of black Americans, and the underlying differences between two societies resting on antagonistic systems of slave and free labor.

I

T
WO DAYS AFTER
the inauguration of James Buchanan in March 1857, the Supreme Court handed down one of the most infamous decisions in its history. During the 1830s, Dred Scott, a slave of Dr. John Emerson of Missouri, resided with his owner in Illinois, where state law prohibited slavery, and the Wisconsin territory, from which it had been barred by the Missouri Compromise. He married another slave, Harriet Scott, and in 1846, after returning to Missouri, the Scott family, by now consisting of husband, wife, and two daughters, went to court claiming that residence on free soil had made them free. In time, the case made its way to the Supreme Court. Chief Justice Roger B. Taney, supported by six other members of the court, concluded that the Scotts must remain slaves. No black person, Taney declared, could be a citizen of the United States and thus the Scotts had no standing to sue in court. The case could have ended there. Taney, however, went on to argue that because the Constitution “distinctly and expressly affirmed” the right to property in slaves, slaveholders could bring them into the federal territories. The Missouri Compromise—repealed three years earlier by the Kansas-Nebraska Act—had therefore been unconstitutional. Only once before, in the landmark case of
Marbury v. Madison
, which established the principle of judicial review, had the Court invalidated an act of Congress on constitutional grounds. John McLean of Ohio and Benjamin R. Curtis of Massachusetts dissented; Curtis was so outraged by the decision that he resigned from the bench.

Much of Taney’s opinion consisted of a historical discussion purporting to demonstrate that the founding fathers had not recognized black persons as part of the American people. The framers of the Constitution, he insisted, regarded blacks, free and slave, as “beings of an inferior order, and altogether unfit to associate with the white race…and so far inferior, that they had no rights which the white man was bound to respect.” (This statement, Thaddeus Stevens later remarked, “damned [Taney] to everlasting fame; and, I fear, to everlasting fire.”) States could make free blacks citizens if they wished, but this did not require the federal government or other states to recognize them as such. No state could unilaterally “introduce a new member into the political community created by the Constitution”—a community, according to Taney, limited to white persons.
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“The most important decision ever made by the Supreme Court,” as the
New York Times
described it,
Dred Scott
was the work of a chief justice who belonged to a long-established planter family in Maryland. Taney had manumitted his own slaves in the 1820s but strongly believed in black inferiority. He seems to have thought that the Court could restore sectional harmony by resolving the slavery controversy. The decision had precisely the opposite effect. As a Georgia newspaper exulted, it “covers every question regarding slavery and settles it in favor of the South.”
²
Taney had declared unconstitutional the platform of the nation’s second largest political party. His ruling also seemed to undercut Stephen A. Douglas’s popular sovereignty doctrine, for if Congress lacked the authority to deprive slaveholders of their constitutionally guaranteed right to bring slaves into a territory, how could a territorial legislature created by Congress do so?

Until after the Civil War, there existed no commonly agreed understanding of citizenship or of the rights it entailed. People derived different kinds of rights from different levels of citizenship: local, state, and national. The Constitution mentioned but did not enumerate the “privileges and immunities” of citizens. Although popular usage identified citizenship with voting, legal doctrine did not (in some states, immigrants could vote before becoming citizens, and everywhere, white women were citizens but could not vote). The Court’s denial of black citizenship did not lack for legal precedents. Before the Civil War, virtually every state, North as well as South, excluded free blacks from some fundamental rights. Only five states, all in New England, allowed blacks to vote on the same basis as whites. Outside New England, nearly every state court that had ruled on the question before 1857 concluded that free blacks should not be considered citizens either of the state or of the nation. Four attorneys general, including Taney himself during Andrew Jackson’s presidency, had taken the same position.
³

Abolitionists, who had pioneered an alternative reading of the Constitution based on a uniform national citizenship not limited by race, responded bitterly to the
Dred Scott
decision. James McCune Smith, a black physician, author, and antislavery activist, carefully dissected Taney’s reasoning, citing legal precedents going back to “the annals of lofty Rome” to demonstrate that all free persons born in the United States, black as well as white, “must be citizens.” Many Republicans agreed. Taney’s ruling on this issue was “villainously false,” declared the
Cleveland Leader
. The Republican legislatures of New Hampshire, Vermont, New York, and Ohio adopted resolutions recognizing black citizenship in their states, joining Massachusetts, where state courts had long affirmed this position. Maine’s legislators adopted a resolution declaring the decision “not binding, in law or in conscience, upon the government or citizens of the United States.” When the State Department in 1858 refused to issue a passport to the black physician John Rock of Boston on the grounds that he was not an American citizen, the
Springfield Republican
condemned the action as an insult to the entire state of Massachusetts.
⁴

Republicans objected even more vociferously to Taney’s reversal of the “freedom national” doctrine. They accused the Supreme Court of making slavery the norm and freedom the exception, transforming the South’s “peculiar institution” into a national one that must exist everywhere it had not been prohibited by state law. The decision, they claimed, even threw into question whether states possessed the constitutional authority to prohibit slavery. The Supreme Court, declared John Murray Forbes, had “passed into the hands of the South, and…become simply a political body whose opinions deserve no more weight than those of any other sectional caucus of partisans.”
⁵

The
Dred Scott
decision propelled to the forefront of public debate questions that would dominate politics until the outbreak of the Civil War: the founders’ intentions regarding slavery; whether slavery should be viewed as a local or national institution; and the constitutional authority of the federal government to prohibit slavery in the territories. Lincoln had already expressed his opinions on these issues and would continue to do so between 1857 and 1860. But the decision inspired him to elaborate his views on a subject about which he had previously said very little, the place of blacks in American society. Lincoln knew this question carried an explosive political charge. Soon after the Court issued its ruling, Stephen A. Douglas delivered impassioned speeches proclaiming that the Declaration of Independence and Constitution had been written for whites and charging that Republicans who opposed the
Dred Scott
decision favored “perfect and absolute equality of the races.” Lincoln believed that rhetoric of this kind had played a role in Frémont’s defeat in the presidential election of the previous November. Republicans, Lincoln wrote, had been “constantly charged with seeking an amalgamation of the white and black races; and thousands turned from us…
fearing
to face it themselves.” If others would not “face it,” he would.
⁶

Lincoln later called
Dred Scott
a “burlesque upon judicial decisions.”
⁷
On June 26, 1857, two weeks after Douglas spoke in Springfield in its support, Lincoln responded in the same city. The decision, he argued, was so erroneous that it could not be viewed as having established a “settled doctrine for the country.” Nearly all Republican leaders agreed. But unlike most Republican politicians, who preferred to attack Taney for having taken on the territorial question when he need not have done so and who devoted most of their attention to the constitutional power of Congress to bar the institution in the territories, Lincoln addressed head-on the vexatious question of black citizenship. He denied that Taney had presented a plausible account of the founders’ racial outlook. Free blacks, he pointed out, echoing Justice McLean’s dissent, had voted in several states at the time the Constitution was ratified, indicating that they were then viewed as members of the body politic. Taney, moreover, was “grossly incorrect” to imply that “the public estimate of the negro” had improved since the revolutionary era; in fact, “the change between then and now is decidedly the other way.” Lincoln conspicuously failed to mention the deteriorating situation in Illinois, whose voters and legislature within the past decade had approved measures barring free blacks from entering the state. Instead, he turned to the condition of the slaves. In the revolutionary era, he said, emancipation seemed a real possibility; now the prospect had almost been extinguished. Lincoln offered an elaborate metaphor to show how the slave’s prospects had receded:

In probing the founders’ intentions, Lincoln said almost nothing of the Constitution’s relationship to slavery, which he would later analyze in detail in his Cooper Institute address of February 1860. Instead, to refute Taney he turned to the Declaration of Independence. During the era of the Revolution, he insisted, the Declaration had been “held sacred by all.” Now, in the hands of Taney, Stephen A. Douglas, and supporters of slavery, “it is assailed, and sneered at, and…torn, till, if its framers could rise from their graves, they could not at all recognize it.” In the Peoria speech, Lincoln had asserted that the Declaration’s promise of equality applied to blacks. Now, for the first time, he elaborated what he meant—equality should be understood as an open-ended process, not an idea fixed at a single moment in time:

Lincoln meant his emphasis on the timeless truth of the Declaration to counter not only Douglas’s racialized reading of the document but also proslavery “philosophy” and “theology.” In 1848, John C. Calhoun had attacked the idea that “all men are born free and equal” as “the most false and dangerous of all political error.” Such statements became increasingly common in the South in the 1850s. Lincoln regularly read the
Charleston Mercury
and
Richmond Enquirer
as well as the writings of the southern ideologue George Fitzhugh, who described the idea of equality as a disastrous mistake. Lincoln was also familiar with
Slavery Ordained by God
, a militant defense of slavery by the Alabama minister Frederick A. Ross. In an undated manuscript, Lincoln imagined Dr. Ross, seated “in the shade, with gloves on his hands,” ruminating on whether slavery harmonized with the will of God, while his slave Sambo worked in “the burning sun.” Lincoln doubted that under the circumstances Dr. Ross would be “actuated by that perfect impartiality, which has ever been considered most favorable to correct decisions.” Douglas’s view that the Declaration applied only to whites seemed to Lincoln essentially the same as the arguments of proslavery ideologues; he considered both a repudiation of “our national axioms.”
⁹

As Isaac N. Arnold, a Radical Republican from Chicago who would serve two terms in Congress during the Civil War, later wrote, “It required some nerve in Lincoln, in a state where the prejudice against the negro was so strong…to stand up and proclaim the right of the negro to all the rights in the Declaration.” But what did those rights amount to? The right to life in Jefferson’s triad needed no explanation; liberty stood as a rebuke to the institution of slavery. The equal right to the pursuit of happiness, Lincoln explained, meant enjoyment of the fruits of one’s labor. To drive home his point, he chose to refer to a black woman, implying that this right was bounded by neither gender nor race: “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.”

Lincoln also directly confronted Douglas on the charge that by speaking of blacks enjoying any rights at all, Republicans promoted “amalgamation”—that is, interracial sexual relations. In fact, Lincoln responded, it was slavery that produced such mixing. He noted sardonically that by returning the Scotts’ two teenage daughters to slavery, Taney’s decision exposed them to the danger of “the forced concubinage of their masters,” one of the few times in his career that he referred even obliquely to the sexual abuse of slave women. The best way to prevent “amalgamation” was to “keep them apart.” At the end of his speech, as he had done at Peoria, Lincoln called for “the separation of the races” through colonization. Blacks might be entitled to the natural rights of mankind, but ultimately they should enjoy them outside the United States.
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