The anger of the world was rising against American slavery. It was
confessedly a shocking anomaly in our system of universal freedom
and democratic equality. The people of the slave States were
inflexibly resolved to maintain and extend it in defiance of the
rising sentiment of the age. For many years they had succeeded
in holding their ground and stifling the anti-slavery agitation.
They had vigilantly kept control of the Government. During sixty
of the first sixty-eight years the presidential chair had been occupied
by Southern men or their dependents. The Senate had uniformly,
and the House usually, been under their sway. The Supreme Court
had also been composed of Southern men. Now that slavery was forced
to fight for its life, the South with increased energy sought the
active support of all the departments of Government. Pierce was its
humble servant. The efficient and imperious Douglas was serving it
in the Senate, and Cass was an eager rival. The Northern Democracy
followed their lead. A majority of the Supreme Court were zealous
advocates of slavery. It was unfortunate for the South, and for
Douglas, that the champions of Southern rights on the bench and
their advocates in Congress could not have understood each other in
advance. They were seeking to plant slavery on a safe foundation
and gird it round with impregnable defenses. Douglas had promulgated
the doctrine of squatter sovereignty with which the South was not
satisfied. It was possible for the Court to devise a safer remedy
for the threatened dangers.
In 1834, there was an army surgeon named Dr. Emmerson living in
Missouri who owned a slave named Dred Scott. He was transferred
to Fort Snelling in the Territory of Wisconsin and took his slave
with him, but in 1838 he returned with him to his former home. He
then sold Scott to a man named Sanford, who resided in New York, but
kept his slaves in Missouri. In 1854 the slave brought an action
in the United States Circuit Court of Missouri to recover his
freedom, on the ground that he had been voluntarily taken into the
Territory of Wisconsin, where, by the act of Congress known as the
Missouri Compromise, slavery was prohibited. His case rested upon
the rule that slavery, being the creature of positive municipal
law, had no legal existence beyond the limits of the sovereignty
creating or recognizing it. The law of Missouri establishing slavery
was of no efficacy in Wisconsin. Hence, it was urged, when Dred
was taken to that Territory, the relation of master and slave ended
and he became a free man.
Upon its merit the case presented but one question: Was slavery
forbidden in Wisconsin? There rose, however, a preliminary question
of great importance. To give the Federal Court jurisdiction it was
necessary to show that the plaintiff and defendant were citizens of
different States. Scott alleged that he was a citizen of Missouri
and Sanford a citizen of New York. The answer denied the jurisdiction
of the Court for the reason that Scott was not a citizen of any
State, being a negro slave, and hence not entitled to maintain his
action. The Circuit Court overruled this plea, but held Scott to
be still a slave, notwithstanding his sojourn in Wisconsin, and
awarded him to Sandford. The case was taken to the Supreme Court
and there argued by lawyers of great ability and learning. The
Court found unusual difficulties in it, held it under advisement
during the exciting summer of 1856, and directed a re-argument at
the December term. On March 6th, 1857, two days after the inauguration
of Buchanan, the Judges delivered their memorable opinions.
At this time the Court consisted of five Southern Democrats, two
Northern Democrats, one Whig and one Republican. Chief Justice
Taney wrote the opinion of the Court, and did it in a manner likely
to preserve his name from early oblivion. Judges McLean and Curtis
filed dissenting opinions.
The Court, after holding that Scott could not maintain his action
for want of citizenship, decided among other things that: "Whatever
the General Government acquires it acquires for the benefit of the
people of the several States who created it. It is their trustee,
acting for them and charged with the duty of promoting the interests
of the whole people of the Union. * * * * The right of property in
a slave is distinctly and expressly affirmed in the Constitution.
The right to traffic in it, like an ordinary article of merchandise
and property, is guaranteed to the citizens of the United States.
* * * * The Government * * * is pledged to protect it in all future
time. * * * * The act of Congress which prohibits a citizen from
holding and owning property of this kind in the territory of the
United States north of the line mentioned (36 degrees 30 minutes)
is not warranted by the Constitution and is therefore void. * * *
* * If Congress cannot do this it will be admitted that it could
not authorize a territorial legislature to do it."
Thousands of copies of the opinion of Judge Taney were printed and
distributed among the people by the Democrats who, at first, were
so elated over the blow dealt to the Republican fanatics that they
overlooked the fact that the decision was even more fatal to the
favorite doctrine of the Northern wing of their own party.
The dissenting opinions were printed in enormous numbers by Republican
committees and distributed among the anti-slavery people of the
Northern and Middle States. Far from settling the controversy,
the powerful conflicting opinions confirmed the already inveterate
prejudices and disclosed with scientific clearness the fact, long
dimly felt, that there existed two fundamentally different and
irreconcilably hostile theories of government among the people
which must sooner or later grapple for the mastery. Naturally among
Northern Democrats the first emotion on hearing of the decision was
exultation over the disastrous reverse suffered by the Republicans,
whose whole political creed seemed annihilated. They had declared
in sounding phrase that it was the duty of Congress to wipe from the
Territories those twin relics of barbarism, slavery and polygamy;
and promptly the Supreme Court had decided that Congress had
no such power. But it soon grew uncomfortably clear to them that
while the decision upset the favorite dogma of the Republicans, it
was utterly inconsistent with the doctrine of popular sovereignty,
the fundamental tenet of Northern Democratic faith. The decision
was not only a victory of the Democrats over the Republicans, but
a complete victory of the Southern slave-holding Democracy over
that of the free North.
To Douglas the situation in which this left his party was disastrous.
Restlessly active and efficient as he had been in the practical
management of political affairs, his distinctive achievement had
been the powerful advocacy of the doctrine of popular sovereignty,
of which, if not the original author, he was at least the chief
sponsor. With this doctrine his fame as a statesman was indissolubly
linked. On its success the unity of the Northern wing of his party
depended; on which hung his hopes of victory.
Two days before the opinion was announced President Buchanan in
his inaugural address reminded the people that the great question
which had agitated them so long would soon be settled by the
Supreme court and bespoke general acquiescence in its decision.
This unhappy allusion gave rise to the unpleasant suspicion that
the relation between the new President and the Supreme Court in
their common service of the South was unduly intimate.
Had Douglas been great enough to sink the politician in the
statesman, he would now have broken with the Southern wing of his
party, which had contemptuously repudiated his entire system of
political doctrines; he would have rejected the new dogma imposed
upon his party by the Southern dictators and led the assault upon
this new creed, which was not only fatal to himself as a National
statesman, but could not fail ultimately to prove fatal to his party
and involve his country in the horrors of civil war. His squatter
sovereignty was pitiful enough. But this new doctrine, announced
by the Supreme Court, and approved by the President and his
party, stripped the settlers in the Territories of all semblance
of sovereignty and planted slavery among them by the self-acting
energy of the Constitution, in utter disregard of their wishes.
On the most important question then pending his party had reached
a conclusion which he believed to be utterly wrong. But it was
his opinion that moral ideas had no place in politics. He could
not break with the powerful party which he had led so long. He
could not unqualifiedly endorse the new doctrine without stultifying
himself. He attempted the impossible task of reconciling the new
creed with that which he had preached in the past.
The United States Grand Jury at Springfield invited him to address
the people of that city on the questions of the time. He spoke on
the 12th of June, 1857, to a large and enthusiastic audience. He
assured the people that he cordially accepted the decision and that
it was in perfect harmony with his favorite doctrine of squatter
sovereignty. The master's right to his slave in the Territories
he admitted was guaranteed by the Constitution and neither Congress
nor the legislature could interfere with it; yet practically this
right was worthless unless sustained, protected and enforced by
appropriate police regulations and local legislation prescribing
adequate remedies for its violation. These regulations and remedies
must depend entirely upon the will and wishes of the people
of the Territory, as they could only be prescribed by the local
legislature. Hence, the great principle of popular sovereignty
and self-government was sustained and firmly established by the
authority of the decision.
Perhaps, as pointed out by a recent historian, it would have
been wiser for Douglas to have planted himself on the sound legal
proposition that the only question decided by the Court was that
it had no jurisdiction of the cause and that everything in the
opinion beyond this was mere obiter dicta determining nothing.
But it was no easy matter for a politician in 1857 to explain to a
popular audience that a small fraction of the opinion of the highest
Court was binding, while the remainder was merely the private
opinion of the Judges on a matter not before them. Had Douglas been
defending his opinions before a bench of trained jurists he might
have safely rested his case on this sound but technical rule. He
afterwards did so justify his opinions in the Senate. An experience
politician determined to carry a popular election in a dangerous
crisis might well hesitate to attempt so doubtful an experiment.
History would have less temptation to call him a demagogue had he
pursued that course. But we may well doubt whether, considered as
a problem of practical politics, he was not wise in depending on
his ingenious sophistry, rather than on this sound legal proposition.
Two weeks after his speech Lincoln addressed the people of Springfield
in reply, pointing out the fallacy of Douglas' chief argument. But
Lincoln was still an obscure lawyer; Douglas was the omnipotent
Senator whose ipse dixit was final and carried conviction to the
uncritical multitude.