CHAPTER XIII. THE SUPREME COURT IN POLITICS

The decision and arguments of the Supreme Court upon the Dred Scott

case were published on March 6, 1857, two days after the inauguration

of President Buchanan. The decision had been agreed upon many months

before, and the appeal of the negro, Dred Scott, had been decided

by rulings which in no way involved the validity of the Missouri

Compromise. Nevertheless, a majority of the judges determined to give

to the newly developed theory of John C. Calhoun the appearance of the

sanctity of law. According to Chief Justice Taney's dictum, those

who made the Constitution gave to those clauses defining the power

of Congress over the Territories an erroneous meaning. On numerous

occasions Congress had by statute excluded slavery from the public

domain. This, in the judgment of the Chief Justice, they had no right to

do, and such legislation was unconstitutional and void. Specifically the

Missouri Compromise had never had any binding force as law. Property in

slaves was as sacred as property in any other form, and slave-owners

had equal claim with other property owners to protection in all the

Territories of the United States. Neither Congress nor a territorial

Legislature could infringe such equal rights.

According to popular understanding, the Supreme Court declared "that the

negro has no rights which the white man is bound to respect." But Chief

Justice Taney did not use these words merely as an expression of his own

or of the Court's opinion. He used them in a way much more contemptible

and inexcusable to the minds of men of strong anti-slavery convictions.

He put them into the mouths of the fathers of the Republic, who wrote

the Declaration of Independence, framed the Constitution, organized

state Governments, and gave to negroes full rights of citizenship,

including the right to vote. But how explain this strange inconsistency?

The Chief Justice was equal to the occasion. He insisted that in recent

years there had come about a better understanding of the phraseology of

the Declaration of Independence. The words, "All men are created equal,"

he admitted, "would seem to embrace the whole human family, and if

they were used in a similar instrument at this day they would be so

understood." But the writers of that instrument had not, he said,

intended to include men of the African race, who were at that time

regarded as not forming any part of the people. Therefore--strange

logic!--these men of the revolutionary era who treated negroes actually

as citizens having full equal rights did not understand the meaning of

their own words, which could be comprehended only after three-quarters

of a century when, forsooth, equal rights had been denied to all persons

of African descent.

The ruling of the Court in the Dred Scott case came at a time when

Northern people had a better idea of the spirit and teachings of

the founders of the Republic regarding the slavery question than any

generation before or since has had. The campaign that had just closed

had been characterized by a high order of discussion, and it was also

emphatically a reading campaign. The new Republican party planted itself

squarely on the principles enunciated by Thomas Jefferson, the reputed

founder of the old Republican party. They went back to the policy of the

fathers, whose words on the subject of slavery they eagerly read. From

this source also came the chief material for their public addresses.

To the common man who was thus indoctrinated, the Chief Justice, in

describing the sentiments of the fathers respecting slavery, appeared to

be doing what Horace Greeley was wont to describe as "saying a thing and

being conscious while saying it that the thing is not true."

The Dred Scott decision laid the Republicans open to the charge of

seeking by unlawful means to deprive slaveowners of their rights, and it

was to the partizan interest of the Democrats to stand by the Court and

thus discredit their opponents. This action tended to carry the entire

Democratic party to the support of Calhoun's extreme position on the

slavery question. Republicans had proclaimed that liberty was national

and slavery municipal; that slavery had no warrant for existence except

by state enactment; that under the Constitution Congress had no more

right to make a slave than it had to make a king; that Congress had no

power to establish or permit slavery in the Territories; that it was, on

the contrary, the duty of Congress to exclude slavery. On these points

the Supreme Court and the Republican party held directly contradictory

opinions.

The Democratic platform of 1856 endorsed the doctrine of popular

sovereignty as embodied in the Kansas-Nebraska legislation, which

implied that Congress should neither prohibit nor introduce slavery into

the Territories, but should leave the inhabitants free to decide that

question for themselves, the public domains being open to slaveowners

on equal terms with others. But once they had an organized territorial

Government and a duly elected territorial Legislature, the residents of

a Territory were empowered to choose either slave labor or exclusively

free labor. This at least was the view expounded by Stephen A. Douglas,

though the theory was apparently rendered untenable by the ruling of the

Court which extended protection to slave-owners in all the Territories

remaining under the control of the general Government. It followed that

if Congress had no power to interfere with that right, much less had a

local territorial Government, which is itself a creature of Congress.

A state Government alone might control the status of slave property. A

Territory when adopting a constitution preparatory to becoming a State

would find it then in order to decide whether the proposed State should

be free or slave. This was the view held by Jefferson Davis and the

extreme pro-slavery leaders. Aided by the authority of the Supreme

Court, they were prepared to insist upon a new plank in future

Democratic platforms which should guarantee to all slave-owners equal

rights in all Territories until they ceased to be Territories. Over this

issue the party again divided in 1860.

Republicans naturally imagined that there had been collusion between

Democratic politicians and members of the Supreme Court. Mr. Seward

made an explicit statement to that effect, and affirmed that President

Buchanan was admitted into the secret, alleging as proof a few words in

his inaugural address referring to the decision soon to be delivered.

Nothing of the sort, however, was ever proven. The historian Von Holst

presents the view that there had been a most elaborate and comprehensive

program on the part of the slavocracy to control the judiciary of the

federal Government. The actual facts, however, admit of a simpler and

more satisfactory explanation.

Judges are affected by their environment, as are other men. The

transition from the view that slavery was an evil to the view that it

is right and just did not come in ways open to general observation, and

probably few individuals were conscious of having altered their views.

Leading churches throughout the South began to preach the doctrine

that slavery is a divinely ordained institution, and by the time of the

decision in the Dred Scott case a whole generation had grown up under

such teaching.

A large proportion of Southern leaders had become thoroughly convinced

of the righteousness of their peculiar system. Not otherwise could they

have been so successful in persuading others to accept their views.

Even before the Dred Scott decision had crystallized opinion, Franklin

Pierce, although a New Hampshire Democrat of anti-slavery traditions,

came, as a result of his intimate personal and political association

with Southern leaders, to accept their guidance and strove to give

effect to their policies. President Buchanan was a man of similar

antecedents, and, contrary to the expectation of his Northern

supporters, did precisely as Pierce had done. It is a matter of record

that the arguments of the Chief Justice had captivated his mind before

he began to show his changed attitude towards Kansas. In August,

1857, the President wrote that, at the time of the passage of the

Kansas-Nebraska Act, slavery already existed and that it still existed

in Kansas under the Constitution of the United States. "This point,"

said he, "has at last been settled by the highest tribunal known in

our laws. How it could ever have been seriously doubted is a mystery."

Granted that slavery is recognized as a permanent institution in

itself--just and of divine ordinance and especially united to one

section of the country--how could any one question the equal rights of

the people of that section to occupy with their slaves lands acquired

by common sacrifice? Such was undoubtedly the view of both Pierce and

Buchanan. It seemed to them "wicked" that Northern abolitionists should

seek to infringe this sacred right.

By a similar process a majority of the Supreme Court justices had become

converts to Calhoun's newly announced theory of 1847. It undoubtedly

seemed strange to them, as it did later to President Buchanan, that any

one should ever have held a different view. If the Court with the force

of its prestige should give legal sanction to the new doctrine, it

would allay popular agitation, ensure the preservation of the Union, and

secure to each section its legitimate rights. Such apparently was the

expectation of the majority of the Court in rendering the decision.

But the decision was not unanimous. Each judge presented an individual

opinion. Five supported the Chief Justice on the main points as to the

status of the African race and the validity of the Missouri Compromise.

Judge Nelson registered a protest against the entrance of the Court

into the political arena. Curtis and McLean wrote elaborate dissenting

opinions. Not only did the decision have no tendency to allay party

debate, but it added greatly to the acrimony of the discussion.

Republicans accepted the dissenting opinions of Curtis and McLean as a

complete refutation of the arguments of the Chief Justice; and the

Court itself, through division among its members, became a partizan

institution. The arguments of the justices thus present a complete

summary of the views of the proslavery and anti-slavery parties, and the

opposing opinions stand as permanent evidence of the impossibility of

reconciling slavery and freedom in the same government.

It was through the masterful leadership of Stephen A. Douglas that the

Lecompton Constitution was defeated. In 1858 an election was to be held

in Illinois to determine whether or not Douglas should be reelected

to the United States Senate. The Buchanan Administration was using its

utmost influence to insure Douglas's defeat. Many eastern Republicans

believed that in this emergency Illinois Republicans should support

Douglas, or at least that they should do nothing to diminish his chances

for reelection; but Illinois Republicans decided otherwise and nominated

Abraham Lincoln as their candidate for the senatorship. Then followed

the memorable Lincoln-Douglas debates.

This is not the place for any extended account of the famous duel

between the rival leaders, but a few facts must be stated. Lincoln

had slowly come to the perception that a large portion of the people

abhorred slavery, and that the weak point in the armor of Douglas was to

be found in the fact that he did not recognize this growing moral sense.

Douglas had never been a defender of slavery on ethical grounds, nor

had he expressed any distinct aversion to the system. In support of his

policy of popular sovereignty his favorite dictum had been, "I do not

care whether slavery is voted up or voted down."

This apparent moral obtuseness furnished to Lincoln his great

opportunity, for his opponent was apparently without a conscience in

respect to the great question of the day. Lincoln, on the contrary, had

reached the conclusion not only that slavery was wrong, but that the

relation between slavery and freedom was such that they could not be

harmonized within the same government. In the debates he again put forth

his famous utterance, "A house divided against itself cannot stand,"

with the explanation that in course of time either this country would

become all slave territory or slavery would be restricted and placed

in a position which would involve its final extinction. In other

words, Lincoln's position was similar to that of the conservative

abolitionists. As we know, Birney had given expression to a similar

conviction of the impossibility of maintaining both liberty and slavery

in this country, but Lincoln spoke at a time when the whole country

had been aroused upon the great question; when it was still uncertain

whether slavery would not be forced upon the people of Kansas; when the

highest court in the land had rendered a decision which was apparently

intended to legalize slavery in all Territories; and when the alarming

question had been raised whether the next step would not be legalization

in all the States.

Lincoln was a long-headed politician, as well as a man of sincere moral

judgments. He was defining issues for the campaign of 1860 and was

putting Douglas on record so that it would be impossible for him, as

the candidate of his party, to become President. Douglas had many an

uncomfortable hour as Lincoln exposed his vain efforts to reconcile his

popular sovereignty doctrine with the Dred Scott decision. As Lincoln

expected, Douglas won the senatorship, but he lost the greater prize.

The crusade against slavery was nearing its final stage. Under the

leadership of such men as Sumner, Seward, and Lincoln, a political party

was being formed whose policies were based upon the assumption that

slavery is both a moral and a political evil. Even at this stage the

party had assumed such proportions that it was likely to carry the

ensuing presidential election. Davis and Yancey, the chief defenders of

slavery, were at the same time reaching a definite conclusion as to

what should follow the election of a Republican President. And that

conclusion involved nothing less than the fate of the Union.

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