The most generous
interpretation of James Buchanan's Presidency – one of the worst in the history
of the Republic – was that Buchanan had the mindset of every Democratic nominee
in the aftermath of Andrew Jackson until the Civil War. He was fundamentally 'a
Northern Man with Southern Principles'. More to the point Buchanan was now the
leader of the only truly national party – the Republican Party wasn't one and
the Know-Nothing Party was already beginning to collapse. As such Buchanan
might have felt, despite the very narrow results of November's election, that despite
the growing sectional divides in the Democratic party it still best represented
the National interests. As a result he might have felt he still represented the
consensus.
On the day of his
inauguration Buchanan hailed the election in November as a harbinger of civic
serenity. When the vote was rendered he proclaimed 'the tempest subsided and
all was calm. He believed the will of the majority and the doctrine of popular
sovereignty would guide the nation through the sectional crisis. "The sacred
right of each individual must be preserved," he said, suggesting legislative
action or a vote of convention delegates couldn't resolve weighty territorial
questions. He made it clear he thought the Supreme Court was about to issue a
decision that would resolve the issue for all time. "To their decision, in
common with all good citizens, I shall cheerfully submit, whatever they may
be."
These were words
many might want to cling to. The problem was Buchanan's own character showed
the problem. He had an intellectual rigidity that clouded his perception of
political reality, accentuated by surrounding himself with like-minded figures disinclined
to question him. Despite the closeness of the results just a few months earlier,
he was ignoring the rise of the Republican Party and trying to deny the reality
that his own party was starting to come apart on sectional lines. And when he
was assuring the American people that he would abide by the court, he ignored
the fact that he had already ignored the idea of separation of powers and was
actively putting his hands on the scales of the verdict.
Dred Scott vs.
Sanford has
gone down in history as one of the worst decisions the Supreme Court ever made
but like so many of his major decisions this is because of the morality of it
rather than the cold hard legality of it. To be sure, there were definitely
issues with that as well but a closer look at the history of the decision will
no doubt explain how every side was reading it wrong by the time it reached the
Supreme Court.
Dred Scott in
1830 became the property of an Army surgeon named John Emerson, who lived in
St. Louis. In 1836 he was assigned to a military installation in Illinois,
which was a free state. He would later relocate to the portion of the Wisconsin
territory known today as Minnesota, then and later a free state. In 1838
Emerson returned to St. Louis with Scott who had married a fellow slave in the
interim. Five years later Emerson died, leaving Scott, his wife and their two
daughters in the possession of his widow Irene. Scott sought to buy his
family's freedom, but she refused. So he sued her on the legal thesis that his
freedom had been conferred by virtue of being taken into free territories and
living there for extended periods.
There was precedence
for this. The Missouri Supreme Court had ruled numerous times that slaves taken
from that state into free territories would become free. Scott won a favorable
ruling from a Missouri court based on that principle. Mrs. Emerson promptly
appealed and the case reached the Missouri Supreme Court in 1852. By that point
slavery had taken on a far more emotional aspect in Missouri like everywhere else
and the state's high court wasn't about to issue what amounted to an
antislavery opinion. The opinion, written by Judge William Scott, repulsed the
idea that Missouri must accept the laws of free states or territories on
matters related to slavery in Missouri. Scott justified the court's turnaround
by arguing that 'a dark and fell spirit in relation to slavery' had descended
upon America and threatened 'the overthrow and destruction of our
government." Despite the messenger
many people across the country believed that very thing would happen.
Scott's attorney,
Roswell Field, wouldn't give up. An antislavery advocate he filed a new lawsuit
in the U.S. Circuit Court in St. Louis, based on a constitutional provision
that gave federal courts jurisdiction over controversies between persons from
different states. The suit argued Scott was a free citizen of the state of
Missouri based on his previous residence in Illinois and Wisconsin and as a
result, Scott had standing to file a federal lawsuit challenging the contention
that he remained a slave. The lawsuit identified a new defendant, New York
resident John Sanford, Mrs. Emerson's brother. The lawsuit accused Sanford in trespass
in that he had held the former slave against his will.
This involved a
lot of contortion of the law as it currently existed. Garland, Sanford's
attorney, was on firmer legal ground – though horrible moral ground – when it
argued Scott wasn't a citizen of Missouri because he was black and a slave.
When the case reach U.S. Circuit Court judge Robert Wells in 1854, the judge
ruled Scott's race didn't preclude citizen ship and therefore wasn't a barrier
to his right to file a federal lawsuit. But his jury instruction argued Scott
had relinquished his right as a freeman when he voluntarily returned to
Missouri and put himself under jurisdiction of Missouri law. The jury embraced
that decision ruling for the defendant: Scott couldn't sue because he was still
a slave.
Field promptly
appealed to the Supreme Court and was aided by Montgomery Blair of the prominent
Maryland family as well as major players in the Republican Party. By now it was
clear the case involved several potentially far reaching Constitutional issues:
if a black freedman could be a citizen with a right to file a federal lawsuit,
whether a slave's residence in a free state or territory conferred freedom and
perhaps even if the Missouri Compromise itself was unconstitutional as
Sanford's attorneys had argued.
This brings us to
Chief Justice Roger Taney, who has become one of the most controversial figures
in American history exclusive for his decision here, negating as is the case so
often in history, his previous career. Taney had been part of the political
scene for nearly thirty years as Maryland attorney general, a Cabinet official
under Andrew Jackson and being appointed Chief Justice before Jackson left
office.
Taney as a young
man had embrace the Federalist faith in governmental power under such legends as
Hamilton and Clay. He had been believer in Jacksonian democracy. The scion of
Maryland's tobacco industry he had publicly abhorred slavery and overtime manumitted
his own slaves. But the idea of social and political equality for blacks
repelled him. When he became Chief Justice, succeeding the legendary John Marshall,
he nudged the court away from the pro -government sentiments of his predecessor
but not with the zeal Jackson had for the unitary fever of the executive. He
was admired by both parties and both sections of Congress.
The make up the
Court consisted of five southern justices and four northern ones. Taney knew if
a far-reaching ruling broke down on sectional lines, it could unleash sectional
passions and roil the nations. He wanted the initial ruling to be narrow,
deferring to Missouri's contention that Scott was a slave despite his residence
in free states, meaning Scott was not a citizen and couldn't initiate a
lawsuit. The court could therefore sidestep the emotion-packed Constitutional
issues.
The problem was
two northern justices, John McLean and Benjamin Curtis made it clear they would
write extensive dissents protesting the lack of full justice for Scott. The southern
majority then insisted on a broad opinion addressing the incendiary issues of
black citizenship and Congress's constitutional prerogative to establish or prohibit
slavery in territories. Taney insisted on writing the opinion himself but he
was aware a narrow 5-4 decision wouldn't command public support, particularly
if the ruling broke down on sectional lines. Justice John Caton of Tennessee
asked the President elect to write to Justice Robert Grier of Pennsylvania (Buchanan's
home state) urging him to join in the Taney ruling. Buchanan did so and Grier replied
saying that he had shared the letter with Taney and another Southern Justice, James
Wayne.
This by far broke
the cardinal rule of separation of powers: the executive branch was supposed to
have no role in influencing Supreme Court decisions. No one found out about
this well after the fact; the ruling alone would have the country in an uproar
for long enough.
On March 6th
1857, two days after Buchanan had been sworn in, Taney entered the chamber and
read his fifty-five page ruling. He held forth for almost two hours. The best
one can say about Taney's ruling is that, like Buchanan, he was hoping to
resolve the question of slavery for good and all. The problem was he said that
one side of the debate was completely outside the bounds of the Constitution.
The ruling
declared Dred Scott could not file a lawsuit in a U.S. court because blacks in
America, whether slave or free, "were not included and not intended
to be included until the word 'citizen' in the Constitution'. The rule accepted
the rights of states to grant citizen ship to African-Americans equal to those
of whites, but that would not confer any such status within the framework of
the federal government or any other state. The ruling acknowledged that public
opinion regarded slavery had changed since the early years of the republic but
the thoughts and feelings prevalent at the time of the founding must prevail.
In a sense Taney
was arguing very much for the kind of originalist reading of the Constitution
the same way later conservative justices have done in the present era, and with
a similar amount of slipshod reasoning, arguing European thought towards blacks
had been the same in North America for at least a century before the writing of
the Declaration of Independence. He also made it clear the Missouri Compromise
was unconstitutional and that Congress lacked any legitimate power to prohibit
slavery in the territories, essentially arguing only the voters could do so and
only when they applied for statehood. For all intents and purposes he was giving
Southern slaveholders a Constitutional right that overrode Congressional prerogative
or voter sentiment, meaning all territories were slave territories prior to
statehood.
The most absurd
contortion came with the stature of the Northwest Ordinance, enacted by the 1st Congress that slavery
was prohibited in those vast tracts of unorganized western land known as the
Northwest Territory. Taney brushed that aside by declaring no future Congress
could do what the first Congress had because the framers hadn't authorized it,
thus giving an originalist view to the executive branch.
Lost in this
sweeping rule was the fact that Taney simply decided Scott's fate was the same
as the two previous lower court rulings. Taney had written a similar decision
years earlier arguing that state law controlled the status of slave within
state boundaries. That determination could have been defended as a legal
precedent. But Taney had grafted it on to a vast and sweeping social pronouncement
with strained reasoning and little documentation.
The impact to the
decision was immediate and immense. It devastated the philosophical underpinning
of the North's antislavery argument, the idea that freedom was national but
slavery was local. Dred Scott directly inserted the slavery controversy
in ways that designated the institution of bondage as distinctly national, to
be protected by the federal government and freedom was a state matter.
The question is
why did a man who had spent two decades as such a measured jurist and abhorred
slavery gave such a ruling? Like everyone else in America, Taney didn't live in
a vacuum. By 1857 he had developed nagging concerns about the northern
encroachment on southern independence, intensified by the fiery northern
abolitionists who were bent on destroying slavery even if it meant destroying
the South and perhaps even the union. Having heard so much of the rhetoric of
men like Garrison and his followers, one can't pretend those fears were unjustified.
Taney was trying, in a backhanded way, to protect the Union from further destabilizing
contention from the national debate the increasing combustible issues of black
citizenship, the Missouri compromise and territorial procedures.
Buchanan had a
similar mindset. Knowing that Kansas was becoming an issue Buchanan was aware
that the influx of Northern settlers now render untenable any possibility of Kansas
becoming a slave state. He thought if he could get the South could accept that
reality, he could lead the nation to a post-Kansas equilibrium. Republican
anxieties about the spread of slavery could be assuaged while the South would
be reassured that the institution would be protected where it existed. It
wasn't economic feasible in other western territories and Dred Scott should be
enough to reassure the south their bondage system was intact. That wasn't about
to happen for many reasons both in the South and critically in the North.
What one must
wonder is what the abolitionists were expecting of the ruling. They had to
know, given the makeup of the current court well before the November election,
that no ruling was going to settle the issue in their favor. Southern justices
were not going to be sympathetic to the abolitionist cause any more than southern
Senators and congressman were. Even if Taney had not made such a disastrously wrong-headed
ruling with his final decision and even had Buchanan not intervened, the most
they would likely have gotten was the Northern justices giving a stirring dissent
and the Southern justices being inflamed by this ruling on their 'peculiar institution'.
And they had to have been aware of Taney's previous ruling about slaves being
subject to state laws and that he of all people was unlikely to overturn his
own precedent. So one almost wonders, were the attorneys led by Blair, hoping
to provoke some kind of reaction? Did they want the highest court in the land
to set a precedent that would at more fervor to their cause? The fact that Sanford's
lawyers were arguing the Missouri Compromise was unconstitutional was showing
that the South was playing to win and they already had a court that was
friendly to them.
Did they put too
much faith in the institution? That seems hard to believe given the level of contempt
that so many of the antislavery forces had gone through during the last several
years in particular. They no doubt believed their cause was just and that was a
fight worth fighting but the fact remained, the last decade had already given
the South a series of institutional victories at the legislative and executive
branch. There was no reason to suspect the judiciary would be any different.
And while the Republican party had done well in its first election, its views
were still by a single section of the country
and a minority of it at that. All they had was the moral weight of their
argument, a weight that while an increasing number of the population shared was
still only held in a section of the country and was only a minority of elected
officials.
This may seem
like hair-splitting but it has to be repeated: the views of the abolitionists
and the antislavery forces were still a minority of America even in 1857. The
antislavery forces might be winning hearts and minds but the south had the
majority of the power and had been winning the battles that mattered: legislative
and elections. Scott's lawyers could not have predicted just a horrific ruling
from Taney but they had to know the judiciary was not likely to be any more
favorable then the other two branches of the government had been to them. And
for all the blood that already been spilled, both in Kansas and in the halls of
Congress, the public had made it very clear that they preferred the idea of preserving
the status quo, however morally wrong, over the potential of further disruption.
No doubt the Dred Scott ruling was a reason that a
group of abolitionists in Massachusetts to argue that disunion was the only way
to end slavery. This would lead them to start a plan that they hoped would lead
to an insurrection in the South.
In the next
article I will deal with how six Massachusetts abolitionists conspired to use
John Brown as a tool to achieve their ends.
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