The same fate nearly overtook the Democrats. President Pierce, who had supported Kansas-Nebraska, was denounced with Douglas as a traitor by the Northern Democrats and as halfhearted by the Southern Democrats, and Democratic candidates who pledged to support their party’s president were mowed down in the congressional elections in 1854. Of the ninety-one seats held by Democrats in the House of Representatives in 1854, sixty-six of them were lost in the fall congressional elections that year; only seven of the Democrats who had voted for Kansas-Nebraska survived in office.58 When the Democratic presidential convention met in Cincinnati in 1856, the fearful Democrats jettisoned Pierce and rejected Douglas as their presidential candidate, and on the eighteenth ballot they nominated a Pennsylvania Democrat, James Buchanan.
Buchanan was a veteran Democratic politician who had long coveted a presidential nomination. In 1856 his chief political merit lay in the fact that he had been out of the country as American minister to Great Britain during the Kansas-Nebraska debates and so had avoided taking any side publicly. Buchanan was also a Northerner (to reassure the Northern Democrats), but one with many friends in the South (to reassure the Southern Democrats). So by nominating a party machine man who had no well-known opinions on the crying issues of the moment, the Democrats managed to avoid a North-South split.
With the old Whig Party in shambles and the Republican Party still only two years old, Buchanan’s victory in the 1856 election was a foregone conclusion for most observers. Even under those circumstances, the Republicans pulled off what struck pro-slavery people as an alarmingly good show at the polls. Nominating a celebrity explorer, John Charles Frémont, for president, the Republicans scooped up a third of the nation’s votes, virtually all of them from the North, where voters turned out in record numbers.59 As many Southerners quickly realized, had the anti-slavery Northern Democrats not been mollified by Buchanan’s nomination, they might have bolted to the Republicans and handed them the election on the first try, just on the strength of Northern votes alone. The next time around, the Democrats might not be so fortunate.
The political parties were not the only national institutions cracking under the strain of sectional controversy. The Protestant churches, which had for many years been yet another source of union within the Union, were also splitting under the stress of Southern threats and demands for assurance. Part of the strain was caused by the South’s unceasing search for arguments in defense of slavery. Once slavery was being defended as a “positive good,” it was only a matter of time before Southerners appealed to the Bible to show that it was a moral good as well, and had divine approval. “We assert that the Bible teaches that the relation of master and slave is perfectly lawful and right,” declared the Presbyterian Robert Lewis Dabney; from a litany of Old Testament and New Testament examples, from Abraham to St. Paul, Dabney concluded that slavery “was appointed by God as the punishment of, and remedy for … the peculiar moral degradation of a part of the [human] race.”60
When Southern divines offered these arguments, Northern evangelicals were quick to correct them, at first patiently and then angrily, as Southerners responded with accusations of apostasy and unbelief. By 1850, the year of the Compromise, one Southern Presbyterian’s temper had frayed to the point where he denounced his Northern counterparts in terms fit for the Devil: “The parties in this conflict are not merely Abolitionists and Slaveholders; they are Atheists, Socialists, Communists, Red Republicans, Jacobins on the one side, and the friends of order and regulated freedom on the other.”
On that other side, the greatest of the American Presbyterian theologians, Charles Hodge of Princeton Theological Seminary, at first condemned the abolitionists as troublemakers in the 1830s but then turned to accuse the South of the troublemaking; he joined the Republicans in 1856 and voted for Frémont.61 With antagonisms of this order dividing the theologians, it was only a little time before they divided the churches as well. The Methodists split into Northern and Southern branches in 1844; in 1845 the Baptists also split; and in 1857 the Southern presbyteries of the Presbyterian Church simply walked out of the Presbyterian General Assembly, taking with them some 15,000 Southern members. These church splits were significant not only because they helped destroy vital national institutions and turn them into sectional ones but also because (as John Calhoun happily pointed out in his last speech) they demonstrated that secession could occur. The church separations provided an illusory guarantee to Southerners that, if matters warranted, secession from the Union was an easy, profitable, and moral way of putting an end to the strife over slavery.62
Stephen A. Douglas, however, was unconvinced that matters ever needed to come to that point. Douglas had managed to survive much of the wreckage that his policies had caused, and although he once remarked that he could have traveled from Massachusetts to Illinois by the light of fires kindled to burn him in effigy, once he was back in Illinois he was able to rebuild his strength and his credibility. Swinging back at his critics, Douglas claimed that popular sovereignty would fail only where the ill will of abolitionists and radicals in both North and South made it fail.63
Douglas never doubted that popular sovereignty was the best method for opening the western territories, and he was confident that the soil and climate of Kansas and Nebraska would prove so hostile to slavery that the popular decision of the people of those territories would surely lean toward creating free states. Since that would be a free and open decision by the people of the territories, the Southern radicals would be deprived of any reason for complaint and for further rounds of demands and assurances. If only the agitation of the abolitionists in particular would cease, popular sovereignty could assert its strength and lay to rest the strife of North and South over slavery in the territories.
In Illinois, Douglas was speaking to an audience strongly inclined to agree with him. Illinois was part of the old Northwest, filled both with German immigrants who hated the South for trying to bring black slaves into territories that they desired and with Southern migrants who hated the abolitionists because they feared that emancipation of the slaves would loose free blacks into the territories; both groups feared that the result would be the closing off of the territories to free white labor. Douglas played to the fears of the small farmers and the immigrants, held up popular sovereignty as the only safe method for keeping slavery (and blacks in general) out of the territories, and blamed the uproar over the Kansas-Nebraska bill on the agitators. By October 1854 Douglas had won back the home-state loyalty he had nearly forfeited in ramming Kansas-Nebraska through Congress, and on October 3 he even used the state fair at Springfield, Illinois, as a stage for preaching the gospel of popular sovereignty and Kansas-Nebraska.
One voice was raised in dissent. A Springfield lawyer, a former member of Congress and longtime Whig named Abraham Lincoln, took up Douglas’s defense of Kansas-Nebraska at the Illinois statehouse in Springfield the day after Douglas spoke at the state fair. In the course of a three-hour speech, Lincoln proceeded to tear Kansas-Nebraska and popular sovereignty to shreds. Was popular sovereignty really the most peaceful and effective method for settling the territories? Then why hadn’t the Founding Fathers in 1787 thought of that when they organized the territories in the Northwest? Instead, the Northwest had been declared free territory, and the states of the Northwest did not appear to have suffered for it. “No States in the world have ever advanced as rapidly in population, wealth, the arts and appliances of life… as the very States that were born under the ordinance of ’87, and were deprived of the blessings of ‘popular sovereignty,’ as contained in the Nebraska bill, and without which the people of Kansas and Nebraska cannot get along at all.”64
Lincoln then pinned Douglas on the question of whether popular sovereignty was really going to keep the territories free. “It is vain,” argued Lincoln, to claim that popular sovereignty “gives no sanction or encouragement to slavery.” If he had a field, Lincoln shrewdly remarked, “around which the cattle or the hogs linger and cr
ave to pass the fence, and I go and tear down the fence, will it be supposed that I do not by that act encourage them to enter?” Just so with Kansas-Nebraska: the Missouri Compromise had been the fence that kept slavery out of most of the old Louisiana Purchase, but now came Douglas, tearing down the fence in the name of popular sovereignty and expecting people to believe that slavery would not make every possible effort, climate or not, to camp there. “Even the hogs would know better,” Lincoln sneered.
Most of all, Lincoln condemned popular sovereignty because it tried to dodge the moral issue of slavery. Douglas hoped to pacify Southern anxieties by showing how popular sovereignty gave slavery at least the appearance of a “fair chance” in the territories, and to allay Northern suspicions by pointing to how popular sovereignty was the ultimate expression of liberty. Lincoln did not believe that slavery ever deserved to have a “fair chance,” and even if all the voters of a territory unanimously demanded it, their demanding it did not make it morally right. Liberty was not an end in itself, as popular sovereignty seemed to claim; it was a means, and it was intended to serve the interests of the natural rights that Jefferson had identified in the Declaration of Independence—life, liberty, the pursuit of happiness. Otherwise, liberty would itself be transformed into power, the power of a mob to do whatever it took a fancy to. It was, Lincoln declared, “a descending from the high republican faith of our ancestors” to have the United States government adopt as its territorial policy that nothing should be said or done to inhibit the “free” choice of slavery, “that both are equal with us—that we yield our territories as readily to one as the other!”65 This was not the last time Stephen A. Douglas would hear from the tall Springfield lawyer, and those three themes—the power of Congress over the territories, the incapacity of popular sovereignty to keep slavery from any territory, and the moral injustice of slavery itself—would be Lincoln’s constant hammers at Douglas’s position in Illinois for the next four years.
For the moment, however, Douglas and popular sovereignty faced a more serious challenge than Lincoln, and it came in the form of the United States Supreme Court. In 1834 a United States Army assistant surgeon named John Emerson was transferred from the Jefferson Barracks in St. Louis, Missouri, to Fort Armstrong in Illinois, where he also bought land, and with him he brought his slave Dred Scott. Two years later Emerson was transferred again to Fort Snelling, a frontier army post in what was then still the Wisconsin Territory, and once again he brought Scott with him. In both cases, Emerson had paid little attention to the details of Illinois’s free-state statutes and transit laws, and even less to the Missouri Compromise (since Fort Snelling was located in a federal territory that had been part of the Louisiana Purchase). In 1840 Emerson was transferred again to Florida, and in 1842 he left the army and returned to St. Louis. The next year Emerson died, and in his will, Dred Scott and his wife and children passed into the hands of Emerson’s wife, Eliza Sanford Emerson.66
It was at this point that Dred Scott and his family made a bid for freedom, not by running away but by filing suit against Eliza Emerson on April 6, 1846, for wrongful imprisonment, on the grounds that their residence in a state and a territory that forbade slavery had made them free. This was not an unusual suit, and the St. Louis county circuit court that heard the case in 1850 ordered Dred Scott and his family freed. Eliza Emerson then appealed to the Missouri Supreme Court, and on March 22, 1852, the Missouri high court truculently reversed the circuit ruling on the grounds that Scott was now a resident of Missouri, and Missouri was not necessarily bound to recognize the anti-slavery statutes of other states or territories.
In the meantime, Eliza Emerson remarried and moved to New York, and she transferred effective ownership of the Scotts to her brother, John Sanford, of St. Louis. Scott now filed a new suit, against Sanford, in the federal circuit court, arguing that his rights as a citizen had been violated: once on free territory, Scott claimed, he was a free man, a citizen entitled to all the privileges and immunities of citizenship specified in the Fifth Amendment to the Constitution. The Constitution was curiously vague on what actually constituted citizenship, but the federal circuit court eventually ruled against Scott in a jury trial in May 1854. Scott and his attorneys now appealed to the Supreme Court of the United States, which began hearing Scott v. Sanford in February 1856.67
The decision was handed down on March 6, 1857, two days after James Buchanan was inaugurated as the fifteenth president, and it rocked the country. First, Chief Justice Roger Brooke Taney, writing for a seven-to-two majority, denied that Scott had the privilege of appealing to the Supreme Court, on the grounds that Scott was not only a slave but also of African descent. Taney argued that on both counts, Scott could not be legally considered a citizen of the United States.
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? … It is absolutely certain that the African race were not included under the name of citizens of a State… and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
The government did not choose to grant them much:
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.68
This rendered all questions about transit laws and the Missouri Compromise moot, and reduced the only real question in Dred Scott to a matter of Scott’s race. Even if Scott’s master had violated free-state laws by taking Scott into free territory, Scott himself had no legal standing as a citizen before the federal courts, and the federal courts had no reason to listen to his suit, justified or not.
Taney’s argument from race caused only one part of the sensation; after all, Taney’s notions about Scott’s “inferior” race were not much different from what most white Americans and even many abolitionists believed (they merely differed as to whether that was sufficient reason to enslave someone). The political blockbuster of the Dred Scott decision came when Taney actually turned to consider Scott’s own plea, that residence in a free territory could terminate his slave status. Taney proceeded to deny this plea in the clearest and most chilling terms. No territorial government in any federally administered territory had the authority to alter the status of a white citizen’s property, much less to take that property out of a citizen’s hands, without due process of law or as a punishment for some crime.
This, of course, meant any property of any white citizen in any territory. In effect, Taney had resurrected John Calhoun’s “common property” doctrine and overturned any federal or territorial law that in any way interfered with a citizen’s “enj
oyment” or use of his property—which in the case of John Emerson had been his slaves Dred and Harriet Scott. Taney then attacked the Missouri Compromise as unconstitutional on the grounds that it deprived slaveholders of the use of their slave property north of the 36°30′ line. In two sentences he destroyed popular sovereignty, the Compromise of 1850, and the Kansas Nebraska bill as well, for if it was unconstitutional for Congress to ban slavery from the territories, it was equally unconstitutional for the federal territories to do it for themselves, no matter what the majority vote of a territory on the question might be.
The two sections of the Taney opinion, running over 250 tightly printed pages in the Court’s Reports, fit together as integral parts. The first reduced Dred Scott to a noncitizen, fit only to become some real citizen’s “property,” and the second denied the federal government any authority to restrain in any way the spread of slavery in any place where the federal government—as opposed to the individual state governments—had jurisdiction. In fact, only the states themselves were left by Taney with any constitutional authority to deal with slavery within their own borders, and even that might be the next safeguard to be questioned by a federal court.69
In terms of what the Dred Scott appeal actually required before the law, Taney need not have done more than declare that Scott simply had no standing before the Court. The explanation for the Taney’s decision to reach beyond Dred Scott himself and strike down the great compromises lies largely in Taney and his Court. Five of the seven justices who voted in the majority were Southerners. John A. Campbell, an Alabamian, would later serve as an assistant secretary of war in the Confederacy, and Robert Wayne Grier, John Catron, and Peter Daniel were all pro-slavery partisans. Taney himself was a Marylander (and brother-in-law of Francis Scott Key, the author of “The Star-Spangled Banner”) and an old Jacksonian Democrat who had served as Jackson’s attorney general in the successful effort to destroy the Bank of the United States. His opinion in Scott v. Sanford became Taney’s effort to settle the slavery question where Congress, the presidents, Clay, Webster, Taylor, and Wilmot had failed, and to settle it in favor of the South.
Fateful Lightning: A New History of the Civil War & Reconstruction Page 13
