Southern publications now enlisted northern critics, heretofore rare, to make their argument as the economy worsened in 1857. The clash between capital and labor, hidden by the prosperity earlier in the decade, became more evident. De Bow’s Review reprinted an editorial from a northern journal lamenting the loss of worker autonomy in the new market economy. “The capital which sustains mechanical business is not under the control of the operatives.” The result, according to the editor, leaves “the operatives … helpless.” The North was becoming more like Europe. Despotism would invariably follow disorder.23
Not only were northern publications making the southern argument, but the economic crisis seemed to spare the South from its worst consequences. Though white and black workers tangled in the streets of Baltimore and Richmond and sectarian gangs patrolled neighborhoods on election day in some southern cities, the degree of violence, or at least its publicity, seemed much less in the urban South. It was also true that southern enterprises that maintained close commercial and financial connections to northern cities suffered. But cotton retained a fair resiliency, and the low tariff Congress passed in 1857 aided exports. The lesson was obvious: the speculative mania and overweening pride that characterized the free labor North had not infected the South sufficiently to cause a similar economic dislocation. Where distress appeared, it resulted from dependence on northern banks and factors.
Governments, and the political parties connected to them, were both impotent and complicit in the crises that gripped the financial markets and the streets of urban America. New York reformer Thomas Low Nichols, looking back on these years from the not-too-distant perch of the early 1860s, commented that “it is a matter of world-wide notoriety that during the past ten years whole legislatures have been bribed; that the state and national treasuries have been despoiled of millions; that members of Congress have sold their votes in open market to the highest bidder.”24
For a nation whose people expected virtue from their leaders, these allegations were distressing. If optimism turned to cynicism, the legitimacy of democratic government could crumble. While Americans were congenitally suspicious of party cabals, their governments seemed especially opaque and corrupt in the 1850s. Walt Whitman observed that the political process had served up “swarms of cringers, suckers, doughfaces, lice of politics, planners of sly involutions for their own preferment to city offices or state legislatures or the judiciary or congress or the presidency.” Alexis de Tocqueville, ever the keen observer of American culture, seconded Whitman’s judgment in 1857, connecting the speculative madness of the economy to a similar disposition in politics, where individuals “who lacked moderation, sometimes probity, above all education,” seemed to have usurped the nation’s democratic institutions.25
The economic distress placed political events in a new light. Just as the Panic of 1857 eroded the confidence of Americans in the inevitability of their progress and prosperity, the political events of that year eroded trust in their institutions of government. Political leaders would compromise two basic principles of American democracy: an independent judiciary and the sanctity of majority rule.
Roger B. Taney, a Marylander and a Roman Catholic, who had weathered the suspicion and prejudice elicited by his religion to attain the highest judicial post in the land—chief justice of the United States Supreme Court—believed he had a remedy for the growing sectional unrest that threatened his beloved Union. That judges were supposed to leave public policy to the politicians did not, apparently, trouble Chief Justice Taney. In fact, the chief justice saw nothing inappropriate in consulting with President-elect Buchanan on a case before him. In an era when legislators sat on railroad boards and then voted land grants to their partners with scarcely a raised eyebrow, the idea of a conflict of interest or, in this instance, the violation of the separation of powers probably did not enter the calculation of Chief Justice Taney.
Appointed by Andrew Jackson in 1836, Taney considered himself a nationalist who respected states’ rights. He had served Jackson as both attorney general and secretary of the treasury and became one of the president’s closest friends. Critics derided the appointment, characterizing the new chief justice as “stooped, sallow, ugly … [a] supple, cringing tool of Jacksonian power.” Though a slaveholder, he disliked the institution and manumitted all of his slaves. Prior to his service in the Jackson administration he had defended a Methodist minister accused of inciting a slave insurrection. His opinions over the years were undistinguished and adhered closely to the facts at hand. As the sectional conflict heated up in the 1850s, the activities of abolitionists alarmed him. He feared that the contention over slavery could sunder the Union. The Dred Scott case provided an opportunity to put the issue to rest once and for all.26
The events surrounding the case dated back to the 1830s, when Dred Scott, a slave, traveled to Illinois, a free state, and then to Wisconsin, a free territory, in the company of his master, Dr. John Emerson, an army surgeon. When Dr. Emerson died in 1843, Scott sought to purchase his freedom, an offer that the doctor’s widow refused. Scott sued for his freedom on the grounds that he had resided in a state and a territory where slavery was illegal by virtue of the Northwest Ordinance and Missouri Compromise, respectively. The case, Dred Scott v. Sandford (the executor of Dr. Emerson’s estate), went to trial in Missouri in 1847. After a series of contradictory decisions and appeals, the case appeared before Taney’s Supreme Court in 1856.27
President-elect Buchanan was anxious to resolve the slavery extension issue that had poisoned congressional debate and plagued administrations from James K. Polk forward. He perceived the Dred Scott case as an opportunity to settle the issue. In a bald violation of an independent judiciary, the president-elect corresponded with two associate justices of the Supreme Court and chatted with the chief justice to the effect that it would really be nice if they could put this problem to rest once and for all.
The Court’s decision focused on two issues: was Dred Scott a citizen of the United States and therefore possessed of the standing to sue? Clearly, a slave was not a citizen. However, Scott’s residence in Illinois and Wisconsin Territory, his lawyers contended, rendered him free and, therefore, a citizen. This first issue forced the justices to consider a second question: did Congress (or any other entity) have the right to prohibit slavery in the territories? If the Court answered in the negative, then Scott would be neither free nor a citizen and therefore barred from filing a lawsuit.
The Court rendered its decision on March 6, 1857, two days after Buchanan’s inauguration. Buchanan knew what was coming, and he could not have been more delighted. Taney handed the administration a decision tailor-made to defuse the slavery issue, or so the collaborators thought.
Taney’s majority opinion—two northern judges dissented—was more detailed and comprehensive than it had to be as a legal decision and employed dubious legal logic to emasculate a key provision of the Constitution. The decision was less an adjudication than a political remediation, and it failed at both duties. Taney concluded that Scott was not a citizen, not only because he was a slave but also because he was black, and even had he been free, Scott would have lacked standing in court by virtue of his race. To prove his point, Taney divined the sentiments of the Founding Fathers and their predecessors on this subject. Black people, he wrote, “had for more than a century before [1776] 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.”28
As offensive as Taney’s sociology appeared in a legal context, the bombshell was the Court’s declaration that the law protected slave property as it did any other property, and, therefore, neither Congress nor a territorial or state legislature could ban slavery. Both the Northwest Ordinance and the Missouri Compromise, in this reading, were unconstitutional. This
despite the clear intent of the Constitution in Article IV, Section 2, which states that Congress has the power to make “all needful rules and regulations respecting the territory or other property belonging to the United States.” It was only the second time in American history that a court had rendered a congressional statute unconstitutional. In one decision, the U.S. Supreme Court provided the legal standing for a White Republic, undercut the major issue of the Republican Party, and threw Stephen A. Douglas’s popular sovereignty into constitutional purgatory. For good measure, the Court’s ruling contributed to the collapse of railroad stocks and the economic depression later that year by scaring off potential settlers (and their train fares) from the territories. Who knew if the Kansas war would be reprised across the West?
That it would not quell the slavery extension controversy became apparent before the ink was dry on the decision. The Court had essentially resurrected John C. Calhoun’s argument that slaveholders could carry their property anywhere in the United States and its territories and enjoy the protection of the government. The Constitution was a slave code—protecting the slaveholders’ property regardless of state or federal intent to the contrary. From this reading, slavery was legal everywhere and could exist in Massachusetts as well as Mississippi.
The southern press interpreted the decision in precisely the terms that Chief Justice Taney hoped the nation would embrace—that it put to rest a momentous “politico-legal question,” as the Richmond Enquirer put it. The editor went on to say that the decision favored “the advocates and supporters of the Constitution and the Union, the equality of the States and the rights of the South … and that too by a tribunal of jurists, as learned, impartial and unprejudiced as perhaps the world has ever seen.… The nation has achieved a triumph, sectionalism has been rebuked, and abolitionism has been staggered and stunned.”29
Northerners viewed the decision in much less sanguine terms. The Slave Power conspiracy had now infected all branches of government, and the disease seemed to be spreading across the land. William Seward dramatically articulated the conspiratorial thesis: “the day of inauguration came—the first one among all the celebrations of that great national pageant that was to be desecrated by a coalition between the executive and the judicial departments to undermine the national legislature and the liberties of the people.”30
Once a grand collusion is established, the fantastic becomes the plausible. The impression grew in the North that the decision not only protected slavery where it existed but also protected it where it did not yet, but now could, exist. As Horace Greeley reasoned in the New York Tribune, the decision established “that fact that Slavery is National.” If that was the case, Greeley concluded, it would be possible to buy and sell slaves in New York City. “At this moment, indeed, any wealthy New York jobber connected with the Southern trade can put in his next orders: ‘Send me a negro cook, at the lowest market value! Buy me a waiter! Balance my account with two chambermaids and a truckman!’… The free hills of Vermont, the lakes of Maine, the valleys of Connecticut … may be traversed by the gangs of the negro-driver, and enriched by the legitimate commerce of the slave-pen.” As if caught short by the absurdity of the scene, Greeley admitted that public opinion in the North prevented such scenarios for the time being, but the Constitution now did not.31
Greeley, despite the hyperbole, hit upon the issue that troubled increasing numbers of northerners: that slavery was no longer a local matter, a peculiarity of the southern states. The Fugitive Slave Law had implied as much, but its impact among whites was negligible. Now, however, “wherever the stars and stripes wave they protect Slavery and represent Slavery. The black and cursed stain is thick on our hands also.… The Star of Freedom and the stripes of bondage are henceforth one. American Republicanism and American Slavery are for the future synonymous.… In this all the labors of our statesmen, the blood of our heroes, the life-long cares and toils of our forefathers, the aspirations of our scholars, the prayers of good men, have finally ended! America the slavebreeder and slaveholder!”32
Northern evangelicals, who had begun to see signs of an approaching Armageddon in the rising sectional strife over slavery and the sectarian, class, and racial turmoil in the cities, viewed the Dred Scott decision within this broader context. Chief Justice Taney had essentially denied the basic humanity of the slave, an unconscionable position among mid-nineteenth-century evangelicals, even in the South. John Dixon Long, a Methodist minister in Philadelphia, condemned Taney’s characterization, referring to the half-million free blacks in the North as “our brethren in Christ, and ambassadors from the Court of Heaven to sinful men.” Another minister denounced “the corruptions of … the tawny decision—crushing out a whole race, and at one dash of his pro-slavery pen reducing men to mere chattels.”33
Indeed, if a higher law than the Constitution existed, as these churchmen believed, it was time to invoke that law in the place of that now-sullied document. To a packed crowd of three thousand worshipers in his Plymouth Church, Henry Ward Beecher declared, “If the people obey this decision, they disobey God.” Americans already held a dim view of the corruption of governments, parties, and politicians. Now it appeared that the independent judiciary was part of this foul process. It would be too much to say that the Dred Scott decision caused increasing numbers of northerners to lose faith in their government. But it would not be inaccurate to state they were losing patience with those who operated in its name. The Court’s interpretation of the Constitution clashed with basic American principles of a common humanity and of government by the consent of the governed.34
The Dred Scott decision further eroded the middle ground. Now that neither Congress nor the people of a territory could decide the fate of slavery, the extreme positions—that slavery was a protected national institution or that the courts and Constitution be damned—moved closer to the mainstream. The Court, rather than excising the slavery issue from the body politic, added mightily to the festering wound of sectional strife.
The Dred Scott decision was especially troubling to the tens of thousands of free blacks in the South. The Court, in stripping their citizenship, made them vulnerable to reenslavement or expulsion. Southern states feared the collaboration of the mostly urban free black population with slaves, and white workers chafed at the competition for jobs. Virginia, North Carolina, and Missouri in 1858 debated offering free blacks the “choice” of expulsion or enslavement. Nothing came of these proposals, but the mere possibility caused numerous free blacks to leave the South for Canada. More generally, the Dred Scott case accelerated the restrictions on the southern free black population, as the legal recourse of that population vanished with the decision. Several cities, including Charleston, experimented with requirements that free blacks purchase and wear badges identifying them as free. Other southern cities barred their free black workers from certain occupations or facilitated white takeover of previously black occupations such as carting and barbering.
The loss of citizenship weighed heavily on free African Americans everywhere. The Fugitive Slave Law attacked the security of northern free blacks, but in actual operation it affected relatively few. The Dred Scott decision was another matter. It cast doubt on the free status of every African American regardless of residence. In April 1857, free blacks in northern cities crowded into churches and meeting halls to vent their anguish and sense of betrayal. A meeting in Philadelphia resolved “That the only duty the colored man owes to a constitution under which he is declared to be an inferior and degraded being … is to denounce and repudiate it, and to do what he can by all proper means to bring it into contempt.”35
For African Americans, the enemy was no longer the slaveholder but the very government from which they had hoped for redress. As the State Convention of Ohio Colored Men concluded in 1858, “If the Dred Scott dictum be the true exposition of the law of the land, then are the founders of the American Republic convicted by their descendants of base hypocrisy, and colored men absolved from al
l allegiance to a government which withdraws all protection.”36
A few addenda to the case: John Sandford, the executor of Dr. Emerson’s estate, died in an insane asylum shortly after the decision. Dr. Emerson’s widow, the woman who refused to allow Dred Scott to purchase his freedom, moved to Massachusetts, married an anti-slavery congressman, and transferred ownership of Scott to the son of his original owner, who promptly manumitted both Scott and his wife on May 26, 1857. Dred Scott died one year later.
The northern reaction to the Dred Scott decision dashed President Buchanan’s hopes for a smooth beginning to his administration. Things would get worse. Again, Old Buck had good intentions. In May, he dispatched his friend Mississippi senator Robert J. Walker to clean out the mess in Kansas and oversee a convention that would frame a constitution for congressional approval as a precursor to statehood. Walker, a Pennsylvanian by birth, seemed as if he would expire at the first gust of wind. Less than five and a half feet tall and weighing ninety-five pounds, he looked sickly when he was well, and deathly when he was not. A journey to the Kansas Territory was hardly what the doctor ordered, though he was probably anxious to get out of Washington, where he had managed to anger the sensitive southern coterie around the president by noting offhandedly that he did not expect Kansas to enter the Union as a slave state.
Walker oversaw two elections during his embattled six-month tenure. One was an election to the constitutional convention boycotted by free-staters who feared fraud, intimidation, and gerrymandering. Another was a vote for the territorial legislature in which, at Walker’s urging, free-state residents participated. The latter election validated the free-staters’ skepticism about the manner of conducting political contests in Kansas. The pro-slavery forces’ recurrent creative math produced sleepy towns that had suddenly become bustling metropolises with voter rolls to match. Walker threw out the suspect ballots, allowing free-staters to claim a majority in the legislature. Predictably, the constitutional convention at Lecompton, elected by pro-slavery voters, framed a pro-slavery constitution and submitted the document to voters in a rigged election that Walker termed a “vile fraud, a base counterfeit.” Walker left Kansas for Washington in disgust to advise President Buchanan to throw out the Lecompton document. The legislature meanwhile, with its free-state majority, called for its own referendum, and voters overwhelmingly rejected the Lecompton Constitution. The message from this political circus, and one that Walker shared with anyone who would listen, was that free-state voters formed a solid majority in Kansas. If the Democratic Party was serious about its support for popular sovereignty, then rejecting the Lecompton Constitution was the only conscionable option.37
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