Battle Cry of Freedom

by James M. McPherson

  To save face, the administration supported a compromise by which Kansans would vote again on acceptance or rejection of Lecompton under the guise of a referendum on an adjustment in the size of the customary land grant to be received upon admission to statehood. Rejection of the land grant would defer statehood for at least two years.

  49. Alexander H. Stephens to ––––– Pritchard, Dec. 9, 1857, Stephens Papers, Louis A. Warren Lincoln Library and Museum; Fehrenbacher, Dred Scott Case, 466, 468, 483; Johannsen, Douglas, 599.

  50. New York Weekly Tribune, Feb. 13, 1859, quoted in Nevins, Emergence, I, 288; Stephens quoted in Rawley, Race and Politics, 239–40.

  51. Johannsen, Douglas, 610.

  Spurning this subterfuge as a bribe, Kansans defeated it on August 2 by a vote of 11,300 to 1,788. During this time Kansas had resumed bleeding from a number of wounds. Jayhawkers and border ruffians raided and ambushed each other with considerable ferocity. In May 1858, almost on the second anniversary of the Pottawatomie massacre, a pro-slavery band evened the score by seizing nine free-state settlers from their cabins and shooting them by firing squad (four survived their wounds). John Brown himself reappeared in the territory. His band invaded Missouri, killed a slaveholder, and liberated eleven slaves and a good many horses and took them to Canada.

  Free-state Kansans organized a Republican party and elected two-thirds of the delegates to a new constitutional convention in 1859. Kansas finally came in as a free state in January 1861, joining California, Minnesota, and Oregon, whose entry since the Mexican War had given the North a four-state edge over the South. Kansas also became one of the most Republican states in the Union. Though most of the free-state settlers had originally been Democrats, the struggle with the slave power pushed them into the Republican party, which regularly rolled up two-or three-to-one majorities during the early years of statehood.

  With enemies like the Democrats, Republicans scarcely needed friends. As if Kansas were not enough, the Buchanan administration, the Supreme Court, and southern Democrats ventured several other actions seemingly designed to assure Republican victory in the presidential election of 1860.

  6

  Mudsills and Greasy Mechanics for A. Lincoln

  I

  Dred Scott lived all but two of his sixty-odd years in obscurity. The fame he achieved late in life was not for himself but for what he represented. Scott had been a slave of army surgeon John Emerson, who had taken him from Missouri to posts in Illinois and at Fort Snelling in the northern part of the Louisiana Purchase (now Minnesota) for several years in the 1830s. At Fort Snelling, Scott married a slave also owned by Emerson. She gave birth to a daughter in territory made free by the Missouri Compromise while Emerson was returning the Scotts to Missouri. After Emerson died and his widow inherited the Scotts, white friends of Dred Scott in St. Louis advised him in 1846 to sue for freedom on grounds of prolonged residence in a free state and a free territory. Scott did so. Thus began an eleven-year saga that started as a simple freedom suit and escalated into the most notorious cause célèbre in American constitutional history.

  Scott first lost his suit but then won it on re-trial in St. Louis county court in 1850. On appeal the Missouri supreme court overturned this decision in 1852 and remanded the Scotts to slavery. The case was beginning to acquire political significance. Missouri courts had previously granted freedom to slaves in cases similar to Scott's. In overturning those precedents and asserting that Missouri law prevailed despite Scott's residence in free territory, the state supreme court was reacting to proslavery pressures. Scott's lawyers, who now included a Vermontborn resident of St. Louis, thought they could win the case if they could get it before a federal court. Scott's owner having moved to New York, the lawyers appealed to federal circuit court under the diverse-citizenship clause of the Constitution which gives federal courts jurisdiction over cases involving citizens of different states. In 1854 the circuit court for Missouri accepted the case (thereby affirming Scott's status as a citizen) but upheld the Missouri court's denial of his suit for freedom. Scott's lawyers appealed to the U.S. Supreme Court. Proslavery elements welcomed this move. The potential of the case for resolving crucial constitutional issues had become clear. And the Supreme Court had a southern majority.

  The justices first heard arguments on the case in 1856 and held it over for reargument in the 1856–57 session—perhaps to avoid rendering a decision before the presidential election. Three main questions were before the Court: 1) As a black man, was Scott a citizen with a right to sue in federal courts? 2) Had prolonged residence (two years in each place) in a free state and territory made Scott free? 3) Was Fort Snelling actually free territory—that is, did Congress in 1820 have the right to ban slavery in the Louisiana Purchase north of 36° 30'? The Court could have ducked questions one and three by merely reaffirming the decisions of the Missouri supreme court and the federal circuit court that Missouri law governed Scott's status. Precedents existed for doing so; the Supreme Court itself in Strader v. Graham (1851) had refused to accept an appeal from the Kentucky supreme court which had ruled that slaves from Kentucky taken temporarily to Ohio remained slaves under Kentucky law. And indeed, for a time it appeared that the Court would take this way out. On February 14, 1857, a majority of justices voted to reaffirm the Strader principle and let it go at that. Justice Samuel Nelson of New York began to write the decision. But a few days later the majority reversed itself and decided to issue a comprehensive ruling covering all aspects of the case.

  Why did the Court take this fateful step? Answers to this question have been uncertain and partisan. Only fragmentary accounts of the justices' confidential discussions leaked out, some of them years later. One interpretation of this evidence maintains that the two non-Democrats on the Court, John McLean of Ohio and Benjamin Curtis of Massa-chusets, stated their intention to dissent from the narrow decision prepared by Nelson. Their dissent would not only uphold Scott's freedom but would also affirm black citizenship and endorse the right of Congress to prohibit slavery in the territories. Not wishing these dissents to stand as the Court's only statement on such contentious issues, the southern majority reconsidered its decision to ignore them and voted to have Chief Justice Roger B. Taney write a comprehensive ruling. Thus, according to this interpretation, McLean and Curtis were responsible for provoking the vexatious Dred Scott decision that superseded Nelson's innocuous opinion.1

  But the truth appears to be more complex. For a decade the question of slavery in the territories had threatened the Union. Politicians had been trying to pass the buck to the courts since the Compromise of 1850, which had provided for expedited appeal to the Supreme Court of any suit concerning slave property in the territories of Utah and New Mexico—a provision repeated verbatim in the Kansas-Nebraska Act of 1854. The problem was that because these territories did not prohibit slavery, no such suit materialized. But here, conveniently, came a suit from another part of the Louisiana Purchase. The yearning for settlement of this question by "judicial statesmanship" was widespread in Washington during the winter of 1856–57, especially among southerners. Alexander Stephens, a friend of Justice James M. Wayne of Georgia and a distant cousin of Justice Robert Grier of Pennsylvania, wrote privately in December 1856: "I have been urging all the influence I could bring to bear upon the Sup. Ct. to get them no longer to postpone the case on the Mo. Restriction. . . . I have reason to believe they will [decide] that the restriction was unconstitutional." Other southerners exerted similar pressures on the Court. They seemed to be succeeding. Two weeks later Stephens reported that "from what I hear sub rosa [the decision] will be according to my own opinions upon every point. . . . The restriction of 1820 will be held to be unconstitutional. The Judges are all writing out their opinions I believe seriatim. The Chief Justice will give an elaborate one."2

  The five southern justices did want to rule against Congress's right to ban slavery from the territories. Some of them had indeed begun writing opinions to that effect. But t
he difficulty was in getting the two northern Democratic justices, Grier and Nelson, to go along with them. This was why the southerners had reluctantly decided to sidestep the issue

  1. This was long the standard interpretation; its foremost exponent was Frank H. Hod-der, "Some Phases of the Dred Scott Case," MVHR, 41 (1929), 3–22.

  2. Alexander Stephens to Linton Stephens, Dec. 15, 1856, in Richard M. Johnston and William H. Browne, Life of Alexander H. Stephens, rev. ed. (Philadelphia, 1883), 326; letter from Stephens dated Jan. 1, 1857, quoted in Nevins, Emergence, I, 108.

  with Nelson's narrow ruling. Word that McLean and Curtis would raise the broader questions in their dissents gave southern justices the pretext they needed to change their minds. They approved a motion by Wayne that Taney should prepare a decision covering all aspects of the case.3

  There still remained the problem of cajoling a concurrence from at least one northern justice to avoid the appearance of a purely sectional ruling. Nelson could not be persuaded—he had already written his opinion and was probably miffed by his colleagues' intent to bypass it. But Grier was pliable. He was also from Buchanan's home state. The president-elect was anxious to have the territorial question resolved. In response to a suggestion from Justice John Catron of Tennessee, Buchanan brought highly improper but efficacious influence to bear on Grier, who succumbed. Taney had his northern justice and could proceed with his ruling.4

  It was an opinion he had long wanted to write. Eighty years old, the chief justice was frail and ill. The death of his wife and daughter two years earlier in a yellow fever epidemic had left him heart-stricken. Yet he clung to life determined to defend his beloved South from the malign forces of Black Republicanism. In his younger days Taney had been a Jacksonian committed to liberating American enterprise from the shackles of special privilege. As Jackson's secretary of the treasury he had helped destroy the Second Bank of the United States. His early decisions as chief justice had undermined special corporate charters. But the main theme of his twenty-eight year tenure on the Court was the defense of slavery. Taney had no great love of the institution for its own sake, having freed his own slaves. But he did have a passionate commitment "to southern life and values, which seemed organically linked to the peculiar institution and unpreservable without it."5 In private letters Taney expressed growing anger toward "northern aggression.

  3. This analysis is based on the accounts in Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York, 1978), 305–11; James A. Rawley, Race and Politics: "Bleeding Kansas" and the Coming of the Civil War (Philadelphia, 1969), 275–81; and Nevins, Emergence, I, 107–10, II, 473–77.

  4. The correspondence between Buchanan, Catron, and Grier in February 1857 was discovered in the Buchanan papers by his biographer Philip Auchampaugh, who presented the evidence in "James Buchanan, the Court and the Dred Scott Case," Tennessee Historical Magazine, 9 (1926), 231–40. See also Fehrenbacher, Dred ScottCase, 311–13.

  5. These are the words of Don E. Fehrenbacher, in Dred Scott Case, 559. See also Fehrenbacher, "Roger B. Taney and the Sectional Crisis," JSH, 43 (Nov. 1977), 555–66.

  "Our own southern countrymen" were in great danger, he wrote; "the knife of the assassin is at their throats."6 Taney's southern colleagues on the Court shared this apprehension, according to historian Don Fehrenbacher; Justice Peter Daniel of Virginia was "a brooding proslavery fanatic" and the other three were "unreserved defenders of slavery." Because of this "emotional commitment so intense that it made perception and logic utterly subservient," the Dred Scott decision was "essentially visceral in origin . . . a work of unmitigated partisanship, polemical in spirit [with an] extraordinary cumulation of error, inconsistency, and misrepresentation."7

  Taney's opinion took up first the question whether Dred Scott, as a black man, was a citizen with the right to sue in federal courts. Taney devoted more space to this matter than to anything else. Why he did so is puzzling, for in the public mind this was the least important issue in the case. But southern whites viewed free blacks as an anomaly and a threat to the stability of slavery; Taney's own state of Maryland contained the largest free Negro population of any state. The chief justice's apparent purpose in negating U.S. citizenship for blacks, wrote Fehrenbacher, was "to launch a sweeping counterattack on the antislavery movement and . . . to meet every threat to southern stability by separating the Negro race absolutely from the federal Constitution and all the rights that it bestowed." To do so, however, he had to juggle history, law, and logic in "a gross perversion of the facts."8 Negroes had not been part of the "sovereign people" who made the Constitution, Taney ruled; they were not included in the "all men" whom the Declaration of Independence proclaimed "created equal." After all, the author of that Declaration and many of the signers owned slaves, and for them to have regarded members of the enslaved race as potential citizens would have been "utterly and flagrantly inconsistent with the principles they asserted." For that matter, wrote Taney, at the time the Constitution was adopted Negroes "had for more than a century before been regarded as beings of an inferior order . . . so far inferior, that they had no rights which a white man was bound to respect."9

  6. From letters written by Taney in 1856 and 1860, quoted in Fehrenbacher, "Taney and the Sectional Crisis," loc. cit., 561, 556.

  7. Fehrenbacher, Dred Scott Case, 234, 3, 559.

  8. Ibid., 341, 349.

  9. The question of Negro citizenship occupies pp. 403–27 of Taney's opinion in Dred Scott v. Sandford 19 Howard 393.

  This was false, as Curtis and McLean pointed out in their dissents. Free blacks in 1788 and later had many legal rights (to hold and bequeath property, make contracts, seek redress in courts, among others). In five of the thirteen states that ratified the Constitution black men were legal voters and participated in the ratification process. No matter, said Taney, these were rights of state citizenship and the question at issue was United States citizenship. A person might "have all of the rights and privileges of the citizen of a State," opined the chief justice, and "yet not be entitled to the rights and privileges of a citizen in any other State"—a piece of judicial legerdemain that contradicted Article IV, Section 2 of the Constitution: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

  Having established to his satisfaction that blacks were not citizens,10 Taney could have stopped there and refused jurisdiction because the case was not properly before the Court. That he did not do so rendered the remainder of his decision, in the opinion of many contemporaries and the earliest generations of historians, obiter dictum —a statement in passing on matters not formally before the Court and therefore without force of law. But Taney insisted that because the circuit court had considered all aspects of the case and decided them "on their merits," the whole case including the constitutionality of the Missouri Compromise restriction on which Scott based part of his suit for freedom was properly before the Court. Modern scholars agree. Whatever else Taney's ruling was, it was not obiter dictum.

  Taney and six other justices (with only Curtis and McLean dissenting) concurred that Scott's "sojourn" for two years in Illinois and for a similar period at Fort Snelling, even if the latter was free territory, did not make him free once he returned to Missouri.11 To this matter Taney devoted only one of the 55 pages of his opinion. The constitutionality of the Missouri Compromise received 21 pages of labored prose arguing that Congress never had the right to prohibit slavery in a territory. That the Constitution (Article IV, Section 3) gave Congress the power to "make all needful rules and regulations" for the territories was

  10. Two justices explicitly concurred with Taney's opinion on this matter, while Curtis and McLean dissented. Because the other four justices did not discuss this issue in their concurring opinions, their silence was an implicit acceptance of Taney's opinion as the ruling of the Court. See Fehrenbacher, Dred Scott Case, 324–30, for an analysis of this matter.
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br />   11. Ten weeks after the decision Scott's owner manumitted him. Scott died a year later.

  not relevant, said the chief justice in a typical example of hair-splitting, because rules and regulations were not laws. The Fifth Amendment protected persons from being deprived of life, liberty, or property without due process; slavery was no different from other property, and a ban on slavery was therefore an unconstitutional deprivation of property. "And if Congress itself cannot do this," continued Taney in what he intended as a blow against popular sovereignty, "it could not authorize a territorial government to exercise" such a power. This clearly was obiter dictum, since the question of the power of a territorial government over slavery was not part of the case.

  Republicans adopted the dissents by Curtis and McLean as their official position on the case. Not only was Scott a free man by virtue of his prolonged residence in free territory, said the dissenters, but he was also a citizen under the Constitution. And that Constitution did empower Congress to prohibit slavery in the territories. "All needful rules and regulations" meant precisely what it said. The first Congress under the Constitution had reaffirmed the Northwest Ordinance of 1787 banning slavery in the Northwest Territory. Subsequent Congresses down through 1820 excluded slavery from specific territories on four additional occasions. Many framers of the Constitution were alive during this period, and none objected to these acts. Indeed, several framers served in Congress and voted for them or, as presidents of the United States, signed them into law! If the exclusion of slavery from a territory violated due process, asked Curtis, what of the 1807 law ending importation of slaves from Africa? Indeed, what of laws in free states banning slavery? In any case, to prevent a slaveowner from taking his slaves into a territory did not deprive him of that property.12