Instead of removing the issue of slavery in the territories from politics, the Court's ruling became itself a political issue. Northern Democrats gloated that Taney's opinion was "the funeral sermon of Black Republicanism . . . crushing and annihilating . . . the anti-slavery platform . . . at a single blow." Southerners congratulated themselves that "Southern opinion upon the subject of Southern slavery . . . is now the supreme law of the land." The decision "crushes the life out of that miserable . . . Black Republican organization."13 But the Republican
12. Curtis's dissent was fuller and more powerful than McLean's. It can be found on pp. 564–633 of 19 Howard.
13. Cincinnati Enquirer, March 8, 1857, quoted in Stanley I. Kutler, ed., The Dred Scott Decision: Law or Politics? (Boston, 1967), 54–55; Philadelphia Pennsylvanian, March 10, 1857, New York Herald, March 8, 1857, Augusta Constitutionalist, March 15, 1857, New Orleans Picayune, March 20, 1857, all quoted in Feh-renbacher, Dred Scott Case, 418–19.
party declined to die. Its press condemned this "Jesuitical decision" based on "gross historical falsehoods" and a "willful perversion" of the Constitution. If this ruling "shall stand for law," wrote William Cullen Bryant, slavery was no longer the "peculiar institution" of fifteen states but "a Federal institution, the common patrimony and shame of all the States. . . . Hereafter, wherever our . . . flag floats, it is the flag of slavery. . . . Are we to accept, without question . . . that hereafter it shall be a slaveholders' instead of the freemen's Constitution? Never! Never!" In this spirit several Republican state legislatures passed resolutions asserting that the ruling was "not binding in law and conscience."14
The New York Tribune declared contemptuously that this decision by "five slaveholders and two doughfaces"15 was a "dictum . . . entitled to just as much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room." The dictum theory justified Republican refusal to recognize the ruling as a binding precedent. They proclaimed an intent to "reconstitute" the Court after winning the presidency in 1860 and to overturn the "inhuman dicta" of Dred Scott. "The remedy," said the Chicago Tribune, was "the ballot box. . . . Let the next President be Republican, and 1860 will mark an era kindred with that of 1776."16
It soon dawned on northern Democrats that Taney had aimed to discomfit them as well as the Republicans. Although the question of popular sovereignty had not been directly before the Court, the principle of Dred Scott was not merely that Congress had no power to exclude slavery from a territory, but that slave property could not be excluded. Douglas grasped this nettle fearlessly. Yes, he said in a speech at Springfield, Illinois, in June 1857, the Dred Scott decision was law and all good citizens must obey it. A master's right to take slaves into any territory was irrevocable. BUT—citizens of a territory could still control this matter. How? The right of property in slaves "necessarily remains a
14. The Republican press quoted in Charles Warren, The Supreme Court In United States History, rev. ed., 2 vols. (Boston, 1926), II, 302–9; Bryant quoted in Nevins, Emergence, I, 96; action of legislatures described in Fehrenbacher, Dred Scott Case, 431–35.
15. All five southern justices had been slaveowners, though only three of them still owned slaves in 1857.
16. New York Tribune, March 7, 1857; Chicago Tribune, March 12, 19, 1857.
barren and worthless right," said Douglas, "unless sustained, protected and enforced by appropriate police regulations and local legislation" which depended on "the will and the wishes of the people of the Territory."17
This anticipated the famous Freeport doctrine enunciated by Douglas more than a year later in his debates with Lincoln. It was an ingenious attempt to enable both northern and southern Democrats to have their cake and eat it. It might have worked had not Lecompton crumbled Democratic unity. When that happened, southern Democrats insisted on another dessert. They agreed with Douglas that the Dred Scott decision would not enforce itself. "The Senator from Illinois is right," conceded Senator Albert G. Brown of Mississippi. "By non-action, by unfriendly action . . . the Territorial Legislature can exclude slavery." But that would amount to a denial of the "right of protection for our slave property in the Territories. The Constitution as expounded by the Supreme Court, awards it. We demand it; we mean to have it." Congress must pass a federal slave code for the territories, said Brown, and enforce it with the United States army if necessary. If pirates seized ships owned by citizens of Massachusetts, senators of that state would demand naval protection. "Have I, sir, less right to demand protection for my slave property in the Territories?" If you of the North "deny to us rights guarantied by the Constitution . . . then, sir . . . the Union is a despotism [and] I am prepared to retire from the concern."18
Thus instead of crippling the Republican party as Taney had hoped, the Dred Scott decision strengthened it by widening the sectional schism among Democrats. Republicans moved quickly to exploit their advantage by depicting the decision as the consequence of a slave-power conspiracy. Seward and Lincoln were two of the foremost advocates of a conspiracy theory. Citing "whisperings" between Taney and Buchanan at the inaugural ceremony plus other unnamed evidence, Seward charged collusion between the president-elect and the chief justice. One day after the inauguration and one day before announcing the decision, said Seward, "the judges, without even exchanging their silken robes for courtiers' gowns, paid their salutations to the President, in the Executive palace. Doubtlessly the President received them as graciously as Charles I did the judges who had, at his instance, subverted the statutes of English liberty." Seward's accusations provoked an uproar. Some historians have echoed Democratic opinion that they were "venomous" and "slanderous."19
17. Fehrenbacher, Dred Scott Case, 455–56.
18. CG, 35 Cong., 2 Sess., 1242–43.
But in fact Seward hit uncomfortably close to the mark. He might almost have read the letter from Buchanan to Grier urging the Pennsylvania justice to go along with the southern majority.
Seward's insinuations enraged Taney. The chief justice said later that if the New Yorker had won the presidency in 1860 he would have refused to administer the oath. Ironically, Taney did administer the oath to a man who had made a similar accusation. In a speech after his nomination for senator from Illinois in 1858, Abraham Lincoln reviewed the process by which Democrats had repealed the Missouri Compromise in 1854 and then declared it unconstitutional in 1857. We cannot know that all of this was part of a conspiracy to expand slavery, conceded Lincoln. "But when we see a lot of framed timbers . . . which we know have been gotten out at different times and places by different workmen—Stephen, Franklin, Roger and James, for instance—and when we see these timbers joined together, and see they exactly make the frame of a house . . . we find it impossible to not believe that Stephen and Franklin and Roger and James . . . all worked upon a common plan."20
The same speech included a more famous house metaphor. " 'A house divided against itself cannot stand,' " said Lincoln quoting Jesus. "I believe this government cannot endure, permanently half slave and half free." The opponents of slavery hoped to stop the spread of the institution and "place it where the public mind shall rest in the belief that it is in the course of ultimate extinction." But advocates of slavery—including those conspiring carpenters—were trying to "push it forward, till it shall become lawful in all the States . . . North as well as South." How could they do this? "Simply [by] the next Dred Scott decision. It is merely for the Supreme Court to decide that no State under the Constitution can exclude it, just as they have already decided that . . . neither Congress nor the Territorial Legislature can do it." Article VI of the Constitution affirms that the Constitution and laws of the United States "shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding." If, therefore, the U.S. Constitution protected "the right of property in a slave," noted Lincoln, then "nothing in the Constitution or laws of any State
19. Warren, Supreme Court, II, 326.
The quotation from Seward is in CG, 35 Cong., I Sess., 941.
20. CWL, II, 465–66. The discerning reader will recognize the four carpenters as Stephen Douglas, Franklin Pierce, Roger Taney, and James Buchanan.
can destroy the right of property in a slave." Lincoln himself believed that "the right of property in a slave is not distinctly and expressly affirmed in the Constitution." But Democrats including Douglas believed that it was. If they had their way, Lincoln told Illinois Republicans in June 1858, "we shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free; and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State."21
Did Lincoln and other Republicans really believe that the Dred Scott decision was part of a conspiracy to expand slavery into free states? Or were they creating a bugaboo to frighten northern voters? Stephen Douglas presumed the latter. "A school boy knows" that the Court would never make "so ridiculous a decision," said Douglas. "It is an insult to men's understanding, and a gross calumny on the Court." A good many historians have echoed Douglas's words.22 But was the Republican claim ridiculous? In November 1857 the Washington Union, organ of the Buchanan administration, carried an article asserting that the abolition of slavery in northern states had been an unconstitutional attack on property. In private correspondence and in other contexts not conducive to propaganda, Republicans expressed genuine alarm at the implications of Dred Scott. "The Constitution of the United States is the paramount law of every State," Senator James Doolittle of Wisconsin pointed out, "and if that recognizes slaves as property, as horses are property, no State constitution or State law can abolish it." Noting that Scott had lived as a slave in Illinois for two years, the New York legislature denounced the doctrine that "a master may take his slave into a Free State without dissolving the relation of master and slave. . . . [This] will bring slavery within our borders, against our will, with all its unhallowed, demoralizing, and blighting influences."23
The legislature's concern was not abstract. Pending in the New York courts was a case concerning a slaveholder's right to retain ownership of his slaves while in transit through a free state. Lemmon v. The People had originated in 1852 when a New York judge upheld the freedom of
21. Ibid., II, 461–62, 467, III, 27, 230–31.
22. Douglas in ibid., III, 53, 267–68. For historians' comments see especially Nevins, Emergence, I, 362, and James G. Randall, Lincoln the President, 4 vols. (New York, 1945–55), I, 116.
23. Washington Union, Nov. 17, 1857; CG, 35 Cong., 1 Sess., 385; Nevins, Emergence, I, 86; New York Assembly Documents, 80th Session (1857), no. 201.
eight slaves who had left their Virginia owner while in New York City on their way to Texas. Most northern states had earlier granted slaveowners the right of transit or temporary sojourn with their slaves. But by the 1850s all except New Jersey and Illinois had laws on the books offering freedom to any slave brought by a master within their borders. The Dred Scott decision challenged the principle of these laws. Virginia therefore decided to take the Lemmon case to the highest New York court (which upheld the state law in 1860) and would undoubtedly have appealed it to Taney's Supreme Court had not secession intervened. The Lemmon case might well have become Lincoln's "next Dred Scott decision." Recent scholarship sustains Lincoln's apprehension that the Taney Court would have sanctioned "some form of slavery in the North."24 Even the right of transit or temporary sojourn was, from the antislavery point of view, an ominous foot in the door. "If a man can hold a slave one day in a free state," asked a Republican newspaper, "why not one month, why not one year? Why could not his 'transit' be indefinitely lengthened, his 'visit' a practical permanency?"25
II
Thus in the context of Dred Scott, Lincoln's "warning that slavery might become lawful everywhere was . . . far from absurd." His attempt to identify Douglas with this proslavery conspiracy ("Stephen and Franklin and Roger and James") was part of Lincoln's campaign for the Senate in 1858.26 During the Lecompton debate Douglas had said that he cared not whether slavery was voted down or up in Kansas—his concern was that Kansas have a fair vote. This "care not" policy, said Lincoln, had been prolific of evil, for it enabled the proponents of slavery to push forward their program of expansion without effective opposition. The only way to stop them was to elect Republicans "whose hearts are in the work—who do care for the result," who "consider slavery a moral,
24. Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, 1981), 323. This fine study provides a thorough analysis of the Lemmon case and its context. See also Fehrenbacher, Dred Scott, 444–45.
25. Springfield Republican, Oct. 12, 1857, quoted in Fehrenbacher, Dred Scott, 314.
26. Quotation from Don E. Fehrenbacher, Prelude to Greatness: Lincoln in the 1850's (Stanford, 1962), 123. Technically neither Lincoln nor Douglas was a "candidate" in this election, for state legislatures chose senators, and the Illinois election in 1858 was for members of the legislature. But given Douglas's national importance, and the Republican party's "nomination" of Lincoln for senator, the main focus of the legislative election was the senatorship.
social, and political wrong," who "will oppose . . . the modern Democratic idea that slavery is as good as freedom, and ought to have room for expansion all over the continent."27
This was the message that Lincoln carried to Illinois voters in dozens of speeches during that summer of '58. Douglas traversed the same territory branding Lincoln a Black Republican whose abolition doctrines would destroy the Union and flood Illinois with thousands of thick-lipped, bullet-headed, degenerate blacks. Lincoln "believes that the Almighty made the Negro equal to the white man," said Douglas at Springfield in July. "He thinks that the Negro is his brother. I do not think the Negro is any kin of mine at all. . . . This government . . . was made by white men, for the benefit of white men and their posterity, to be executed and managed by white men."28
Desiring to confront Douglas directly, Lincoln proposed a series of debates. Douglas agreed to seven confrontations in various parts of the state. These debates are deservedly the most famous in American history. They matched two powerful logicians and hard-hitting speakers, one of them nationally eminent and the other little known outside his region. To the seven prairie towns came thousands of farmers, workers, clerks, lawyers, and people from all walks of life to sit or stand outdoors for hours in sunshine or rain, heat or cold, dust or mud. The crowds participated in the debates by shouted questions, pointed comments, cheers, and groans. The stakes were higher than a senatorial election, higher even than the looming presidential contest of 1860, for the theme of the debates was nothing less than the future of slavery and the Union. Tariffs, banks, internal improvements, corruption, and other staples of American politics received not a word in these debates—the sole topic was slavery.29
27. CWL, II, 468, III, 92.
28. Paul M. Angle, ed., Created Equal? The Complete Lincoln-Douglas Debates of 1858 (Chicago, 1958), 62, 60.
29. In each debate the opening speaker talked for one hour, his opponent responded for an hour and a half, and the first speaker closed for half an hour. Douglas and Lincoln alternated as opening speaker, Douglas opening and closing four of the seven debates. Because of the importance of the debates, they received wide coverage in the press. Stenographers (then called "phonographers") from one Republican and one Democratic newspaper recorded every word including crowd reactions. A verbatim publication of the debates in book form first appeared in 1860. There are three modern annotated editions of the debates: CWL, III, 1–325; Angle, ed., Created Equal; and Robert W. Johannsen, ed., The Lincoln-Douglas Debates of 1858 (New York, 1965).
In the fashion of debaters, Douglas and Lincoln opened with slashing attacks designed to force the other man to spend his time defending vulnerable positions. A Republican journalist phrased this strategy in a letter of advice to one of Lincoln's associates: "When you see Abe at Freeport, for God's sake tell
him to 'Charge Chester! charge!' . . . We must not be parrying all the while. We want the deadliest thrusts. Let us see blood follow any time he closes a sentence."30 Lincoln's main thrust was the accusation that Douglas had departed from the position of the founding fathers, while the Republicans were upholding that position. Like the fathers, Republicans "insist that [slavery] should as far as may be, be treated as a wrong, and one of the methods of treating it as a wrong is to make provision that it shall grow no larger." Lincoln reiterated that the country could not exist forever half slave and half free; it had existed in that condition so far only because until 1854 most Americans shared the founders' faith that restricting slavery's growth would put it on the path to ultimate extinction. But Douglas not only "looks to no end of the institution of slavery," he looks to its "perpetuity and nationalization." He is thus "eradicating the light of reason and the love of liberty in this American people."31
In one respect Lincoln's celebrated Freeport question was a departure from this strategy of linking Douglas to the slave power. Was there any lawful way, Lincoln asked at Freeport, that the people of a territory could exclude slavery if they wished to do so? The point of the question, of course, was to nail the contradiction between Dred Scott and popular sovereignty. Folklore history has portrayed this question as the stone that slew Goliath. If Douglas answered No, he alienated Illinois voters and jeopardized his re-election to the Senate. If he answered Yes, he alienated the South and lost their support for the presidency in 1860. The problem with this thesis is that Douglas had already confronted the issue many times. Lincoln knew how he would answer the question: "He will instantly take ground that slavery can not actually exist in the territories, unless the people desire it, and so give it protective territorial legislation. If this offends the South he will let it offend them; as at all events he
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