This was a chilling prophecy of gag laws in modern-day Europe and Canada, where religious criticisms of homosexuals or Muslims even on a purely theoretical basis are muted on the grounds that they abridge the rights of people who engage in homosexual behavior or subscribe to Islam.
Once again, though, Calhoun raised the ugly hand of the whip: if a free man dared criticize slavery, he would be punished for his opinion that it was wrong. To repeat, acceptance of the institution was not enough: approval was the goal. As James Huston put it, “southerners hoped to control the actions of the federal government and never lose.”20 Democratic republics can only endure as long as the losers agree to go along peacefully with the will of the majority and so long as private rights are protected. But Southerners felt that if property rights of slaves were endangered in any way—even by restrictions on movement into the territories—then property rights of slaves in the states themselves would soon be up for grabs. Hence, the battle increasingly involved forcing a national acceptance of the southern definitions of property. Jefferson Davis, in 1850, asked, “What is there in the character of that property [slaves] which excludes it from the general benefit of the principles applied to all other property?”21
All of the debate over property, of course, also obscured the fact that Dred Scott was bad law. The decision cut the ground out from under the logic used in Lemmon v. People, a New York Superior Court case in which a slave owner who stayed in New York with his eight slaves on a steamship was sued under habeas corpus laws and Justice Elijah Paine cited “the law of nature [that] all men are free, and where slavery is not established and upheld by the law of the state there can be no slaves.”22 The ruling was appealed, reached the New York Supreme Court on a writ of certiorari, and the original decision was upheld. It was then appealed to the New York Court of Appeals, where it was upheld yet again. By that time—1860—the New York court was fully aware of the Dred Scott decision but ignored it. Judge William Wright took a dig at Taney’s Court when he wrote:Men are not the subject of property by such law, nor by any law, except that of the State in which the status exists; not even by the Federal Constitution, which is supposed by some to have been made only to guard and protect the rights of a particular race. . . . 23
War broke out before the case could come to the United States Supreme Court, where it almost certainly would have met the same fate as Scott’s. As Don Fehrenbacher wrote, the decision “legitimized and encouraged an expansion of slavery that never took place; it denied freedom to a slave who was then quickly manumitted.”24 Of course, the central reason the “expansion never took place” was because the South seceded rather than risk the results of the democratic process that it knew was sure to come.
But the most obvious unstated fact was that Taney’s Court did not acknowledge the evil or basic injustice of slavery, and Lincoln did. Modern angry black writers, such as Lerone Bennett, have claimed Abraham Lincoln was a racist, a notion accepted by a handful of otherwise sensible thinkers on the right.25 Lincoln’s dream, “like Jefferson’s dream,” Bennett wrote, “was a dream of a lily-white America without Negroes, Native Americans, and Martin Luther Kings.”26 Those are cockamamie comments about a man who said, “I can not but hate [slavery]. I hate it because of the monstrous injustice of slavery itself.”27 More important, for those who cite Lincoln’s comments about black inequality, a remarkable exposition exists that proved just the opposite—that in freedom equality was assumed:You say A. Is white, and B. Is black. It is color, then; the lighter, having the right to enslave the darker? Take care. By this rule, you are to be a slave to the first man you meet, with a fairer skin than your own. You do not mean color exactly?—You mean the whites are intellectually the superiors of the blacks, and, therefore have the right to enslave them? Take care again. By this rule, you are to be the slave to the first man you meet, and with an intellect superior to your own.28
In the short term, Abraham Lincoln used the Dred Scott decision as a sledgehammer to pound Senator Stephen Douglas during the famous Lincoln-Douglas debates of 1858. Douglas, running for reelection, already had his eyes on the presidency. As noted in the previous chapter, until 1860 virtually every American president after Monroe had been a “northern man of southern principles” or a Westerner who acquiesced in the existence of slavery, and Douglas, from Illinois, certainly fit that mold. Under the structure of Van Buren’s party system, the national parties had to run candidates who had appeal in both Albany and Richmond.
Douglas, however, had already antagonized many Southerners. First, he helped orchestrate the Compromise of 1850, which admitted California as a free state and the New Mexico and Utah territories under the new concept of popular sovereignty. This idea, originally elaborated by Michigan senator Lewis Cass, embodied a solution to slavery wrapped in the guise of democracy, namely, that the people of a territory could choose whether or not to have slavery within their borders. As Harry Jaffa, the most insightful critic of the Lincoln-Douglas debates, has argued, it elevated the concept of moral relativism above that of natural law for the first time in the young Republic’s history.29 Douglas earned the further antipathy of the South when he introduced a bill for Nebraska statehood in 1854 into the Senate, employing popular sovereignty to organize two new states, Nebraska and Kansas. Already the sectional balance was off, with Minnesota set to come into the Union, and according to one Southerner, the idea that Kansas alone would compensate for Minnesota’s admission was “vile hypocrisy” and “flimsy twaddle.”30 Over the short run, slave owners flooded into Kansas, setting up a pro-slave capital at Lecompton and drafting a constitution that protected slavery. But the principle that slavery could be excluded by a mere vote of the population did not sit well with those in the South who could read a map, and who knew that even if they won a new slave state in Kansas, future states carved out of the old Louisiana Purchase territories and the new Mexican Cession territories were more likely to be free soil than slave lands. Thus, in their minds, Douglas had consorted with the enemy, handing the anti-slave forces a means to deny Southerners their constitutional rights. The breakup of the Democrats as a national party had begun.
Lincoln, representing the new Republican Party, ran against Douglas in the Illinois senate election of 1858 with little hope of winning. His party had been founded specifically on the principle of opposing the expansion of slavery into the territories, and now the Dred Scott case gave Lincoln his opportunity. He could make Douglas choose between supporting a bad Dred Scott decision or the fundamentally unconstitutional position of popular sovereignty—or, even better, Lincoln could weaken him on both issues simultaneously, making him vulnerable for some other Republican candidate in 1860. Douglas walked into the trap at the debate in Freeport, Illinois, by stating:[The right to hold a slave] necessarily remains a barren and worthless right, unless sustained, protected and enforced by the appropriate police regulations and local legislation [which] depend entirely upon the will and wishes of the people of the Territory. . . . Hence the great principle of popular sovereignty and self government is sustained and firmly established by the authority of this decision.31
While simply restating the maxim that an unpopular law is difficult to enforce, Douglas’s statement had the effect of nullifying the Dred Scott ruling in virtually every free territory.
Besides the obvious moral problem, in which any issue is subject to a majority vote without any constitutional rights superseding it, popular sovereignty also contained a practical issue. By turning the problem of slavery over to the states, Congress withheld its authority (or, perhaps more accurately, transferred it). However, the same inaction could be read by pro-slave forces to mean Congress lacked such authority to act on slavery. Yet if that was the case, how could Congress then delegate such authority that it lacked to a subordinate state power? Douglas and most leading Democrats of both sections had already reached the conclusion that in fact Congress possessed no such authority to restrict slavery, and had arrived at that point almost a full
year before the Dred Scott decision.
Already the country had divided into pro-slave and free-soil sections. The last southern abolition societies had vanished by 1837, and most southern states had laws that punished the public advocacy of abolition. Itinerant peddlers and northern travelers were viewed with increasing suspicion. Local “vigilance” committees “ferreted out subversives, administering whippings or other chastisements.”32 Northern states, meanwhile, may not have whipped pro-slave advocates, but they had eliminated slavery throughout the North, refused to comply with the federal Fugitive Slave Law derived from the Compromise of 1850, and even engaged in anti-slavery mob violence from time to time.33 Virtually every major sectional event of the decade seemed to symbolically capture the evils of slavery: Preston Brooks’s caning of Senator Charles Sumner on the floor of the Senate was reminiscent of the slave-master whipping his chattel; the gag rule seemed a metaphor for the owner’s silencing of dissent by slaves; then finally the Dred Scott decision constituted the ultimate expression of the “slave power conspiracy’s” grip on the levers of power.
Kansas statehood spelled disaster for northern Democrats, costing them over 70 percent of their seats in free states in subsequent elections. Yet those were not gained by Whigs, who for all intents and purposes were “me-too Democrats,” refusing to take a position on slavery. Thus, Democratic losses did not translate into Whig gains—quite the contrary, the Whigs vanished, replaced by the new Republican Party whose platform elevated slavery to the top of the national debate. Nor was the narrower issue of Kansas resolved. Thousands of pro-slave settlers had poured in and established Lecompton as the territorial capital, only to be offset belatedly by an influx of free-soilers who created their own capital at Topeka. There were two legislatures, two territorial governors, and two state constitutions sent to the U.S. Senate for ratification. All attempts at compromise failed: “An angel from heaven could not write a bill to restore peace in Kansas that would be acceptable to the Abolition Republican party,” Douglas intoned.34
Worse, the bloody factional skirmishes throughout the state started to escalate. One thousand pro-slave men, led by Sheriff Samuel Jones, converged on Lawrence, Kansas, a bastion of the free-soil New England Emigrant Aid Company, in May 1856, burning a printing office and ransacking the local hotel. No one was killed, but the “Sack of Lawrence” immediately made headlines in northern papers as an example of pro-slavery lawlessness. Just a few days later, abolitionist John Brown, who had come to Kansas with his sons to “make it a Free state,” marched to Pottawatomie Creek and executed five pro-slavery “ruffians” who had arrived to make Kansas a slave state. Both sides had volunteer armies; weapons flowed in, most memorably the “Beecher’s Bibles”—rifles delivered by Henry Ward Beecher in boxes labeled “Bibles.” Between 1856 and 1858, some fifty-five people were killed, and, while less in the news, vigilantes in Iowa had taken that many lives as well.
Murders constituted the worst, but not the only slave-related escalating violence in the territories. Mobs in Missouri burned out 50 families and expelled 150 more in 1856. Free-soilers drove out 300 settlers from Linn and Bourbon counties.35 Arguing that “most settlers came [westward] with the usual frontier motive: the desire for new opportunities and better land,” David Grimsted was partially correct.36 At the same time, the ideology of “free soil” had so embedded itself in northern settlers that separating opportunity from slavery became impossible. To many new immigrants in Kansas, Nebraska, and other territories, there could be no opportunity so long as slavery threatened to undercut wages and large slave-based plantations loomed as a dominant competitor to small, free farms.
Meanwhile, the young Republican Party had profited from the Kansas-Nebraska Act, which created two new territories, Kansas and Nebraska, each of whose status regarding slavery would be decided by a vote of that territory’s legislature under Douglas’s popular sovereignty concept. Nevertheless, both parties struggled to process the most expedient use of the Dred Scott case while remaining within their ideological grid. Lincoln and the Republicans attempted to remain locked in on the issue of slavery in the territories, but after Dred Scott they had another troubling political issue to raise, that of judicial activism and the tyranny of the Supreme Court. To disregard the decision would be rebellion, Lincoln argued, and added that he thought it possible to persuade the Court to reverse itself. In any event, the Taney Court was hideously wrong on both its history and the law. Lincoln cited numerous instances of free blacks who had citizenship rights prior to the Constitution, and de facto were included in the phrase “We the people.” Moreover, he argued, the Declaration should be correctly interpreted to mean that all men were equal in their inalienable right to life, liberty, and the pursuit of happiness, and while all men did not enjoy such rights, the Founders nevertheless had declared that such rights existed and that when circumstances permitted they should be made real to all.37
Events in Kansas only seemed to confirm that the decision was not only legally flawed but practically unenforceable. Bribery, cajoling, and threats from Congress all failed to convince free-soil Kansans to go along with the Lecompton slave constitution and statehood for Kansas that would have come with it. Trickery was tried, too, with a constitutional vote between a “Constitution with slavery” and a “Constitution without slavery,” concealing the fact that the latter would only affect the introduction of new slaves into the state. When a legitimate vote was held (and with the pro-slave voters abstaining), the votes totaled as follows: 138 for the constitution with slavery, 24 for the constitution without (but with existing slavery), and 10,226 against either. Heedless of the wishes of the citizens, President Buchanan sent the pro-slave Lecompton constitution to Congress with his blessing, while warning of “disasters” if it was rejected.
If Dred Scott moved the nation closer to war by unwittingly contributing to the demise of the national Democratic Party, it also greatly accelerated the impetus toward war by sending the nation into a major panic. At the time, observers thought the Panic of 1857 was unrelated to the Supreme Court’s ruling, and indeed the view that the two were unconnected remained common until recently, as historians blamed the Panic of 1857 on the failure of the Ohio Life Insurance and Trust Co. or the impact on the wheat market of the Crimean War. In fact, it was the Dred Scott decision that triggered the runs that precipitated the failures of the New York banks and even Ohio Life. Economists Charles Calomiris and Gary Gorton have conducted extensive research into why, and under what conditions, depositors engage in panic behavior. In the antebellum period, the most important factor in depositor behavior was the realization that an adverse shock had occurred, even if the depositors didn’t fully understand the cause of it.38 Anything that spread bad news about bank assets, including future stock prices, could send the markets into a spin and cause increased commercial failures.
How, exactly, did the Dred Scott decision ignite the Panic? An investigation begins with the bankruptcy of securities brokers who financed dealings in bond markets, mainly railroad bonds. Railroads were the hot stock of the 1850s, the equivalent of dot-com stocks in the 1990s, but within railroad securities, three types existed. First, there was a series of older eastern railroads. A second group consisted of roads that ran along shorter, established routes that served local distribution. Finally, a third group was built westward to connect western markets with the East Coast.39 It was in these new lines, “with their aggressive land-purchasing policies and far-reaching plans for transcontinental expansion,” that the “principal speculative opportunities for railroad investors of the 1850s” lay.40 From 1853 to 1854 especially, investment in western railroads soared.41 Foreign investment in American roads was heavy, reaching $44 million in railroad bonds and another $8 million in stocks out of a total of $550 million.42 (It should be noted that slave prices rose rapidly as well, increasing 30 percent from 1850 to 1856.)43 Income from those roads depended on a steady flow of western settlers, which in turn relied on high levels of confide
nce in the prospects of the territories. And in early 1857, confidence was high.
The Cincinnati Enquirer noted a “railroad fever” related to the completion of the Southern Illinois Railroad through Ohio, particularly the link from Cincinnati to St. Louis.44 Historian Allan Nevins described “a fever of speculation in Kansas lands was raging, men selling homes, giving up well paid positions, and even borrowing money at ten percent to purchase farms.”45 Newspapers of towns situated on the main travel routes reported “a veritable torrent of humanity,” with some speculators expecting Kansas lands to “increase by seventy thousand people” in 1857 alone.46 By April, a thousand settlers per day were arriving in the Kansas Territory.
Seven Events That Made America America Page 6
