The Caning

by Stephen Puleo

  Coming on the heels of the caning, Dred Scott did more than stir up “agitation” about slavery. It unleashed yet another ferocious firestorm that swept the land and threatened to scorch, and ultimately lay waste to, any last bit of common ground shared by North and South.

  PART IV

  TWENTY-THREE

  DRED SCOTT

  No direct documentary evidence exists to suggest that the United States Supreme Court's landmark decision in the Dred Scott case—perhaps the most controversial American judicial decision in history—followed directly from Preston Brooks's savage beating of Charles Sumner nearly ten months earlier. There is no long-lost diary entry or scrap of a letter from Chief Justice Taney, or any other justice, admitting that the Southern-leaning court issued its decision to spite and antagonize the North in retaliation for Republican exploitation of the caning, or ruled in favor of slaveowners to help them regain their equilibrium in the wake of abolitionist attacks on the South following the assault in the Senate chamber on May 22, 1856.

  But to the extent that history can be analyzed as resulting from a domino effect of causal events, it would be foolhardy to ignore the caning's clear influence on one of the most divisive and sweeping—“far-reaching” is perhaps more accurate—Supreme Court decisions in American history. Not only was it the first instance in which the Supreme Court invalidated a major piece of federal legislation, it was also the Court's most noteworthy attempt to settle a seminal national issue—in this case, slavery—through judicial fiat.

  But rather than dousing the smoldering slavery debate with water, as the Court apparently had hoped, Dred Scott poured gasoline on the controversy; the decision, which legitimized and encouraged an expansion of slavery, reeked of partisanship and bitterness, damaged the Supreme Court's reputation for decades, and forever marred the legacy of Chief Justice Taney. Abraham Lincoln later called the court's shocking decision “an astonisher in legal history,” and one historian called it an example of judicial failure and “the most frequently overturned decision in history.”

  As the caning had, Dred Scott infuriated the North and delighted the South. Neither side contemplated the decision in a vacuum, but each viewed it as yet another domino bumping against a whole series of events in the slavery debate.

  The North interpreted Dred Scott as yet another abuse perpetuated by an out-of-control and belligerent slave power that controlled the federal government apparatus—the latest outrage in a string of sinister actions that began with the annexation of Texas and the war with Mexico; continued with the Compromise of 1850; was made worse with the passage of the Kansas-Nebraska Act in 1854 and the subsequent violence by proslavery Missouri border ruffians in Kansas during 1855 and 1856; and reached a crescendo when Preston Brooks attacked Charles Sumner in the U.S. Senate chamber.

  For the South, Dred Scott validated not just slavery itself, but the constitutionality of slavery; Southerners viewed the decision as judicial confirmation of the Founders' wishes—that because slavery was not prohibited by the United States Constitution, it was therefore just, legal, and permissible anywhere in the country. Moreover, the South viewed Dred Scott as a moral and legal bulwark that protected its way of life against the increasing encroachment of the North and the radical assaults by ever-emboldened abolitionists.

  In essence, Southerners believed that the Supreme Court had validated, with its pen and its voice, the actions Preston Brooks took with his cane against Charles Sumner on May 22, 1856.

  ——

  As broad and complex as the Supreme Court's decision was, the facts of Dred Scott v. John F.A. Sandford are fairly simple and not in dispute.

  Dred Scott was the slave of Dr. John Emerson, an army surgeon who lived in St. Louis, Missouri. In the 1830s, Emerson had taken Scott on tours of duty to Illinois and the Wisconsin Territory, regions that had been made free-soil by the Missouri Compromise of 1820. In 1838, Emerson returned to Missouri, where he died in 1843, leaving his property—including Scott—to his widow. When she later moved to Massachusetts, Mrs. Emerson transferred ownership of Scott to her brother, John F. A. Sanford (the Supreme Court misspelled Sanford's name in its official citation).

  In 1846 Scott sued for his freedom in Missouri state court, arguing that he had become free when Emerson had moved him to live in free territory. The legal process at the state court level dragged on for years, with alternative trials and appeals producing judgments for and against Scott, until the Missouri Supreme Court ruled against Scott. Then, with the backing of a group of antislavery lawyers, Scott sued as a citizen of Missouri in the federal circuit court. Sanford, in response, argued that because Scott was a Negro, he could not be a citizen of Missouri and thus was not entitled to sue in federal court.

  In March 1854, the federal circuit court in Missouri found for Sanford and Scott's lawyers appealed the case to the United States Supreme Court. The high court had three key issues before them: whether Scott was a citizen (only citizens could sue in federal court); whether the time Scott lived on free soil rendered him a free man; and finally, the constitutionality of prohibiting slavery in parts of the Louisiana Purchase that were governed by the Missouri Compromise of 1820.

  The Court heard early arguments and conferred on the case between February and April 1856, and at that point, only a few newspapers had recognized the potential significance of Dred Scott v. Sandford (by this time, Sanford was stricken with mental illness and would be confined to an insane asylum by year's end). The Washington Star declared on February 12: “The public of Washington do not seem to be aware that one of the most important cases ever brought up for adjudication by the Supreme Court is now being tried before that august tribunal.” Finally, though, on May 12, less than two weeks before the caning, the Supreme Court ordered that the case be reargued the following term, in December 1856, with attention paid to specific legal points. Northern skeptics, including Abraham Lincoln, argued that the Court's decision was purely political, an attempt to delay what would be a proslavery decision until after the November presidential election, which would mean that Buchanan and other Democrats would not have to face tough questions about the Court's actions.

  In any case, after a tumultuous summer that featured Brooks's resignation and reelection to Congress, Sumner's highly publicized convalescence, and a ferocious battle for the Presidency, the Court heard new arguments in December. Over the next couple of months, Chief Justice Taney and his fellow jurists—with occasional meddling from President-elect Buchanan—worked on their opinions. There was no doubt that Taney would write the bulk of the majority opinion, and that his words would carry the greatest weight in the Dred Scott case.

  On March 6, 1857, around 11:00 A.M., the Chief Justice and the eight other black-robed judges appeared before a crowded Supreme Court courtroom deep within the Capitol. Congress had adjourned on March 3 and President Buchanan's March 4 inauguration ceremonies were over; now it was the nation's third branch of government, the judiciary, that would make its voice heard on the slavery debate. Journalists and spectators packed the room, which was unusual for the normally staid and formal Supreme Court proceedings. But by now, most of America was familiar with the Dred Scott case and its implications.

  The aging Taney, who would turn eighty in eleven days, waited for the murmuring to die down, his shaking hands clutching the fifty-five-page manuscript that contained his decision, and in a hoarse, barely audible voice—weakened from exhaustion due to his attention to and writing of his majority opinion over the past two weeks—began to read.

  ——

  Later, spectators and journalists alike commented on how they strained to hear Taney's voice during his two-hour oration, how they often missed lengthy passages or were confounded by the chief justice's impenetrable prose, how they failed to pick up any telltale inflections in his weak monotone. At first there was confusion among the audience on exactly what Taney said and, thus, what the Court decided, and even newspaper articles in the following days often contained mistake
s, gaps, or outright contradictions.

  But soon the audacious, sweeping nature of the Court's decision, shaped in great part by Taney, became clear. One historian said Taney's words bristled “with uncompromising defiance of abolitionists, free soilers, and Republicans.” Another called Taney's opinion “a work of unmitigated partisanship…more like an ultimatum than a formula for sectional accommodation.” Without doubt, Taney's opinion was a stark example of unbridled judicial activism.

  First, the former slaveholder (he had freed the slaves he inherited years earlier) espoused the Court's opinion that no Negro, slave or free, could be classified as a citizen of the United States. Citizenship was derived from the federal government, and it had never belonged to Negroes, who were regarded “as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations.” Indeed, he added, Negroes were “so far inferior that they had no rights which the white man was bound to respect.” The “fixed and universal” opinion in the civilized white race was that the Negro could be “bought and sold, and treated as an ordinary article of merchandise and traffic,” and that he might “justly and lawfully be reduced to slavery for his benefit.”

  The slaveholding states, Taney asserted, never would have agreed to the Constitution if the word “citizens” included free Negroes. If Negroes could become citizens, Taney argued, that meant they could travel where they pleased “at every hour of the day or night,” hold public meetings on political affairs, express their right of free speech, and even carry arms. Allowing Negroes these rights would “inevitably [produce] discontent and insubordination among them, and endanger the peace and safety of the State.”

  Hence, because Negroes could never be citizens—as one historian noted, “the only people on the face of the earth who (saving a Constitutional amendment) were forever ineligible for American citizenship”—Dred Scott had no right to file suit in federal court.

  Nonetheless, despite Scott's lack of standing, Taney and the Court still ruled on the other issues before it. As to whether Scott's residence on free soil made him free, Taney said it did not, arguing that it was Scott's owner who brought him to Illinois and then returned him to Missouri. Therefore, “[Scott's] status, as free or slave, depended on the laws of Missouri, and not of Illinois.”

  Thus it was clear that Scott, who could never be a citizen, who could not file suit in federal court, and who was still considered a slave by the nation's highest court, had lost his eleven-year quest for freedom.

  Had Taney stopped there, the Supreme Court's decision would still have unleashed a firestorm in the North, but it was the third major component in the case—whether Congress could prohibit slavery in territories—that elicited howls of protest and cries of judicial misconduct and malfeasance from Republicans and other Northerners.

  In a stunning ruling, Taney declared that the Missouri Compromise restriction on slavery north of the 36° 30′ parallel was flatly unconstitutional. The Fifth Amendment clearly stated that no one could be “deprived of life, liberty, or property without due process of law.” Since slaves were considered property, how could Congress prohibit owners from taking slaves into a federal territory? Taney said it could not—Congress had no more right to ban slavery in any federal territory than it had the right to deny a territorial population the right to bear arms, or the right to a trial by jury, or the right against self-incrimination. And if Congress could not do this, it could not authorize a territorial government to do so. “It could confer no power on any local government, established by its authority, to violate the provisions of the Constitution,” Taney said.

  With that, Taney made his historic pronouncement: “It is the opinion of the court that the Act of Congress [Missouri Compromise] which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void.”

  By this ruling, Taney and the Court had essentially made slavery legal across any territory in the United States. And the Court's language elicited Northern fears that the spread of slavery would not stop with the territories. Abraham Lincoln warned that a future court ruling, what he called “the next Dred Scott decision,” could prohibit states from banning slavery. In that case, Lincoln said, “we shall lie down pleasantly dreaming 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.”

  The Northern attack against Taney and the Supreme Court was fierce and unrelenting. Republican newspapers, most notably Horace Greeley's New York Tribune, led the way, declaring that the decision was “entitled to just as much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.” They denounced the decision as “wicked,” “abominable,” and “atrocious,” called Taney a “cunning chief,” and said his words were a “collation of false statements” that demonstrated a “detestable hypocrisy” and a “mean and skulking cowardice.” Taney's ruling was shameful, the Tribune noted, adding sarcastically: “No wonder the chief justice should have sunk his voice to a whisper…knowing that he was engaged in a pitiful attempt to impose upon the public.”

  Republicans were apoplectic. Congressman John F. Potter of Wisconsin called the court decision “sheer blasphemy…an infamous libel on our government…a lasting disgrace to the court…and deeply humiliating to every American citizen.” Northern legislatures controlled by Republicans formally protested the decision by Taney and the majority. The New York legislature passed a resolution calling the opinion “erroneous” and asserted that the court “had lost the confidence and respect of the people of this State.” In Ohio, the legislature denounced the decision and went further by adopting measures against slaveholding or the kidnapping or capture of free blacks, and the Supreme Court of Ohio ruled that any slave brought into the state would be automatically emancipated.

  Predictably, Southerners, and even some Northern Democrats, were one-hundred-eighty-degrees apart in their reaction, but this time—unlike the caning—they had the advantage of invoking their moralistic tones with the weight of a Supreme Court decision behind them. The New Orleans Picayune called the Supreme Court an “august and incorruptible body,” which rose above parties and factions to give “the loftiest mind support to patriotism, and consolidate the Union—be it reverently hoped—for all time.” More emphatic and forthright was the Constitutionalist of Augusta, Georgia, which summed up the Dred Scott case with language designed to electrify the South and chill Northern Republicans to the bone: “Southern opinion upon the subject of southern slavery…is now the supreme law of the land…and opposition to southern opinion upon this subject is now opposition to the Constitution, and morally treason against the Government.” Other publications predicted that the Court's ruling signaled the beginning of the end of the Republican Party, whose entire platform rested on an end to slavery expansion and, eventually, outright abolition. Dred Scott, the Constitutionalist declared, “crushes the life out of that miserable political organization.”

  Like the caning, the Dred Scott case further polarized North and South. Rather than strengthening the Union by settling the slavery question, which Taney and the Court had hoped for, it created an uproar that further frayed the bonds tenuously holding the two sections together. Rather than bolstering the Buchanan presidency, it weakened Buchanan from the outset; when coupled with the president's own announcement that he would serve only one term and his subsequent indecisiveness, it helped render his administration ineffective at a time when the nation needed bold and unifying leadership. And rather than weakening or destroying the Republican Party, as the South had hoped, Dred Scott actually strengthened it further in two ways—by fracturing Northern and Southern Democrats and by encouraging still more citizens to join the Republicans in an effort to stave off slave-power abuses. Speaking to the American Anti-Slavery Society in
New York, Frederick Douglass noted that the history of the movement demonstrated that “all measures devised and executed with a view to diminish the anti-slavery agitation, have only served to increase, intensify, and embolden that agitation.”

  In many ways, the actions of Preston Brooks and Roger Taney produced similar results. This is not surprising considering the similarities of their behavior in very different venues. As Brooks lost control of his temper and his emotions in the Senate chamber, so did Roger Taney lose control of his judicial temperament and impartiality in the Dred Scott case.

  Sadly for his own reputation and that of the Supreme Court, there is strong evidence that Taney's majority opinion was unduly and inappropriately influenced by his strong Southern sympathies and biases, which became more pronounced amid the maelstrom caused by the caning and the agony he suffered following his own personal tragedy.

  A Marylander born and raised in the Calvert County tobacco-planting tidewater strip, Roger Brooke Taney was an avid Southern Democrat and an unabashed though genteel white supremacist, with a belief in the superiority of the judiciary, a love for the South and its values, and a strong antipathy toward the North, especially Republicans. A learned, some would say brilliant, jurist, and a former member of President Andrew Jackson's cabinet, Taney was born one year after the Declaration of Independence was signed, and had once expressed personal discomfort with slavery—in 1828, he actually freed the eight slaves he had inherited. But by the mid-1850s he was a different man.

  Eighty years old and suffering from health ailments when Dred Scott was decided, Taney had grown increasingly impatient and even intolerant of abolitionism and other attacks on the Southern way of life that he cherished. Like Preston Brooks, he worried about the fate of his section, which he believed was under constant attack from what he would one day call “free state aggression”—the Missouri Compromise, the passage of state laws defying the Fugitive Slave Act, the use of churches and schools in the North to distribute antislavery propaganda, and in the publication of Uncle Tom's Cabin, a novel “well calculated to rouse the morbid thoughts of fanatics, which portrayed in pictures of exaggeration the evils of slavery.” He viewed Northerners, abolitionists in particular, as meddlers, who did not fathom that “a general and sudden emancipation would be absolute ruin to all Negroes.”