Catron asked Buchanan for a helping hand with one of his closest friends and neighbor, Justice Robert C. Grier of Pennsylvania. When Buchanan had turned down a Supreme Court appointment from Polk, the seat was given to Grier. He had presided over the case arising from the Christiana Riot, United States v. Hanway, in which the Quaker abolitionist Castner Hanway was acquitted to his dismay, which prompted Grier to denounce abolitionists as “infuriated fanatics and unprincipled demagogues.” Ruling in Moore v. Illinois in 1852, he upheld the state law that punished those shielding fugitive slaves.
If Grier as a Northerner were to join the majority in the Dred Scott decision, it would have the appearance of a national consensus, not simply the view of only Southern justices. “Will you drop Grier a line, saying how necessary it is—and how good the opportunity is, to settle the agitation by an affirmative decision of the Supreme Court, the one way or the other?” Catron wrote Buchanan, who promptly wrote the letter. Grier was impressed to have received a confidential request from the president-elect. He had been unaware of the maneuvers of his fellow justices but once informed leaped into action. He raced with Buchanan’s letter in hand to Taney and Wayne, pledging to Taney that he would work with Wayne to win over the others on the court, not alert that they were already in agreement. Grier wrote back to Buchanan on February 23 to thank him for pushing the court. “We fully appreciate and concur in your views as to the desirableness at the time of having an expression of the opinion of the Court on the troublesome question.” He confided that six justices “will decide the compromise law of 1820 to be of non-effect.” He praised Buchanan’s intervention as the tipping point in deciding the case on the broadest basis. “We have thought it due to you to state to you in candor and confidence the real state of the matter.”
Buchanan was anxious over the slow pace in disclosing the ruling. He wanted it released before his inauguration in order to give his benediction to the fait accompli in his address. On February 21, he wrote Catron to hurry: “I want Grier speeded.” But Grier needed no prodding. He was enthusiastic. Catron told Buchanan the opinion would be released on March 3, the day before the inauguration. But the aged Taney labored over the fine points of his decision and would not meet the deadline.
Buchanan’s meddling was crucial in producing a ruling supported by both Northern and Southern members of the court. If he had not delivered Grier to a broad decision the Southerners would have felt it a more precarious path to take and may have reconsidered issuing it on a purely sectional vote, which would have obviously lacked the ring of legitimacy. For all intents and purposes, Buchanan was a coauthor of Taney’s opinion. Before taking the oath of office as president he had made himself the tenth justice.
Buchanan left his home in a private train with stained glass windows depicting his Wheatland idyll and patriotic icons. He arrived in Washington vacillating over a number of unfilled cabinet appointments, still unsteady from “National Hotel disease,” for which his personal physician was in constant attendance, and compelling Buchanan to skip a banquet in Baltimore, but secretly knowledgeable about the forthcoming decision of the Supreme Court.
At noon on March 4 the procession to take Buchanan and John C. Breckinridge down Pennsylvania Avenue was stalled when it was discovered that President Pierce had been forgotten and left behind. The doctor gave Buchanan a shot of brandy to fortify him. Before being seated at the East Portico of the Capitol, he spoke briefly with Taney, an encounter that would soon become a matter of intense controversy.
The Inauguration of James Buchanan
After throat clearing about “the God of our fathers” and “love of the Constitution,” Buchanan signaled in his address that he knew of the imminent judgment that would result in “the settlement of the question of domestic slavery in the Territories.” It was, he said, “a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be, though it has ever been my individual opinion that under the Nebraska-Kansas act the appropriate period will be when the number of actual residents in the Territory shall justify the formation of a constitution with a view to its admission as a State into the Union.”
All sides understood Buchanan’s message as telegraphing the court’s opinion, “pointed and distinct,” reported the New York Tribune’s James S. Pike the next day. “It is the closing in of an Arctic night in our history. . . . We said, when the Kansas-Nebraska bill passed, ‘The revolution is accomplished, and Slavery is king.’ We point to Mr. Buchanan’s Inaugural and the coming decision of the Supreme Court as the coronation of that power.”
Two days later, on the morning of March 6, in the vaulted chamber of the court in the Capitol basement, Taney unfurled the fifty-five pages of his opinion on the long desk and read for nearly three hours in a barely audible voice. His conclusions were sweeping, that the Missouri Compromise was unconstitutional, that Congress could not prohibit slavery in the territories, and that Dred Scott was not a citizen, could never be a citizen, and was henceforth and forever a slave. He reached his decision through tortuous logic, distorted history, and blinkered principles. His argument depended at every point on flat claims of white supremacy, racial purity, and sexual spotlessness. Taney used the word “white” thirty-six times, “mulatto” twenty-one times, “race” fifty-eight times, and the phrase “no rights” four times.
Taney cited “historical facts” about “the men who framed the Declaration of Independence and established the State Constitutions and Governments” that “show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.”
Taney insisted on “showing the fixed opinions concerning that race” in order to demonstrate that “the rights of man and the rights of the people” did not “include them, or to give to them or their posterity the benefit of any of its provisions.” He declared that the Declaration of Independence “is equally conclusive.” “All men are created equal” did not mean “the whole human family.” “But it is too clear for dispute, that the enslaved African race were not intended to be included. . . . The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property.”
But Taney cited no modern pseudoscientific studies to justify his laws of racial superiority and inferiority. He did not refer to the Essay on the Inequality of the Human Races, by the French reactionary Arthur de Gobineau, which posited the existence of a white Aryan race as the bastion of aristocracy and sexual race mixing as the downfall of civilization, a book that Southern ideologues translated and popularized in 1856. Nor did Taney refer to passages in the Bible justifying slavery, a common form of argument made by Southern theologians and politicians. He simply offered his version of the founders for his rationale of an eternal condemnation of the damned race. “No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”
In his stream of racial reasoning he framed his most memorable words—“no rights which the white man was bound to respect.” The slaves had been, he explained, “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.”
There was nothing more to be said about that inferiority from the perspective of history or law. “This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”
Taney presented his judgment as the unchallengeable wisdom of the ages. “Upon these considerations, it is the opinion of the court that the act of Congress 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; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.”
When Taney finished his reading and sank into his chair nearly exhausted, concurring opinions were read, including one from Justice Catron. “Just as well might Congress have said to those of the North, you shall not introduce into the territory south of said line your cattle or horses, as the country is already overstocked,” he stated. Catron’s son born into slavery would later write, “The southerners always claimed that the peculiar institution was of divine origin. . . . But one of the finest pieces of Engineering was getting the Dred Scott Case before Judge Taney. The Negro has no rights that the white man was bound to respect. . . . White man first. Ingun [sic] next. Dog next. Nigger last.” (After the Civil War, James P. Thomas would become one of the most successful businessmen in St. Louis, among the wealthiest blacks in America, and the leader of St. Louis black society.)
Justice McLean read his dissent, which he had wanted to release during the 1856 campaign, but instead had to wait until the day. He denied that slavery was a national institution, but only had protection within the states, expressing the “freedom national” principle of leading antislavery advocates. Congress indeed had a right to legislate against slavery. Dred Scott having resided out of slavery should have been declared free. “A slave is not a mere chattel,” McLean stated. “He bears the impress of his Maker, and he is amenable to the laws of God and man.”
Justice Benjamin R. Curtis, of Massachusetts, from the Webster wing of the Old Whig Party and a student at Harvard of Justice Joseph Story, spoke next. His dissent was a devastating critique that left all of Taney’s arguments knocked down by irrefutable citation of precedent and his historical claims eviscerated with facts. Curtis’s masterful opinion revealed Taney’s to be banal, incoherent, and false. The invidious comparison would not escape the thin-skinned chief justice, who had believed his decision was a tour de force, the capstone to his illustrious career. Curtis proved that free blacks were in fact citizens of the United States in five states at the time of the ratification of the Articles of Confederation and the Constitution. Nor did the Constitution proscribe blacks from citizenship. Nor would it be “just” to the founders, “nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts.” Moreover, the Congress had eight times excluded slavery from the territories and had the full power to continue to do so. Slavery had no national basis in the Constitution. “Slavery, being contrary to natural right, is created only by municipal law.”
Curtis’s masterful opinion revealed Taney’s to be banal, incoherent, and false. The invidious comparison did not escape the thin-skinned chief justice, who believed his decision was a tour de force, the capstone to his illustrious career. Taney was enraged that McLean’s and Curtis’s dissents were published at once in Northern newspapers rather than being withheld until they were buried in the later official court publication. In response to Curtis, Taney secretly made eighteen pages of revisions to his opinion before he permitted it to appear in print. Learning of Taney’s changes, Curtis requested that Taney share them before they entered the record according to the usual custom of the court. Taney defiantly refused. He sent Curtis a nasty little note accusing him of conspiring with “irresponsible reporters, through political and partisan newspapers, for political and partisan purposes.” Out of ire, Taney sent another letter complaining about “gross misrepresentations in the newspapers.” Then he sent yet another one railing about “the truth of the historical facts and principles of law asserted by the court in the opinion delivered from the bench, but which were denied in the dissenting opinions.” Stunned at Taney’s lack of comity and his charge that he was somehow guilty of misconduct, Curtis resigned from the court on September 1 giving as his reason his sudden attraction to private practice. Taney wrote former president Pierce about criticism of his decision, that “the war is waged upon me in the same spirit and by many of the same men” and “by the unscrupulous means to which they resorted” in the Bank War against Jackson.
“We believe it is settled, and that henceforth sectionalism will cease to be a dangerous element in our political contests,” editorialized the Washington Union, the administration’s organ. “Of course, it is to be expected that fanaticism will rave and clamor against the decision of the Supreme Court.”
Taney’s decision remanding Dred Scott to slavery also attempted to remand the Republican Party beyond the pale. Its reason for existence, opposition to the extension of slavery in the territories, was ruled to have no basis in the law. If Republicans heeded Taney, they should dissolve their party. The opinion at the same time nullified Douglas’s doctrine of popular sovereignty that would grant a territory the right to determine whether it would be free or slave. In withdrawing ambiguity, Taney destroyed the always shaky ground on which Douglas stood. Dred Scott was an instrument of judicial power for multiple political ends.
The individuals involved in the case were soon overshadowed by events and receded from view. John Sanford died two months after the decision was handed down in a New York insane asylum. Calvin Chafee, the Republican congressman from Massachusetts and husband of Irene Emerson, was startled to discover about a month before the case was argued that he was actually the legal owner of Dred Scott. He transferred title to the son of the original owner, Taylor Blow of St. Louis, who emancipated Scott and his family on May 26. Scott worked as a porter at Barnum’s Hotel in St. Louis but died of tuberculosis in 1858. Nobody knew how old he was.
The Kansas-Nebraska Act had been an earthquake that repealed the Missouri Compromise, shook apart the established political parties, launched a civil war on the plains, whose violence entered into the chamber of Senate with the assault on Charles Sumner, and led to the rise of the Republican Party. The Dred Scott opinion was a cataclysm that shattered the authority of the Supreme Court in its effort to silence “agitation,” a counterrevolution by judicial fiat, but instead of turning the Republican Party into a demeaned, shunned, and hunted band its cause became more urgent than ever.
The day after Taney read his opinion, Horace Greeley wrote in the New York Tribune that it was “entitled to just as much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.” “Nothing left but resistance,” wrote Pike of the Tribune. Every New England state legislature passed a resolution denouncing the decision and declaring any slave within its borders free. The New York state legislature proclaimed blacks citizens and slavery a felony. Thomas Hart Benton, “face to face with death,” spent his dying energy writing a brief against Taney’s Dred Scott, one old Jacksonian battling another. The decision, wrote Benton, had its origins in Calhoun’s schemes of nullification, “a measure of defense” for slav
ery that had become “offensive—that is to say, to commence the expansion of slavery, and the acquisition of territory to spread it over, so as to overpower the North with new slave States, and drive them out of the Union. . . . Accidents and events have given this party a strange pre-eminence. Under Jackson’s administration proclaimed for treason; since, at the head of the Government and of the Democratic Party.”
All the Powers of Earth Page 37
