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Vol. 22 No. 7- July 2009


Volume 22, No. 7
Editor: Stephen L. Seftenberg

Upcoming Program: Wednesday, July 8, 2009

Ed Lewis will present his penetrating review of "The Class of 1846," by John C. Waugh. Waugh focuses on the graduates of West Point’s largest class (59) up to that time, tracing their initiation as junior officers and comrades in arms in the Mexican and Indian Wars (6 died) when the nation’s military forces were still a cohesive unit. Then, of course, he covers their roles as senior military officers during the Civil War and their conflicting allegiances to the Confederacy (10, of whom 3 died) or the Union (12, of whom 1 died). Graduates included George Gordon, A. P. Hill, Stonewall Jackson, Fitzhugh Lee, George McClellan, George Pickett and George Stoneman. The Class of 1846 was as star-studded and star-crossed as ever marched the hallowed halls of West Point.

July Biography

Sally Seftenberg will introduce us to David Hunter, born July 21, 1802, who is referred to by his biographer, Edward A. Miller, as "Lincoln’s Abolitionist General." Raised in a family with extreme pro-slavery views, he became a firm abolitionist and an early supporter and friend of Lincoln, even assigned to accompany him on the inaugural train to Washington. One of the few Republican Generals, Hunter may not have been great (or even good) in battle but he was so useful to Lincoln in other ways that he survived his infamous "Special Order No. 7" and "Special Order No. 11" freeing Negro slaves in Georgia, Florida and South Carolina and his premature recruitment of Negroes into the Union Army in 1862. He joined Ben Butler on Jeff Davis’ "hit list." According to Miller, Hunter "was very much Lincoln’s troubleshooter in the army high command. He may have achieved more off the field of battle than on it."

President’s Message

As of June 10, 2009, our paid membership is up to 69. The directory sent out with the June Newsletter had several errors and an updated directory will be included in this Newsletter.

Program: Wednesday, June 10, 2009

Monroe Ackerman gave an inspired talk, entitled, "Dred Scott, Abraham Lincoln, Stephen A. Douglas and the Civil War." Before his talk, Monroe pointed out that much of his material came from a book by Professor Don E. Fehrenbacher, The Dred Scott Case, Its Significance in American Law and Politics, Oxford University Press, New York, 1978. [Editor’s note: this is so significant a topic and so-well presented that I have included most of Monroe’s talk in these notes.]

At 11:00 AM on the morning of March 6,1857, the dingy court room in the basement of the capitol building, directly below the Senate chamber, was crowded with some of Washington, D. C.’s most prominent people. The dull drone of their subdued voices stopped abruptly when the nine black- robed justices filed silently into the chamber. Chief Justice Roger B. Taney was prepared to deliver the opinion of the Supreme Court of the United States in the case of Dred Scott v. Sandford, 60. U. S. 393. (The defendant's name was Sanford not Sandford but for some unknown reason the mistake was never corrected.)

Two days earlier, President James Buchanan, in his inaugural address, informed the country the Supreme Court was about to make an important ruling. He pledged to acquiesce in its holding, no matter what the result, and called upon the people to do the same. Oddly, the question the President said he expected the Court to decide was not the question the Court had before it. The primary question before the Supreme Court was: Does Congress have the power to ban slavery in the territories of the United States? The question the President predicted the Supreme Court would decide was more limited: Does a territorial legislature, prior to the adoption of its constitution, have the power to ban slavery in its jurisdiction?

The Kansas-Nebraska Act of 1854 had repealed part of the Missouri Compromise and opened all of the Louisiana Purchase to slavery. The people of the territory were now free to decide for themselves whether or not they wanted slavery. The northern and southern wings of the Democratic party, however, were involved in a divisive debate over the timing of this decision. Buchanan and the southern wing of the party believed slavery could be banned from a territory only when it adopted its constitution and became a state. Senator Stephen A. Douglas of Illinois, a fiery orator, a mighty patriot, an unabashed racist and the leader of the northern wing of the party believed the people of a territory were free to ban slavery at any time. This was the keystone of Douglas' "great principle" of popular sovereignty. The majority of the Court and the President hoped and believed that the Court's decision would calm the hostility that threatened to destroy the Union, and would bring peace to the land. Instead, Taney issued a decision later described as a "self-inflicted wound" so disruptive of the nation's political fabric that it led to the demise of the Democratic party and the Civil War.

Slavery was ever the problem. The Founding Fathers closed their eyes to it when they deleted from Thomas Jefferson's draft of the Declaration of Independence his powerful condemnation of King George for depriving Negroes of the "sacred right of life and liberty" and for "suppressing every legislative attempt to prohibit or to restrain this execrable commerce." Embarrassed by the problem so alien to the glorious words of the Declaration of Independence that "all men are created equal," the Founding Fathers never mentioned slavery in the Constitution, although they worked out a "great compromise" to ensure the slave holders' property rights were protected by the fugitive slave clause, that their political rights were safeguarded by the three fifths clause and that importation of slaves could not be prohibited by Congress prior to the year l808.

TaneyDespite these compromises in favor of slavery, in 1787 under the Articles of Confederation, Congress adopted Thomas Jefferson's Northwest Ordinance, which prohibited slavery in the territory north of the Ohio River, ceded to the United States by Virginia. The first Congress, acting after adoption of the Constitution, had no doubt that it had the power to forbid slavery in that territory when it re-adopted the Northwest Ordinance as its first act in 1789. Congress kept the number of slave and free states equal as it adopted numerous statutes that allowed or prohibited slavery in various territories. In the early years of the Republic, Congress had no doubt that it had the right to deal with slavery in the territories. In the Missouri Compromise of 1820, Congress asserted its power to cope with the problem when it permitted Missouri to enter the Union as a slave state, but barred slavery from the rest of the Louisiana Purchase north of 360 30' latitude. President Monroe's entire Cabinet, including John C. Calhoun, the South's foremost proponent of slavery and of states' rights, agreed that Congress had the right to take such action.

For a time there was no new territory to argue about. Then, as a result of the Mexican War, the United States was about to acquire a huge expanse of western real estate. (The struggle over the annexation of Texas did not involve the extension of slavery into a new territory, but rather the annexation of an independent country where slavery already existed.) When President James Polk, in 1846, asked Congress for an appropriation to help him negotiate this Mexican cession, a first term Congressmen from Pennsylvania, James Wilmot, proposed an amendment to that legislation, there after known as the "Wilmot Proviso," which sought to prohibit slavery in the territory to be acquired from Mexico. Wilmot's proviso passed in the House of Representatives, but was defeated in the Senate. Until 1850 Congress remained deadlocked over the issue of slavery in the territories.

DouglassThe Compromise of 1850 introduced the concept of "popular sovereignty," the right of the people of a territory to decide for themselves whether or not they wanted slavery. The Compromise left it unclear when the people of a territory could exercise their option on slavery. Could they make the decision at any time during the existence of the territorial government, or only at the time the territory was preparing a constitution for statehood? Then in 1854, Senator Stephen A. Douglas, pursuing his dream of a railroad to the Pacific ocean, introduced his Kansas-Nebraska Act, which when adopted by Congress, repealed the section of the Missouri Compromise that prohibited slavery in the northern part of the Louisiana Purchase. This reopened the fight over the expansion of slavery into the territories and tore the country apart.

The fledgling Republican Party had as the main plank of its political platform the demand that Congress exclude slavery from the territories. The southern wing of the Democratic party, and the newly elected President, James Buchanan, a Pennsylvanian, supported the position that Congress had no constitutional power to exclude slavery from the territories, and that slavery could only be barred by the people of the territory at the time the territory became a state. Finally, the majority of members of the northern wing of the Democratic party, led by Douglas, believed that Congress should not be involved in allowing or excluding slavery from the territories, but that the people of a territory had the right to decide for themselves at any time, whether they would allow or prohibit slavery.

The problem of slavery in the territories was so intransigent that Congress, supported by widespread public demand, invited the Supreme Court to solve the political problem with a judicial decision. Even Lincoln joined Douglas in welcoming a court resolution of the problem. On July 21, 1856, at Galena, Illinois, Lincoln said, "The Supreme Court of the United States is the tribunal to decide such questions, and we will submit to its decisions..."

Despite the controversy that engulfed the country in the years following Missouri Compromise and the Kansas-Nebraska Act, no case involving these laws reached the Supreme Court until Dred Scott v. Sandford, which involved a humble Negro slave seeking his freedom on the ground that he had lived in a state and a territory where slavery was prohibited.

The case came to the Supreme Court over a long and circuitous route. Dred Scott, first called "Sam," originally belonged to Peter Blow, who lived in St. Louis. He grew up with Peter Blow's children. On Blow's death, Scott was sold to Dr. John Emerson, who took his recently purchased slave from Missouri to Fort Armstrong at Rock Island, Illinois. For more than two years, Dred Scott resided in Illinois, where slavery was prohibited by the Northwest Ordinance, and the state constitution. Dr. Emerson was then transferred to Fort Snelling, in the Wisconsin Territory, a part of the Louisiana Purchase, where slavery had been banned by the Missouri Compromise. While there, Dr. Emerson purchased a female slave, named Harriet, and consented to her marriage to Dred Scott. In 1837, Dr. Emerson was transferred back to St. Louis and then to Fort Jessup, Louisiana. His slaves evidently remained at Fort Snelling probably hired out to another army officer. While at Fort Jessup, Dr. Emerson married Eliza Sanford. In 1838, Dr. Emerson was transferred back to Wisconsin.

Dred ScottIn 1840, Dr. Emerson was sent to Florida and the Seminole Indian war. His wife and his slaves returned to Missouri to reside with her father. Dr. Emerson was discharged from the Army late in 1842. When he died in 1843, Dred Scott, his wife and their two daughters, became Eliza’s property for her lifetime. Her brother, John Sanford, a resident of New York, was appointed as Executor of the estate. Mrs. Emerson then moved to Massachusetts, soon remarried, leaving her slaves in Missouri where they were hired out to third parties.

In 1846, with the financial aid of Tyler Blow, the son of his original owner, Dred Scott and his wife instituted suit in the Circuit Court of St. Louis County, Missouri, against Mrs. Emerson for their freedom, on the ground that their residence in the State of Illinois, and in the Wisconsin Territory made them free. They were unsuccessful at trial, but succeeded in getting a retrial, at the end of which the jury brought in a verdict in their favor. For a brief time, Dred Scott and his family were free!

Unfortunately for them, Mrs. Emerson appealed the verdict to the Missouri Supreme Court. Even more unfortunately, that tribunal, which previously in a line of eight similar cases had ruled in the favor of the Negro under the rules of "comity" recognizing the laws of the northern states and territories, which held that once a slave was free, he was always free. Now, in a two to one decision, it reversed course. Because of the increased political hostility between the North and the South, and because the northern states were not enforcing the Fugitive Slave Act, it held it would no longer honor this "law of freedom."

Dred Scott could have taken an appeal from this decision to the United States Supreme Court, but his lawyer probably felt it was hopeless in the face of the recent Supreme Court opinion, Strader v. Graham, delivered by Taney, that held that the law of the state in which the plaintiff resided when suit for freedom was instituted was the applicable law. This meant, regardless of the northern rule of freedom, once a slave always a slave. When Scott instituted his suit for freedom, he was a resident of Missouri, and under Missouri law, as recently pronounced by its Supreme Court in his own case, Dred Scott was still a slave.

Instead, in 1853, Scott's lawyer elected to institute suit in the Federal Circuit Court in St. Louis, under the diversity of citizenship clause of the United States Constitution, which permits a citizen of one state to sue a citizen of another state in a Federal Court. Instead of suing the former Mrs. Emerson, he sued her brother, John Sanford who as the executor of Dr. Emerson's estate was exercising control over him and his family. Dred Scott alleged in his pleadings that he was a citizen of Missouri, and defendant Sanford was a citizen of New York. Sanford’s answering pleading denied that the Federal Court had jurisdiction, since Scott, as the descendent of Negro slaves, was not a citizen, and, hence, had no right to sue in the Federal court.

The trial judge overruled Sanford's plea, and held for the purpose of instituting suit in the Federal Court, that Dred Scott was a citizen. After trial on the merits, the judge directed the jury to enter a verdict in favor of Sanford, because under Missouri law, which controlled the case, Dred Scott was still a slave. Dred Scott had one final move to make. He appealed to the United States Supreme Court.

Up to this point the case had attracted little national attention. When it came on to be heard before the Supreme Court in February 1856, however, the plaintiff and the defendant were represented by eminent counsel. Dred Scott's attorney was Montgomery Blair who would be Postmaster General in Lincoln's Cabinet, while John Sanford was represented by Reverdy Johnson (former Attorney General in President Taylor's Cabinet and a long time friend of Taney) and by Henry S. Geyer, a United States senator from Missouri.

The make up of the Supreme Court, which heard the argument of counsel, was strongly pro slavery long before the Dred Scott case. The country was divided into nine circuits, five in the South and four in the North. Since each Justice was appointed in the circuits in which he resided, this gave Southerners a permanent majority on the Court. Taney was from Maryland. While he had emancipated his slaves early in his career, he was totally dedicated and committed to the South and to its way of life. The four other southern Justices: Peter V. Daniel of Virginia, James Wayne of Georgia, John Catron of Tennessee, and John A. Campbell of Alabama, were all Democrats, all slave holders and all outright defenders of slavery and the rights of slave holders. On the northern side of the Court, Justice John McLean of Ohio was a Democrat recently turned Republican, while Benjamin R. Curtis of Massachusetts was an old line Whig. Both were anti-slavery, McLean much more vociferously than Curtis. Justices Samuel Nelson of New York and Robert C. Grier of Pennsylvania were Democratic "dough faces," who deplored Northern antislavery sentiment.

The Supreme Court heard four days of argument beginning February 11, 1856. Here, for the first time, the attorneys for John Sanford raised the question of the constitutionality of the Missouri Compromise. Now the country woke up to the fact that the Supreme Court had before it a political bombshell.

The Court despite its pro-southern complexion was not quite ready to take on so explosive a political issue. The Justices could not agree on the scope of their jurisdiction. Sanford had not challenged, before the Supreme Court, the trial court's ruling that Dred Scott was a citizen who had the right to sue in a Federal Court. Since neither the plaintiff nor the defendant had raised this issue before the Supreme Court, the Court debated whether it should review this issue. This problem so disturbed the Court that it ordered a rehearing to be held during the next term. Perhaps the Supreme Court put off the decision because it did not want to make a controversial ruling before the Presidential election, which was scheduled to take place in November, 1856.

When the case came on for four days of re-argument, on December 15, 1856, Montgomery Blair had found co-counsel to help represent Dred Scott. George Ticknor Curtis, a famous constitutional lawyer and the brother of Justice Benjamin R. Curtis, joined Blair at the counsel table. Although all of the jurisdictional and constitutional issues were argued by the attorneys, the Court was still not ready to face the constitutional questions. Instead, the majority of the Justices, with consider-able reluctance, favored following the Strader case affirming that the law of Missouri, as expounded by the Missouri Supreme Court in Dred Scott's case, was controlling. Mr. Justice Samuel Nelson was assigned to write the opinion of the Court.

StephensNow, serious irregularities began to occur. Alexander H. Stephens, a powerful Georgia Congressman and future Vice President of the Confederacy, brought all the influence he could bring to bear upon the Supreme Court to get them to decide that a territorial legislature had no power to ban slavery in the territories, even though this issue was not before the Court, had not been argued below and was not and would not be argued by counsel during either of the two hearings! Nevertheless, why shouldn’t the Court resolve all the constitutional issues, including the constitutionality of the Missouri Compromise? After all, Congress, unable to solve these thorny issues, had twice sought the aid of the Court. The five southern Justices had no doubt that the Missouri Compromise was unconstitutional, although they disagreed among themselves why this was so. They needed to be assured that dealing with this political problem in a way that was beneficial to the South would be accepted by the entire country. They got two Northern votes, but not without some very powerful though improper help.

Buchanan was elected President in November 1856. In February 1857, he was busy preparing the inaugural address he would deliver on March 4, 1857. He was aware that his address would have to deal with the problem of slavery in the territories. He knew the northern and southern wings of his party each demanded he side with them as to when the people of a territory could exercise their right of popular sovereignty. He realized that a united Democratic party was essential to his administration, and to the preservation of the Union. If the Supreme Court resolved this issue before he had to deal with it in his Inaugural Address, he would be relieved of the responsibility of taking sides.

On February 3, after an innocuous exchange of letters by Buchanan and Justice Catron, the President-elect took a highly irregular and certainly improper step by dropping a note to his good friend and fellow Pennsylvanian, Justice Grier. This letter has been lost, but Grier's reply, dated February 23rd, leaves no doubt about how Buchanan's wanted the Court to act. Grier stated that he had showed Buchanan's letter to both the Chief Justice and Justice Wayne, who had agreed the constitutional issue should be decided. Grier blamed Justice McLean and Justice Curtis, the two dissenters, for forcing the majority to consider the constitutional issue by their insistence that they were going to review that issue, even if the Court did not do so. He told the President-elect that he and Justice Nelson had refused to commit themselves on the constitutional issue, but, since the five southern members of the Court were now prepared to rule on that issue, and since he did not want the decision to have the appearance of being sectional, he would join with the southerners in holding the Missouri Compromise unconstitutional. Three times in the letter, he cautioned the President-elect that what he was telling him was "in confidence."

No mention was made of a territorial legislature’s power to ban slavery in its jurisdiction.

The majority of the Supreme Court decided to render a broad decision holding the Missouri Compromise unconstitutional sometime between February 14th and February 19th. Although the five southerners on the Court were anxious to strike down the restriction on slavery in the Missouri Compromise, they were reluctant to do so without the support of at least one northern member of the Court. President-elect Buchanan's prodding of Justice Grier (improper even by the looser standards of the day), of which the Chief Justice had knowledge, and Grier's subsequent switch in favor of a constitutional decision, appears to be the step which gave the southern majority the strength of will to declare for a broad decision.

So it came about that the five southern members of the Court, joined by Justices Catron and Grier, decided to issue a broad decision dealing with the following issues:

1. Can a free Negro whose ancestors were brought to this country as slaves be a citizen so as to qualify to sue in the Federal Courts?

2. Was the section of the Missouri Compromise which prohibited slavery in the northern part of the Louisiana Purchase constitutional?

On March 4, 1857, a bright Spring day, President James Buchanan, after briefly chatting with and being sworn in by Chief Justice Taney, delivered his inaugural address. Buchanan placidly pretended that he was unaware of what the Court would decide. He stated:

"A difference of opinion has arisen in regard to the point of time when the people of a Territory shall decide this question for themselves. This is, happily, a matter of but little practical importance. Besides, it is 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."

Let us now examine the opinion of the Court as rendered by Chief Justice Taney two days after President Buchanan delivered his inaugural address. In answer to the question of whether a Negro could be a citizen, the Chief Justice did not rely on legal precedent; there was none. Nor did he look to the Constitution itself; that document was unclear on the subject. Instead, he went back to the alleged intent of the framers of the Constitution. How did they feel about the Negro race? Although historically he was wrong, Chief Justice Taney nevertheless said:

"[Negroes] had for more than a century before been 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; and that the Negro might justly and lawfully be reduced to slavery for his [the white man's] benefit . . . This opinion was at that time fixed and universal in the civilized portion of the white race."

Because Dred Scott was not a citizen, he could not bring suit in a Federal Court under the diversity of citizenship clause. The Federal Circuit Court that heard the case, therefore, had no jurisdiction and should not have heard the matter, This would have been a logical place for the Supreme Court to say, "this matter is now ended." There was no need to decide the question of the constitutionality of the Missouri Compromise. Dred Scott and his family were still slaves. Historically courts have wisely refused to decide any more then is necessary to end the case before them, especially so when dealing with constitutional issues.

But Taney did not stop there. Perhaps he did not stop because only Justices Wayne and Daniels agreed with him on this issue. More likely he did not stop because he had insisted that he was delivering the opinion of the Court and he and the majority of the Court were determined to settle, once and for all, the question of Congress's power over slavery in the territories.

Taney, although he had already ruled that Dred Scott was still a slave, now came up with an ingenious way to decide the constitutional question about the Missouri Compromise, without violating the rule that a court should decide no more then was necessary. Not satisfied that Dred Scott was still a slave because a Negro descended from slaves could never be a citizen, and hence could not sue to establish his freedom in a Federal Court, he now set out to prove that Dred Scott was still a slave, even though he had lived in a federal territory covered by the Missouri Compromise, because that statute was unconstitutional. Dred Scott, never having been free, could never be a citizen and could never sue in a Federal Court.

In order to reach his decision, Taney would have to take the facts of the case out of chronological order. Dred Scott had first been taken to the State of Illinois and then to the Wisconsin Territory. If Taney decided the question of whether Dred Scott's residence in Illinois made him free, in its chronological sequence, he would be forced to come to the same conclusion that the Strader case had arrived at and, in fact, the conclusion which Justice Nelson arrived at in his separate opinion: that Dred Scott was still a slave because when he returned to Missouri and sued for his freedom there, it was Missouri law which controlled.

Once again the court rule that only what is necessary should be decided would have compelled Taney to stop at that point without reaching the constitutional question. If, however, Scott's residence in the Wisconsin Territory was dealt with first, the constitutionality of the Missouri Compromise could be reached, and Congress's power to ban slavery in the territories could be adjudicated. That is exactly what the Chief Justice did.

Taney finally came to grips with the constitutionality of the Missouri Compromise. He gave three reasons why it was unconstitutional. He probably gave so many reasons because he was not satisfied that any one of them alone was quite convincing.

First, he twisted the plain language of Article IV, section 3 of the Constitution which reads, "The Congress shall have Power to ... make all needful Rules and Regulations respecting the Terriitory or other Property belonging to the United States," to mean that it covered only the territory owned by the Federal Government at the time the Constitution was adopted, such as the Northwest Territory, and not territory acquired at a later date, such as the Louisiana Purchase.

Second, he held that even if Congress had broad powers over the territories, it could not ban slavery there, because, "the right of property in a slave is distinctively and expressly affirmed in the Constitution." Although it is impossible to find such a distinct and express affirmation in that document, the Chief Justice made the statement and relied upon it. Slavery was sacrosanct and Congress had no power to ban it in any new territory.

Third, and most important, for then and now, Taney said the Constitution applied to the people of the territories as well as to the people of the states. Congress could not pass legislation which deprived either of them of their rights under that document. For example it could not ban free speech either in the states or the territories. Since the right in a slave was a property right protected by the Constitution, a law that deprived a person of his property because the owner takes it into a "free" territory "could hardly be dignified with the name of due process of law." So, Chief Justice Taney held that any attempt by Congress to ban slavery in a territory was unconstitutional because it violated the "due process clause" of the Fifth Amendment to the Constitution.

Here, for the first time in its sixty-eight year history, the Supreme Court held a law adopted by Congress to be unconstitutional based upon the concept of "substantive due process." In the past, the Court had held that the due processes clause of the Fifth Amendment applied only to procedural due process, such as the right to a hearing to contest factual findings. Now, Chief Justice Taney broadened that concept to include the right of the Court to strike down an act of Congress because it was unreasonable or unjust.

In using the due process clause to protect the institution of slavery, Taney opened wide the door to a more liberal Court employing the due process clause of the Fourteenth Amendment in the last half of the Twentieth Century to judicially legislate social changes, such as desegregation of schools and other public facilities, and a woman's right to an abortion.

Now Taney was surely finished. He had settled the burning question of Congress's right to ban slavery in the territories by denying its right so to do, thus settling the political question that was tearing the country apart. Was he satisfied? He was not! He took two steps not justified by the facts of the case, the record before the Court, or argument of counsel. The first step was, however, the step that Buchanan, Stephens, and the southern wing of the Democratic Party wanted taken. In dictum [a statement in an opinion that is not necessary to the legal reasoning of the decision in the case], he gave them what they wanted, stating that "since Congress did not have the power to bar slavery in the territories, neither did a territorial legislature. [Congress] could confer no power on any local government, established by its authority, to violate the provisions of the Constitution." With this dictum, Chief Justice Taney destroyed Douglas’ concept of popular sovereignty.

Anticipating Douglas's defense of popular sovereignty, Taney took a second step intended to insure the future of slavery by volunteering that, "The only power conferred [on Congress by the Constitution] is the power coupled with the duty of guarding and protecting the [slave] owner in his rights." With this second dictum, Chief Justice Taney ensured the break up of the Democratic Party.

The bottom line: Taney and the majority of the Supreme Court had upheld the southern view of the Constitution: Congress could not exclude slavery from the territories and the people of a territory could not reject slavery until they adopted their constitution. Slavery was protected in the territories by the Federal Constitution!

The people of the South received the decision with great joy and exultation. The Constitution was on their side. No longer did they have to feel inferior to the North's hateful facade of moral superiority. Their "peculiar institution" was protected by the highest law of the land. Their society and its way of life were secure.

The North reacted in a diametrically opposite way. There was an explosion of wild indignation and outrage. Taney was pilloried in the press and from the pulpit for, among other things, shoddy logic, moral obtuseness, distorting the plain language of the Constitution, pro Southern bias, historical inaccuracy, and for having made a constitutional decision about the Missouri Compromise which was unnecessary to the case. Horace Greeley opined that the Court's decision deserved no more respect than if made by "a majority of those congregated in any Washington bar-room." The Chicago Tribune opined that the decision would eventually turn the free states into slave states, and that Chicago could become a slave market.

Lincoln's biographer, David Herbert Donald, has pointed out that because Lincoln had "enormous respect for the law and for the judicial process," he was loathe to challenge the Dred Scott decision." As we have seen a year earlier, Lincoln had welcomed a decision in the matter, and promised to support it. But Lincoln was now forced to come to grips with the problem. At Springfield, Illinois on June 26, 1857, he said:

"We believe, as much as Judge Douglas, (perhaps more) in obedience to and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, . .. But we think the Dred Scott decision is erroneous.

We know the court that made it, has often overruled its own decisions, and we shall do what we can to have it over-ruled. . . . We offer no resistance to it. . . . But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country."

What really disturbed Lincoln and the Republican Party was that before the Dred Scott decision, slavery was sectional, while freedom was national; after the case, slavery was national and freedom was sectional. Slavery was no longer confined to the South but could spread over all of the territories of the United States. Freedom was now confined to the northern states. Even worse, they feared that if the Supreme Court could set aside what they considered the undisputed right of Congress to control slavery in the territories, by going one step further it could rule that slavery was legal in all of the states, North and South.

LincolnA year later, on June 16, 1858, Lincoln devoted a substantial portion of his famous "House Divided" speech to the Dred Scott decision. Lincoln used this speech to fire the people of Illinois to rally to the Republican Party to defeat a supposed conspiracy by the Democratic leadership, "Stephen [Douglas], Franklin [Pierce], Roger [Taney], and James [Buchanan]," to make slavery legal in all of the states. He said, welcome or not, such a decision by the Supreme Court was coming; it was the next step: "We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free; and shall awake to the reality, instead, that the Supreme Court bas made Illinois a slave state." He drove this point home during his fifth debate with Stephen A. Douglas, in October, 1858, citing the second clause of the Sixth Article of the Constitution of the United States which reads:

"This Constitution and the laws of the United States which shall be made in pursuance thereof; ... shall be the supreme law of the land; and the judges in every state shall be bound thereby anything in the constitution or laws of any state to the contrary not withstanding. "

He then cited the following as the essence of Chief Justice Taney's Dred Scott opinion:

"Now, as we have already said in an earlier part of this opinion, ... the right of property in a slave is distinctly and expressly affirmed in the Constitution of the United States."

Lincoln then offered this syllogism:

"Nothing in the constitution or laws of any state can destroy a right distinctly and expressly affirmed in the Constitution of the United States; The right of property in a slave is distinctly and expressly affirmed in the Constitution of the United States; Therefore, nothing in the Constitution or laws of any state can destroy the right of property in a slave."

This hard driving logic by a "rail splitter," a man with less then a year of formal education, both frightened and rallied Northerners to the Republican cause.

On the other side, Douglas, although the Dred Scott decision had eviscerated his broad concept of popular sovereignty by holding (albeit as dictum) that a territorial legislature had no power to ban slavery prior to the adoption of its constitution, waited until he returned to Chicago from Washington, in June of 1857. Then he spoke out, saying that the Court had ruled and it was the duty of all citizens to obey its decision.

He commended the Court for avoiding mere technicalities and for ruling on the constitutional issues. As far as Douglas was concerned, however, he harmonized the Dred Scott decision with his concept of popular sovereignty by explaining that a slave holder had the right to take his slave property to any territory, but the people of the territory had the right to provide or withhold the protection of his property rights. Surprisingly, this nullification doctrine did not immediately anger the southern wing of the Democratic Party. Perhaps their attention was diverted by, another serious national and territorial problem.

In March 1857, shortly after assuming office, President Buchanan appointed Robert T. Walker (who had served as a Senator from Mississippi and as President Polk’s Secretary of Treasury) as Governor of the Kansas Territory. The President promised the new Governor that he would not allow Kansas to adopt a constitution, under which it would seek statehood, unless the residents of the territory in a fair vote, unaffected by fraud or violence, "were permitted to adopt their State Constitution, and to decide for themselves what shall be their social institutions. . ."

WalkerOn November 8,1857, a Constitutional Convention meeting at Lecompton, Kansas, whose members were proslavery, and who were elected without the participation of the anti-slavery factions, adopted a constitution for the future state of Kansas, over the objection of Governor Walker.  [Editor’s note: Walker resigned within the year because of his opposition to the Lecompton Constitution. In a resignation letter to Secretary of State Lewis Cass dated December 15, 1857 , he cited clear voting fraud and improper political pressure from the Administration. He did not, however, break with his party immediately. He supported the Union cause during the American Civil War and in 1863 and 1864, as financial agent of the United States, did much to create confidence in Europe in the financial resources of the United States. During this time Walker was instrumental in securing a loan of $250,000,000 from Germany. Walker’s life story would make a good topic for a presentation.] 

There was no provision for the adoption of the constitution by the voters of the territory. Instead, the constitution, which provided that it could not be amended for a period of seven years, guaranteed the slave holders of the two hundred or so slaves in the territory, that their right to this property and its progeny would remain inviolate. On the question of approval by the voters, the constitution provided that the people could vote for the "the constitution with slavery" or "the constitution without slavery," but in either event the slaves presently in Kansas, and their decedents would remain in bondage. The people would not have the opportunity to accept or reject the entire document.

Douglas and his northern supporters split with Buchanan and the southern wing of the Democratic Party over the acceptance of the Lecompton Constitution. Not allowing the people to accept or reject the entire constitution was, to Douglas, a violation of the essence of his "great principle" of popular sovereignty. Douglas and his supporters fought alongside of the Republicans in an attempt to prevent the adoption of the Lecompton Constitution by the Senate and the House of Representatives. In 1858, the people of Kansas, in a fair election, rejected the Lecompton Constitution. By then the campaign between Abraham Lincoln and Stephen A. Douglas for the Senate seat from the State of Illinois had begun. The Lincoln-Douglas debates were the high point of the campaign.

During the second debate at Freeport, on August 27, 1858, Lincoln asked Douglas, "Can the people of a United States territory, in any lawful way, . . . exclude slavery from its limits prior to the formation of a state constitution?"

Douglas, without hesitation, replied: "I answer emphatically . . . that in my opinion the people of a territory can, by lawful means exclude slavery from their limits prior to the formation of a state constitution. . . . [T]he people have the lawful means to introduce [slavery] or exclude it as they please, for the reason that slavery cannot exist a day or an hour anywhere, unless it is supported by local police regulations.

This was the same response to the same question that Douglas had given a year earlier when he first set out to reconcile his concept of popular sovereignty with the Dred Scott decision. Now, however, because since then Douglas had led the charge to defeat the Lecompton Constitution in Congress, the southern Democrats and the Buchanan Administration vilified him for depriving the Dred Scott decision of practical effect in the territories. Lincoln knew this would happen, and continued to raise this issue throughout the rest of the campaign, not only because of "The Little Giant's" faulty logic, but also in an effort to drive an ever larger wedge between the Douglas and Buchanan wings of the Democratic Party.

When Congress convened in December of 1858, the first action taken by the southern Democrats, who controlled the Democratic Caucus in the Senate, was to strip Douglas of his chairmanship of the Committee on Territories. The "Little Giant" must pay for his heresy of opposing the Lecompton Constitution and his refusal to pay obeisance to Taney's territorial dicta. Then, in his annual message to the Senate, Buchanan sought to bury Douglas further by saying the Dred Scott decision meant that a master who lawfully takes his slave property into a territory had a right to look to the Federal Government for its positive protection.

DavisEarly in February, 1859, Senator Jefferson Davis, expanding on Buchanan's message to the Senate introduced a resolution in that chamber, which read: "It is the duty of the Federal Government . . . to afford . . . the needful protection [for slavery in the territories], and if experience should at anytime prove that the judiciary does not possess power to insure adequate protection, it will then become the duty of Congress to supply such deficiency." Davis with this resolution was looking to the Democratic National Convention was scheduled to take place in Charleston, South Carolina in April, 1859. His main reason for introducing his Slave Code Resolution was to destroy Douglas's presidential candidacy.

The South was lining up against Douglas. The Democratic Party in Alabama had instructed its delegation to insist on a plank in the Democratic Platform which would read that the Federal Government had the duty to keep the territories open to all the citizens of the United States together with their property of every description, and that the same should remain protected by the United States while the territories are under its authority." If the Convention failed to adopt such a "slave code" plank, the Alabama delegation was instructed to walk out.

Charleston, South Carolina, in April of 1859, was the worst place the Democrats could have picked for their quadrennial convention. Northerners found the heat oppressive, the accommodations inadequate, the prices too high, and the press and the people hostile. The atmosphere was not conducive to conciliation and there was none. When the Douglas majority at the convention refused to adopt the South's slave-code plank, Alabama, Arkansas, Mississippi, Texas, and most of the Louisiana and South Carolina delegates walked out. The Convention adjourned without selecting a candidate. It would reconvene in Baltimore in June.

When the Democratic Convention reassembled, Lincoln was already the candidate of the Republican Party. All of the bolting southern states except South Carolina sent delegates to Baltimore, but now northern blood was up and the Convention refused to seat the original delegations from Louisiana and Alabama. Led by Virginia, most of the southern states along with California and Oregon walked out. The great Democracy was sundered. The Baltimore Convention went on to nominate Douglas. The southerners, along with the Buchanan Administration, assembled at Richmond, nominated John C. Breckinridge as their candidate, and adopted the slave-code platform. A fourth party, the Constitutional Unionists, nominated John Bell as its contender.

The stage was now set for Lincoln's overwhelming electoral victory. This victory would probably not have happened but for the Dred Scott decision and the battle over the Leompton Constitution. Chief Justice Taney, aided by President Buchanan, went too far in his effort to protect slavery in the territories and made a political decision that neither the Republican Party nor the Douglas wing of the Democratic Party could accept. Douglas, in an effort to maintain his "great principle" of popular sovereignty, was forced to adopt a position on slavery in the territories contrary to the Chief Justice's, and in opposition to the Buchanan Administration and the southern wing of the Democratic Party.

The latter two, in anger over the stance taken by Douglas, retaliated by demanding a slave code to protect slavery in the territories, knowing full well that Douglas would never agree to such a code because it would destroy his "great principle" of popular sovereignty. Meanwhile, Abraham Lincoln, agreeing with Douglas' position on the Lecompton Constitution, exploited the Dred Scott decision by declaring it made slavery national and that a conspiracy among the Democratic leaders would lead to the northern states becoming slave states. At the same time, he moved to exacerbate the internal split in the Democratic Party by asking his famous second question during the Freeport Debate, although he well knew what the answer would be.

Lincoln's strength in the Lincoln-Douglas debates won him a modest national reputation. His address at Cooper Institute in New York City demolished Taney’s specious grounds for saying that Congress did not have the constitutional right to ban slavery in the territories, justified his own moral grounds for refusing compromise with slavery and gave him broad national notice. This led to his selection as the candidate of the Republican Party. The split in the Democratic Party inevitably resulted in Lincoln's election. Lincoln's election led to the secession of the states of the deep south. Secession led to the attack on Fort Sumter and the Civil War.

Last changed: 06/29/11

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