Chapter 4 The Dred Scott Decision - Abraham Lincoln Vol.2, by Hay & Nicolay

CHAPTER IV
THE DRED SCOTT DECISION
   [Sidenote] 1854.
  [Sidenote] March 6, 1857.
Deep and widespread as hitherto had been the slavery agitation created by the repeal of the Missouri Compromise and by the consequent civil war in Kansas, an event entirely unexpected to the public at large suddenly doubled its intensity. This was the announcement, two days after Buchanan's inauguration, of the decision of the Supreme Court of the United States in the Dred Scott case. This celebrated case had arisen as follows:
Two or three years before the Nebraska bill was thought of, a suit was begun by a negro named Dred Scott, in a local court in St. Louis, Missouri, to recover the freedom of himself and his family from slavery. He alleged that his master, one Dr. Emerson, an army surgeon, living in Missouri, had taken him as his slave to the military post at Rock Island, in the State of Illinois, and afterwards to Fort Snelling, situated in what was originally Upper Louisiana, but was at that time part of Wisconsin Territory, and now forms part of Minnesota. While at this latter post Dred Scott, with his master's consent, married a colored woman, also brought as a slave from Missouri, and of this marriage two children were born. All this happened between the years 1834 and 1838. Afterwards Dr. Emerson brought Dred Scott and his family back to Missouri. In this suit they now claimed freedom, because during the time of residence with their master at these military posts slavery was there prohibited by positive law; namely, at Bock Island by the ordinance of 1787, and later by the Constitution of Illinois; at Fort Snelling by the Missouri Compromise acts of 1820, and other acts of Congress relating to Wisconsin Territory.
The local court in St. Louis before which this action was brought appears to have made short work of the case. It had become settled legal doctrine by Lord Mansfield's decision in the Somersett case, rendered four years before our Declaration of Independence, that "the state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only positive law.... It is so odious that nothing can be suffered to support it but positive law." The learned chief-justice therefore ordered that Somersett, being claimed as a Virginia slave brought by his master into England, when it was attempted to carry him away against his will, should be discharged from custody or restraint, because there was no positive law in England to support slavery. The doctrine was subsequently modified by another English chief-justice, Lord Stowell, in 1827, to the effect that absence of positive law to support slavery in England only operates to suspend the master's authority, which is revived if the slave voluntarily returns into an English colony where slavery does exist by positive law.
The States of the Union naturally inherited and retained the common law of England, and the principles and maxims of English jurisprudence not necessarily abrogated by the change of government, and among others this doctrine of Lord Mansfield. Unlike England, however, where there was no slavery and no law for or against it, some of the American States had positive laws establishing slavery, others positive laws prohibiting it. Lord Mansfield's doctrine, therefore, enlarged and strengthened by American statutes and decisions, had come to be substantially this: Slavery, being contrary to natural right, exists only by virtue of local law; if the master takes his slave for permanent residence into a jurisdiction where slavery is prohibited, the slave thereby acquires a right to his freedom everywhere. On the other hand, Lord Stowell's doctrine was similarly enlarged and strengthened so as to allow the master right of transit and temporary sojourn in free-States and Territories without suspension or forfeiture of his authority over his slave. Under the complex American system of government, in which the Federal Union and the several States each claim sovereignty and independent action within certain limitations, it became the theory and practice that towards each other the several States occupied the attitude of foreign nations, which relation was governed by international law, and that the principle of comity alone controlled the recognition and enforcement by any State of the law of any other State. Under this theory, the courts of slave States had generally accorded freedom to slaves, even when acquired by the laws of a free-State, and reciprocally the courts of free-States had enforced the master's right to his slave where that right depended on the laws of a slave-State. In this spirit, and conforming to this established usage, the local court of Missouri declared Dred Scott and his family free.
The claimant, loath to lose these four human "chattels," carried the case to the Supreme Court of the State of Missouri, where at its March term, 1852, it was reversed, and a decree rendered that these negroes were not entitled to freedom. Three judges formed the court, and two of them joined in an opinion bearing internal evidence that it was prompted, not by considerations of law and justice, but by a spirit of retaliation growing out of the ineradicable antagonism of freedom and slavery.
  [Sidenote] Scott, J., 15 Mo. Reports, pp. 582-6.
    Every State [says the opinion] has the right of determining how     far, in a spirit of comity, it will respect the laws of other     States. Those laws have no intrinsic right to be enforced beyond     the limits of the State for which they were enacted. The respect     allowed them will depend altogether on their conformity to the     policy of our institutions. No State is bound to carry into effect     enactments conceived in a spirit hostile to that which pervades     her own laws.... It is a humiliating spectacle to see the courts     of a State confiscating the property of her own citizens by the     command of a foreign law.... Times now are not as they were when     the former decisions on this subject were made. Since then not     only individuals but States have been possessed with a dark and     fell spirit in relation to slavery, whose gratification is sought     in the pursuit of measures whose inevitable consequence must be     the overthrow and destruction of our Government. Under such     circumstances it does not behoove the State of Missouri to show     the least countenance to any measure which might gratify this     spirit. She is willing to assume her full responsibility for the     existence slavery within her limits, nor does she seek to share or     divide it with others.
To this partisan bravado the third judge replied with a dignified rebuke; in his dissenting opinion he said:
  [Sidenote] Gamble, J., 15 Mo. Reports, pp. 589-92.
    As citizens of a slave-holding State, we have no right to complain     of our neighbors of Illinois, because they introduce into their     State Constitution a prohibition of slavery; nor has any citizen     of Missouri who removes with his slave to Illinois a right to     complain that the fundamental law of the State to which he     removes, and in which he makes his residence, dissolves the     relation between him and his slave. It is as much his own     voluntary act as if he had executed a deed of emancipation....     There is with me nothing in the law relating to slavery which     distinguishes it from the law on any other subject, or allows any     more accommodation to the temporary public excitements which are     gathered around it.... In this State it has been recognized from     the beginning of the government, as a correct position in law,     that a master who takes his slave to reside in a State or Territory     where slavery is prohibited thereby emancipates his slave. [Citing     cases.] ... But the Supreme Court of Missouri, so far from     standing alone on this question, is supported by the decisions of     other slave-States, including those in which it may be supposed     there was the least disposition to favor emancipation. [Citing     cases.] ... Times may have changed, public feeling may have     changed, but principles have not and do not change; and in my     judgment there can be no safe basis for judicial decision but in     those principles which are immutable.
These utterances, it must be remembered, occurred in the year 1852, when all slavery agitation was supposed to have been forever settled. They show conclusively that the calm was superficial and delusive, and that this deep-reaching contest was still, as before the adjustment of 1850, actually transforming the various institutions of society. Gradually, and as yet unnoticed by the public, the motives disclosed in these opinions were beginning to control courts of justice, and popular discussion and excitement were not only shaping legislation, but changing the tenor of legal decisions throughout the country.
Not long after the judgment by the Supreme Court of Missouri, Dred Scott and his family were sold to a man named Sandford, who was a citizen of New York. This circumstance afforded a ground for bringing a similar action in a Federal tribunal, and accordingly Dred Scott once more sued for freedom, in the United States Circuit Court at St. Louis.[1] The case was tried in May, 1854, and a decree rendered that they "were negro slaves, the lawful property" of Sandford. As a final effort to obtain justice, they appealed by writ of error to the Supreme Court of the United States, the highest judicial tribunal of the nation.
Before this court of last resort the case was argued a first time in the spring of 1856. The country had been for two years in a blaze of political excitement. Civil war was raging in Kansas; Congress was in a turmoil of partisan discussion; a Presidential election was impending, and the whole people were anxiously noting the varying phases of party politics. Few persons knew there was such a thing as the Dred Scott case on the docket of the Supreme Court; but those few appreciated the importance of the points it involved, and several distinguished lawyers volunteered to take part in the argument.[2] Two questions were presented to the court: First, Is Dred Scott a citizen entitled to sue? Secondly, Did his residence at Rock Island and at Fort Snelling, under the various prohibitions of slavery existing there, work his freedom?
The Supreme Court was composed of nine justices; namely, Chief-Justice Taney and Associate Justices McLean, Wayne, Catron, Daniel, Nelson, Grier, Curtis, and Campbell. There was at once manifested among the judges not only a lively interest in the questions presented, but a wide difference of views as to the manner of treating them. Consultations of the Supreme Court are always shrouded in inviolable secrecy, but the opinions afterwards published indicate that the political aspects of slavery, which were then convulsing the country, from the very first found a certain sympathy and reflection in these grave judicial deliberations. The discussions yet turned upon certain merely technical rules to be applied to the pleadings under review; and ostensibly to give time for further examination, the case was postponed and a re-argument ordered for the next term. It may, however, be suspected that the nearness of the Presidential election had more to do with this postponement than did the exigencies of the law.[3]
[Illustration: ROGER B. TANEY.]
The Presidential election came, and Mr. Buchanan was chosen. Soon after, the court met to begin its long winter term; and about the middle of December, 1856, the Dred Scott case was once more elaborately argued. Again occupying the attention of the court for four successive days, as it had also done in the first hearing, the eminent counsel, after passing lightly over mere technical subtleties, discussed very fully what was acknowledged to be the leading point in the controversy; namely, whether Congress had power under the Constitution to prohibit slavery in the Federal Territories, as it had done by the Missouri Compromise act and various other laws. It was precisely the policy, or impolicy, of this and similar prohibitions which formed the subject of contention in party politics. The question of their constitutional validity was certain to take even a higher rank in public interest.
When after the second argument the judges took up the case in conference for decision, the majority held that the judgment of the Missouri Federal tribunal should simply be affirmed on its merits. In conformity to this view, Justice Nelson was instructed to prepare an opinion to be read as the judgment of the Supreme Court of the United States. Such a paper was thereupon duly written by him, of the following import: It was a question, he thought, whether a temporary residence in a free-State or Territory could work the emancipation of a slave. It was the exclusive province of each State, by its Legislature or courts of justice, to determine this question for itself. This determined, the Federal courts were bound to follow the State's decision. The Supreme Court of Missouri had decided Dred Scott to be a slave. In two cases tried since, the same judgment had been given. Though former decisions had been otherwise, this must now be admitted as "the settled law of the State," which, he said, "is conclusive of the case in this court."
This very narrow treatment of the points at issue, having to do with the mere lifeless machinery of the law, was strikingly criticised in the dissenting opinion afterwards read by Justice McLean, a part of which, by way of anticipation, may properly be quoted here. He denied that it was exclusively a Missouri question.
  [Sidenote] 19 Howard, pp. 555-64.
    It involves a right claimed under an act of Congress and the     Constitution of Illinois, and which cannot be decided without the     consideration and construction of those laws.... Rights sanctioned     for twenty-eight years ought not and cannot be repudiated, with any     semblance of justice, by one or two decisions, influenced, as     declared, by a determination to counteract the excitement against     slavery in the free-States.... Having the same rights of     sovereignty as the State of Missouri in adopting a constitution, I     can perceive no reason why the institutions of Illinois should not     receive the same consideration as those of Missouri.... The     Missouri court disregards the express provisions of an act of     Congress and the Constitution of a sovereign State, both of which     laws for twenty-eight years it had not only regarded, but carried     into effect. If a State court may do this, on a question involving     the liberty of a human being, what protection do the laws afford?
  [Sidenote] Campbell to Tyler, Samuel Tyler. "Life of Taney," pp.   383-4.
Had the majority of the judges carried out their original intention, and announced their decision in the form in which Justice Nelson, under their instruction, wrote it, the case of Dred Scott would, after a passing notice, have gone to a quiet sleep under the dust of the law libraries. A far different fate was in store for it. The nation was then being stirred to its very foundation by the slavery agitation. The party of pro-slavery reaction was for the moment in the ascendant; and as by an irresistible impulse, the Supreme Court of the United States was swept from its hitherto impartial judicial moorings into the dangerous seas of polities.
  [Sidenote] Campbell to Tyler, Tyler, p. 384.
Before Judge Nelson's opinion was submitted to the judges in conference for final adoption as the judgment of the court a movement seems to have taken place among the members, not only to change the ground of the decision, but also greatly to enlarge the field of inquiry. It is stated by one of the participants in that memorable transaction (Justice Campbell) that this occurred "upon a motion of Mr. Justice Wayne, who stated that the case had created public interest and expectation, that it had been twice argued, and that an impression existed that the questions argued would be considered in the opinion of the court." He further says that "the apprehension had been expressed by others of the court, that the court would not fulfill public expectation or discharge its duties by maintaining silence upon these questions; and my impression is, that several opinions had already been begun among the members of the court, in which a full discussion of the case was made, before Justice Wayne made this proposal."
The exact time when this movement was begun cannot now be ascertained. The motives which prompted it can be inferred by recalling contemporaneous political events. A great controversy divided public opinion, whether slavery might be extended or should be restricted. The Missouri Compromise had been repealed to make such an extension possible. The terms of that repeal were purposely couched in ambiguous language. Kansas and Nebraska were left "perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States." Whether under the Constitution slavery could be excluded from the Federal Territories was affirmed by Northern and denied by Southern Democrats. Northern and Southern Democrats, acting together in the Cincinnati National Convention, had ingeniously avoided any solution of this difference.
A twofold interpretation had enabled that party to elect Mr. Buchanan, not by its own popular strength, but by the division of its opponents. Notwithstanding its momentary success, unless it could develop new sources of strength the party had only a precarious hold upon power. Its majority in the Senate was waning. In Kansas free-State emigration was outstripping the South in numbers and checkmating her in border strife. According to the existing relative growth in sectional representation and sectional sentiment, the balance of power was slowly but steadily passing to the North.
Out of this doubt and difficulty there was one pathway that seemed easy and certain. All the individual utterances from the Democratic party agreed that the meaning of the words "subject to the Constitution" was a question for the courts. This was the original compact between Northern and Southern Democrats in caucus when Douglas consented to repeal. Douglas, shorn of his prestige by his defeat for the Presidential nomination, must accept conditions from his successful rival. The Dred Scott case afforded the occasion for a decision. Of the nine judges on the Supreme Bench seven were Democrats, and of these five were appointed from slave-States. A better opportunity for the South to obtain a favorable dictum could never be expected to arise. A declaration by the Supreme Court of the United States that under the Constitution Congress possessed no power to prohibit slavery in the Federal Territories would by a single breath end the old and begin a new political era. Congress was in session and the political leaders were assembled at Washington. Political topics excluded all other conversation or thought. Politics reddened the plains of Kansas; politics had recently desecrated the Senate chamber with a murderous personal assault; politics contended greedily for the spoils of a new administration: politics nursed a tacit conspiracy to nationalize slavery. The slavery sentiment ruled society, ruled the Senate, ruled the Executive Mansion. It is not surprising that this universal influence flowed in at the open door of the national hall of justice--that it filtered through the very walls which surrounded the consulting-room of the Supreme Court.
  [Sidenote] Wayne, J., Opinion in the Dred Scott case, 19 Howard,   pp. 454-5.