Dred Scott and Lecompton

Under Buchanan's administration, 1857-61, three events befell which were like wedges riving farther and farther apart the national unity. They were the Dred Scott decision by the Supreme Court, the Lecompton constitution in Kansas, and John Brown's raid at Harper's Ferry.

President Buchanan declared in his inaugural that the people of a Territory had a right to shape their institutions in their own way, but as to how far that right extended before they organized as a State, the United States Supreme Court was the proper arbiter. Two days after the inaugural, the Supreme Court announced its decision, in a case made up expressly to test the status of slavery in the Territories. Suit was brought before it to obtain freedom for Dred Scott, who being held as a slave in Missouri had been taken by his master to reside for a time in Illinois, and afterward at Fort Snelling in unorganized territory north of 36 degrees 30 minutes, and so free under the Missouri compromise. It was claimed that by being taken upon free soil, in State or Territory, he became free. The court, in an elaborate opinion delivered by Chief-Justice Taney, dismissed the case for want of jurisdiction, on the ground that no person of slave descent or African blood could be a citizen of the United States or be entitled to sue in its courts. The court affirmed that the sweeping language of the Declaration, that "all men are born free," had no application to negroes, because at that time they were generally regarded "as so far inferior that they had no rights which the white man was bound to respect." The case being thus thrown out of court, all further discussion of its merits was superfluous—a mere obiter dictum, without legal force. Nevertheless, the court through its chief-justice went on to pronounce upon the plaintiff's claim and declare it baseless; on the ground that inasmuch as a slave was lawful property, and the Constitution decreed that no man should be deprived of his property without due process of law, therefore an act of Congress declaring in effect that when carried beyond a certain line a slave was lost to his master, was unconstitutional and void. Thus the court set aside as invalid the exclusion of slavery from the Territories by Congress. As to the effect of a slave's residence in a free State by his master's act, followed by a return to a slave State,—the court held that this question belonged properly to the Missouri courts, which had decided against the slave's claim.

Two of the justices, McLean and Curtis (Northern Whigs), dissented emphatically from the decision. Justice Curtis pointed out, as to the alleged incapacity of the negro for citizenship at the era of the Constitution, that at that period free negroes had the right of suffrage in five of the thirteen States. As to the argument against depriving a man of his property, the contention of the Republicans was that slaves were property, not by the common usage of mankind, but only by local law, and that when a slaveholder moved into a Territory he did not carry with him that local law by which alone a man could be held as a chattel. But the authoritative voice of the highest court in the land had proclaimed these amazing propositions,—that the guarantee of freedom to the Northwest, which the nation had accepted for a third of a century, was invalid, and that no person with negro blood had any civil rights as a citizen of the United States.

When, forty years later, a law of Congress establishing an equitable income tax was declared unconstitutional by the Supreme Court, and a Democratic national convention protested against that decision, the Republican papers of the day denounced the protest as hardly less than treason. But the Republicans of an earlier day were not so reverential toward the Supreme Court as an infallible authority. Could the court as a finality outlaw the negro from the common rights of man, and prevent Congress from establishing freedom in the national domain? Not so thought the men who led the Republican party and the sentiment of the North. The New York Legislature, for example, promptly enacted that African descent should not disqualify from State citizenship; that any slave brought into the State by his master became free, and any attempt to hold him was a penal offense. It passed a resolution declaring that the Supreme Court had lost the confidence and respect of the people. Lincoln said in his dry way that the Republican party did not propose to declare Dred Scott a free man (by the way, he was soon manumitted by his former master's daughter)—but neither did they propose to accept the court's decision as a political rule binding the voters, or Congress, or the President; and they intended so to oppose it as to have it reversed if possible, and a new judicial rule established. Seward was very outspoken. He said a year later, in the Senate, "The people of the United States never can and never will accept principles so unconstitutional, so abhorrent. Never, never! Let the court recede. Whether it recede or not, we shall reorganize the court, and thus reform its political sentiment and practices, and bring them in harmony with the Constitution and the laws of Nature."

The court's decision, obiter dictum and all, extended only to the power of Congress over the Territories. What a Territorial Legislature might do by way of excluding slavery had not been passed on; and Douglas thus found room for his doctrine of "popular sovereignty." But as to just what that meant, he was adroitly non-committal, till the more adroit Lincoln in the joint debate in 1858 drew from him the statement that a Territorial Legislature might by "unfriendly legislation" practically exclude slavery—a committal which ended his favor from the South.

But meanwhile attention was focused on a different and more concrete question. Buchanan began his administration with an effort to pacify Kansas, by sending a new governor, Robert J. Walker, of Mississippi, with strong pledges from the President that the people should have fair dealing. But the situation was badly complicated. The Legislature had provided for a convention to frame a State Constitution. This was to be elected on the basis of a census taken by the county officials. But the Free State men having never recognized this Territorial Legislature, and having kept up the form of a State government of their own, there were no officials to take the census and register the votes in fifteen out of the thirty-four counties, and the registration was confined to the part of the Territory lying convenient for invasion from Missouri. Under these circumstances the Free State party resisted all Governor Walker's appeals to take part in the election, and the convention was chosen by a small vote. It met at Lecompton, and drew up a constitution. One article provided for the exclusion of free negroes, and another forbade any amendment for seven years. One section affirmed ownership of slaves as an inviolable right of property, and forbade any adverse legislation; and this section alone of the Constitution was submitted to the popular vote. A vote of the people was ordered, as between "constitution with slavery" and "constitution without slavery." The Free State men scouted the whole proceeding, and refused to vote. So, by the form of a popular election, the "constitution with slavery" was adopted.

The administration now gave its whole strength to the admission by Congress of Kansas with the Lecompton constitution. The same election that made Buchanan President had made the House as well as the Senate Democratic. But it was no longer the disciplined and docile Democracy of old. The proposal to admit a State under a constitution of which only a single article had been submitted to even the form of a popular vote, was too obnoxious for any but the most unflinching partisans. It was impossible to a leader whose watchword was "popular sovereignty."

Douglas broke squarely with the administration, and acted with the Republicans against the bill. He came in close touch with their leaders, and his open accession to their party seemed probable. Meanwhile in the Democratic party he had a small following in Congress and a large following among the people. The struggle in Congress over the Lecompton bill was obstinate. Senator Crittenden of Kentucky,—belonging nominally to the remnant of the American party, which sheltered some of the moderate Southerners, and himself one of their best leaders—proposed a bill submitting the entire Constitution to a direct popular vote. This was defeated in the Senate, but passed by the House, with the support of the Republicans. A committee of conference sought for some agreement, and found a singular one: a bill proposed by and named from Mr. English, a Douglas Democrat from Illinois. It provided that the Constitution should be submitted to a popular vote; if accepted, Kansas was at once to become a State and receive an immense land grant; if rejected, it was to remain a Territory until it had the population requisite for one representative in the House,—93,340,—and get no land grant. The combination of a bribe and a threat gave an almost grotesque air to the proposition. Party lines were broken in the vote; Douglas and a part of his associates joined with the bulk of the Republicans in opposing the bill; but enough of both sides saw in it the best they could get, to win a majority in both houses, and the English bill became law, in April, 1858.

In the previous summer, the assurances of Governor Walker and the advice of sagacious politicians like Henry Wilson had induced the Free State men to give up their separate organization and take part in the election of the Territorial Legislature. They carried the election by two to one. But again fraud was attempted. From a hamlet with eleven houses was sent in a return of 1624 votes,—the names, it was found, copied in alphabetical order from a Cincinnati directory; and from another district an equally dishonest return was made; and the two would have changed the majority in the Legislature. This catastrophe was averted by the firmness of Walker, who threw out the fraudulent returns. In this he was vainly opposed by the Territorial chief justice, a servile partisan. After this the President turned against Walker and in the following December drove him into resignation. He protested in an indignant letter that the President had betrayed and deserted him, and that his policy had saved the Territory from civil war and brought the entire people together for the first time in a peaceable election.

Indeed the troubles of Kansas were practically ended. The people rejected the Lecompton constitution and its land grant by a heavy majority. They framed and ratified a Constitution of their own at Wyandotte, and came into the Union as a free State when secession had left the Republicans in full control of Congress in the winter of 1860-1.

The accession of Kansas to the Free States was full of significance. It was fresh evidence that in the actual settlement of the new country the inevitable preponderance lay with free labor. Its industrial advantage could not be overborne by a hostile national administration, nor by the inroads of aggressive and lawless neighbors. The management of their affairs by the Free State settlers was a great vindication of the methods of peace. The guerrilla warfare undertaken by Brown and his party had won no real advantage. The decisive triumph came from the habitual self-control of the Free State men, their steady refusal to resist the Federal authority, and the sympathy they thus won from the peaceful North, turning at last the scales of Congressional authority in their favor. Thus far, peace and freedom moved hand in hand.

The tide in the country was running strongly with the Republicans. The alliance with Douglas failed, because his price was the Senatorship from Illinois, and the Republicans of that State were "willing to take him on probation, but not to make him the head of the church." They named Abraham Lincoln as their candidate for the Senatorship, and these two men held a series of joint debates which fixed the attention of the country; with the result that Lincoln won the popular majority, but Douglas the Legislature and the Senatorship. In the country at large, the Republicans made such gains, in this election of 1858, that they won the control of the National House. The Whigs were defunct, the Americans were a dwindling fraction; the "Constitutional Union" party held a number who sought peace above all things; but the great mass divided between the Republicans and the Democrats. Douglas, the most dextrous of rope-dancers, had regained his place as the foremost man in his old party. The Republicans held firmly to their constitutional principles; but the depth of the antagonism of the two industrial systems grew ever more apparent. Lincoln had declared: "A house divided against itself cannot stand. I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved, I do not expect the house to fall, but I do expect it will cease to be divided. It will become all one thing or all the other." Seward, too, had said: "The United States must and will, sooner or later, become either entirely a slave-holding or entirely a free-labor nation." Between the two systems there was an "irrepressible conflict." But he added that he desired and expected the triumph of freedom "not otherwise than through the action of the several States, co-operating with the Federal Government, and all acting in conformity with their respective constitutions." Yet over these utterances of Lincoln and Seward some conservatives in the party shook their heads, as liable to be misinterpreted and to needlessly alarm the South. But men more radical than Lincoln and Seward were coming to the front. Sumner was silenced for the time, but among the leaders of Massachusetts now appeared John A. Andrew, her future war Governor, large-brained and large-hearted. In this year, 1858, at the State convention of which he was president, he said, "I believe in the Republican party because I believe that slavery, the servitude of humanity, has no business to exist anywhere; because it has no business to exist and no right to be supported where the sun shines or grass grows or water runs."

One of the sensations of the time was a book, dated 1857, which showed a rift in the solid South. It was The Impending Crisis, by Hinton Rowan Helper, a North Carolinian by long descent, birth, and residence; the son of "a merciful slave-holder"; writing at the age of twenty-seven. His standpoint was that of the non-slave-holding Southern white. "Yankee wives"—so he begins—"have written the most popular anti-slavery literature of the day. Against this I have nothing to say; it is all well enough for women to give the pictures of slavery; men should give the facts." His method is largely the comparison of the industrial progress of the two sections, and his chief arsenal is the United States census. North and South started, he says, with the establishment of the government and the North's abolition of slavery, with advantage in soil, climate, rivers, harbors, minerals, forests, etc., on the side of the South, but in sixty years she has been completely outstripped. He brackets Virginia and New York; at the start, Virginia had twice the population of New York; now New York's population doubles Virginia's. Virginia's exports have been about stationary at $3,000,000; New York's have risen from $2,500,000 to $87,000,000. New York almost trebles Virginia in valuation, even including slaves. So he compares North Carolina and Massachusetts; the empty port of Beaufort and the teeming one of Boston; the northern State with a production from manufactures, mines, and mechanic arts double the whole cotton crop of the South. So he compares South Carolina and Pennsylvania. Again: Sail down the Ohio, and you will find the lands on the right bank worth double and treble those on the left bank,—slavery makes all the difference. The hay crop of the free States is worth more in dollars and cents than all the cotton, tobacco, rice, hay, and hemp, in the slave States. The marble and free-stone quarries in New England yield more wealth than all the subterranean deposits in the slave States. And so for many pages he goes on piling Pelion upon Ossa with his figures. He pictures the South's economic dependence: "In infancy we are swaddled in Northern muslin; in childhood we are humored with Northern gewgaws; in youth, we are instructed out of Northern books; at the age of maturity, we sow our wild oats on Northern soil. . . . In the decline of life we remedy our sight with Northern spectacles, and support our infirmities with Northern canes; in old age we are drugged with Northern physic; and finally, when we die, our inanimate bodies, shrouded in Northern cambric, are stretched upon the bier, borne to the grave in a Northern carriage, entombed with Northern spade, and memorized with a Northern slab!"

Land in the Northern States averages $28.07 an acre in value, and in the Southern States it is $5.34. The difference measures the robbery committed on a community of 10,000,000 by the 350,000 slave-holders. These "chevaliers of the lash" he arraigns with a rhetoric compared to which Sumner's and Phillip's words were pale. The slave-holders are worse, he declares, than thieves, for they steal from all. They are worse than common murderers, for they issue to themselves licenses to murder; the slave who resists may be killed. He is for no half-measures,—he avows himself a free-soiler, an emancipationist, an abolitionist, a colonizationist. "The liberation of five millions of 'poor white trash,' from the second degree of slavery, and of three millions of miserable kidnapped negroes from the first degree, cannot be accomplished too soon." The process is simple and easy; emancipation will be followed by such an instant rise in all values and in general prosperity that the slave-owners themselves will be recouped. Let each of these, he says, give to each slave his freedom and $60 in money; half that sum will transport him to Liberia, whither all should go. He foresees the tempest which his book will arouse. "What are you going to do about it? Something dreadful as a matter of course? Perhaps you will dissolve the Union. Do it, if you dare! Our motto, and we would have you understand it, is the abolition of slavery and the perpetuation of the American Union. If by any means you do succeed in your treasonable attempt to take the South out of the Union to-day, we will bring her back to-morrow,—if she goes away with you, she will return without you." In his closing paragraph he predicts the election to the Presidency in 1860 of some anti-slavery Southerner, of the type of Cassius M. Clay, or James G. Birney, and in 1864, of a Northerner like Seward or Sumner. And he thus concludes: "Furthermore, if in these or in any other similar cases the oligarchy do not quietly submit to the will of a constitutional majority of the people, as expressed at the ballot-box, the first battle between freedom and slavery will be fought at home—and may God defend the right!"

The book raised a tempest of denunciation. The more it was denounced the more it was read. It was easily "the best-selling book" of the time. The concrete reply of the party criticised was first to drive Helper out of North Carolina. Next his book was condemned in a resolution proposed at the opening of Congress in 1859-60, and aimed especially at John Sherman, of Ohio, the Republican candidate for speaker, who had signed a qualified recommendation of the book. After a long contest the Republicans dropped Sherman for Pennington, of New Jersey, whom they elected. The Impending Crisis was a portent and an impulse of the coming catastrophe.