CHAPTER FIVE:
The Negro and the Territorial Dispute
The Undeserved Vilification of Roger B. Taney
Perhaps nothing is more hotly debated today, and less understood, than the historical status of the Negro in the American political system. Groups such as the NAACP and Jesse Jackson's Rainbow-PUSH Coalition, among a host of others, raise and expend huge amounts of money each year promoting the claim that Blacks were guaranteed by America's founding documents — particularly the Declaration of Independence and the Constitution — an absolute social and political equality with Whites. It is common for these modern agitators to single out the old South as the source of Negro oppression, completely ignoring the historical facts which clearly testify to the nearly universal acceptance, not only in the South, but in the North and abroad, of what is routinely denounced in our day as "racism." In fact, as the next chapter will demonstrate, the supposed Northern champions of freedom in the mid-Nineteenth Century came much closer to the modern definition of "racist" in their attitude towards the Black man than did their Southern slave-holding counterparts.
In the famous 1857 Supreme Court case Dred Scott v. Sandford, Chief Justice Roger B. Taney discussed the question of "whether descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States." In over fifty pages of sound constitutional and historical arguments, Taney concluded that these people "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States," and that "they were at that time [of ratification] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."(1)
Predictably, Taney was and continues to be attacked for writing this opinion, as are those who so much as mention it in a favorable light. Nowhere was this done with more ferocity than in the Northern press. On 16 March 1857, the Boston Atlas equated Taney with "Arnold, the traitor," and the Boston Chronicle labeled the concurring majority of the Court as "great scoundrels."(2) The New York Independent of 26 March 1857 denounced the decision as "a treasonable attempt to alter the law"(3) and on 12 April as "the most abandoned corruption and putridity of national selfishness and avarice" and "the very faeces of moral depravity on the dung hill of the world."(4) The February 1865 issue of the Atlantic Monthly predicted that Taney "will most likely, after the traitor leaders [of the Southern Confederacy], be held in infamous remembrance" because he "covered the most glorious pages of his country's history with infamy, and insulted the virtue and intelligence of the civilized world."(5) It became common practice among Northern lawyers to declare the decision to be nothing more than obiter dictum.(6) This assertion was eventually written into the history books after the War of 1861-1865. For example, Albert Bushnell Hart, author of several volumes on American history which were used in the public schools at the beginning of the Twentieth Century, described the decision as "so forced and so contrary to historical facts that the Republican leaders declared that they were not bound by it,"(7) and James Ford Rhodes castigated Taney's arguments as "inhuman" and "a great piece of specious reasoning... outraging precedent, history and justice."(8)
It is extremely difficult for the modern American to fully comprehend the political complexities of this time period and nearly impossible for the average student of history to discern the truth beneath the mountains of anti-Southern propaganda which have been produced over the last century and a half. Consequently, the prevailing belief is that the conflict between North and South was nothing more than a dispute over slavery touched off by the Dred Scott decision. The following quote from a recent Christian periodical in Denver, Colorado epitomizes the common misconceptions regarding this Supreme Court decision which persist to this day:
The decision, with the majority opinion written by Justice Roger B. Taney, was that Dred Scott was not a "person" in the same sense that a white man was a "person," and therefore could not be a citizen of Missouri or of the United States. A slave was not a citizen. Justice Taney and Justice Blackman both used the concept of "not quite human" to deny human rights to an entire class of human beings, declaring them non-persons under the law.
It took a Civil War and hundreds of thousands of lives to overturn Justice Taney's mistake.... The evil of slavery was made possible by the underlying belief that there are some people who aren't really people — the heinous concept of "subhuman."(9)
The above writer's attempt to equate the Dred Scott decision with that of Roe v. Wade of 1973, which prohibited the States from legislating against abortion, is sheer fabrication.(10) Contrary to the above assertion, Taney nowhere applied the term "not quite human" to the Negro slaves, nor is such a concept found anywhere in the text of this decision. Instead, the clear intent of Court's proceedings was to determine Dred Scott's ability to sue for his freedom on the basis of the Common Law rights guaranteed only to State Citizens in the Constitution. Taney's was not an immoral decision, or even a "mistake," but was merely an exposition of the law of the land, which he had sworn to uphold and was duty-bound to defend. What is not realized by the sometimes well-meaning, yet invariably ignorant, advocates of "political correctness" in our day, is that the subject of citizenship was, and remains, a political question over which no constitutional court in the land, the Supreme Court included, ever had the authority to adjudicate.(11) Who could become a Citizen of one of the several States, and hence, a Citizen of the United States within the constitutional definition of the term, had already been declared once and for all by the first Congress in the Naturalization Act of 26 March 1790:
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled,
That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the Constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens;
Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States;
Provided also, That no person heretofore proscribed by any state, shall be admitted a citizen as aforesaid, except by an act of the legislature of the state in which such person was proscribed.(12)
This restriction of citizenship to "free white persons" was reiterated when the second Naturalization Act replaced the first on 29 January 1795 and was repeated in all subsequent naturalization acts up to 1906, except for a brief period from 1873 to 1875, when it was omitted by mistake.(13)
According to John Quincy Adams, "The condition of the blacks being in this Union regulated by the municipal laws of the separate States, the Government of the United States can neither guarantee their liberty in the States where they could only be received as slaves nor control them in the States where they would be recognized as free."(14) If the Negroes, whether slave or free, were under the local jurisdiction of the States, but beyond the protection of the general Government, it necessarily follows that they were not Citizens under the Constitution and did not and could not enjoy any of the political rights which that compact guaranteed to White Americans. In his widely-used Law Dictionary, John Bouvier wrote, "All natives are not citizens of the United States; the descendants of the aborigines, and those of African origin, are not entitled to rights of citizens.... [The] Constitution does not authorize any but white persons to become citizens of the United States; and it must therefore be presumed that no one is a citizen who is not white."(15) In addition to the above-quoted Naturalization Act of 1790, we find additional Acts of Congress which state that "no other than a free white person shall be employed in carrying the mail of the United States" (1802),(16) that restrict suffrage and the office of mayor "in the town of Alexandria" (Washington, D.C.) to "free white male citizens" (1804),(17) that extend the right of suffrage in the Mississippi territory to "free white male inhabitants above the age of twenty-one years" (1808),(18) and that authorize "free white male citizens of the United States" to form "a constitution and State government for the Territory of Orleans" (Louisiana).(19)
The several States likewise adopted this "free white male citizen" restriction in their respective constitutions:
No free negro, free mulatto, or free person of mixed blood, descended from negro ancestors, to the fourth generation inclusive (though one ancestor of each generation may have been a white person), shall vote for members of the senate or house of commons.(20)
Every free white man at the age of twenty-one years, being a native or naturalized citizen of the United States, and who has been an inhabitant of the State for twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for a member of the senate for the district in which he resides.(21)
Every white male citizen of the United States, and every white male citizen of Mexico who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro, on the thirtieth day of May, 1848, of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law....(22)
In all elections not otherwise provided for by this constitution, every white citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months immediately preceding such election; and every white male of foreign birth of the age of twenty-one years and upwards, who shall have resided in the United States one year, and shall have resided in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections authorized by law.(23)
In light of these facts, it is undeniable that the U.S. Supreme Court was correct when it was declared in 1922 that the exclusion of non-White people from the privileges of citizenship under the Constitution was "a part of our history as well as our law, welded into the structure of our national polity by a century of legislative and administrative acts and judicial decisions."(24)
The Territorial Dispute Between North and South
Although Justice Taney's denial that citizenship was a status enjoyed by Blacks under the Constitution is what holds the attention of modern Americans, his critics in the Nineteenth Century mainly focused their attention on another issue with which the Court was dealing in the Dred Scott case of 1857. It was the sensational charge of Abraham Lincoln, who was at the time merely a political upstart from Illinois, that this case was a "piece of machinery" concocted by pro-slavery politicians — namely Senator Stephen Douglas, ex-President Franklin Pierce, current President James Buchanan, and Chief Justice Taney — to force slavery upon the free States of the North.(25) According to Lincoln, the "logical conclusion" to Taney's decision was "that what Dred Scott's master might lawfully do with Dred Scott, in the free State of Illinois, every other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in any other free State."(26) He suggested that the Dred Scott decision was merely a stepping-stone to "another Supreme Court decision, declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits."(27) He went on to state:
Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome, or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State. To meet and overthrow the power of that dynasty, is the work now before all those who would prevent that consummation. That is what we have to do.(28)
Contrary to Lincoln's absurd claim that pro-slavery forces were conspiring with the Supreme Court to make the United States "all one thing" — all slave States — there is overwhelming evidence that the Dred Scott suit was instead the brain-child of the radical Northern faction which had long sought to alter the system of American government and which had assumed the garb of the Abolitionist movement in the 1830s in order to conceal its true identity. A great advance toward this goal had been achieved with the passage of the Missouri Compromise of 1820. This Act of Congress, which the elderly Thomas Jefferson lamented as "the knell of the Union,"(29) admitted Missouri as a slave State on the stipulation that slavery be prohibited in the rest of the Territory comprising the Louisiana Purchase and north of thirty-six degrees and thirty minutes, north latitude — what has since been known as the "Mason-Dixon line." Consequently, slavery was prohibited from nearly one million square miles of territory and allowed in but one-fourth as many square miles. According to Edwin Sparks, "This meant one or possibly two States for the South, and at least six or seven for the North."(30)
This flagrant attempt to disrupt the sectional balance passed with the aid of a small and reluctant majority of Southern votes, but still, the Northern faction was unsatisfied. On 8 August 1846, David Wilmot of Pennsylvania submitted to Congress an amendment to a pending military bill, the purpose of which was to prohibit slavery in the territory just acquired from Mexico,(31) even though a large portion thereof was below the line previously agreed to by both sections in the Missouri Compromise. The so-called Wilmot Proviso was defeated, but the question arose again with renewed vigor three years later. In what was "the most stormy of its sessions,"(32) the debate raged whether Congress was bound by the Constitution when legislating for the Territories as well as for the States, or whether their powers were unrestricted in that regard. The ostensible issue was over the constitutional ability of Congress to prohibit slavery in the Territories, but behind this mask was really the ever-present political struggle between the monarchical (consolidationist) school of Hamilton and the republican (States rights) school of Jefferson. Daniel Webster, from whom we will hear more in a later chapter, declared:
There is no such thing as extending the Constitution.... It cannot be extended over anything except the old States and the new States that shall come in hereafter when they do come in.... It seems to be taken for granted that the right of trial by jury, the habeas corpus and every principle designed to protect personal liberty, is extended by force of the Constitution itself over new territory. That proposition cannot be maintained at all.... [It is] altogether impractical and utterly impossible to extend the Constitution of the United States to the Territories.(33)
The response of John C. Calhoun, heir-apparent of the Jeffersonian school, was as follows:
...[T]he simple question is, does the Constitution extend to the territories, or does it not extend to them? Why, the Constitution interprets itself. It pronounces itself to be the supreme law of the land.... [T]he territories of the United States are a part of the land. It is the supreme law, not within the limits of the States of this Union merely, but wherever our flag waves — wherever our authority goes, the Constitution in part goes, not all its provisions certainly, but all its suitable provisions. Why, can we have any authority beyond the Constitution?... [I]f the Constitution does not go there, how are we to have any authority or jurisdiction whatever? Is not Congress the creature of the Constitution?... And shall we, the creature of the Constitution, pretend that we have authority beyond the reach of the Constitution?(34)
Calhoun's logic was impeccable: Congress, which was strictly a body of delegated powers, could not create its own powers ex nihilo or set the limits of such powers at its own pleasure. And, if Congress was so bound with regards to the Territories, it logically followed that they could pass no law whatsoever which would deprive or restrict the enjoyment of constitutionally-protected property within the Territories. Along these lines, Calhoun introduced the following resolutions into the Senate on 19 February 1847:
Resolved, That the territories of the United States belong to the several States composing this Union, and are held by them as their joint and common property.
Resolved, That Congress, as the joint agent and representative of the States of this Union, has no right to make any law, or do any act whatever, that shall directly, or by its effects, make any discrimination between the States of this Union, by which any of them shall be deprived of its full and equal right in any territory of the United States, acquired or to be acquired.
Resolved, That the enactment of any law which, directly or by its effects, deprive the citizens of any of the States of this Union from emigrating, with their property, into any of the territories of the United States, will make such discrimination, and would, therefore, be a violation of the Constitution and the rights of the States from which such citizens emigrated, and in derogation of that perfect equality which belongs to them as members of this Union, and would tend directly to subvert the Union itself.(35)
Calhoun's argument was vindicated in 1852 by an unlikely source: the supreme court of the newly-formed free State of California. In a case involving the status of two Negroes who had been brought as slaves into California while still in its territorial condition, the court determined that, notwithstanding the adoption of an anti-slavery State constitution, these two men remained in bondage. In his concurring opinion, Justice Alexander Anderson wrote:
The institution of slavery in the United States is both political and municipal.... Slaves were recognized by the Constitution of the United States as property, and protected.... It is appropriate to repeat, that the political character of the institution of slavery goes with the extent of the national territory wherever that is; and the constitutional rights and eminency of the Republic prevail at the moment of the accession of new territory. Congress may modify the forms in which it shall be exercised, and regarded; but this must be "sub modo," pursuant to that instrument itself.... The property here brought into question is that of slaves. The Constitution of the United States was in full force here. Slaves were as much recognized by that as property, as any other objects whatever....
When the United States acquired the Territory of California, it became the common property of all the people of all the States, and the right of emigration of every species of property belonging to the citizen was inherent with its use and possession. By the fifth article of the amendments of the Constitution, it is expressly provided "that no person shall be deprived of his property without due process of law...." These negroes, therefore, being property as before shown when brought into California so remained....
It was the vast and unexampled discovery of gold which brought together an excited population. The man of the North came with his capital in the shape of bales of goods — he of the South sometimes with his slaves. The course of the argument now made finds equal authority and protection for both, under the broad shield of the common Constitution; and that the property of neither can be taken by a surprise, or a strategy, nor without just compensation, and that both had equal rights to come to this golden and sunny land.(36)
Stephen Douglas and the Kansas-Nebraska Act
The sectional tug-of-war began again when Stephen Douglas introduced the Kansas-Nebraska bill on 4 January 1854. This bill was an expression of the doctrine of "popular sovereignty," which took the middle ground between the Northern "free soil" position that Congress had the power to exclude slavery from the Territories, and the Southern position that the Government was required by the Constitution to protect slave property in the Territories. According to Douglas, "[I]n my opinion the people of a Territory can, by lawful means, exclude slavery from their limits prior to the formation of a State constitution.... [U]nder the Constitution, the people have the lawful means to introduce it or exclude it as they please, for the reason that slavery cannot exist a day... unless it is supported by local police regulations. Those police regulations can only be established by the local legislature...."(37) Thus, the decision whether to make the two new States of Kansas and Nebraska slave or free would be denied to Congress and left in the hands of the inhabitants applying for admission to the Union. This bill, passed after nearly five months of heated debate, also contained a repeal of the previous Missouri Compromise, which was declared "inoperative and void" and reaffirmed the doctrine that the people are "perfectly free to... regulate their domestic institutions in their own way, subject only to the Constitution of the United States."(38)
The passage of this law sent the North into an uproar. Summing up the fury of the anti-slavery forces, Salmon P. Chase denounced the legislation as "a gross violation of a sacred pledge; as a criminal betrayal of precious rights; as part and parcel of an atrocious plot to exclude from a vast unoccupied region immigrants from the Old World and free laborers from our own States, and convert it into a dreary region of despotism, inhabited by masters and slaves."(39) Horace Greeley's New York Tribune addressed Northern Congressmen with these intemperate words:
We urge, therefore, unbending determination on the part of Northern members hostile to this intolerable outrage, and demand of them, in behalf of peace — in behalf of freedom — in behalf of justice and humanity — resistance to the last. Better that confusion shall ensue in the national councils — better that Congress should break up in wild disorder — nay, better that the Capitol itself should blaze by the torch of the incendiary, or fall and bury all its inmates beneath its crumbling ruins, than that this perfidy and wrong should be finally accomplished [emphasis in original].(40)
Even though he personally viewed slavery as "a curse beyond computation, to both white and black,"(41) and despite his desire to "sustain the Constitution of my country as our fathers have made it" and to "yield obedience to the laws, whether I like them or not,"(42) Stephen Douglas was lambasted for being "pro-slavery" and burned in effigy throughout the North. To concede that the slave property of Southerners was constitutionally secure within the Territories as well as within the States, or even that the inhabitants of the Territories should be left to decide for themselves whether to allow slavery or not, would be to surrender for all time the hope of excluding Negro laborers from the Territories which Free-Soilers, such as David Wilmot, fervently hoped to open to free White labor only. In direct response to the Kansas-Nebraska Act, the so-called "Republican" party was formed on 6 July 1854 by former Whigs, disaffected Democrats, and Free-Soilers "on the sole issue of the non-extension of slavery."(43) As was seen in the previous chapter, this ill-named faction was, according to Wendell Phillips, "the first sectional party ever organized in this country" and "a party of the North pledged against the South." To drive the South to its political knees was the stated goal of its organizers, chief among whom was Abraham Lincoln.
The Truth Behind the Dred Scott Case
Referring back to the Webster-Calhoun debate regarding the extension of the Constitution over the Territories, Elbert Ewing pointed out, "There was no decision of the Supreme Court, the arbiter of last resort in such questions, by which it could be known which contention was the correct one, so the great party leaders reargued their respective positions with each new occasion."(44) Thus, the anti-slavery party brought the question before the Court in 1857 by stealth and deception with the hopes of overturning the Kansas-Nebraska Act and silencing their opponents once and for all.(45) In August of the previous year, when the Dred Scott case was still pending, Lincoln addressed the South as follows: "The Supreme Court of the United States is the tribunal to decide such a question, and we will submit to its decisions; and if you do also, there will be an end of the matter. Will you? If not, who are the disunionists — you or we?"(46) Of course, the scheme back-fired and the debate was legally settled in favor of the South. In addition to proving that Negroes could not be Citizens under the Constitution, Taney wrote:
The principle upon which our governments rest, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a general government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the power granted to it, throughout the dominion of the United States.... What it acquires, it acquires for the benefit of the people of the several States who created it... and when a Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it.... The Territory being a part of the United States, the government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers nor lawfully deny any right which it has reserved....
Taney concluded by declaring the Missouri Compromise "not warranted by the Constitution, and... therefore void,"(47) thereby closing the door forever on Congress' ability to exclude slavery from the Territories. The agenda of the Northern sectionalists had thus suffered a great setback, as evidenced by the indignant howls and gnashing of teeth which commenced from that quarter, and Jeffersonian republicanism seemed to have finally triumphed. However, rather than producing a humble submission to the decision of the highest tribunal in the land, as required by the Constitution, "the whole effect of the Dred Scott decision was to develop a more determined type of anti-slavery agitation."(48) Reversing his position of two years before, Lincoln declared in behalf of his party, "We oppose the Dred Scott decision... as a political rule.... The President and Congress are not to be bound by it. We propose so resisting it as to have a reversal of it if we can, and a new judicial rule established upon the subject."(49) From that point onward, the North became set in its flagrant and determined rebellion to the "supreme law" of the Union, making a sectional schism inevitable.
Again, it must be stressed that there was no real concern for the plight of the Negro slave in the mind of those who instigated the suit. This was proven later by the Republican platforms of 1856 and 1859 which proposed that slavery be made "express and irrevocable" in the States where it already existed.(50) Furthermore, Dred Scott, the representative slave in the case, was merely used as a political pawn in a colossal chess game of sectionalism. In his attempt to prove a conspiracy "between the Democratic owners of Dred Scott and the Judges of the Supreme Court and other parties involved" to use the case to spread slavery throughout the Union, Abraham Lincoln had feigned ignorance of the fact that the hapless Black man was actually owned by Dr. C.C. Chaffee, a Bostonian Abolitionist and member of Lincoln's own party who could have emancipated him at any time. Lincoln refused to admit to this deception even after he was publicly confronted by Stephen Douglas,(51) and the myth of Dred Scott's helpless condition and an alleged pro-slavery conspiracy survives to this day in most history books. For example, historian William C. Davis wrote:
The case in question went back almost two decades — to a time when the Missouri Compromise... was still the law of the land. At stake was the status of an elderly black man named Dred Scott. In 1834 Scott's owner — an Army surgeon named John Emerson — took his slave from Missouri to a military post in Illinois, though slavery was outlawed in that state. Two years later, transferred to another post, Emerson took Scott to the Wisconsin Territory, where slavery was also outlawed. Emerson eventually brought Scott back to Missouri, where the surgeon died in 1843.
Three years later Scott, with the help of local antislavery lawyers, sued Emerson's heirs for his freedom, contending that his years in Illinois and Wisconsin had made him free. Scott lost his case, then won on appeal in 1850, only to see the Missouri state supreme court reverse the appeal and once again consign him to slavery. Scott thereupon took his case to the federal courts, where he lost again in 1854. After another two years the U.S. Supreme Court agreed to hear the case....
Chief Justice Roger B. Taney, the 79-year-old scion of a wealthy, slave-owning Maryland family, announced the Court's decision on March 6. As to Scott's right to sue, Taney held that he had none.... As to Scott's freedom, Taney held that he had none of that either....
The reaction was immediate. Proslavery people hailed the decision as the final vindication of their rights. From the antislavery states came cries of outrage. The Dred Scott ruling had come from a Supreme Court dominated by Southerners, rekindling fears of a "slave power" conspiracy in the federal government — a plot by a wealthy, cruel minority to thwart democratic rule by the majority.(52)
In the above account, one can readily see a regurgitation of Lincoln's discredited conspiracy theory, repackaged for an unsuspecting modern audience. Furthermore, what Davis failed to mention was the fact that "Emerson's heir" was none other than his widow, who subsequently married Chaffee, thereby transferring legal ownership of Scott to "a Black Republican freedom-shrieking member of Congress."(53) Chaffee and his new wife refused to accept Scott's offer to purchase his freedom in cash and good security,(54) and, according to James Randall, "the ownership of Scott and his family was technically transferred by a fictitious sale to Mrs. Chaffee's brother, J.F.A. Sanford of New York, so that an abolitionist should not appear in the Federal courts in the role of slaveowner."(55) Furthermore, on 26 May 1857 — not two months after the Supreme Court decision — Scott was quietly and carelessly turned onto the streets of St. Louis, Missouri to fend for himself, further proving the expressed concern of the anti-slavery forces for the welfare of the Negroes to be a sham.(56) In the words of the St. Louis Republic, "Old and worn out, Scott will have a hard time to make a living if he is forced to depend upon the charities of Black Republicans and abolitionists."(57)
Finally, the feigned apprehension of the Northern Abolitionists and their allies, such as Lincoln, that Southern slaveholders would begin to flock northward with their slaves ignored the clear historical fact that slavery had died out in the Northern States and that the slave population had shifted almost entirely to the Gulf States primarily because of the inability of the Negro to acclimatize to the harsh Northern climate and his natural affinity for the near-tropical climate of the deep South.(58) Furthermore, as pointed out by Josiah J. Evans of South Carolina, slave labor was not suited for the agriculture of the Territories: "There is no pretense that any one of the great staples that constitute the great material of our foreign commerce, can be cultivated anywhere within the limits of these Territories outside of the Territory of Kansas."(59) There was absolutely no reason at all for Southern plantation owners to move North with their slaves, and they had no inclination to do so. There was also no real inclination for most slaveholders to migrate into the Territories: "...[T]hey demanded a right which they could not actively use — the legal right to carry slaves where few would or could be taken. The one side fought rancorously for what it was bound to get without fighting; the other, with equal rancor, contended for what in the nature of things it could never use."(60) Consequently, the "whole controversy over the Territories... related to an imaginary negro in an impossible place."(61) The complaint of the South against the Northern anti-slavery forces for attempting to exclude the institution from the Territories really arose from a desire to maintain the integrity of the several States against the ever-increasing centralization of political power in Washington, D.C.(62) As noted by L.Q.C. Lamar of Mississippi, the South rightly looked beyond the slavery issue and saw the activities of the North as an attack on the Constitution itself:
We of the South, under the necessities of our position, see what is our mission. Regarding that Constitution as the instrument of our protection, we are determined to maintain its sacred compromises. You being the majority, and looking upon it as a restraint upon your power, have taken issue with that Constitution and are attempting to throw off its restrictions. That is the fight between us; and we are ready to meet it here....
I am no disunionist per se. I am devoted to the Constitution of this Union, and so long as this Republic is a great tolerant Republic, throwing its loving arms around both sections of the country, I, for one, will bestow every talent which God has given me for its promotion and its glory. Sir, if there is one idea touching merely human affairs, which gives me more of mental exultation than another, it is the conception of this great Republic, this great Union of sovereign States, holding millions of brave, resolute men, in peace and order, not by brute force, not by standing armies, indeed by no visible embodiment of law, but by the silent omnipotence of one great, grand thought — the Constitution of the United States. That Constitution is the life and soul of this great Government..... That is our platform. We stand upon it. We intend to abide by it and to maintain it, and we will permit no persistent violations of its provisions.... When it is violated, persistently violated, when its spirit is no longer observed upon this floor — I war upon your government; I am against it. I raise then the banner of secession, and I will fight under it as long as the blood flows and ebbs in my veins.(63)
Endnotes
1. Dred Scott v. John A. Sandford (1857), 80 U.S. 19 How. 393, 422.
2. Boston Atlas and Chronicle, 16 March 1857; quoted by Elbert William R. Ewing, The Legal and Historical Status of the Dred Scott Decision (Washington, D.C.: Cobden Publishing Company, 1908), pages 199-200.
3. New York Independent, 26 March 1857; quoted by Ewing, Status of the Dred Scott Decision, page 7.
4. New York Independent, 12 April 1857; quoted by Ewing, op. cit., page 202.
5. Atlantic Monthly, February 1865; quoted by Ewing, op. cit., page 7.
6. James G. Blaine, Twenty Years of Congress: From Lincoln to Garfield (Norwich, Connecticut: The Henry Bill Publishing Company, 1884), Volume I, page 131. Black's Law Dictionary (Sixth Edition) defines this phrase as follows:
The word [dictum] is generally used as an abbreviated form of obiter dictum, "a remark by the way"; that is, an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion. Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of an adjudication.... Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself (page 454).
7. Albert Bushnell Hart, quoted by Ewing, Dred Scott Decision, page 7.
8. James Ford Rhodes, quoted by Ewing, ibid.
9. Terry Martin, Colorado Christian News, January 1996, page 24.
10. Ironically, Roe v. Wade is based on the so-called Fourteenth Amendment, which itself presupposes the veracity of Justice Taney's assertions in Scott v. Sandford regarding the Negro race in America (see Chapter Nineteen). Whether Martin was expecting that his readers would not read Taney's words for themselves, or whether he was merely regurgitating second-hand information which he did not bother to verify himself, is ultimately irrelevant. What is relevant is that this sort of dishonest and sloppy reporting is routinely passed off as journalism, and rarely is it ever challenged.
11. According to Black's Law Dictionary (Sixth Edition), political questions are "[q]uestions of which courts will refuse to take cognizance, or to decide, on account of their purely political character, or because their determination would involve an encroachment upon the executive or legislative powers" (page 1158). In the words of Taney himself:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted (Scott v. Sandford).
12. An Act to Establish an Uniform Rule of Naturalization; Statutes at Large For the United States of America, Volume I, page 103.
13. Ozawa v. United States (1922), 43 S.Ct. 65; 260 U.S. 178; 67 L.ed. 199, supra, at 178.
14. John Quincy Adams, in American State Papers: Foreign Relations (Washington, D.C.: Gales and Seaton, Printers, 1832), Volume IV, page 400.
15. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union (Philadelphia, Pennsylvania: J. B. Lippincott Company, 1839), Volume I.
16. Statutes at Large, Volume I, page 191.
17. Op. cit., pages 256, 258.
18. Op. cit., page 455.
19. Op. cit., page 641.
20. Constitution of North Carolina (1776), Article I, Section 3.
21. Constitution of North Carolina (1865), Article I, Section 3. This constitution was struck down by the Reconstruction Acts of 1867.
22. Constitution of California (1848), Article 2, Section 1.
23. Constitution of Oregon (1857), Article II, Section 2.
24. Ozawa v. United States, supra, at 207.
25. Lincoln, speech delivered at Springfield, Illinois on 16 June 1858; in Robert W. Johannsen (editor), The Lincoln-Douglas Debates of 1858 (New York: Oxford University Press, 1965), pages 14-21.
26. Lincoln, op. cit., page 17.
27. Lincoln, op. cit., page 19.
28. Lincoln, op. cit., pages 19-20.
29. Thomas Jefferson, letter to John Holmes, 22 April 1820; in Merril D. Peterson (editor), Thomas Jefferson: Writings (New York: Library of America, 1984), page 1435. In another letter to James M. Mason, 13 April 1820, Jefferson expressed the fear that the political polarization of the States along sectional lines "would kindle such mutual and mortal hatred, as to render separation preferable to eternal discord" (quoted by Virginia Mason, The Public Life and Diplomatic Correspondence of James M. Mason [New York: Neal Publishing Company, 1906], page 61).
30. Edwin Earle Sparks, Expansion of the American People (Chicago, Illinois: Scott, Foresman and Company, 1901), page 201 (footnote).
31. Congressional Globe, 8 August 1846 (Twenty-Ninth Congress, First Session), page 1217.
32. Randall, Civil War and Reconstruction, page 119.
33. Daniel Webster, quoted by Ewing, Dred Scott Decision, pages 21-22.
34. John C. Calhoun, Congressional Globe, 24 February 1849 (Thirtieth Congress, Second Session), page 273.
35. Calhoun, quoted by Lunt, Origin of the Late War, pages 191-192.
36. In re Perkins, 2 Hepburn's California Reports, 452, 455, 459.
37. Stephen Douglas, speech delivered at Freeport, Illinois on 27 August 1858; in Johannsen, Lincoln-Douglas Debates, page 88.
38. Statutes at Large, Volume X, page 277.
39. Salmon P. Chase, speech delivered in the Senate on 19 January 1854; in J.W. Schuckers, Life and Public Services of Salmon P. Chase, United States Senator and Governor of Ohio, Secretary of the Treasury, and Chief Justice of the Supreme Court (New York: D. Appleton and Company, 1874), page 141.
40. New York Tribune, quoted by Alexander H. Stephens, speech delivered in the House of Representatives on 28 June 1856; Congressional Globe (Thirty-Fourth Congress, First Session), page 724.
41. Stephen Douglas, quoted by Johannsen, Lincoln-Douglas Debates, page 7.
42. Douglas, speech delivered at Chicago, Illinois on 9 July 1858; in Johannsen, op. cit., page 32.
43. Randall, Civil War and Reconstruction, page 134.
44. Ewing, Dred Scott Decision, page 22.
45. Elbert Ewing provided the details behind the irregular suit in Chapter Two of his Dred Scott Decision.
46. Lincoln, in Howard Wilford Bell (editor), Letters and Addresses of Abraham Lincoln (New York: Unit Book Publishing Company, 1905), page 93.
47. 80 U.S., 19 Howard, 447-452.
48. Blaine, Twenty Years of Congress, Volume I, page 131.
49. Lincoln, in Bell, Letters and Addresses of Lincoln, pages 128-129.
50. Edward Stanwood, A History of the Presidency (Boston: Houghton, Mifflin and Company, 1906), page 293.
51. In his 18 September 1858 speech at Charleston, Illinois, Stephen Douglas responded to Lincoln's charge by noting:
[T]here were no Democratic owners of Dred Scott on the face of the land. Dred Scott was owned at that time by the Rev. Dr. Chaffee, an Abolition member of Congress from Springfield, Massachusetts, and his wife.... [A]s soon as the decision was announced by the court, Dr. Chaffee and his wife executed a deed emancipating him, and put that deed on record. It was a matter of public record, therefore, that at the time the case was taken to the Supreme Court, Dred Scott was owned by an Abolition member of Congress, a friend of Lincoln's, and a leading man of his party, while the defense was conducted by Abolition lawyers — and thus the Abolitionists managed both sides of the case (Johannsen, Lincoln-Douglas Debates, page 185).
52. Davis, Brother Against Brother, pages 79, 80.
53. Springfield (Illinois) Argus, 3 June 1857.
54. Ewing, Dred Scott Decision, page 29.
55. Randall, Civil War and Reconstruction, page 149.
56. St. Louis News, 8 April 1857; New York Tribune, 10 April 1857.
57. St. Louis Republic, 27 May 1857.
58. J.H. Van Evrie, White Supremacy and Negro Subordination (New York: Van Evrie, Horton and Company, 1868), Chapter Twenty.
59. Josiah J. Evans, speech in the Senate on 23 June 1856, Congressional Globe (Thirty-Fourth Congress, First Session), page 703.
60. Charles W. Ramsdell, essay: "The Natural Limits of Slavery Expansion," Mississippi Valley Historical Review (September 1929), Volume XVI, Number 2, page 163.
61. Blaine, Twenty Years of Congress, Volume I, page 272.
62. Alexander Stephens predicted in 1857 that if "the slightest encroachments of power are permitted or submitted to in the Territories, they may reach the States ultimately" (Appendix to the Congressional Globe [Thirty-Fourth Congress, Third Session], page 134).
63. L.Q.C. Lamar, speech delivered in the House of Representatives on 7 December 1859; in Congressional Globe (Thirty-Sixth Congress, First Session), page 45.
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