Only two days after Buchanan’s inauguration, at eleven o’clock on March 6, 1857, Taney and the eight black-robed justices entered the Supreme Court on the ground floor of the Capitol. Customarily, when the Supreme Court announced its opinions, it did so in splendid isolation, but on this Friday morning newspaper reporters and spectators filled the chamber. Taney, only eleven days before his eightieth birthday, began reading in a low, at times almost muted, voice from a manuscript held in his unsteady hands. For the next two hours he read the Court’s 7–2 decision.
The Court ruled, first, that Scott was not a citizen and therefore not entitled to sue in federal court. Rehearsing the long arc of history, Taney declared that blacks had “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations.” Second, the Court ruled that the U.S. Congress’s presumption of authority to exclude slavery from the federal territories was unconstitutional. To make this move, the chief justice engaged in a judicial juggling act with fact and interpretation. He had to admit that the first Congress did enact the Northwest Ordinance of 1787 forbidding slavery in those territories it covered, but that subsequent Congresses had no right to forbid slavery in future territories acquired by the United States. Third, reiterating the decisions of the lower courts, Taney found that Dred Scott was and would always be a slave according to Missouri law.
Taney may have hoped to bring peace to the beginning of Buch anan’s administration, but instead the decision unleashed a storm of protest. Republicans charged partisanship. William Lloyd Garrison, Wendell Phillips, and other leading abolitionists went further and called for immediate disunion. Their focus was on the fact that five of the nine justices came from the South. Taney and the other justices, who heretofore had toiled in near obscurity, were negatively profiled in Northern newspapers. In the South, the decision was hailed as a victory.
The fugitive slave law, passed in 1850, became a source of continuing controversy. This print shows a group of four black men—possibly freedmen—ambushed by a posse of six armed whites in a cornfield.
LINCOLN MADE NO IMMEDIATE public comment after the Court’s decision. Instead, he worked tirelessly in private to understand every facet of the opinion, just as he had done after the Kansas-Nebraska Act was announced. Understanding that the Dred Scott decision was an attack upon the principles of the new Republican Party, he bided his time, preparing to speak at the right moment.
Stephen Douglas also remained silent about the decision throughout the spring. On June 7, 1857, at the invitation of the U.S. District Court in Springfield, Douglas broke his silence. Lincoln was in the audience.
Douglas declared that the “main proposition” of the Dred Scott decision was that “a negro descended from slave parents … is not and can not be a citizen of the United States.” He attacked those who would say that the Declaration of Independence pledged equality for African-Americans. “No one can vindicate the character, motive, and conduct of the signers of the Declaration of Independence, except upon the hypothesis that they referred to the white race alone, and not to the African, when they declared men to have been created free and equal.” Douglas insisted that the signers were referring solely to white British subjects.
Douglas’s speech attracted national attention. James Gordon Bennett’s Democratic New York Herald offered an enthusiastic endorsement for more than the speech. “The curtain of 1860 is partially lifted, and we have a peep behind the scenes.” The Herald believed, “As a democratic Presidential aspirant, Mr. Douglas is now without a rival in the great Northwest.”
Lincoln, roused by Douglas’s address, decided to answer him directly. For two weeks in June, he studied in the Illinois Supreme Court’s law library on the first floor of the state capitol. He read the written opinions of the justices, drawing especially on the dissent of Associate Justice Benjamin Curtis, and perused commentaries on the decision in a variety of newspapers.
On the evening of June 26, 1857, Lincoln offered his response in the statehouse. It was not the kind of answer many expected. Walking in with law books under his arms, Lincoln’s speech was not that of a Republican firebrand, but rather a thoughtful, calm address.
He began by assuring his audience that he did not agree with those who advocated resisting the Court’s ruling. Instead, he said he believed as much as Douglas—“perhaps more”—in obedience to the rulings of the judiciary, especially when they involved matters of the Constitution. He quickly added, “But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this.”
Lincoln, relying on his legal sleuthing, instructed his audience on the true way a Supreme Court decision could be accepted by everyone. The decision would need to be unanimous, without “partisan bias,” based in precedent, and making use of agreed-upon “historical facts.” Lincoln then proceeded to demonstrate how this decision did not inspire public confidence because it failed on every one of these points.
In Lincoln’s earlier speeches, he assailed the immorality of slavery but seldom spoke of the condition of slaves. This time, in the midst of historical argument contrasting the days of the founders with the present day, Lincoln’s language became emotional when he described the bondage of African-Americans. “All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry.” What has been the result? “They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys.” Lincoln, in his evocative word portrait, declared it was “grossly incorrect” to say, as Douglas and many in the South claimed, that African-American slaves were better off today than at the birth of the nation in 1776.
One by one, Lincoln took up Douglas’s points, often quoting him at length. A main target was Douglas’s charge that those who opposed the Dred Scott decision supported racial equality. Lincoln, in the strategy of a debater, first conceded there was “a natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races.” He repeated Douglas’s infamous charge that when Republicans evoked the Declaration of Independence, they “do so only because they want to vote, and eat, and sleep, and marry with negroes!”
Now, having conceded, Lincoln objected. “Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone.” Both then and now, people quoting Lincoln often stop here. But Lincoln continued with his main point, words that many have failed to cite. “In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.” Lincoln, in step with his audience, was unwilling to call an African-American his social equal. But the power of his logic was not what he denied but what he affirmed.
Having taken on Douglas, Lincoln quickly turned to Chief Justice Taney, for both, in Lincoln’s eyes, were guilty of using and abusing the Declaration of Independence. The chief justice had stated that Jefferson’s self-evident truths that “all men are created equal” would “seem to embrace the whole human family,” but argued that the language did not mean what it said. It was “too clear for dispute that the enslaved African race were not intended to be included.”
Lincoln, momentarily backed into a corner by the argument that if the framers of the Declaration of Independence intended to include African-Americans within the phrase, “all men are created equal,” why did they not, “at once,” actually place them on an equality with the whites? Lincoln offered a striking but subtle answer: “I think the authors of that
notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity.” Lincoln said the founders did define, “with tolerable distinctiveness, in what respect they did consider all men created equal—equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’ This they said, and this meant.”
Lincoln built into his affirmation a creative tension between intent and action. He admitted that at the time of the Declaration of Independence, all men were not “then” enjoying such equality, or even that the framers had the power to “confer” such equality. Lincoln believed the framers were thinking in the future tense so that the “enforcement” of this right “might follow as fast as circumstances should permit.” Speaking in his own future tense, Lincoln looked forward to imagine how the equality of all persons might be transformed from intent to reality. He fervently hoped that the “maxim” that “all men are created equal” should be “constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting a happiness and value of life to all people of all colors everywhere.”
Although Lincoln delivered a forceful reply to Douglas, it failed to satisfy all Republicans. For some, his words seemed like a scholarly lecture that lacked the white heat of indignation. One responded that it was “too much on the old conservative order.” Not a few wondered if the genial Lincoln was a match for the firebrand Douglas.
LINCOLN’S RESPONSE to the Dred Scott decision was his only political speech in 1857. Lincoln spent the bulk of the political off-year busy in his law practice. His cases ranged from repaying a personal friendship from his New Salem days to the corporate contest between river and rail.
By the middle of the 1850s, picturesque and romantic travel on the Mississippi, which would soon inspire Mark Twain’s Huckleberry Finn and Life on the Mississippi, was in its final chapters, although not many suspected so at the time. Railroads had snaked across the land and now forded rivers by bridge. In 1854, the Rock Island Bridge Company announced plans to build the first bridge to span the Mississippi River. The proposed bridge, between Rock Island, Illinois, and Davenport, Iowa, sparked public protests stoked by river interests, such as ferry operators. In a case brought in July 1855, Associate Justice John McLean of the U.S. Supreme Court sustained the company’s rights to build the bridge. Constructed with more than 620,000 pounds of cast and wrought iron, the bridge finally opened on April 21, 1856, when a single locomotive, the Des Moines, crossed to the cheers of people and the sound of church bells on both banks of the river.
Just two weeks later, on May 6, 1856, the steamer Effie Afton, a fast and sleek side-wheeler with a deck 230 feet long and side wheels 30 feet in diameter, sailed up the Mississippi from its home port in Cincinnati. In the evening, as the pilot maneuvered his way through the snags and reefs of the mighty river swollen by spring rains, he came for the first time to the new bridge. The boat slowed as it attempted to navigate into the draw of the bridge. Suddenly, one of its side wheels struck one of the piers, and the huge boat bounced over against the pier on the other side. The impact jarred a small coal stove on board, and within minutes the boat was burning. Passengers and crew managed to escape, but the Effie Afton sank with all its cargo. The wooden trusses of the bridge caught fire, and a section fell into the river. By the next day, the entire bridge had collapsed into the Mississippi.
The destruction of the boat and bridge stirred up deep feelings on the river and in towns along the Mississippi. For the next few weeks, steamboat captains blew their whistles in that part of the Mississippi to mark the obliteration. The St. Louis Republican denounced the bridge as “an intolerable nuisance,” and editorialized, “We have rarely seen such illustration of supercilious insolence, as have been presented by advocates of the bridge.” The Chicago Tribune, taking the exact opposite opinion, responded that the facts of the case “do not warrant the incessant clamor” of those who insisted that river bridges should be torn down. “We trust that the outcries of the St. Louis and river press may be silenced.”
John S. Hurd, owner of the Effie Afton, sued to recover the value of the boat and cargo, $65,000 in total, from the Rock Island Railway, the bridge’s parent company. The ostensible parties in the suit were Hurd v. Rock Island Bridge Co., but the real opponents embraced much larger entities: Chicago, the railroads, and east-west traffic versus St. Louis, the riverboats, and north-south travel.
Norman B. Judd, general counsel for the Rock Island Railway, wanted the best lawyer possible to join him in defending the railroad. One of the five anti-Nebraska Democrats who had opposed Lincoln’s bid for the Senate in 1855, Judd had become a Republican and now served as chairman of the Republican state committee. He turned to Lincoln to lead the defense in this high-profile case that attracted national attention.
In preparation for the trial, Lincoln, with his omnivorous craving for information, traveled to the scene of the disaster. He interviewed Benjamin Brayton, Sr., the engineer who designed the bridge, about bridge construction. He sat down at the head of the new bridge with Ben Brayton, Jr., and with his long legs hanging over the edge, questioned the fifteen-year-old boy about the currents of the river. He hired several men to pilot the steamer Keokuk through the draw of the bridge to check the boat’s responses to the winds and the currents in relation to the piers. He conducted experiments by placing different kinds of objects in the water and observing them drifting toward the draw. Lincoln, at the height of his legal practice, understood well that complicated court cases are often won or lost well before the judge brings down his gavel to begin the formal court proceedings.
The case began in Chicago sixteen months later on September 8, 1857, with Supreme Court justice McLean presiding. The structure of the federal court system called for each Supreme Court justice to serve as the presiding judge of one of the nine circuit courts. The Chicago Democratic Press devoted extra space to the trial because the case involved “a fundamental national struggle” between “the great natural channel of trade of the Mississippi Valley” and the railroads, “the great artificial lines of travel and communication.” The lawyers for the plaintiff called fifty men who made their living on rivers, including captains and pilots; each argued that the bridge was an obstacle to river traffic. Judd and Lincoln called six engineers, as well as many ordinary citizens, who testified that the bridge was perfectly safe. Judd charged that the misfortune of the Effie Afton was due simply to “the carelessness of her officers.”
On the afternoon of September 22, 1857, Lincoln began the defense’s closing argument. The absence of an official court record was fortunately remedied by a newspaper reporter who, using the new skill of shorthand, wrote out in detail Lincoln’s extensive address. In a highly contentious case, being tried each day in the press, Lincoln began by saying “he did not propose to assail anybody.” He had “no prejudice” against steamboats or against St. Louis. Rather, he asked the jury to stand with him as they witnessed the “astonishing growth” of the West, of Illinois, and of Iowa, and other young communities west of the Mississippi. Why were they growing so rapidly? Because of the free flow of east-west travel now enhanced by the railroad. Did the jury want to compare north-south to east-west travel? Lincoln, the master of facts, told them that from September 6, 1856, to August 8, 1857, 12,586 freight cars and 74,179 passengers had passed over the rebuilt Rock Island Bridge. He also pointed out that during this same time period river traffic was closed “four days short of four months” due to ice in the river. He presented statistics showing that of the 959 subsequent boat passings under the bridge, only 7 had suffered any kind of damage. His real point was that the accidents were “tapering off.” Lincoln declared, “As the boatmen get cool, the accidents get less.”
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sp; When Lincoln resumed his closing argument the next morning he appeared with a wooden model of the Effie Afton. Employing all of his former skills as boatman and surveyor, he spoke to the jury of the angular position of the piers, the course of the river, the speed of the currents, the depth of the channel, and the speed of the boat, all to demonstrate that the boat crashed into the pier of the bridge because of the pilot’s carelessness and because her starboard wheel had not been working.
Lincoln understood that this case was about the collision, not simply of boat and bridge, but of past and future. No one enjoyed rivers and boats more than Lincoln. As a teenager, he had traveled down the Mississippi to New Orleans in one of the great and harrowing adventures of his life, almost getting killed in an assault. He first came to New Salem by boat, and almost immediately upon settling there became a leading proponent of developing boat traffic on the Sangamon as a way of enhancing the future of his new home. He had patented a device to help boats surmount sandbars and shoals in rivers and lakes. But, by the 1850s, Lincoln understood that to hug too tightly to the boat’s tiller was to cling to the past. Lincoln’s political grammar always gravitated to the future tense.
On September 24, 1857, Judge McLean announced that the jury, which voted 9 for the bridge and 3 against, was deadlocked and thus dismissed. Litigation against the bridge would continue all the way until December 1862, when the U.S. Supreme Court decided the bridge could remain. Five years after the original trial, a war, not a bridge, would suspend all commercial business on the Mississippi River.
IF THE EFFIE AFTON case was about the future, in the fall of 1857 Lincoln was drawn back to his past in a case growing out of the behavior of some rowdies at a religious revival. In August, a two-week evangelistic camp meeting was held at Virgin’s Grove near the site of New Salem, which had been abandoned by 1840. On August 29, at a makeshift bar on the outskirts of the meetings, William “Duff” Armstrong, twenty-four-year-old son of Jack Armstrong, Lincoln’s wrestling friend from New Salem, and another young man named James Norris got into a fracas with James Metzker. Norris struck Metzker with a three-foot block of wood while Armstrong hit him with a slungshot, a lead weight wrapped in a leather pouch and fastened to thongs. Metzker died while attempting to escape on his horse. Duff Armstrong and James Norris were charged with murder. Duff’s mother, Hannah, appealed to Lincoln, asking if he would help. He said he would.
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