American Experiment

by James Macgregor Burns

  Holding papers in his thin, tremulous fingers, Taney briefly reported the facts of the case. Behind his flat recitation lay a small human drama. No one, not Dred Scott himself, knew when and where he was born—probably in Virginia, probably around the turn of the century. Short, dark, uneducated and illiterate, he had been picked up, used, and moved around by white people according to their convenience: raised by a family in St. Louis, purchased by an army surgeon, John Emerson, taken to Rock Island, Illinois, when Emerson reported for duty there, removed to Wisconsin Territory, married to a slave woman named Harriet, then taken back to Missouri by the surgeon. When Emerson died, he bequeathed his slave to his wife and daughter. Then something stirred in Dred Scott; evidently he tried to buy his freedom and failed. His original owners sued Mrs. Emerson for Scott’s freedom, on the ground that his earlier residence in Illinois and Wisconsin Territory—free soil—had made him free. That was the crucial issue that had brought the case to the high court, an issue that transcended slave and owner; as the case gained in importance, prestigious legal talent was enlisted on both sides.

  Though his voice weakened and almost faded away, Taney went on for over two hours, but long before he ended proslavery people in the courtroom were exultant, and free-soil men indignant. Even while other justices were concurring and dissenting the next day, northern newspapers were headlining the essential results: SLAVERY ALONE NATIONAL—THE MISSOURI

  COMPROMISE UNCONSTITUTIONAL—NEGROES CANNOT BE CITIZENS—THE TRIUMPH OF SLAVERY COMPLETE. The decision was infinitely complicated, but three results stood out: Dred Scott was still a slave (he was soon manumitted, lived a year, and died of consumption); no black person could be a United States citizen under the Constitution of 1787; and Congress had no power to bar slavery in federal territories and hence the Missouri Compromise restriction was unconstitutional.

  A storm of protest swept through the northern press and pulpits. The decision, said the New York Tribune, carried as much moral weight as “the judgment of a majority of those congregated in any Washington barroom.” Pointing to the Democratic court, the Democratic Administration, and the Democratic House and Senate, the protesters smelled a plot. Had not Buchanan and Taney held a whispered conversation during a pause in the inaugural ceremonies? Were not the President and at least two of the associate justices as thick as thieves? And had not Buchanan said in his Inaugural Address that he understood the Supreme Court would soon rule on the issue of slavery in the territories, adding piously, “To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be”? The hypocrite! He knew right then how the court would rule. So the protesters charged—and this time their conspiracy theory was justified. Two members of the court—and possibly Taney himself—had indeed given the President ample information in advance about the nature and timing of the decision.

  Buchanan had done more: he had helped Taney “mass the court.” The southern members of the court wanted to strike a mortal blow at the Missouri Compromise—but they feared that the blow would not be mortal if only the five southern members inflicted it. There must be six. The President urged his fellow Pennsylvanian Grier to join in a strong decision, and Grier did so. He wrote the President that he would try to persuade the three other justices also to back a strong position.

  A broad position it turned out to be—so broad and strong and sweeping as to alter central currents of American history. As a legislative decision it recast the law of the land affecting both enslaved blacks and free. As a political decision it upset the delicate balance between North and South, exacerbated antagonism between proslavery and antislavery Democrats, and destroyed that superb device of compromise, squatter sovereignty, that had allowed politicians to evade the moral dilemma of slavery by condemning it while prating about states’ rights or local popular authority. As a judicial decision, it was prospectively even more important, for the court now had struck down a major law enacted by the coequal legislative branch and endorsed by the coequal executive branch. The court’s power to invalidate state legislation that it deemed unconstitutional, as in Gibbons v. Ogden, and to protect its own internal arrangements and integrity, had long been accepted. Now it was invading the federal lawmaking domain reserved, under democratic theory, to the elected politicians of House, Senate, and White House.

  Why, observers wondered, had the court inserted itself into the political storm whirling around slavery? In part because the cautious legislative and executive politicians had left a vacuum that some force was bound to fill. But mainly because the Southerners wanted to surround and control that whirlwind. The thrust of the Dred Scott decision did not result from chance or gradualism. Behind Taney’s penetrating, closely reasoned decision lay a deep rage against the antislavery men, a rage welling out of Taney’s roots in the tobacco lands of Maryland, out of his Jacksonian heritage, out of his distaste for northern capitalism and the hypocritical reformers it seemed to breed. The pressures in him, if not on him, were southern pressures. He wanted this sweeping decision—and so did the four other Southerners and the one “dough face” on the court.

  What the Northerners were now witnessing was southern power massed in the federal government. Numerically Democrats controlled the Supreme Court, the House, the Senate, as well as the presidency and the Cabinet. Concentrated within those Democratic majorities was a southern plurality, organized, purposeful, disciplined. If there was no southern “conspiracy” in the polemical meaning, there was a group of men living and working and conferring together who cut across the formal lines separating executive and judiciary and legislature. Just as a power elite now controlled South Carolina politics, so a wider power elite dominated the federal system.

  This was no simple conflict between North and South; many Southerners opposed the extension of slavery and some even slavery itself, and many Northerners hated the black man, cared little about slavery, or at least were willing to leave it in its place. It was a conflict of philosophies, parties, and policies. Dred Scott was ultimately far more than a legal decision; it was an intellectual statement, a party manifesto, a policy paper, with all the tendentious reasoning, legal error, and opinionated argument found in such documents. It was one of a series of grand debates, in Congress, in the courts, in the press, and on the stump. And ultimately it must be answered less by legal than by intellectual and political power—it must be answered by opposition leadership.

  It is not given to more than a few voyagers in the stream of history to influence its basic direction. The flow of events, moving within the embankments set by geology, biology, and climate, now hurries along, now placidly twists and winds its way, through numerous channels, ultimately debouching into some broad and distant water. Destroying old landmarks, shaping new ones, the stream of history engulfs most people who stand in its way but raises some to its surface. Of these a few will breast the current and perhaps divert or even transform it, but a far greater number will seek only to survive, through agility, ingenuity, and luck.

  James Buchanan stood on the crest of events when he entered the White House; the question for him was whether he would become a maker of history or a victim of it. He possessed the ingredients of power: the executive and foreign-policy authority of the presidency, a large pool of patronage jobs, power to appoint Supreme Court and other federal judges as well as cabinet members and other high officials, influence over legislation mainly through his party leadership, the visibility and prestige of the White House. What he lacked was the capacity to be both principled and propitiatory, both consistent and conciliatory, at the appropriate time for each. He strongly hoped, Edward Everett wrote the President-elect, that he could “give the country a vigorous and conciliatory administration to check the present centrifugal tendencies.” But Buchanan was not strong enough to contain the whirlwind. He dealt with slavery by evading it, in London, in his campaign, in his Inaugural Address.

  But the issue of slavery could no longer be evaded. In Kansas the crisis would not s
immer down. Ensconced in their rival “capitals,” proslavery and antislavery Kansans eyed one another belligerently and boycotted each other’s elections while the nation watched with excitement. Knowing that they were in the minority, the proslavery forces planned to hold a constitutional convention, rigged to overrepresent their side, that would protect slavery under the fundamental law. Held in Lecompton in the fall of 1857, this convention, recognizing that such a constitution would be defeated in a properly conducted popular vote, proposed to withhold the charter from the people and submit to them a special article that guaranteed the right of property in slaves. Even if the special article should be rejected, the right to hold property in slaves already in the territory would be protected. The proposition, a Kansan said, was “Vote to take this arsenic with bread and butter, or without bread and butter.”

  Once again the Free Soilers erupted in indignation. “The Great Swindle,” thundered the Emporia Kansas News.

  What would Buchanan do? He had sent to Kansas a governor, Robert J. Walker, who promised that any constitution adopted by a constitutional convention would have to be submitted to Kansans for a fair vote. Now he was in a box. He knew that by supporting Lecompton he would probably break his party into pieces. Yet southern ultras were demanding that the entire constitution be sent direct to Washington, where the Democratic Congress would legislate it and the Democratic President sign it. Most of the southern leadership, including Southerners in Buchanan’s own Cabinet, supported the Lecompton forces. Buchanan was dependent on southern support politically; of his 174 electoral votes in 1856, 112 had come from the South. He would need southern support if he ran again in 1860; he would need southern support in the Democratic convention, with its two-thirds rule; he would continue to need southern support to get his bills through Congress. And beyond all these practical concerns was his fear that the South would secede if it lost the game in Kansas—already proslavery firebrands were making threats. Yielding to this massed southern power, the President publicly endorsed the Lecompton plan.

  Stephen Douglas was in a terrible dilemma. His political ambitions too depended on southern favor. Still aspiring to the presidency, he might—with backing from his southern friends—head off Buchanan for the Democratic nomination in 1860. But he was also the celebrated spokesman for “squatter sovereignty,” and now he waited only to know whether his doctrine had been violated. “The only question,” he wrote a friend, “is whether the constitution formed at Lecompton is the act & will…of a small minority, who have attempted to cheat & defraud the majority by trickery & juggling.” As chairman of the Committee on Territories, Douglas received constant intelligence from Kansas, and he did not have long to wait to learn the truth. The Lecompton plan, he decided, was a fraud, a mockery. He could not sanction it without “repudiating all the acts of my life.” But to attack Lecompton now, he knew, would break his ties with the President and with the South, lead to his being cast out of the Democratic party leadership, and jeopardize his committee chairmanship in the Senate. Returning to Washington, he hurried to the White House. A stiff confrontation followed.

  “Mr. Douglas,” said Buchanan as the talk came to an end, “I desire you to remember that no Democrat ever yet differed from the Administration of his own choice without being crushed.…”

  “Mr. President,” replied Douglas, “I wish you to remember that General Jackson is dead, sir.”

  The clerk had barely completed reading the President’s annual message to Congress, on December 8, 1857, when Douglas was on his feet to express his total dissent on the Lecompton issue. In his major address a day later the Illinois senator spoke once again for popular sovereignty. “I have spent too much strength and breath, and health, too, to establish this great principle in the popular heart, now to see it frittered away.” The packed gallery and lobby broke into a tumult as he concluded, “If this constitution is to be forced down our throats, in violation of the fundamental principle of free government, under a mode of submission that is a mockery and an insult, I will resist it to the last.”

  Suddenly the Little Giant did not look so small to his old Republican and Unionist foes. A courtship followed, as Republican members of Congress called on Douglas and discussed common efforts against Lecompton. Horace Greeley visited him too, and speculation arose that more must have been discussed than parliamentary tactics. Would Douglas join the Republicans? Or could he persuade Republicans and old-time Whigs to swing over to his cause? In severing his ties with southern ultras, Douglas had bolstered his position as leader of the northern Democrats. While the southern junta laid plans to help defeat him in his Senate re-election race and to strip him of his chairmanship of the Committee on Territories, eastern Republicans talked openly of backing Douglas in his Senate race in 1858 and for the presidency in 1860.

  These reports galvanized the Illinois Republicans into action. From Herndon in Springfield, Greeley in New York received an indignant letter. Was Greeley backing Douglas? Was he going to “sell us out” in Illinois “without our consent to accomplish some national political purpose”? Greeley should not raise Douglas over the heads of long-term and well-tried Republicans, who had never flinched. “We want the man that we want; and it is not for N. York—Seward—Mass—Banks or any other state or man” to tell Illinois Republicans whom they should have. “We want to be our own masters.”

  It was a critical moment for Lincoln. Greeley’s Tribune was influential in Illinois, with a circulation rapidly heading toward 20,000 in that state alone. Stealing Douglas from the Democracy, Lincoln knew, was a tempting thought for Illinois Republicans. It was a critical moment for Illinois Republicans too, and it was they—the “third cadre” of grass-roots activists—who now took leadership. By mid-1858 the rank-and-file leaders had come to like and esteem the tall, humorous, sad, tolerant, thoughtful man from Springfield. They liked him also because by now he had firmly embraced the Republican party, not merely the antislavery movement. With Lincoln’s encouragement, but without his active leadership, Republicans meeting in scores of county conventions spontaneously called for him to be chosen to run against Douglas at the party’s state convention to be held in Springfield. There was no precedent for using a state party convention to nominate a candidate for United States senator, but the Illinois Republicans, in a burst of political creativity, did that on June 16, 1858, by designating Lincoln the party’s “first, last, and only choice” for senator.

  “I want to see ‘old gentleman Greely’s’ notice of our Republican Convention,” Herndon wrote. “—I itch—I burn, to see what he says….” The Illinois Republicans had happily defied the patronizing and meddlesome eastern press that was trying to sacrifice them to its national coalition building. The men of Illinois had done much more. They had launched Lincoln on his national career; they had turned a shank of history; and they had set the stage for the most significant debate—and the most remarkable public intellectual encounter—in American history.

  Lincoln moved to the attack within a few hours of his nomination by acclamation at the state convention. The 1,500 delegates adjourned for supper, then reconvened in the stifling Representatives Hall. Some in the perspiring crowd urged him to move the meeting out to the front steps, but Lincoln persuaded them to stay inside because his voice was not in the best condition to reach a crowd outside. This night he wanted to be heard. He had long been shaping this speech in his mind, working over its phrases, and he had even rehearsed it the previous night before Herndon and other friends, only to be told that it was too radical, too incendiary.

  Now he stood before the delegates, a gangling figure in frock coat, bow tie, rumpled vest and trousers. He wasted no time on pleasantries:

  “If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it.”

  Lincoln was reading from a manuscript with underlined key words.

  “We are now far into the fifth year, since a policy was initiated, with the avowed object,
and confident promise, of putting an end to slavery agitation.” All recognized the reference to the Kansas-Nebraska act.

  “Under the operation of that policy, that agitation has not only, not ceased, but has constantly augmented.

  “In my opinion, it will not cease, until a crisis shall have been reached, and passed.

  “ ‘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.…”

  Free or slave. All one thing or all another. Suddenly this moderate, prudent man had started talking like an abolitionist. But Lincoln knew precisely what he was about. Intensely worried by the Republican flirtation with Douglas, he would destroy the middle ground on which Douglas was standing and indict the senator as part of a grand conspiracy to spread slavery throughout the nation. Lincoln’s purpose emerged in his very next sentence:

  “Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South. ”

  Lincoln spelled out the conspiracy he was alleging. With the repeal of the Missouri Compromise via the Kansas-Nebraska bill, the endorsement of that repeal by the Supreme Court, and the endorsement of the endorsement by President Buchanan, the plots, said Lincoln, lacked only “another Supreme Court decision, declaring that the Constitution of the United States does not permit a state to exclude slavery from its limits.” Was it absolutely certain that Douglas and Pierce, Taney and Buchanan, had acted by “preconcert”? Well, said Lincoln, “when we see a lot of framed timbers” perfectly put together “by different workmen—Stephen, Franklin, Roger and James, for instance,” it was hard to believe that the four had not worked on a common plan “before the first lick was struck.”