This took place on a frosty fourth of March, and two days later the Supreme Court delivered one of its most poisonous decisions, Dred Scott v. Sanford. Facts in the case were simple and uncontested: Dred Scott, a Missouri slave, sixty-two years old, had been taken by his owner north into free territory. After a prolonged stay there as a free man, Dred voluntarily returned to Missouri, where he was promptly claimed as a slave by his former owner’s widow. The problems: Was Dred in any sense of the word a citizen? Had he the right to sue in a federal court? And did return to slave territory automatically reinstall him as a slave?
The major opinion was read by the Chief Justice, immediate successor to the awesome John Marshall and a jurist almost as revered. He was Roger Brooke Taney, a tall, thin, acidulous legal scholar from Maryland, eighty years old and passionately dedicated to the task of protecting the gallant agrarian South against the grubby industrial North. In his crusade he was abetted by five other members of his nine-man court who also sided with the Southern states; the seventh justice vacillated in his loyalties, while numbers eight and nine were outspokenly Northern in their sympathies.
It required all the first day for Taney to read his extensive review of slavery in the United States, and when he finished, his audience was stunned by the breadth of his knowledge, the scholarship of his references, and the totality of his support for the South. His decision was an iron-studded gauntlet flung into the teeth of the North. Its conclusions were so shocking that every one of the other eight justices issued his own decision, but on the big issues the vote was 7 to 2 supporting Taney.
His conclusions were bold and startling. No slave could ever be a citizen. In fact, no black, slave or not, could ever be a citizen. Slaves were property, just like mules and wagons, and the right to hold property must be protected. Then, in his Southern zeal to settle the slavery question once and for all, Taney threw in several opinions of his own, obiter dicta they were called, interesting conclusions but not justified by the data in the case at hand. They were inflammable: the Missouri Compromise of 1820, adjudicating which new states should be free of slavery, was unconstitutional; and even though a slave gained temporary freedom by running away to the North, if he ever returned to slave territory, he became once more a slave.
These judgments, so alien to the general drift of the nation in 1857, were harsh enough to arouse the fears of the Northern states, but Taney compounded his terrible error by inserting a protracted essay about the genesis of slavery, which did great damage. Taney never said that he believed what he was about to say; he was merely citing what the framers believed when they wrote the Constitution, but the phrases were so brutal that thousands of Northerners, upon hearing them, decided then and forever that since these were the opinions of the Court, any further compromise with the South was impossible:
Negroes were not intended to be included under the word citizens and can, therefore, claim none of the rights and privileges of citizens.… They were 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 might choose to grant them.
They had been regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.
Another justice added:
The stigma of the black slave, of the deepest degradation, was fixed upon the whole race.
And then it became clear how Taney justified his basic decision: since the Founding Fathers in 1787 believed these things about black people, the judgment was fixed forever; blacks could neither obtain now nor expect in the future any relief in the courts. In 1787 the framers of the Constitution had considered them non-beings devoid of any rights, and so they must continue perpetually.
Hugh Starr, having just clarified his own thinking about slavery and having freed his own, was appalled that the Supreme Court could issue such a document, for it lagged fifty years behind informed thinking, and he was not surprised when his fellow officers from the North scorned the Court’s opinion. Even level-headed Benjamin Greer said: ‘Your Southern justices make it impossible for us Northern states to remain in a union to be governed by such laws,’ and for several painful weeks young Starr remained apart from his friends, striving to find even a shred of justification for the Dred Scott Decision.
He found none. Just as his grandfather’s Constitutional Convention had lacked the courage to grapple with the slave problem in its day, so this Supreme Court failed to provide the type of guidance necessary to preserve the Union. When his perplexity subsided, he sought out his friends and tried to probe their thinking, but a veil had dropped between North and South, and relationships at West Point were strained.
Said Starr one night, after trying in vain to talk with the Northerners: ‘The Supreme Court agitates the nation, and the Army pacifies it. Something’s topsy-turvy.’ And the confusions deepened.
The frenzied presidential campaign of 1860 revealed just how chaotic conditions had become. The animosities of the Dred Scott Decision produced four major contestants for the presidency. Young officers from the Northern states had never heard of John Cabell Breckenridge and John Bell, the favorites of the South, while Hugh and his Southerners, although familiar with Senator Stephen Douglas, knew little of the lanky former congressman, this Lincoln. Both groups were astounded when Abraham Lincoln won on a strictly regional vote, and on the night the results were known, a brassy-voiced officer from Georgia shouted warning of what loomed ahead: ‘Lincoln got not a single vote from the South! He’s not my President!’
Now the wonderful camaraderie of the Point evaporated as one Southern officer after another quietly surrendered his commission in what he perceived as the Northern army, and slipped home to the Southern state which had always commanded his allegiance. Departing officers confided to their friends: ‘If trouble comes, and I don’t see how it can be avoided, I’ve got to be a South Carolina man.’ It would not have been proper for secession to be openly discussed at the Point, but as the date for Lincoln’s stormy inauguration approached, worried friends discussed their options in whispers, and Starr saw that the nation his ancestors had fought so diligently to create and preserve was destined to fracture along North-South lines.
Then came the real problem: But if war comes, what do I do? On the morning after he first dared to voice this question, three of his friends left the Point to return South and offer their services to their state militias, and Hugh narrowed his question: A choice between the Union and Virginia, what then? The problem was made more difficult when the commandant summoned him to share good news: ‘Captain Starr, I have here your promotion to major in the Army of the United States. Congratulations.’ Hugh accepted, but in doing so, realized that he was binding himself ever more strongly to the Union.
Alone in his quarters, he remembered the advice Jared Starr had given his son Simon in his deathbed letter in 1787: ‘Fashion a strong new form of government but protect Virginia’s interests.’
Ah, but what were ‘Virginia’s interests’? He had begun to think that the time might be at hand when Virginia should join with Massachusetts, New York and Pennsylvania as the four powerful states of the Union and forget sentimental and romantic attachments to the South: Sensible Virginians like my brother see that their interests are best protected by giving their slaves freedom, right now. They want no part of the Dred Scott Decision. But Virginia is tied to the other Southern states by bonds of iron, and so I suppose we must help them fight their battles defending slavery. Since Greer and the other Northerners will never allow slavery to move west, war becomes inescapable. And then what do
I do?
In March 1861 he went on leave to his home in Virginia, where he spent happy days with his wife and children, son Malcolm and daughter Emily. He found his neighbors uneasy about the civil war that loomed, but none who even considered fighting on the Northern side. His brother, now the master of a prosperous plantation on which freed slaves worked effectively, summarized local thought: ‘It will be war to defend a way of life. Virginia planters against Northern factory owners.’ His brother always spoke as if Virginia alone would bear the military burden, but even though he disliked the arrogant way in which Carolina and Georgia men handled the slavery issue, he felt that Virginia must line up with them, and Hugh agreed.
Both the spring idyll in Virginia and the intellectual uncertainty about the forthcoming war vanished when shocking word reached the Starr plantation: ‘President Lincoln offered Colonel Lee command of all Federal forces, and Lee refused. Said he respected the Union, but his heart was with Virginia.’
‘What’s it mean?’ Hugh asked, and his informant said: ‘Lee’s to be general of the Southern armies.’
‘Then it’s war?’
‘Don’t see how it can be avoided.’ That afternoon Hugh rode to Richmond, where he was commissioned Lieutenant Colonel Starr, Army of the Confederacy, and when the war came, he welcomed it.
During the next four years he served at Lee’s right hand, sharing both the exciting early victories and the trailing defeats. His loyalty to Robert E. Lee duplicated Simon Starr’s loyalty to Alexander Hamilton, and Lee in turn gave repeated evidence of his high regard for Starr’s reliability, promoting him to full colonel, then to brigadier general.
Between battles, there were painful moments when it was clear that even Lee was beginning to wonder if the South could ever win against the vast Northern superiority in men and equipment, but more distressing were those night doubts which Hugh could share with no one: I wonder if the South deserves to win? I wonder if we aren’t backing the wrong forces in history?
He could not believe that he and his brother were wrong in freeing their slaves, and when his personal servant Hannibal asked permission to accompany him on one campaign, he saw confirmation of what he had often suspected in the past: He’s capable of anything, that Hannibal. But he did not go so far as to accept the abolitionist propaganda. ‘Most of the Negroes aren’t worth much,’ he said, ‘but the good ones can be exceptional.’ Yet when he inspected the free village that his brother had established for the former Starr slaves, he found it at least as well tended as villages occupied by lower-class whites.
As the War Between the States ground painfully toward certain defeat for the South, General Stan-felt contradictory and agonizing emotions: My heart bleeds for General Lee. Like him, I weep for Virginia. But I’m also glad the Union is to be preserved. Northern men like General Greer are too good to lose. And then a most powerful thought possessed him, clear as the sound of a bugle on the morning of battle: Twenty years from now you won’t be able to tell South from North. In things that matter, that is.
Hugh Starr stood resolutely beside General Lee during the fatal last weeks of the Confederacy, participated in the surrender at Appomattox, and then turned his attention to mending the stricken fortunes of Virginia, and this brought our family right back into the heart of the Constitution, which had treated Hugh so poorly in its gross failure to solve the slavery problem at the time of Dred Scott.
In rapid-fire order the victorious Northern Congress passed three amendments, which should have gone into effect as early as 1820. The Thirteenth abolished slavery, the Fourteenth awarded blacks the civil rights that Dred Scott denied them, while the Fifteenth said simply that no citizen should be denied the right to vote because of ‘race, color or previous condition of servitude.’
General Starr achieved notoriety, not always of a favorable kind, by standing forth as a Virginia defender of these amendments: ‘Long overdue. About eighty years.’ He visited various cities throughout the South, assuring men and women who were sometimes close to despair that the carpetbaggers from the North would soon be gone, that the disqualifications which dogged former Confederate leaders like himself would be lifted, and that devising new patterns for living with black folk would be the constructive task for the next two decades.
‘That Virginia will rise again to the preeminent position she enjoyed in 1830, I have no doubt. We have the laws now and the men and women of ability. Let’s get on with it.’ In the evenings he met with veterans who wanted to know what it had been like serving with Robert E. Lee, and after describing this battle or that, he ended: ‘We all have a chance to serve with him again. He’s working to rebuild the South and we must assist him.’
Emily
Starr
1858–1932
Early Sunday morning our phone jangled. It was Zack: ‘Can I come over?’ and when he arrived from church he accepted a glass of cider and began questioning me: ‘You got everything lined up? Your head screwed on tight?’ When I assured him I’d been reviewing family records, he said: ‘Good. I’m sure I can save your neck. I don’t think they can lay a hand on you. Not in that uniform, with those family heroes and your own three or four tiers of medals.’
He concluded with a bit of advice: ‘Take it easy today. Listen to Mozart. Stay relaxed. Because tomorrow you’ll need all your smarts.’ And he was about to leave me to my somnolence when Nancy broke in with a question which had begun to gnaw at her as she reviewed my family history.
‘Tell me, Zack. You’re a lawyer who understands these things. Why, in the entire Constitution that governs our nation and in all the reports of the debates, are women never once mentioned? Slaves are and mules and soldiers and judges, but never a woman. Were we considered of no significance in a new land which needed all the babies it could get?’
He sat down again, for her question interested him. ‘Well,’ he said, ‘the men who wrote the Constitution were influenced by European law. They had to be. What other law did they know?’
‘But why the indifference to women?’
‘Because of French law, mostly. An ancient concept called feme covert—old idea, old spelling—denoted a covered woman, a married woman whose only legal rights were those under the protection of her husband. Out of the goodness of his heart, her all-wise, all-just husband with his superior judgment could be relied upon to look after her property, her money and her civil rights.’
‘How generous,’ Nancy said.
‘The principle of feme covert surfaced at its ugliest when a loving husband claimed, and got, the right to manage the huge dowry a merchant’s daughter often brought to their marriage. I believe a lot of wealthy wives died mysteriously in those circumstances.’
‘Do you believe in the principle of feme covert?’
‘No, but the fathers of the Constitution did, more or less.’ He snapped his fingers as a completely new idea struck his agile mind: ‘Never thought of it before. I read the other day that an outrageous number of the founders had two wives, and quite a few had three. In those days of miserable medicine, child-bearing women were expendable. A man expected to have two or three wives. They were different from men, obviously more fragile. Men had to look after them, make decisions for them.’
In her traditional way, Nancy now asked some abrupt questions: ‘You’d sort of like it if the old days came back, wouldn’t you?’
‘When I lose a case to a brilliant woman lawyer, I sure do.’
‘Why did you divorce Pamela?’
‘She wanted to find herself. Runs a bookstore in Bethesda.’
‘In other words, she didn’t buy the legal theories of our Founding Fathers?’
‘Don’t make it too complex. She fell in love with the owner of the store, who borrowed a slug of money from her. She’ll lose every nickel, as any man who inspected the guy’s profit-and-loss statement could have predicted.’ Somewhat edgy, he turned to me: ‘I’ll pick you up at eight tomorrow.’
Wanting to thank him for his generous help, and
also to apologize for Nancy’s bluntness, I accompanied him to his car, and in our driveway he gave me the encouragement he knew I needed: ‘Things look real solid, Norm. Stay limber.’
When I returned to the house, I realized that staying loose wasn’t going to be as easy as Zack had made it sound, because Nancy immediately confronted me: ‘That talk about the attitude of the Founding Fathers toward women makes me more interested than ever in the grand old lady of your clan.’ And we spent the next few hours discussing General Hugh Starr’s gangling daughter.
The General had two children, a son, Malcolm, born two years before the Dred Scott Decision, and a daughter, Emily, born a year after. Malcolm, who became my great-grandfather, was an extremely stuffy type who went to Princeton and spent his vacations visiting one grand house after another in Philadelphia, Long Island and points north, looking for an heiress. He found none.
And then, miraculously, an heiress wealthier than any he had dared hope for came seeking him. General Benjamin Greer of the Vermont Rifles, who had performed so gallantly in support of General Ulysses S. Grant at Vicksburg, had come to Washington on one of his periodic visits, and, as always, he wanted to spend one evening with his old friend from West Point and Bleeding Kansas days. He and General Starr, fortunately, had never faced each other in battle, but their careers were so similar, Greer as an aide to Grant, Starr with Lee, that they had much to talk about.
This meeting was unusual in that Greer brought with him his attractive niece Anne, daughter of his older brother, a man who had moved to New Hampshire after the war to start a textile mill, which had prospered wondrously. ‘The other Greers,’ Benjamin called them in public; in private he profited from their good fortune and, in gratitude, had helped his nephews and nieces see aspects of American life they might otherwise have missed.
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