All the Powers of Earth

by Sidney Blumenthal

  Taney was the first Catholic in the cabinet and the first one on the high court. He came from a wealthy slaveholding family in Maryland that owned a tobacco plantation. That he freed many but not all of his own slaves even as he ruled for slavery he did not consider a paradox. His views on slavery constricted along with his arteries. He despised abolitionists, was alarmed at the emergence of the Republican Party, and felt the antislavery movement was a threat to the Constitution, Southern society and therefore the nation. He was not outspoken publicly on the subject. But his private opinions hardened at every Republican advance. His authorized biographer, Samuel Tyler, writing after Taney’s death and a decade after the Civil War, described his calcifying attitude. “Abolition, and its aiders and abettors, gloated over a contest which they hoped was the forerunner of a crusade for the extirpation of slavery in the States, and the humiliation of the slave-owners.”

  Taney had an exalted position not only from his stature as chief justice. He was tactful, charming, and dignified. His personal life was virtuous, he was religious, his habits were austere, his devotion to his family pure, and he had recently, in 1855, been stricken by an almost unimaginable tragedy that inspired widespread sympathy. His wife and beautiful daughter were both afflicted with yellow fever on their vacation and died. He moved alone into spare rented rooms near the Capitol.

  Eighty years old, Taney’s long hanging hair fell across his deeply creased face, dripping sorrow. He had once been quick and nimble, but he seemed almost too exhausted to shuffle through his duties. “He was an extremely plain-looking man,” recalled the Southern hostess Virginia Clay, “with frail body, which once rose tall and erect, but now was so bent that one always thought of him as small, and with a head which made me think of a withered nut. Swarthy of skin, but greyhaired, Judge Taney was a veritable skeleton, ‘all mind and no body’; yet his opinion settled questions that agitated the nation, and his contemporaries agreed he was the ablest man who had ever sat upon the Supreme Court bench.”

  With the advent of 1857, on the eve of the new administration, the capital was swept with talk of a momentous decision to be handed down from the Supreme Court. James Pike, the well-informed correspondent of the New York Tribune, reported on January 5: “The rumor that the Supreme Court has decided against the constitutionality of the power of Congress to restrict slavery in the Territories has been commented upon in the most unreserved manner at this metropolis. It is very generally considered that the moral weight of such a decision would be about equal to that of a political stump speech of a slave-holder or a doughface.” But Pike remained uncertain. “Many have expressed the opinion that the question would not be met by the Court, and numbers are still of that way of thinking.”

  Dred Scott v. John Sanford was the case on the docket (reported by the Supreme Court clerk in a spelling error as “Sandford”). It was a case that began like a number of similar ones about whether a slave who had resided in a free state was free, but it evolved to reflect the hardening attitude toward slavery in Missouri, winding its way into the federal courts, which brought it to the center of national political quandary.

  The man in the vise did not know when he was born, signed his name with an “X,” and had been the property of four owners. Dred Scott became the most famous invisible man of his time. The country divided over the case bearing his name, but only the bare outline of his picaresque frontier life was known. He filled in few details. His eloquence consisted of his “X” on his lawsuit asking for his freedom. There was no record of his birth sometime between 1795 and 1809. He grew up on the Virginia plantation of Peter Blow, who took him with his wife, seven children, and five other slaves to raise cotton in Alabama in 1820 and to open the Jefferson Hotel in the bustling town of St. Louis in 1830. Just before his death Blow sold Scott in 1833 to Dr. John Emerson, an army surgeon. Scott may or may not have been listed as a slave named “Sam” who may or may not have tried to run away. Emerson was posted to Fort Armstrong in northern Illinois and in 1836 to Fort Snelling near what became St. Paul, Minnesota, but was then part of the Louisiana Territory. Though slavery was prohibited there according to the Missouri Compromise, Emerson came into the possession of another slave, a young woman named Harriet Robinson, when she married Dred Scott. Robinson belonged to Major Lawrence Taliaferro, an Indian agent and justice of the peace, who insisted on performing a formal wedding ceremony, which was highly unusual for slave couples. Scott may or may not have had a previous wife who may or may not have been sold. Taliaferro did not sell Robinson to Emerson but gave her as a kind of gift without payment and without emancipating her. Emerson was assigned to Fort Jesup in Louisiana, taking his slaves from free territory to a slave state. Dred and Harriet had four children, two of whom survived. When Emerson was sent to Florida during the Seminole War the Scotts were hired out to various people in St. Louis. At the war’s end in 1842, Emerson was honorably discharged from the military, returned to St. Louis to establish a private practice, but died suddenly within a year. His widow, Irene Emerson, inherited his estate, whose inventory did not bother to mention the Dred Scott family. She had already hired out Dred and Harriet as servants to her brother-in-law, Captain Henry Bainbridge, an officer at the St. Louis Jefferson Barracks, where he was friendly with Captain Ulysses Grant. Scott may or may not have accompanied Bainbridge to Texas during the Mexican War. Dred and Harriet had another child. Mrs. Emerson hired them out to a St. Louis grocer in March 1846. Scott may have sought to purchase his freedom. He and Harriet may or may not have feared they and their children would be sold and separated. Mrs. Emerson may have refused his offer. On April 6, 1846, they each filed suits against her claiming that they were in fact free based on previous residence in a free state and free territory. “He is entitled to his freedom,” read Dred Scott’s petition to the Missouri Circuit Court.

  The Dred Scott case was another of the unintended consequences of the assassination in 1837 of the antislavery editor and minister Elijah P. Lovejoy in the Mississippi River town of Alton, Illinois, across from St. Louis. Harriet Scott had joined the congregation of the Second African Baptist Church of St. Louis whose pastor was Reverend John Richard Anderson. Anderson had been a slave, belonging to the sister of Edward Bates (who would become Lincoln’s attorney general), but bought his freedom. He was the typesetter for Lovejoy’s antislavery paper, the Alton Observer, and among the band of defenders of its new printing press in the warehouse stormed by the mob that murdered Lovejoy. Inspired by his martyrdom Anderson became a minister and encouraged slaves to apply for their legal freedom. Through Anderson the Scotts were undoubtedly introduced to the attorney who would take on their case, Francis B. Murdoch. Anderson clearly would have known Murdoch from Alton, where he was the city attorney who prosecuted the mob that was acquitted by a jury unwilling to punish anyone for killing the abolitionist. The antislavery Murdoch, like Anderson, had moved to St. Louis, and he filed the papers in the case charging Mrs. Emerson with trespass and false imprisonment.

  Dred Scott

  Dred Scott began his long journey through the courts accompanied by a shifting cast of lawyers. There had been perhaps a dozen suits that slaves had won in Missouri claiming their freedom for residence in a free state. But in Scott, a Man of Color v. Emerson the Scotts lost the first round on an absurd technicality that they must remain Mrs. Emerson’s slaves because nobody could provide legal proof that they were her property. In the second trial, however, they won. They were nominally free but in the custody of the St. Louis sheriff, who hired them out. Mrs. Emerson appealed to the Missouri Supreme Court. The case attracted almost no attention even in St. Louis. In the meantime, about 1849 or 1850 Mrs. Emerson moved to Springfield, Massachusetts, to live with her sister. In a whirlwind romance she married a local physician, Calvin C. Chaffee, who was an abolitionist and friend of Charles Sumner. Chaffee was elected as an antislavery Know Nothing to the House of Representatives in 1854 in the wave against the Kansas-Nebraska Act and apparently was unaware that his w
ife owned slaves.

  By the time the Missouri Supreme Court ruled on the case the relatively tolerant tenor toward slaves who had lived in free states had been swept aside. Politics in the state was in the grip of a death struggle between the titanic Thomas Hart Benton, who had become an antislavery crusader, and David Rice Atchison, the president pro tempore of the Senate and central figure of the F Street Mess. Allies of Atchison now dominated the court. On March 22, 1852, the majority issued its decision, which emphasized its political imperative. “Times are not now as they were when the former decisions on this subject were made,” it read. “Since then, not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measure, whose inevitable consequence must be the overthrow and destruction of our Government. Under such circumstances, it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit.”

  Mrs. Emerson transferred control of Dred Scott and the case to her brother, John Sanford, a wealthy businessman who lived in New York. Scott sued for his freedom in the federal circuit court. On May 15, 1854, it found in favor of Sanford, that Scott and his wife were “lawful property.” Scott appealed to the Supreme Court on the grounds of diversity jurisdiction, that a suit spanning two states required federal resolution. Prominent attorneys took up their lances on each side. Senator Henry S. Geyer of Missouri, who had defeated Benton in 1850, and Senator Reverdy Johnson of Maryland, the former attorney general, volunteered for Sanford. Montgomery Blair, the son of Francis P. Blair and protégé of Thomas Hart Benton, who had been a leading lawyer in St. Louis before moving to Washington, represented Scott without fee. Through Francis P. Blair, Gamaliel Bailey, editor of the antislavery National Era, funded the court costs. Dred Scott was slowly becoming a national controversy.

  Montgomery Blair assumed that the decision would be made on the narrow basis of the specific case involving the individual plaintiff. Appearing before the Supreme Court on February 11, 1856, he argued in favor of the “once free, always free” precedent that had previously been upheld in Missouri, that Scott having lived in Illinois fell under its rule, and that he had a right to sue as other slaves had indeed done. Geyer and Johnson abandoned defending the particular merits and instead transformed the case into a platform to challenge the constitutionality of the Missouri Compromise, which had already been repealed. But their line of attack was intended to establish that it was not superseded and irrelevant but had always been wrong, that prohibiting slavery was not a constitutional power ever given to the Congress, and that therefore slavery could not be restrained from any territory. Their argument burnished the principle that John C. Calhoun had insisted was the vindication of the “peculiar institution” and refuted the “great principle” of popular sovereignty that Stephen A. Douglas claimed would allow a territory to choose to be free or slave.

  The justices descended into confused colloquy for months. Three wanted to reopen the question of Scott’s legitimacy to sue while four others just wanted to proceed to decide on the merits of the case. Justice Benjamin Curtis of Massachusetts wrote his uncle on April 8 that “the court will not decide the question of the Missouri compromise line,—a majority of the judges being of opinion that is it not necessary to do so.” It was clear that Justice John McLean would issue a strong dissent in favor of freeing Scott, a statement that might advance his candidacy for the Republican nomination. But that possibility was thwarted when the court announced on May 12 that the case would be reargued in December on the issues of jurisdiction and Scott’s right to sue. Postponing the case removed it from the contention of the campaign and scheduled it to coincide with the arrival of the new president.

  The court reconvened on December 15. By now public attention was fixed on the case. The Washington Union, the main Democratic newspaper, stated, “Seldom, if ever has there been a case before this high tribunal of greater importance, or one in which such a general and deep interest is felt.” Blair submitted a supplementary brief to prove the constitutionality of the Missouri Compromise, citing numerous instances of congressional power over slavery in territories. He added that “non-white male citizens” had been recognized by an act of the Missouri legislature in 1845. That salient fact, he argued, should settle the questions of jurisdiction and right to sue. His plea was for judicial restraint.

  The next day Senator Geyer opened the argument for Sanford by declaring that “true blacks are not citizens” and the “so-called compromise” had been forced under threat upon the South, which had put loyalty to the Union above the Constitution. Reverdy Johnson spoke on the 18th, delivering rhetoric in which he reverse-engineered the closing line of the most famous speech against the proslavery states’ right version of the Constitution, Daniel Webster’s oration of 1830 in which he proclaimed, “Liberty and Union, now and forever, one and inseparable!” Johnson instead argued that slavery and Union were one and inseparable. Not only was property in man constitutional, but the Union could rightly exist only to preserve it. “Slavery promises to exist through all time, so far as human vision can discover,” he said. The Missouri Compromise must be ruled unconstitutional or the Union itself would dissolve. “The extension of slavery on this continent is the only thing which will preserve the constitutional freedom we now enjoy.” Thus, the case went to the court.

  The Southern justices, still in an excited state from the campaign and feeling defiant in the face of the unexpectedly solid showing of the Republicans in the North, were already in touch with certain Southern politicians who may have exerted pressure. On the day of the second argument, December 15, Congressman Alexander Stephens, in contact with Justice James Wayne of Georgia, wrote his brother, “I have been urging all the influence I could bring to bear upon the Sup. Ct. to get them no longer to postpone the case on the Mo. Restriction before them, but to decide it.” At Stephens’s prodding, Wayne urged Taney to write the decision.

  President-elect James Buchanan decided that he would venture to Washington before his inauguration to shake off the scent of humiliation from the Forney debacle. Behind the curtains, Forney was plunging knives into various backs. Buchanan would establish his newfound prestige, receive notable men as supplicants, and begin to reorder the hierarchy of the capital’s status with himself at its apex. Having tried to isolate himself from fierce cross-currents of lobbying for cabinet positions, he was still juggling. He was impatient to claim his privilege and could not wait for his hesitant appointments to catch up with the calendar. On January 26 Buchanan checked into the National Hotel, owned by a friend from Lancaster. The capital was buried in a blizzard of more than a foot of snow and temperatures near zero. Plumbing froze in the hotel, sewage backed up, the kitchen was contaminated, and guests stricken with dysentery. Buchanan was afflicted for weeks. He retreated back to Wheatland. His nephew, Eskridge Lane, who accompanied him, became deathly ill and died on March 27.

  He had been fiddling with writing his inaugural address for more than a month unsure of his theme. His seclusion at home while he suffered from “National Hotel disease” concentrated him more than ever on his upcoming speech. From his visit to Washington he learned that the entire burden of the slavery issue in all its complexity could be lifted from his responsibility and neatly resolved in one stroke by the Supreme Court. He spoke about the progress of the Dred Scott case to his old friend, Justice John Catron, of Tennessee, and others.

  Catron was among the cadres of original Jacksonians, a Tennessee mountaineer who had fought with Jackson at the Battle of New Orleans, encouraged by Jackson to settle in Nashville to establish a law practice, rose through the party ranks to a state judgeship, and appointed to the Supreme Court on Jackson’s last day in office. His wife was of the socially prominent Childress family and her first cousin was married to President Polk, of Tennessee. Catron and his wife were childless, but he was not. He had a secret mistress named Sally, a slave who worked in a Nashville l
aundry. Their son James P. Thomas was born in 1827 and to be sold as a child of seven, but Sally arranged a payment through a friendly planter to buy him so that he stayed with her though he remained a slave. In 1851 Thomas’s legal owner emancipated him and he opened a barbershop. “Now my own father,” Thomas wrote in his autobiography, “was the Hon C and filled chairs of distinction. He presided over the Supreme Court ten Years (of Tennessee) but he had no time to give me a thought. He gave me twenty five cents once. If I was correctly informed that was all he ever did for me.” Catron referred to free blacks as “indolent,” “thieving,” and “depraved.”

  On February 3, Buchanan wrote Catron a letter to inquire whether the Dred Scott case would be decided before the inauguration on March 4. Catron replied on February 6 that Taney had not yet moved, but he assured Buchanan he would inform him “whether and when” it would be taken up. He wrote again on February 10: “The Dred Scott case will be decided next Saturday [February 14] but it is not at all probable that you will be helped by the decision in preparing your Inaugural. Some of the judges will not touch the question of [congressional] power, others may, but that it will settle nothing, in my present opinion.” Buchanan was receiving information from other informed sources, too. On the 14th, J. Glancy Jones wrote him, “The Supreme Court will give their decision soon and the reasoning of the opinion will cover Squatter Sovereignty. To anxious inquirers on this subject in your inaugural I have answered I believe you would rest on the decision of the Supreme Court.” Five days later, Catron wrote again with encouraging news. “You may say in your inaugural that the constitutionality of the Compromise is now before the tribunal, and you may add, ‘It is due to its high and independent character to suppose that it will settle and decide a controversy which has so long and uselessly agitated the country, and which must ultimately be decided by the Supreme Court.” He explained that the Southerners on the court had been triggered by the provocation of Justices Curtis and McLean, who wrote sharp dissents they were determined to release that would uphold the Missouri Compromise and justify a black’s right to sue. “A majority of my brethren will be forced up to this point by two dissentients.” Five Southern justices reacted angrily by tossing out the straitjacket of restraint and moving that the chief justice write the opinion that would wrap up all the issues including pronouncing the Missouri Compromise unconstitutional. Justice Wayne, who proposed the motion in conference, believed “it was practicable for the Court to quiet all agitation on the question in the Territories by affirming that Congress had no constitutional power to prohibit its introduction.”