The new thirty-sixth Congress assembled on December 5, 1859, a few weeks after Douglas published his final rejoinder to the Attorney General and just three days after John Brown died on the gallows in Virginia. Less than five months ahead lay the Democratic national convention, scheduled to meet at Charleston, of all places. Any lingering hope that the President might try to reunite the divided party was dispelled by his third annual message. Buchanan’s previous messages had contained only passing references to the Dred Scott case. Now, almost three years after the Court’s decision, he proceeded to “congratulate” the American people on the “final settlement” of the territorial issue:
The right has been established of every citizen to take his property of any kind, including slaves, into the common Territories belonging equally to all the States of the Confederacy, and to have it protected there under the Federal Constitution. Neither Congress nor a Territorial legislature nor any human power has any authority to annul or impair this vested right. . . .
Thus has the status of a Territory during the intermediate period from its first settlement until it shall become a State been irrevocably fixed by the final decision of the Supreme Court. Fortunate has this been for the prosperity of the Territories, as well as the tranquillity of the States.
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Here, straight from a Pennsylvanian in the White House, was proslavery doctrine pure enough to have satisfied John C. Calhoun, including even an acknowledgment that the territories belonged to the states, rather than to the nation. Here too was the Dred Scott decision stamped “irrevocable” and Taney s dictum against popular sovereignty accepted as authoritative. Furthermore, Buchanan added a flat endorsement of the southern demand for congressional protection of slavery in the territories whenever such protection should be needed.
The need seemed likely to materialize soon; for the Kansas legislature had already passed a bill abolishing slavery in the territory, only to have it killed by the governor’s pocket veto. There would surely be enough antislavery strength to override a veto when the effort was made again in 1860. And a similar movement had begun in Nebraska Territory, despite the fact that there were no slaves in residence there. The testing of Douglas’s Freeport doctrine was plainly under way.
Southern congressional leaders still had no desire to press for immediate slave-code legislation, however. What they wanted instead was an anti-Douglas platform for Charleston, phrased in such a way as to maximize southern solidarity. Jefferson Davis accordingly came forward on February 2, 1860, with a set of resolutions that sounded like “Calhoun brought up to date.” Endorsed by the President and approved with some minor revisions by the Democratic caucus in the Senate, they became the focus of sectional debate over slavery for the rest of the session. The critical resolutions were those numbered four to six, as follows:
4. That neither Congress nor a Territorial Legislature, whether by direct legislation or legislation of an indirect and unfriendly character, possesses power to annul or impair the constitutional right of any citizen of the United States to take his slave property into the common Territories, and there hold and enjoy the same while the territorial condition remains.
5. That if experience should at any time prove that the judiciary and executive authority do not possess means to insure adequate protection to constitutional rights in a Territory, and
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if the territorial government shall fail or refuse to provide the necessary remedies for that purpose, it will be the duty of Congress to supply such deficiency.
6. That the inhabitants of a Territory of the United States, when they rightfully form a constitution to be admitted as a State into the Union, may then, for the first time . . . decide for themselves whether slavery as a domestic institution shall be maintained or prohibited within their jurisdiction.
The fourth and sixth resolutions, it will be seen, amounted to a categorical rejection of Douglas, popular sovereignty, and the Freeport doctrine. The fifth resolution was likewise aimed at Douglas, but its bland and contingent terms made it something of a farce because a new bill abolishing slavery had just been hastily passed in the Kansas legislature and repassed over the governors veto. The time for congressional intervention had therefore already arrived, said the Jackson Mississippian. “We invoke the guardians of the people’s rights at Washington to come at once to the rescue.” Albert G. Brown promptly introduced a bill to “punish offenses against slave property” in Kansas, but it was buried in committee. Judah P. Benjamin later admitted that legislation for the protection of slavery in Kansas would be a waste of time. “We want a recognition of our right, because it is denied,” he said, “but we do not want to exercise it now, because there is no occasion for exercising it now.”
The interminable debate in the Senate over the Davis resolutions was echoed in the House of Representatives, in newspaper columns, in many state legislatures, and in the local and state conventions of the Democratic party which were at work choosing delegates to send to Charleston. With Illinois leading the way, the conventions in the Old Northwest lined up unanimously behind Douglas. Although his support in the other northern states was less solid, it became increasingly clear that he had no pre-eminent rival for the presidential nomination and could expect to receive a majority of the votes on the first ballot. But a convention rule dating back to 1832 required a two-thirds majority to nominate, and that was a different matter. Douglas
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would need some southern help to win; yet the state conventions in the South, one by one, turned their faces against him and endorsed the principles of the Davis resolutions.
So the Charleston convention assembled on April 23 in a condition of virtual stalemate, the Douglas delegates being numerous enough to dictate a platform but not to nominate their candidate. Southerners had reason to believe that by holding out firmly against Douglas they could force him to withdraw from the contest. Douglas men, at the same time, could see two ways of increasing their percentage of the total vote. By making concessions on the platform they might recruit some moderate southerners to their ranks. On the other hand, by rejecting demands for an explicitly proslavery platform they might provoke enough southern walkouts to leave themselves a two-thirds majority of the delegates remaining in the hall.
In a rare moment of consensus, the delegates voted to construct their platform first. The platform committee consisted of thirty-three members, one from each state. The delegates from Oregon and California joined the fifteen southerners to present a majority report denying territorial power over slavery and calling for federal protection of the institution whenever it might be needed. The minority report simply reaffirmed the indistinct Cincinnati platform of 1856 and referred the question of territorial power to the Supreme Court. There was no insistence on the Douglas version of popular sovereignty, no reiteration of the Freeport doctrine.
The crisis came when these reports were presented to the convention. The Douglas forces, with their superior numbers, adopted the minority report. As one last gesture of compromise, however, they eliminated the resolution referring the territorial question to the Supreme Court. This left a platform that said nothing about slavery beyond reaffirming the Cincinnati platform. It was an inoffensive rejection of southern demands, but a rejection none the less, and when the voting ended, the Alabama delegation announced its withdrawal from the convention, followed by the delegates from Mississippi, Louisiana, South Carolina, Florida, Texas, and Arkansas. The Georgia delegates took
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their departure the next day. With the exception of Arkansas, these were the same states that, after Lincoln’s election, would secede from the Union and form the Southern Confederacy. Their delegations withdrew, it should be emphasized, rather than accept the party platform of 1856 and out of hostility to the man whom they had supported overwhelmingly for the nomination just four years earlier. 0 Such was the revolutionary change of attitude in the deep South, wrought primarily by the Lecomp- ton controversy, the Dred Scott decision, and the Harpers Ferry raid.
The withdrawal of fifty-one southern delegates did not bring success for Douglas. After two days of balloting without a nomination, the delegates approved a proposal that they adjourn and reassemble at Baltimore on June 18. There followed an interval of consultation and maneuver in preparation for resumption of the struggle. Meanwhile, the Republican convention assembled at Chicago in mid-May and surprised everyone by nominating Abraham Lincoln instead of the odds-on favorite, William H. Seward. A week earlier, delegates from the Whig-American remnant had likewise gathered in convention. Calling themselves the “Constitutional Union Party,” they nominated the elderly Tennessee Whig, John Bell, on a platform of having no platform other than “the Constitution of the Country, the Union of the States, and the Enforcement of the Laws.”
Congress remained in session, and the Senate resumed its discussion of the Davis resolutions until they were finally approved in late May. The central point at issue was still the meaning of the Dred Scott decision. Republicans continued to deny its legitimacy. Douglas Democrats continued to circumscribe its import by denying that it had settled the question of territorial power, though they promised to acquiesce in any future judicial ruling on that subject. Southerners continued to insist that the decision had settled all outstanding territorial issues in their favor—that both the Republicans and the Douglas Democrats
° On the early ballots at Cincinnati in 1856, Douglas received all the votes of South Carolina, Alabama, Mississippi, Florida, Texas, and Arkansas, as well as most of the Georgia votes. Only Louisiana supported Buchanan.
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were trying to cheat them of a clear-cut victory in the courts. Nothing in the debate justified any hope of a Democratic reconciliation at Baltimore.
The platform battle was never renewed at Baltimore; for a crisis developed immediately over the seating of rival delegations, and another southern walkout ensued. The shocked but resolute delegates remaining in the hall then nominated Douglas for the presidency. The seceders hastened to convene elsewhere in Baltimore, declaring themselves to be the true national convention of the Democratic party. As their candidate for the presidency, they nominated Vice President John C. Breckinridge of Kentucky.
As a party platform, the Breckinridge convention simply adopted the majority report of the resolutions committee at Charleston, with its denial of territorial power over slavery and its demand for federal protection whenever needed. The Douglas convention had left itself at Charleston with a mere reaffirmation of the Cincinnati platform. During the Baltimore proceedings, however, an additional resolution was approved:
That it is in accordance with the inteipretation of the Cincinnati platform, that during the existence of the Territorial Governments the measure of restriction, whatever it may be, imposed by the Federal Constitution on the power of the Territorial Legislature over the subject of the domestic relations, as the same has been or shall hereafter be finally determined by the Supreme Court of the United States, should be respected by all good citizens, and enforced with promptness and fidelity by every branch of the General Government.
This diffuse formulation surrendered much of what Douglas had presumably been contending for. It acknowledged that popular sovereignty might be unconstitutional and that the Supreme Court might already have declared it so. More than that, the resolution virtually embraced the principle of congressional intervention, declaring that “every branch” of the federal government must enforce whatever judicial determination there had been, or might be, regarding slavery in the territories.
The Douglas and Breckinridge platforms were very nearly
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identical, except in their interpretations of the Dred Scott decision, and by no means diametrically opposed even on that subject. The bolters had bolted at Charleston after failing to get everything they wanted in the platform, and at Baltimore after failing to get everything they wanted in the seating of delegates. Back of all this intransigence there was an ad hominem resolve. When it came to the test, a majority of Democrats from the deep South preferred to break up their party rather than accept the nomination of Douglas, just as they had already determined to break up the Union rather than accept the election of a Republican President. In this respect, the Democratic conventions were rehearsals for secession.
The nomination of Lincoln astonished most of the country, but his election in November took no one by surprise. Separately, neither Breckinridge nor Bell nor Douglas had any chance of winning, and efforts to form an anti-Republican coalition succeeded in only a few states. The best hope was that Lincoln might somehow be denied an electoral majority, whereupon the election would be cast into the House of Representatives. Few southerners were sanguine, however. “The result of the Presidential struggle is no longer one of much doubt or uncertainty,” said the Columbia South Carolinian more than three months before election day. “Take State by State, and make whatever calculations we may, . . . we can arrive at no other conclusion than that Lincoln is to be the next President of the United States.”
Their early recognition of the likelihood of defeat gave southerners abundant time before the election to consider what a Republican presidency would mean for the South and what ought to be done about it. On both questions there was disagreement along a wide spectrum; for the southern consensus on slavery never translated into a consensus on disunion. In the deep South, however, the emotional advantage was on the side of the immediate secessionists, who predicted the disruption, sooner or later, of slaveholding society if the southern people submitted meekly to Republican rule.
Southern political leaders and editors favoring secession, or leaning toward it, developed a scenario for the future of the
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South under a Republican administration. Of course, they said, there would probably be no overt acts of aggression in the beginning. Instead, the Republicans would set about consolidating their power in the North and insidiously dividing the South. Their energy and public appeal further enhanced by capture of the presidency, they would seize control of the House of Representatives and, with the admission of additional free states, soon become masters of the Senate. Furthermore, it was only a matter of time until the presidential power of appointment would place an antislavery majority on the Supreme Court. Then, in full command of the federal government, the Republicans could “plunder the South” with a protective tariff, repeal or emasculate the Fugitive Slave Act, abolish slavery irl the territories, and prohibit the interstate slave trade. The South, at the same time, would be losing its ability to resist such aggression. Federal offices would furnish the basis for a southern abolitionist party. Then, said the New Orleans Delta, “the armies of our enemies will be recruited from our own forces.” And everywhere the uninhibited circulation of abolitionist propaganda and the emboldened invasions of abolitionist agitators would inspire chronic servile rebellion and thus accelerate the destruction of slave society from within.
With the election of Lincoln, because of what it seemed to signify, the sectional conflict far overran the issue of slavery in the territories. Then the secession movement precipitated a new national crisis and presented a set of new national issues even more remote from the territorial question. Yet, in the final efforts to save the Union by engineering another great compromise, the territorial question, despite its questionable relevance, once again became the center of attention. Compromise leaders seemed pathetically convinced that if they could somehow solve this most troublesome of old problems, all the terrible new ones would go away.
The major sectional crises of the past had been susceptible of compromise in Congress because they had arisen in Congress and were more or less within congressional control. The crisis of 1860-61 was of a different order; for it resulted from a decision of the American people at the polls, and that decision could not in itself be reversed or modified by congressional action. Com-
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promise leaders could only try to cushion the shock of Lincoln’s election by obtaining legislation that would to some degree meet southern demands for security and sectional parity within the Union. They had to contend, moreover, not only with the momentum of a secession movement briskly in progress but also with growing sentiment in the North against any concessions extorted by threat of disunion. Congress, in short, had little control over the crisis of 1860-61, but historical tradition and public expectation required that it go through the familiar motions of legislative compromise.
Public attention was directed especially to the Senate, which had long been the matrix of sectional compromise, and the Senate responded in the spirit of 1850 by creating a special Committee of Thirteen to consider remedies for the “agitated and distracted condition of the country.” The leader of the committee (though not its official chairman) was John J. Crittenden of Kentucky, who held the seat once occupied by Henry Clay. Crittenden put together his own “omnibus” of Union-saving measures. Consisting of six constitutional amendments and four supplementary resolutions, it was largely proslavery in character. It promised to settle once and for all the longstanding argument over whether slavery was an institution sanctioned by the federal Constitution or strictly a creature of state and local law. The words “slave” and “slavery,” never used in the Constitution itself, appeared fifteen times in the text of the six amendments.
The most critical item in the Crittenden package was a constitutional amendment restoring the Missouri Compromise line and extending it to the Pacific coast. Slavery was prohibited north of 36° 30' and “recognized as existing” to the south. Crittenden thus proposed to revive a territorial solution that antislavery men had long been unwilling to accept and that southerners had grown accustomed to denouncing as a gross injustice to their section. Other amendments in the package forbade abolition of slavery on federal property within slaveholding states; forbade abolition in the District of Columbia as long as slavery continued to exist in Virginia or Maryland; prohibited federal interference with interstate transportation of slaves; and required Congress to provide for the compensation of any slave-
Slavery, Law, and Politics
holder who was prevented by force from or intimidation from recovering a fugitive slave. Crittenden’s sixth amendment, designed to place a double lock on southern security, provided that the other five amendments should never be subject to future amendment. It extended the same immunity to the three-fifths clause and the fugitive-slave clause. It also forbade any amendment authorizing Congress to “abolish or interfere” with slavery in states where it was permitted by law. As a consequence, all parts of the Constitution related directly to slavery would have been made unamendable—a privileged status accorded permanently to no other clause of the Constitution, except the guarantee of equal state representation in the Senate.*
The Crittenden omnibus was defeated in the Committee of Thirteen and defeated again when brought independently to the floor of the Senate. Adopted with some changes by the Washington Peace Conference in February 1861 and presented to Congress on the eve of adjournment, it was again rejected, this time by both houses. The plan failed primarily because of overwhelming Republican opposition, and the principal sticking point was the amendment restoring and extending the 36° 30' line. On this issue, the President-elect declared himself “inflexible” and urged members of Congress to “entertain no proposition for a compromise in regard to the extension of slavery.” In the dire circumstances such inflexibility seemed irrational and unconscionable to supporters of compromise. “What,” asked a Douglas newspaper in upper New York, “would the North lose, then, by this Compromise line? Nothing. What would the South gain by it? We answer again, nothing . . . The quarrel, after all, is about an unsubstantial right—a mere abstraction.”
Obviously, this was an argument that could have been directed with equal relevance to both sections. Indeed, what perhaps needs explaining most is the extent to which southerners insisted upon the 36° 30' amendment as a sine qua non of compromise. For in a way, the amendment appeared to be a substantial concession to antislavery sentiment, rather than to the
* Article V made two clauses unamendable before 1808 (foreign slave trade and prohibition on direct taxes) and declared that no state without its own consent could be deprived of “its equal suffrage in the Senate.”
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slaveholding interest. That is, it virtually nullified the Dred Scott decision in three-fourths of the existing western territory and imposed the Republican principle of federal exclusion there. So this, it seemed, was an opportunity for advocates of free soil to gain back much of what had been lost in the 1850s. Yet Republican members of Congress were united in their opposition to the amendment, while a great many southerners, especially in the border states, regarded it as the most essential element in a compromise program that just might satisfy the minimal demands of the deep South and thus prepare the way for a swift reconstruction of the Union.
One may with good reason doubt that the momentum of secession could have been arrested by congressional approval of a constitutional amendment which had little practical significance and was unlikely ever to be ratified.* Yet there is also good reason to consider why this worn-out solution to a disappearing problem should have become laden with so much hope in the winter of 1860-61 and why it should have been rejected with so much passion. The answer obviously lies, not in what the amendment was designed to accomplish, but rather in what it was assumed to signify.
Southern fear of Republican power could be substantially diminished only by a substantial renunciation of Republican purpose. “The crisis,” said Albert G. Brown, “can only be met in one way effectually, . . . and that is, for the northern people to review and reverse their whole policy upon the subject of slavery.” By the terms of Crittenden’s 36° 30' amendment, in contrast with the old Missouri Compromise restriction, slavery would have been not just silently permitted in part of the federal territory
° The Crittenden amendments, even if passed by the required two-thirds majority in the Senate and House of Representatives, would then have had to win the approval of 52 legislative chambers in 26 states. The odds against such an achievement were forbidding enough in themselves, and the progress of secession made them enormous. By February 1, seven states had seceded and only 27 remained in the Union. Yet the number required for ratification could not be reduced below 26 without acknowledging secession as a legal right and an accomplished fact—something that most Republicans and many northern Democrats were unwilling to do. All of which meant that the opposition of two states—say, Maine and Vermont—would have been sufficient to block ratification.
Slavery, Law, and Politics
but given positive constitutional protection there. Thus Republican acceptance of the amendment would have constituted at least a partial renunciation of the Republican purpose—a signal of semi-surrender to southern demands. In this perspective, it appears that both sides may have understood clearly what southerners were asking and Republicans refusing in 1861—understood the critical symbolic meaning of their last, ostensibly empty quarrel over slavery in the territories.
2
Roger B. Taney had watched the presidential campaign of 1860 with great anxiety. By mid-October, the results of several important gubernatorial contests had clearly foreshadowed a Republican victory, and his deepening pessimism became apocalyptic. Characteristically, he said nothing in public, but he unburdened himself in a letter to his son-in-law. “I am satisfied,” he wrote, “that there are true men enough in the free states to have elected Breckinridge. But how could they be expected to quarrel with their neighbors for Southern rights while the South was everywhere quarreling among themselves ... at a moment when the knife of the assassin is at their throats.” Taney agreed with his son-in-law that the South faced an imminent danger (unspecified but obviously a widespread slave insurrection), and he thought that it might “burst out” with the news of Lincoln’s election. “I am old enough to remember the horrors of St. Domingo,” he wrote, “and a few days will determine whether anything like it is to be visited upon any portion of our own Southern countrymen. I can only pray that it may be averted and that my fears may prove to be nothing more than the timidity of an old man.”
On December 3, with Lincoln elected and the crisis deepening in Washington, the Supreme Court opened its new term. The justices also paid their customary courtesy visit to the White House. There is no evidence that James Buchanan sought Taney’s advice during this period, but their attitudes toward the impending national emergency were similar. Both men placed the blame
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for the crisis on northern antislavery agitators, and both regarded secession as an illegal act but maintained that the federal government had no power to suppress it by force of arms.
Buchanan’s views were presented to Congress and the nation in his last annual message. It was about two months later that Taney, in the midst of a busy Court schedule, took time to put his thoughts on paper. By then, secession had become a reality in six states. The purpose of this memorandum is not indicated. It may never have progressed beyond the rough draft, only part of which survives as a manuscript of eight consecutive pages with neither a beginning nor an ending. The fragment begins with Taney arguing that slavery had a firm legal foundation in the international law of Europe and that the free states of the Union were doubly obligated to respect the institution because they had also “bound themselves by the social compact of the Constitution to uphold it.” Yet, said Taney, men were now violating their contractual obligation and talking about a “higher law” to justify their fanaticism against slavery—a fanaticism of the same kind that had produced the bloody excesses of the French Revolution.
Next, Taney traced the progress of “free state aggression” through the crises of 1820 and 1850; the passage of state laws defying the Fugitive Slave Act; the use of churches and schools for dissemination of antislavery propaganda; and the publication of a novel “well calculated to rouse the morbid thought of fanatics, which portrayed in pictures of exaggeration the evils of slavery.” Finally, a party “educated by this means” was about to take possession of the federal government. The party had rejected all terms of conciliation and proclaimed an irrepressible conflict between free labor and slave labor. Its onward march to power left southerners convinced that Republicanism was “at best abolitionism in disguise.” This apprehension had already driven six states from the Union, and more were ready to leave unless they received “guarantees against wrongs for the future.”*
The South, Taney continued, was mistaken in claiming a con-
0 The sixth and seventh states to secede were Louisiana on January 26 and Texas on February 1. Hence the writing of the fragment can be dated within a few days.
Slavery, Law, and Politics
stitutional right to secede; for secession was revolutionary and “only morally competent, like war, upon failure of justice.” At the same time, federal laws could be enforced within a state only by its own citizens, and federal military power could enter a state only at the request of state officials. Consequently, there was “no rightful power to bring back by force the states into the Union.”
These were the views of the Chief Justice who, on March 4, 1861, administered the oath of office to the incoming President, and his feelings on that occasion are not difficult to imagine. He must have listened unhappily to Lincoln’s inaugural address, especially during several disagreeable moments when he found himself virtually the target of an attack on judicial review. After having acknowledged the binding effect of a judgment by the Supreme Court in any specific case brought before it, Lincoln, with Dred Scott obviously in mind, went on to declare: “If the policy of the government ... is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.” For Taney, the passage could only have served to confirm his low opinion of the new President.
Before long, the Chief Justice was watching his own state of Maryland become the scene of mob action, conspiracy, sabotage, and military repression. Then, three months after the inauguration, he clashed head on with the new administration and suffered defeat. His writ of habeas corpus ordering the release of a Marylander, John Merryman, was defied by military authorities, and his sensational opinion declaring presidential suspension of the writ unconstitutional was in effect overruled by the Attorney General. This bitter experience convinced Taney that the President was establishing a military tyranny, and he clung to the conviction as long as he lived. “The supremacy of the military power over the civil seems to be established,” he lamented in 1863, “and the public mind has acquiesced in it and sanctioned it.” In performing his wartime official duties, Taney opposed the Lincoln administration at every opportunity. His sympathies re-
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mained with the South. When the grandson of an old friend called upon him before leaving to join the Confederate army, the Chief Justice reportedly said: “The circumstances under which you are going are not unlike those under which your grandfather went into the Revolutionary War.”
What rivets attention in Taney’s private views on the sectional crisis is not so much the substance of his thought as the intensity of his feelings. A pro-southern bias could be read easily enough in his public record, but from all except a few close friends he concealed the fierceness of his hostility to the antislavery movement. This hostility, moreover, was not caused but merely aggravated by the flood of abuse that descended upon him after the Dred Scott decision. His attitudes were firmly set before that time, as he revealed in a letter to his son-in-law during the campaign of 1856:
The South is doomed to sink to a state of inferiority, and the power of the North will be exercised to gratify their cupidity and their evil passions, without the slightest regard to the principles of the Constitution. ... It is my deliberate opinion that . . . nothing but a firm united action, nearly unanimous in every state, can check Northern insult and Northern aggression.
Such, of course, had been the urgent message of Calhoun in his later years—that southerners must unite as a people or die as a civilization at the hands of an implacable enemy.
Taney’s personal life had been torn apart in 1855 when his wife and youngest daughter died just a few hours apart. This tragedy, says his biographer, Carl B. Swisher, may have “deprived him of the emotional reserves necessary to preserve the judicial balance for which he had hitherto received credit and led to the taking of more and more extreme positions.” Yet it also seems possible that Taney’s growing extremism in the late 1850s was primarily a response to ominous changes in the political environment—notably the rise of the Know Nothings, whom he regarded as ugly bigots, and the rise of the Republicans, whom he regarded as dangerous fanatics. What needs to be emphasized in any case is that his Dred Scott opinion was written with an
Slavery, Law, and Politics
emotional commitment so intense that it made perception and logic utterly subservient. The extraordinary cumulation of error, inconsistency, and misrepresentation, dispensed with such pontifical self-assurance, becomes more understandable with the realization that the opinion was essentially visceral in origin— that law and history were distorted to serve a passionate purpose. Taney’s real commitment, one must also emphasize, was not to slavery itself, for which he had no great affection, but rather to southern life and values, which seemed organically linked to the peculiar institution and unpresentable without it. He used the Dred Scott case to reinforce the institution of slavery at every possible point of attack, not because he had once been a slaveholder but because he remained, to the end of his life, a southern gentleman.
The strong feelings that governed him were no doubt a mixture. Love for the South and pride in his own southern heritage mingled with emotions of a negative sort, such as fear—fear of slave uprisings—and indignation at northern critics of slavery. Taney, above all in the late 1850s, was fiercely anti-antislavery. We must not be misled by his physical weakness or his gentle mien. Wrath, says an ancient Greek poet, is the last thing in a man to grow old. The Dred Scott opinion, defensive in substance but aggressive in temper, was the work of an angry southern gentleman.
From a study of Taney’s private emotional responses to the sectional controversy, one can learn something about the coming of the Civil War. Like the Chief Justice, a majority of southerners had no significant economic stake in the institution of slavery, but they did have a vital stake in the preservation of southern social order and southern self-respect. With increasing frequency and bitterness as the years passed, southerners protested that they were being degraded by northern sanctimony. In the end, it may have been the assault on their self-respect—the very language of the antislavery crusade—that drove many of them over the edge. Taney’s Dred Scott decision, viewed in this context, is a document of great revelatory value. In the very unreasonableness of its argument one finds a measure of southern desperation.
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3
Aside from its revelatory significance, the Dred Scott decision was also a public act that had important public consequences. The chief reason for the prominence of the decision in American historical writing is the belief that it became a major causal link between the general forces of national disruption and the final crisis of the Union in 1860-61. Scholars have been emphatic in affirming the connection but vague about its mechanics. The Dred Scott decision, we are told, “helped precipitate” or “did much to precipitate” or “helped to bring about” the Civil War. But there is never much explanation of just how the cause contributed to producing the effect.
Of course the historian should take into account all discernible causal relationships, including those of such a general nature that they may be too vague to isolate and measure. One must duly consider, for instance, the ways in which the Dred Scott decision altered the formal argument over slavery; for secession was a highly formal public act as well as a highly emotional one. And no doubt the decision contributed heavily to the general accumulation of sectional animosity that made some kind of national crisis increasingly difficult to avoid. Still, since there were many other causes of the hostility between North and South, it is difficult to imagine a dissipation of the gathering storm if only Justice Nelson had been allowed to speak for the Court, as originally planned, in his less controversial Dred Scott opinion. Most historians would probably agree that the sectional conflict was already deep-seated and pervasive before 1857. But what turned a chronic struggle into a secession crisis was the outcome of the presidential election in 1860. Accordingly, if one wishes to go beyond the unverifiable general impression or conviction that the Dred Scott decision, like Uncle Tom’s Cabin and the Harpers Ferry raid, somehow helped to “bring about” the Civil War, it becomes necessary to test the accuracy of Charles Warren’s assertion that Taney “elected Abraham Lincoln to the Presidency.”
Slavery, Law, and Politics
There were two principal ways in which the Dred Scott decision could have had a critical influence on the election of 1860. One was by contributing significantly to the split in the Democratic party; the other was by contributing significantly to the growth of the Republican party. The disruption of the Democrats, because of its dramatic climax at Charleston and its association with the famous Lincoln-Douglas exchange at Freeport, has received the primary emphasis in historical writing. Yet, as we have seen, the Dred Scott decision did not at first put any serious strains on Democratic unity, and Douglas enunciated the Freeport doctrine in 1857 without incurring the slightest adverse criticism from southern Democrats. Only after the Lecompton struggle had done its irreparable damage did the Dred Scott decision and the Freeport doctrine become a divisive influence within the party. Furthermore, the election statistics indicate that Lincoln would have won in 1860 even against a consolidated opposition; for he carried fifteen of the eighteen free states with popular majorities, and they were enough to give him an electoral majority. The argument of certain historians that a reunited Democratic party (that is, a party approved and to some extent controlled by its southern wing) would somehow have attracted additional votes in the North remains a highly dubious speculation. In summary, the Dred Scott decision was at most a secondary factor in the division of the Democratic party, and that division in any case probably did not determine the outcome of the presidential election.
There remains the question of whether the Dred Scott decision had a significant influence on the Republican upsurge that gave Lincoln 98 per cent of the northern electoral vote. The difference between defeat in 1856 and victory in 1860 was a halfmillion additional Republican voters in the free states, including three hundred thousand more than the party’s proportionate share of the increase in the voting population. Approximately 70 per cent of the three-hundred-thousand-vote gain was made in the five crucial free states that the Democrats had carried in 1856. The sixty-two electoral votes of New Jersey, Pennsylvania, Indiana, Illinois, and California had all gone to Buchanan in 1856; Lincoln won fifty-nine of them in 1860.
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Table captionREPUBLICAN PERCENTAGES OF THE POPULAR VOTE
|
N.J. |
PENN. |
IND. |
ILL. |
COMBINED |
|
|
1856 |
28.5 |
32.0 |
40.1 |
40.2 |
35.4 |
|
1858 |
52.5*“ |
53.7 |
51.7 |
49.8 |
52.1 |
|
1860 |
48.2 |
56.1 |
51.1 |
50.7 |
52.7 |
Table caption* California, which had only four electoral votes, is omitted from the table because the mixing of Republican and anti-Lecompton votes in 1858 makes it impossible to measure Republican strength for that year. The Republicans carried 18.8 per cent of the state’s vote in 1856 and 33 per cent in 1860.
e * The New Jersey percentage for 1858 is somewhat inflated because in two congressional districts the Republicans supported anti- Lecompton Democrats.
This political revolution, moreover, was largely completed in the midterm elections of 1858, as the preceding table shows. It therefore seems chronologically sound to infer a causal connection between the Dred Scott decision and the Republican surge to power. Yet there are also considerations that militate against such an inference. For one thing, voting behavior in the late 1850s was of course affected by other influences besides the slavery issue. The economic depression that struck the country in 1857 undoubtedly had political repercussions, for instance, and in any case, it has been well demonstrated that many voters were not decisively oriented to issue politics.
In addition, the Republican gains in the late 1850s can be explained to a large extent by the collapse of the Know-Nothing movement in the North and the resulting shift of many Whig- Americans into Republican ranks. Throughout the northern tier of free states from New England to Wisconsin, this Republican absorption of political nativism had begun in 1856, when large numbers of Know-Nothings supported Fremont instead of Fillmore. In the lower North, including the states that voted for Ruchanan, the major change occurred after 1856. Pennsylvania s sixteen strongest Know-Nothing counties, for example, gave Fremont only 12 per cent of their total vote in the presidential election of 1856, but gave the Republican ticket 54 per cent in
Slavery, Law, and Politics
REPUBLICAN PERCENTAGES OF TOTAL VOTE
1858 and Lincoln 53 per cent in 1860. The important question that cannot be answered with any precision is whether the mass movement of Fillmore Americans into the Republican camp in 1857-58 was heavily influenced by the Dred Scott decision and other aspects of the sectional conflict, or whether the movement was virtually a necessity in any case because of the lack of satisfactory alternatives.
Aside from the knotty problem of the relationship between Dred Scott and Republican absorption of the Fillmore vote, there is also the difficulty of distinguishing between the political effects of the Dred Scott decision and the political effects of the Lecompton controversy. It is essential to draw this distinction
Not Peace but a Sword
293
DEMOCRATIC PERCENTAGES OF TOTAL VOTE
1856 1857 1858 1860
60 %
55 %
50 %
4 £>%
40 %
35 %
30 %
because both events took place during the two-year period of the Republican party’s final surge to political dominance in the free states. One means of doing so is to examine the election results in seven northern states that held statewide elections in 1857 as well as in 1858. The pattern that emerges from such an examination is remarkably coherent. If the Dred Scott decision did improve the chances of Republican victory in 1860, one would expect to find that it had a similar effect on the elections of 1857, when the shock of the decision was still new. Instead, as the preceding charts show, the Republicans generally lost ground that year. The exceptions were states—most notably, Pennsylvania—where the influx of Fillmore men offset other losses. For
Slavery, Law, and Politics
1857, the Republican chart is affected one way by a general decline of party strength and the other way by the continuing recruitment of Whig-Americans in certain states. The Democratic chart is less ambiguous. It reveals a consistent pattern of Democratic gains in 1857, followed by declines in every state except Michigan and Iowa. In Pennsylvania, for instance, the Democrats captured the governorship in 1857, defeating the Republicans by more than forty thousand votes. A year later, the Democrats lost nearly all of their congressional seats and were outpolled by more than twenty-five thousand votes. And in Ohio, regarded as a safely Republican state, the race issue stirred up by the Dred Scott decision enabled the Democrats to win control of the legislature in 1857, but the Republicans rebounded strongly in 1858 after the Lecompton controversy. There is, in fact, no evidence that Dred Scott manufactured votes for Republicans anywhere. On the contrary, it is difficult to escape the impression that the decision, if it helped anyone, helped the Democrats, and that the Lecompton struggle was the primary political influence in the final triumph of Republicanism.
Perhaps what all this means is nothing more than that the Dred Scott decision and public reaction to it, like most relevant antecedent conditions of a historical event, does not by itself pass the rigorous sine qua non test for an efficacious or sufficient cause. Yet one should not overlook the strong possibility that northern reaction to the Lecompton controversy in 1858 was intensified by the fresh memory of Taney’s proslavery ruling in 1857. A clustering of events in the late 1850s induced nightmarish visions of conspiracy among northerners and southerners alike. The Dred Scott decision by itself apparently caused no significant number of changes in political allegiance. Yet it was a conspicuous and perhaps integral part of a configuration of events and conditions that did produce enough changes of allegiance to make a political revolution and enough intensity of feeling to make that revolution violent.
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