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In spite of rock and tempest's roar,
DRED SCOTT AND LECOMPTON
UNDER Buchanan's administration, 1857-61, three events befell which were like wedges riving farther and farther apart the national unity. They were the Dred Scott decision by the Supreme Court, the Lecompton constitution in Kansas, and John Brown's raid at Harper's Ferry.
President Buchanan declared in his inaugural that the people of a Territory had a right to shape their institutions in their own way, but as to how far that right extended before they organized as a State, the United States Supreme Court was the proper arbiter. Two days after the inaugural, the Supreme Court announced its decision, in a case made up expressly to test the status of slavery in the Territories. Suit was brought before it to obtain freedom for Dred Scott, who being held as a slave in Missouri had been taken by his master to reside for a time in Illinois, and afterward at Fort Snelling in unorganized territory north of 36 degrees 30 minutes, and so free under the Missouri compromise. It was claimed that by being taken upon free soil, in State or Territory, he became free. The court, in an elaborate opinion delivered by Chief-Justice Taney, dismissed the case for want of jurisdiction, on the ground that no person of slave descent or African blood could be a citizen of the United States or be entitled to sue in its courts. The court affirmed that the sweeping language of the Declaration, that “all men are born free," had no application to negroes, because at that time they were generally regarded "as so
far inferior that they had no rights which the white man was bound to respect." The case being thus thrown out of court, all further discussion of its merits was superfluous— a mere obiter dictum, without legal force. Nevertheless, the court through its chief-justice went on to pronounce upon the plaintiff's claim and declare it baseless; on the ground that inasmuch as a slave was lawful property, and the Constitution decreed that no man should be deprived of his property without due process of law, therefore an act of Congress declaring in effect that when carried beyond a certain line a slave was lost to his master, was unconstitutional and void. Thus the court set aside as invalid the exclusion of slavery from the Territories by Congress. As to the effect of a slave's residence in a free State by his master's act, followed by a return to a slave State, the court held that this question belonged properly to the Missouri courts, which had decided against the slave's claim.
Two of the justices, McLean and Curtis (Northern Whigs), dissented emphatically from the decision. Justice Curtis pointed out, as to the alleged incapacity of the negro for citizenship at the era of the Constitution, that at that period free negroes had the right of suffrage in five of the thirteen States. As to the argument against depriving a man of his property, the contention of the Republicans was that slaves were property, not by the common usage of mankind, but only by local law, and that when a slaveholder moved into a Territory he did not carry with him that local law by which alone a man could be held as a chattel. But the authoritative voice of the highest court in the land had proclaimed these amazing propositions,—that the guarantee of freedom to the Northwest, which the nation had accepted for a third of a century, was invalid, and that no person with negro blood had any civil rights as a citizen of the United States.
When, forty years later, a law of Congress establishing an equitable income tax was declared unconstitutional by the Supreme Court, and a Democratic national convention protested against that decision, the Republican papers of the day denounced the protest as hardly less than treason. But the Republicans of an earlier day were not so reverential toward the Supreme Court as an infallible authority. Could the court as a finality outlaw the negro from the common rights of man, and prevent Congress from establishing freedom in the national domain ? Not so thought the men who led the Republican party and the sentiment of the North. The New York Legislature, for example, promptly enacted that African descent should not disqualify from State citizenship; that any slave brought into the State by his master became free, and any attempt to hold him was a penal offense. It passed a resolution declaring that the Supreme Court had lost the confidence and respect of the people. Lincoln said in his dry way that the Republican party did not propose to declare Dred Scott a free man (by the way, he was soon manumitted by his former master's daughter)-but neither did they propose to accept the court's decision as a political rule binding the voters, or Congress, or the President; and they intended so to oppose it as to have it reversed if possible, and a new judicial rule established. Seward was very outspoken. He said a year later, in the Senate, “ The people of the United States never can and never will accept principles so unconstitutional, so abhorrent. Never, never! Let the court recede. Whether it recede or not, we shall reorganize the court, and thus reform its political sentiment and practices, and bring them in harmony with the Constitution and the laws of Nature."
The court's decision, obiter dictum and all, extended only to the power of Congress over the Territories. What a Territorial Legislature might do by way of excluding slavery
had not been passed on; and Douglas thus found room for his doctrine of "popular sovereignty.” But as to just what that meant, he was adroitly non-committal, till the more adroit Lincoln in the joint debate in 1858 drew from him the statement that a Territorial Legislature might by “unfriendly legislation ” practically exclude slavery—a committal which ended his favor from the South.
But meanwhile attention was focused on a different and more concrete question. Buchanan began his administration with an effort to pacify Kansas, by sending a new governor, Robert J. Walker, of Mississippi, with strong pledges from the President that the people should have fair dealing. But the situation was badly complicated. The Legislature had provided for a convention to frame a State Constitution. This was to be elected on the basis of a census taken by the county officials. But the Free State men having never recognized this Territorial Legislature, and having kept up the form of a State government of their own, there were no officials to take the census and register the votes in fifteen out of the thirty-four counties, and the registration was confined to the part of the Territory lying convenient for invasion from Missouri. Under these circumstances the Free State party resisted all Governor Walker's appeals to take part in the election, and the convention was chosen by a small vote. It met at Lecompton, and drew up a constitution. One article provided for the exclusion of free negroes, and another forbade any amendment for seven years. One section affirmed ownership of slaves as an inviolable right of property, and forbade any adverse legislation; and this section alone of the Constitution was submitted to the popular vote. A vote of the people was ordered, as between “constitution with slavery and constitution without slavery.” The Free State men scouted the whole proceeding, and refused to vote. So, by