Black Pawn On A Field Of Peril

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This Mr. Buchanan proceeded to do. In his inaugural address he remarked that the whole question of legalizing or prohibiting slavery in the territories was “a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be.”

This set the stage. Two days later—on March 6, 1857—the Court handed down its decision, the gist of which was that Dred Scott was a slave and not a citizen, and hence could not sue in federal court, and that the Missouri Compromise was unconstitutional because Congress had no power to prohibit slavery in the territories. To these basic findings there were just two dissents, those of Justices McLean and Curtis.

Thus the Supreme Court had (to use a police-court colloquialism) thrown the book at Dred Scott. But the case was most complicated. Each of the nine justices wrote an opinion; and although the majority agreed on the basic findings, they gave different reasons for their beliefs, and some of them remained silent on points which others considered highly important. In effect, the Court went beyond both Scott and the authority of Congress and discussed the whole rationale of slavery and the status of the Negro, and in all of this the sectional and political backgrounds of the justices were sharply emphasized. As Allan Nevins sums it up in his book, The Emergence of Lincoln: Three Southern judges declared that no Negro of slave ancestry could be entitled to citizenship: five Southern judges, with Nelson of New York, decided that Drcd’s status depended the the laws of Missouri; five Southern judges, with Grier of Pennsylvania, maintained that any law excluding slavery from a territory was unconstitutional: and two Northern judges, McLean and Curtis, held that Dred was a citizen, that Missouri law did not control his status, and that Congress had a constitutional right to pass laws debarring slavery from any Territory.

It was Taney’s opinion that went across the land like a thunderclap. Not only was Taney the Chief Justice; he was a man of immense prestige and learning, a veteran of Andrew Jackson’s famous fight with the Hank of the United States, named Chief Justice by Jackson in 1835 as successor to John Marshall, one of the most impressive figures in American life. Taney was eighty now, shrunken, wispy, with a heavy shock of iron-gray hair framing a deeply lined face. Fires burned in him, but he was physically frail, and as he read his momentous opinion his voice was so low that many of the people in the courtroom could not catch his words. Nevertheless, what he said was heard all across the country.

The Chief Justice addressed himself to the question of the constitutional power of Congress over the territories. It had been argued, he noted, that federal authority over the territories came from a clause permitting Congress to make rules and regulations for the government of the territories; but this, he held, was a mere emergency provision applying only to the lands ceded to the Confederation by the original states and did not apply to lands acquired after 1789. Properly, Congress had only those powers associated with the right to acquire territory and prepare it for statehood; it had no internal police authority, and while it might organixe local territorial government it could not “infringe upon local rights of person or rights of property.”

The right to hold slaves was a property right; since Congress could not interfere with a man’s property rights, it could not prohibit slavery in the territories: “And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection, than property of any other description.” To exclude slavery would violate the due process clause of the Fifth Amendment. Congress had nothing more than the power—“coupled with the duty”—to protect the owner in his property rights. Thus all territorial restrictions on slavery were dead.

Therefore the Missouri Compromise was unconstitutional. Its provision prohibiting slavery north of the 36 degree, 30 minute line was “not warranted by the Constitution” and was void. It was idle to argue that Dred Scott’s residence on free soil had made him a free man, because slavery had not lawfully been excluded from Wisconsin Territory in the first place.

But that was not all. As a Negro of slave origins (said Taney) Scott could not be a citizen of the United States anyway. He anil all people like him were simply ineligible. The Founding Fathers who wrote the Declaration of Independence and framed the Constitution had been thinking only of white men. At the time the Constitution was adopted, and for a long time before that, there was general agreement that Negroes were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far interior that they had no rights which the white man was bound to respect.”