Chapter VI (2)

The canvass grew in animation and earnestness to the end, the Republicans gaining strength before the people of the North every day. But Buchanan's election was not a surprise. Indeed, it had been generally expected. He received the electoral votes of every Southern State except Maryland, which pronounced for Fillmore. In the North, New Jersey, Pennsylvania, Indiana, Illinois, and California voted for Buchanan. The other eleven free States, beginning with Maine and ending with Iowa, declared for Fremont. The popular vote was for Buchanan 1,838,169, Fremont 1,341,264, Fillmore 874,534. With the people, therefore, Mr. Buchanan was in a minority, the combined opposition outnumbering his vote by nearly four hundred thousand.

The Republicans, far from being discouraged, felt and acted as men who had won the battle. Indeed, the moral triumph was theirs, and they believed that the actual victory at the polls was only postponed. The Democrats were mortified and astounded by the large popular vote against them. The loss of New York and Ohio, the narrow escape from defeat in Pennsylvania, the rebuke of Michigan to their veteran leader General Cass, intensified by the choice of Chandler as his successor in the Senate, the absolute consolidation of New England against them, all tended to humiliate and discourage the party. They had lost ten States which General Pierce had carried in 1852, and they had a watchful, determined foe in the field, eager for another trial of strength. The issue was made, the lines of battles were drawn. Freedom or slavery in the Territories was to be fought to the end, without flinching, and without compromise.

Mr. Buchanan came to the Presidency under very different auspices from those which had attended the inauguration of President Pierce. The intervening four years had written important chapters in the history of the slavery contest. In 1853 there was no organized opposition that could command even a respectable minority in a single State. In 1857 a party distinctly and unequivocally pledged to resist the extension of slavery into free territory had control of eleven free States and was hotly contesting the possession of the others. The distinct and avowed marshalling of a solid North against a solid South had begun, and the result of the Presidential election of 1856 settled nothing except that a mightier struggle was in the future.

DECISION IN THE CASE OF DRED SCOTT.

After Buchanan's inauguration events developed rapidly. The Democrats had carried the House, and therefore had control of every department of the government. The effort to force slavery upon Kansas was resumed with increased zeal. Strafford's policy of "thorough" was not more resolute or more absolute than that now adopted by the Southern leaders with a new lease of power confirmed to them by the result of the election. The Supreme Court came to their aid, and, not long after the new administration was installed, delivered their famous decision in the Dred Scott case. This case involved the freedom of a single family that had been held as slaves, but it gave occasion to the Court for an exhaustive treatment of the political question which was engrossing public attention. The conclusion of the best legal minds of the country was that the opinion of the Court went far beyond the real question at issue, and that many of its most important points were to be regarded as _obiter dicta_. The Court declared that the Act of Congress prohibiting slavery in the Territories north of 36 deg. 30' was unconstitutional and void. The repeal of the Missouri Compromise was therefore approved by the highest judicial tribunal. Not only was the repeal approved, its re-enactment was forbidden. No matter how large a majority might be returned to Congress in favor of again setting up the old landmark which had stood in peace and in honor for thirty-four years, with the sanction of all departments of the government, the Supreme Court had issued an edict that it could not be done. The Court had declared that slavery was as much entitled to protection on the national domain as any other species of property, and that it was unconstitutional for Congress to decree freedom for a Territory of the United States. The pro-slavery interest had apparently won a great triumph. They naturally claimed that the whole question was settled in their favor. But in fact the decision of the Court had only rendered the contest more intense and more bitter. It was received throughout the North with scorn and indignation. It entered at once into the political discussions of the people, and remained there until, with all other issues on the slavery question, it was remanded to the arbitrament of war.

Five of the judges--an absolute majority of the court--were Southern men, and had always been partisan Democrats of the State-rights' school. People at once remembered that every other class of lawyers in the South had for thirty years been rigidly excluded from the bench. John J. Crittenden had been nominated and rejected by a Democratic Senate. George E. Badger of North Carolina had shared the same fate. They were followers of Clay, and not to be trusted by the new South in any exigency where the interests of slavery and the perpetuity of the Union should come in conflict. Instead, therefore, of strengthening the Democratic party, the whole effect of the Dred Scott decision was to develop a more determined type of anti-slavery agitation. This tendency was promoted by the lucid and exhaustive opinion of Benjamin R. Curtis, one of the two dissenting judges. Judge Curtis was not a Republican. He had been a Whig of the most conservative type, appointed to the bench by President Fillmore through the influence of Mr. Webster and the advice of Rufus Choate. In legal learning, and in dignity and purity of character, he was unsurpassed. His opinion became, therefore, of inestimable value to the cause of freedom. It represented the well-settled conclusion of the most learned jurists, was in harmony with the enlightened conscience of the North, and gave a powerful rallying-cry to the opponents of slavery. It upheld with unanswerable arguments the absolute right of Congress to prohibit slavery in all the Territories of the Union. Every judge delivered his views separately, but the dissenting opinion of Judge McLean, as well as of the six who sustained the views of the Chief Justice, arrested but a small share of public attention. The argument for the South had been made by the venerable and learned Chief Justice. The argument for the North had been made by Justice Curtis. Perhaps in the whole history of judicial decisions no two opinions were ever so widely read by the mass of people outside the legal profession.

DECISION IN THE CASE OF DRED SCOTT.

It was popularly believed that the whole case was made up in order to afford an opportunity for the political opinions delivered by the Court. This was an extreme view not justified by the facts. But in the judgment of many conservative men there was a delay in rendering the decision which had its origin in motives that should not have influenced a judicial tribunal. The purport and scope of the decision were undoubtedly known to President Pierce before the end of his term, and Mr. Buchanan imprudently announced in his Inaugural address that "the point of time when the people of a Territory can decide the question of slavery for themselves" will "be speedily and finally settled by the Supreme Court, before whom it is now pending." How Mr. Buchanan could know, or how he was entitled to know, that a question not directly or necessarily involved in a case pending before the Supreme Court "would be speedily and finally settled" became a subject of popular inquiry. Anti-slavery speakers and anti-slavery papers indulged in severe criticism both of Mr. Buchanan and the Court, declaring that the independence of the co-ordinate branches of the government was dangerously invaded when the Executive was privately advised of a judicial decision in advance of its delivery by the Court. William Pitt Fessenden, who always spoke with precision and never with passion, asserted in the Senate that the Court, after hearing the argument, had reserved its judgment until the Presidential election was decided. He avowed his belief that Mr. Buchanan would have been defeated if the decision had not been withheld, and that in the event of Fremont's election "we should never have heard of a doctrine so utterly at variance with all truth, so utterly destitute of all legal logic, so founded on error, and so unsupported by any thing resembling argument."

Mr. Lincoln, whose singular powers were beginning to be appreciated, severely attacked the decision in a public speech in Illinois, not merely for its doctrine, but for the mode in which the decision had been brought about, and the obvious political intent of the judges. He showed how the Kansas-Nebraska Act left the people of the Territories perfectly free to settle the slavery question for themselves, "subject only to the Constitution of the United States!" That qualification he said was "the exactly fitted niche for the Dred Scott decision to come in and declare the perfect freedom to be no freedom at all." He then gave a humorous illustration by asking in homely but telling phrase, "if we saw a lot of framed timbers gotten out at different times and places by different workmen,--Stephen and Franklin and Roger and James,--and if we saw these timbers joined together and exactly make the frame of a house, with tenons and mortises all fitting, what is the conclusion? We find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan before the first blow was struck." This quaint mode of arraigning the two President, the Chief Justice and Senator Douglas, was extraordinarily effective with the masses. In a single paragraph, humorously expressed, he had framed an indictment against four men upon which he lived to secure a conviction before the jury of the American people.

The decision was rendered especially odious throughout the North by the use of certain unfortunate expressions which in the heat of the hour were somewhat distorted by the anti-slavery press, and made to appear unwarrantably offensive. But there was no misrepresentation and no misunderstanding of the essential position of the Court on the political question. It was unmistakably held that ownership in slaves was as much entitled to protection under the Constitution in the Territories of the United States as any other species of property, and that Congress possessed no power over the subject except the power to legislate in aid of slavery. The decision was at war with the practice and traditions of the government from its foundation, and set aside the matured convictions of two generations of conservative statesmen from the South as well as from the North. It proved injurious to the Court, which thenceforward was assailed most bitterly in the North and defended with intemperate zeal in the South. Personally upright and honorable as the judges were individually known to be, there was a conviction in the minds of a majority of Northern people, that on all issues affecting the institution of slavery they were unable to deliver a just judgment; that an Abolitionist was, in their sight, the chief of sinners, deserving to be suppressed by law; that the anti- slavery agitation was conducted, according to their belief, by two classes,--fanatics and knaves,--both of whom should be promptly dealt with; the fanatics in strait-jackets and the knaves at the cart's tail.

Chief Justice Taney, who delivered the opinion which proved so obnoxious throughout the North, was not only a man of great attainments, but was singularly pure and upright in his life and conversation. Had his personal character been less exalted, or his legal learning less eminent, there would have been less surprise and less indignation. But the same qualities which rendered his judgment of apparent value to the South, called out intense hostility in the North. The lapse of years, however, cools the passions and tempers the judgment. It has brought many anti-slavery men to see that an unmerited share of the obloquy properly attaching to the decision has been visited on the Chief Justice, and that it was unfair to place him under such condemnation, while two associate Justices in the North, Grier and Nelson, joined in the decision without incurring special censure, and lived in honor and veneration to the end of their judicial careers. While, therefore, time has in no degree abated Northern hostility to the Dred Scott decision, it has thrown a more generous light upon the character and action of the eminent Chief Justice who pronounced it. More allowance is made for the excitement and for what he believed to be the exigency of the hour, for the sentiments in which he had been educated, for the force of association, and for his genuine belief that he was doing a valuable work towards the preservation of the Union. His views were held by millions of people around him, and he was swept along by a current which with so many had proved irresistible. Coming to the Bench from Jackson's Cabinet, fresh from the angry controversies of that partisan era, he had proved a most acceptable and impartial judge, earning renown and escaping censure until he dealt directly with the question of slavery. Whatever harm he may have done in that decision was speedily overruled by war, and the country can now contemplate a venerable jurist, in robes that were never soiled by corruption, leading a long life of labor and sacrifice, and achieving a fame in his profession second only to that of Marshall.

CHIEF JUSTICE TANEY AND MR. SUMNER.

The aversion with which the extreme anti-slavery men regarded Chief Justice Taney was strikingly exhibited during the session of Congress following his death. The customary mark of respect in providing a marble bust of the deceased to be placed in the Supreme Court room was ordered by the House without comment or objection. In the Senate the bill was regularly reported from the Judiciary Committee by the chairman, Mr. Trumbull of Illinois, who was at that time a recognized leader in the Republican party. The proposition to pay respect to the memory of the judge who had pronounced the Dred Scott decision was at once savagely attacked by Mr. Sumner. Mr. Trumbull in reply warmly defended the character of the Chief Justice, declaring that he "had added reputation to the Judiciary of the United States throughout the world, and that he was not to be hooted down by exclamations about an emancipated country. Suppose he did make a wrong decision. No man is infallible. He was a great, learned, able judge."

Mr. Sumner rejoined with much temper. He said that "Taney would be hooted down the pages of history, and that an emancipated country would fix upon his name the stigma it deserved. He had administered justice wickedly, had degraded the Judiciary, and had degraded the age." Mr. Wilson followed Mr. Sumner in a somewhat impassioned speech, denouncing the Dred Scott decision "as the greatest crime in the judicial annals of the Republic," and declaring it to be "the abhorrence, the scoff, the jeer, of the patriotic hearts of America." Mr. Reverdy Johnson answered Mr. Sumner with spirit, and pronounced an eloquent eulogium upon Judge Taney. He said, "the senator from Massachusetts will be happy if his name shall stand as high upon the historic page as that of the learned judge who is now no more." Mr. Johnson directed attention to the fact that, whether wrong or right, the Dred Scott decision was one in which a majority of the Supreme Court had concurred, and therefore no special odium should be attached to the name of the venerable Chief Justice. Mr. Johnson believed the decision to be right, and felt that his opinion on a question of law was at least entitled to as much respect as that of either of the senators from Massachusetts, "one of whom did not pretend to be a lawyer at all, while the other was a lawyer for only a few months." He proceeded to vindicate the historical accuracy of the Chief Justice, and answered Mr. Sumner with that amplitude and readiness which Mr. Johnson displayed in every discussion involving legal questions.

Mr. Sumner's protest was vigorously seconded by Mr. Hale of New Hampshire and Mr. Wade of Ohio. The former said that a monument to Taney "would give the lie to all that had been said by the friends of justice, liberty, and down-trodden humanity," respecting the iniquity of the Dred Scott decision. Mr. Wade violently opposed the proposition. He avowed his belief that the "Dred Scott case was got up to give judicial sanction to the enormous iniquity that prevailed in every branch of our government at that period." He declared that "the greater you make Judge Taney's legal acumen the more you dishonor his memory by showing that he sinned against light and knowledge." He insisted that the people of Ohio, whose opinion he professed to represent, "would pay two thousand dollars to hang the late Chief Justice in effigy rather than one thousand dollars for a bust to commemorate his merits."

Mr. McDougall of California spoke in favor of the bill, and commented on the rudeness of Mr. Sumner's speech. Mr. Carlile of West Virginia spoke very effectively in praise of the Chief Justice. If the decision was harsh, he said, no one was justified in attributing it to the personal feelings or desires of the Chief Justice. It was the law he was expounding, and he did it ably and conscientiously. Mr. Sumner concluded the debate by a reply to Reverdy Johnson. He said that, in listening to the senator from Maryland, he was "reminded of a character, known to the Roman Church, who always figures at the canonization of a saint as the _Devil's advocate_." He added that, if he could help it, "Taney should never be recognized as a saint by any vote of Congress." The incidents of the debate and the names of the participants are given as affording a good illustration of the tone and temper of the times. It was made evident that the opponents of the bill, under Mr. Sumner's lead, would not permit it to come to a vote. It was therefore abandoned on the 23d of February, 1865.

HONORS TO TWO CHIEF JUSTICES.

Nine years after these proceedings, in January, 1874, the name of another Chief Justice, who had died during the recess, came before Congress for honor and commemoration. The Senate was still controlled by a large Republican majority, though many changes had taken place. All the senators who had spoken in the previous debate were gone, except Mr. Sumner, who had meanwhile been chosen for his fourth term, and Mr. Wilson, who had been elevated to the Vice-Presidency. Mr. Howe of Wisconsin, a more radical Republican than Mr. Trumbull, reported from the Judiciary Committee a bill originally proposed by Senator Stevenson of Kentucky, paying the same tribute of respect to Roger Brooke Taney and Salmon Portland Chase. The bill was passed without debate and with the unanimous consent of the Senate.

Mr. Taney was appointed Chief Justice in 1836, when in his sixtieth year. He presided over the court until his death in October, 1864, a period of twenty-eight years. The Dred Scott decision received no respect after Mr. Lincoln became President, and, without reversal by the court, was utterly disregarded. When Mr. Chase became Chief Justice, colored persons were admitted to practice in the courts of the United States. When President Lincoln, in 1861, authorized the denial of the writ of _habeas corpus_ to persons arrested on a charge of treason, Chief Justice Taney delivered an opinion in the case of John Merryman, denying the President's power to suspend the writ, declaring that Congress only was competent to do it. The Executive Department paid no attention to the decision, and Congress, at the ensuing session, added its sanction to the suspension. The Chief Justice, though loyal to the Union, was not in sympathy with the policy or the measures of Mr. Lincoln's administration.